IYAWE v. ERIYO (2022)

IYAWE v. ERIYO

(2022)LCN/16921(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Tuesday, March 15, 2022

CA/B/699/2019

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

MR. GABRIEL IYAWE APPELANT(S)

And

MR. OSAKPAMWAN ERIYO RESPONDENT(S)

RATIO

WHETHER OR NOT A PARTY WHO HAS REASON TO RAISE AN OBJECTION AGAINST ANY GROUND OF APPEAL OR THE ISSUE DISTILLED THEREFROM HAS TO FILE A MOTION TO RAISE THE SAID OBJECTION

I want to start with what is obviously an objection to the competence of issue 2 distilled from grounds 3 and 4 of the appellant’s notice of appeal in the submissions of counsel to the Respondent. There is no valid challenge here, the law being very trite that a party who has reason to raise an objection against any ground of appeal or the issue distilled therefrom has to file a motion to raise the said objection and serve the appellant before he can argue the same at the hearing of the appeal and/or in the brief of argument. Where he fails to do this, there is no valid objection to any of the grounds of appeal or the issue distilled from it. See the case of Onafuye & Ors v. NAOC Ltd (2019) LPELR 50913 (CA) Pp. 4 – 5, para. E. See also Dan Musa v. Inuwa (2007) LPELR- 8295 (CA), PP.15 – 17, para. F, Mukatah v. Akubeze & Ors. (2017) LPELR – 42790 (CA), PP 10 – 11, paras B – A. PER ABUNDAGA, J.C.A.

THE POSITION OF LAW ON WHERE A REPLY IS NECESSARY

The contention was also raised that the fact that the Appellant did not file a reply to the statement of defence amounted to admission of facts stated in the statement of defence, particularly paragraphs 28 – 31 of the statement of defence. This view is not only wrong but misleading. First, it should be noted that in law a reply is necessary where a statement of defence raises a fresh issue that was not raised or anticipated by the statement of claim. See OBIOZOR v. Baby Nnamua (2015) LPELR-23041, Unity Bank PLC v. Bouari (2008) 2 – 3 SC. (Pt. 11) P1. When a Court is faced with the contention that the failure of plaintiff to file a reply should affect the result of the case, the proper approach is first, to enquire whether a reply was essential and secondly, if it was, whether evidence of facts which should have been pleaded in a reply had been adduced and admitted. It is a wrong approach to hold that failure to file a reply to a statement of defence not accompanied by a counter-claim amounted to an admission. See the case of Olumide & Anor v. Aremu & Anor (2019) LPELR – 48 761 (CA) pp. 17 – 19 Para. F. PER ABUNDAGA, J.C.A.

INGREDIENTS THAT MUST BE PRESENT FOR THERE TO BE A BINDING CUSTOMARY ARBITRATION

For there to be a valid and binding customary arbitration, five ingredients must be pleaded:
(a) That there had been a voluntary submission of the matter in dispute to an arbitration of one or more persons.
(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitration would be accepted as final and binding.
(c) That the said arbitration was in accordance with the custom of the parties or of their trade or business.
(d) That the arbitrators reached a decision and published their award.
(e) That the decision or award was accepted at the time it was made.
See the case of Afada Ehoche v. Abu (2002) LPELR- 7054 (CA) pp 9 – 14, paras F – D. See also the case of Duruaka Eke & Ors v. Udeozar Okwaranyia & Ors (2001) 12 NWLR 1403 at 1428 – 1429, where the Supreme Court itemized the said five ingredients. In the two cases, the Court held that anything short of these conditions will make any customary arbitration award risky to be enforced. In other words, unless the conditions are fulfilled, the arbitration award is unenforceable. PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of High Court of Edo State, holden at Benin in Suit No. B/648/2012 delivered by Hon. Justice D. I. Okungbowa on 28/6/2019.

The notice of appeal was filed on 17/9/2019. The notice of appeal contains four grounds of appeal, upon which the appellant prays the Court for an order setting aside the judgment of the lower Court dated 28th June, 2019 striking out the claimant’s suit and entering judgment in favour of the claimant as per his writ of summons and amended statement of claim.

The judgment on appeal is predicated upon the suit of the Appellant who as claimant at the lower Court claimed the following reliefs in his 26 paragraphs amended statement of claim:
1. A declaration that the claimant is the owner and therefore entitled to all that piece/parcel of land measuring approximately 60 feet by 152 feet lying, situate and known as No. 120, Ekehuan Road, Benin City.
2. An order of perpetual and permanent injunction restraining the defendants, his servants, agents and or privies from further acts of trespass to the land aforesaid.

3. The sum of One Million Naira being general damages.

The claims of the Claimant/Appellant were denied by the Defendant/Respondent who pursuant thereto, filed an amended statement of defence of 39 paragraphs. In paragraphs 28 – 32 of the amended statement of defence, the Respondent set up a defence of res judicata based on the fact that there was a binding customary arbitration between the parties which ousted the jurisdiction of the trial Court to adjudicate over the dispute. The Respondent thus averred in paragraph 32 of the amended statement of defence:
“The defendant shall contend at the trial that this Court lacks the requisite jurisdiction to entertain this case, same having been resolved by a customary arbitration vide Oba’s judgment of 5/3/2010.”

At the conclusion of hearing inclusive the addresses of counsel, the trial Court gave judgment in which it sustained the objection based on res judicata. However, the Court still proceeded to determine the case on merits in the event that it is faulted on the issue of jurisdiction. On the merit, he entered judgment for the claimant holding thus:
“I am satisfied on the evidence presented by the claimant that he has shown a better title to the land/property in dispute than that of the defendant and is entitled to the declaration of title sought.”

The Court proceeded to make the following declaration and orders against the defendant:
“1. A declaration that the claimant is the owner and therefore entitled to all that piece/parcel of land measuring approximately 60 feet by 152 feet lying, situate and known as No. 120, Ekehuan Road, Benin City.
2. The defendant shall pay the sum of N100,000.00 to the claimant as general damages for trespass.
3. The defendant, his servants, agents and or privies are perpetually restrained from further trespassing on the land herein adjudged to belong to the claimant.
4. The defendant shall pay cost of N50,000.00 to the claimant.

However, the Court proceeded to strike out the claimant’s suit having earlier held that the Court has no jurisdiction to entertain the suit on the basis of a previous binding customary arbitration. It is against the order striking out the suit that the Appellant filed the instant appeal. Meanwhile, there is no appeal against the judgment on the merit which went in favour of the Appellant.

The record of appeal was transmitted on 27/9/2019, and deemed properly compiled and transmitted on 27/10/21.

Consequent on the due compilation and transmission of the record of appeal, briefs of argument were filed.

The appeal was argued on the appellant’s amended brief of argument settled by Christopher Aghoja. The brief was filed on 13/3/2020 and deemed properly filed and served on 27/10/21.

The Appellant also filed Appellant’s reply brief on 6/1/2020 and deemed properly filed and served on 27/10/21.

For the Respondent, in opposition to the appeal, he filed the Respondent’s brief of argument on 30/12/2019, and deemed properly filed and served on 27/10/2021.

At the hearing of the appeal on 18/01/2022, Juliet Awala with E. Udubriaye who represented the Appellant adopted the Amended Appellant’s brief and the reply brief in urging the Court to allow the appeal.

The Respondent was represented by E. Evbayiro. He adopted the Respondent’s brief of argument, and urged the Court to dismiss the appeal for lacking in merit.

Two issues are distilled for determination from the Appellant’s grounds of appeal in the amended Appellant’s brief of argument. The issues are:
(1) Whether the Respondent led any credible evidence to establish the existence of a valid and binding customary arbitration between the Appellant and the Respondent’s predecessor in title (Grounds 1 and 2).
(2) Whether the purported customary arbitration is not null and void for being conducted in contravention of the principles of fair hearing as enunciated in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (Grounds 3 and 4).

The Respondent also distilled two issues for determination in his brief of argument. The issues are thus:
(1) Whether this honourable Court can/should interference (sic) with the findings of fact by the lower Court when it has not been shown to be perverse.
(2) Whether the mere claim of denial of fair hearing can avail the Appellant herein.

The issues formulated by the Appellant and the Respondent boil down to the determination of the question whether there was proof of a customary arbitration between the Appellant and the Respondent’s predecessor in title, and if there was any such customary arbitration, whether it was not done in breach of the Appellant’s right to fair hearing such that would render it null and void.

The issues formulated by the Appellant are better suited to the arguments proffered. I hereby adopt them for the determination of this appeal. However, the issues are preferably better considered together.

The first issue I consider to be settled is whether it has been established that there was a customary arbitration between the Appellant and the Respondent’s predecessor in title.

It is submitted for the appellant that the Respondent pleaded the customary arbitration in paragraphs 28, 29, 30 and 31 of his statement of defence which the Appellant denied in paragraph 21 of his amended statement of claim. Appellant’s counsel therefore submits that the burden of proof of the customary arbitration on the state of pleadings was on the Respondent who asserted it. Submits that from the evidence of defence witnesses, particularly DW1, DW2, DW3 and DW5, after the hearing at the arbitration, the Oba gave a judgment. However, the judgment was not tendered in evidence at the hearing of this suit. Counsel points to contradiction between the evidence of DW1 and DW2 under cross- examination. The law, counsel submits is that where the evidence of one witness called by a party contradicts another witness on a material point, it is not competent for the Court or the party to pick and choose between the two contrasting pieces of evidence. Counsel submits that in that instance both versions must be rejected by the Court. Counsel relies on the case of Eke v. State (2011) 3 NWLR (Pt. 1235) 589 at 593, Christopher Onubogu & Anor V. State (2004) 1 LC 735.

Further submitted by appellant’s counsel is that from the synopsis of evidence led by the Respondent there is in existence the following documents in proof of the customary arbitration:-
(1) That there is written report of the proceedings of the arbitration.
(2) That an attendance register of the meetings of the panel was kept.
(3) That the Oba of Benin wrote his judgment and gave the parties concerned on the day he purportedly delivered the judgment.

Counsel further submits that against the denial of the Appellant that there was arbitration the aforementioned documents became hangar with which to assess and evaluate the oral evidence of the parties. That the failure to produce any or all the documents is fatal to the case of the Respondent. Reliance is placed for his submission on Abubakar v. Waziri (2008) All FWLR (Pt. 436) 2025 at 2047, Egharevba v. Osagie (2010) All FWLR (Pt. 573) 1255 at 1277.

Counsel therefore submits that by virtue of Section (167) (d) of the Evidence Act, the failure of the Respondent to produce the documents is fatal to his case. Counsel further relies on the cases of Igbeke v. Emordi (2010) 11 NWLR (Pt. 1204) 2 at 8, Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1, Aremu v. Adetoro (2007) 16 NWLR (Pt. 1060) 244.

Submits that Exhibit 1 has no probative value because it is not the purported judgment given to the parties in the day it was delivered by the Oba of Benin. Rather, Exhibit 1 is a letter written in response to a letter dated 05/01/2010 from one J. Ikpewe, Esq. Exhibit 1, counsel points out is dated 5/3/2010 and barren of all necessary information, especially the names of the chiefs who resolved the issue, the date the judgment was delivered by the Oba etc. Exhibit 1, counsel submits did not deserve to be awarded any probative value by the trial Judge, as the evidence led by the Respondent is not and cannot be credible for the reasons counsel stated in the brief of argument.

Submits that in the light of the yawning monumental gaps and contradictions in the case presented by the Respondent, the lower Court was clearly wrong in coming to the conclusion that the evidence led in support of the arbitration proceedings preponderate in favour of the Respondent.

Further submission of the Appellant is that the customary arbitration was carried out in infringement of his fundamental right to fair hearing as guaranteed in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Submits that any judgment delivered in favour of a party where the Judge did not take evidence or listen to the parties is null and void by virtue of the said Section 36(1) of the Constitution.

In the submission, counsel quarreled with the validity of the judgment delivered by the Oba who was not present at the sitting of the panel and did not listen, see and watched their demeanour. He referred to the evidence of DW1 under cross-examination in which he stated that the Oba was not present at any of the sittings of the panel. That at the end of the sitting of the panel, they submitted a report to the Oba. The implication of the evidence of this witness, counsel submits is that the Oba relied on the report of the Committee in reaching his purported judgment. Counsel faults the learned trial Judge in holding that the purported judgment (Exhibit 1) Constitutes res judicata. Counsel refers to and relies on the case of Shanu v. Afribank PLC (2003) 4 WRN 42. Submits further that the purported Judgment is hearsay by virtue of Sections 37 and 38 of the Evidence Act, 2011. Counsel further queries whether there can be fair hearing in the absence of a Judge. In answering the question in the negative, counsel relies on the case of Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452 at 504 – 505.

It is further submitted for the Appellant that the depositions of DW4 and DW3 show that it was after the Oba of Benin had listened to the Respondent and his witness that the claimant and the Okaegbe (head of family) were invited to the palace of the Oba in furtherance of the purported arbitration which means that the panel received evidence of the Respondent and his witnesses in the absence of the Appellant. This counsel submits is an admission of the infraction of fair hearing. Counsel in this submission relies on the case of Prof. Dupe Olatunbosun v. Nig. Institute of Social and Economic Research Council (1988) (SC) LPELR – 136/1989 and (1988) NWLR (Pt 80) 25.

Counsel further cites the case of Orakul Resources Ltd & Anor V. Nigerian Communications Ltd & Ors (2007) 16 NWLR (Pt.1060) 270 where it was held that a breach of the right of fair hearing nullifies the trial. Other cases cited on breach of right of fair hearing includes Aiyetan v. Nifor (1987) 3 NWLR (Pt. 59) 48.

For the Respondent, it is submitted that the trial Judge made findings of facts after a careful evaluation of the evidence including Exhibit 1 upon which it reached its judgment. That in the absence of it being established to be perverse, the Court of Appeal cannot interfere.

Submits that the genuiness of Exhibit 1 was not challenged at the lower Court and therefore it forms estoppel. That the Appellant cannot now be allowed to hold that there was no customary arbitration. That the Respondent specifically pleaded the facts in support of arbitration in paragraphs 28 – 32 of his statement of defence but the Appellant failed to file a reply, and did not also raise any issue over Exhibit 1. Submits that the Appellant’s averment in paragraph 21 of his amended statement of claim does not amount to denial of defendant’s paragraphs 28 – 32 of the statement of defence, it being a general traverse which is not sufficient in law.

It is further submitted that the Appellant failed to cross-examine DW1 on the material evidence given on the customary arbitration leading to Exhibit 1, and submits that failure to cross-examine a witness on material evidence is a tacit admission of the evidence. Relies on Oyewinle v. Iragbiji (2012) All FWLR (Pt. 731) 1536 at 1546 ratio 13.

Submits that the Appellant’s submission that Exhibit 1 is a letter not a judgment is misconceived. That Exhibit 1 is a judgment.

It is further contended for the Appellant that there is no legal requirement that the Oba’s Judgment must be in writing since documentary evidence is unknown to Native Law and Custom. Reliance is placed on the case of Osagie v. Obazee (2014) All FWLR (Pt. 750) 1344 at 1313 ration 6. Further submission is that Exhibit 1 is the best evidence on whether or not there was customary arbitration between the parties as documentary evidence is the hangar on which to assess oral evidence. On the appellant’s submission in relation to the absence of the Oba at the panels’ sitting, counsel submits that there is no known law under Benin Custom or English Law which requires the Oba to be personally present at the sitting of the panel having set up same. That appellant’s submission on this issue is not a live issue which this Court can be relied upon to decide. Submits that this is a fresh issue, which requires leave of this Court to be raised. – Relies on Olaoye v. Makanjuola (2018) All FWLR (Pt. 945) 866 at 882, ratio 21 – 22.

On the alleged breach of Section 36(1) of the Constitution of Nigeria, 1999 (as amended) counsel submits that there is no law that requires the Oba of Benin to rely on the written testimonies and witnesses to come to a conclusion on the case having set up a panel of chiefs according to Benin practice. Submits further that the case of Shanu v. Afribank PLC (supra) cited by the Appellant is not applicable since that case was on a judicial proceedings whereas the instant case borders on customary arbitration which is sui geniis – Relies on Nitel v. Okeke (2017) All FWLR (Pt. 899) 196 at 200, ratio 6, P. 231 paras B – C.

It is further contended for the Respondent that the Appellant has failed to challenge the award of the arbitration or to have it set aside, and therefore it subsists. The Appellant’s suit, counsel further argues, is caught by estoppel per rem judicata. Reliance is placed on Benjamin v. Kalio (2018) All FWLR (Pt. 920) 1 at 11.

The Court is therefore urged to dismiss the appeal with N500,000.00 (Five Hundred Thousand Naira) costs against the appellant.

I want to start with what is obviously an objection to the competence of issue 2 distilled from grounds 3 and 4 of the appellant’s notice of appeal in the submissions of counsel to the Respondent. There is no valid challenge here, the law being very trite that a party who has reason to raise an objection against any ground of appeal or the issue distilled therefrom has to file a motion to raise the said objection and serve the appellant before he can argue the same at the hearing of the appeal and/or in the brief of argument. Where he fails to do this, there is no valid objection to any of the grounds of appeal or the issue distilled from it. See the case of Onafuye & Ors v. NAOC Ltd (2019) LPELR 50913 (CA) Pp. 4 – 5, para. E. See also Dan Musa v. Inuwa (2007) LPELR- 8295 (CA), PP.15 – 17, para. F, Mukatah v. Akubeze & Ors. (2017) LPELR – 42790 (CA), PP 10 – 11, paras B – A.

Thus, the Respondent’s objection raised in issue two is not validly raised, and cannot be entertained.

The Respondent also raised the issue that paragraph 21 of the amended statement of claim is a mere sweeping denial, and does not answer to the specific, detailed and weighty facts in paragraphs 28 – 32 of the statement of defence.

In paragraph 21 of the amended statement of claim, the Claimant/Appellant averred:
“The claimant avers that no members of late Mr. Jacob Iyawe Ese appeared before the palace of Oba of Benin in respect of any matter concerning the distribution of the Estate of late Jacob Iyawe Ese neither were they aware of any report in any police station.

Supposedly, the statement of defence was filed in response to the amended statement of claim. Similarly, paragraphs 28 – 31 referred to by the Respondent were in response to paragraph 21 of the amended statement of claim. Certainly, a statement of claim must precede a statement of defence. It is the Respondent therefore that traversed the Appellant’s averment in paragraph 21 of his amended statement of claim in paragraphs 28 – 31 of the Respondent’s statement of defence, and not the other way round as suggested/contended by the Respondent. Therefore I do not agree with the Respondent’s submission on the point.

The contention was also raised that the fact that the Appellant did not file a reply to the statement of defence amounted to admission of facts stated in the statement of defence, particularly paragraphs 28 – 31 of the statement of defence. This view is not only wrong but misleading. First, it should be noted that in law a reply is necessary where a statement of defence raises a fresh issue that was not raised or anticipated by the statement of claim. See OBIOZOR v. Baby Nnamua (2015) LPELR-23041, Unity Bank PLC v. Bouari (2008) 2 – 3 SC. (Pt. 11) P1. When a Court is faced with the contention that the failure of plaintiff to file a reply should affect the result of the case, the proper approach is first, to enquire whether a reply was essential and secondly, if it was, whether evidence of facts which should have been pleaded in a reply had been adduced and admitted. It is a wrong approach to hold that failure to file a reply to a statement of defence not accompanied by a counter-claim amounted to an admission. See the case of Olumide & Anor v. Aremu & Anor (2019) LPELR – 48 761 (CA) pp. 17 – 19 Para. F.

There was in this instant case nothing to reply to by the Appellant who had already in paragraph 21 of his amended statement of claim stated clearly that no member of their family appeared before the palace of Oba of Benin, which averment the Respondent responded to in paragraphs 28 31 of his statement of defence. Clearly, therefore, there was no admission of customary arbitration by the Appellant.

It was also contended by the Respondent that the Appellant failed to cross-examine DW1 on the material evidence given on customary arbitration leading to Exhibit 1, and therefore the failure amounted to tacit admission of the evidence of DW1.

The veracity of this admission can only be confirmed from the record of appeal, especially from the evidence of DW1.

DW1 – Chief Usiosefe Ekundayo gave evidence on 30/5/2018. After he had adopted his witness statement which he deposed to on 13/03/2018, he was cross-examined by counsel to the Appellant, Mr. C. Aghoja who led two other counsel, P.E. Uhinfo and Mrs, F.O. Otokiti.

Under cross-examination, the said DW1 gave the following testimony:
I was the Chairman of about five men panel set up by the Oba of Benin. It is true that the Oba of Benin was not present at any of the sittings of the panel but he gave a final judgment. At the conclusion of the panel’s activities, we wrote a report and submitted to the Oba of Benin. I do not have a copy of the panel’s report here with me because every copy was submitted to the Oba of Benin. I know one P.I. Ogieva. I do not know if the said P.I. Ogieva is the Okaegbe of Iyawe Ese’s family. There are no minutes of the sittings of the panel. We have attendance list of the sittings of the panel. The attendance register is not here with me in Court. It is not correct to say that the claimant never appeared before the panel. I chaired at the palace. I confirm the content of paragraph 9 of my written statement on oath. I was not present when Samson Iyawe made his choice of his inheritance. I do not know who the Okaegbe of Iyawe Ese’s family is. It is not correct to say that I was not the chairman of the customary arbitration panel set up by the Oba of Benin. I was the chairman.

The testimony of DW1 under cross-examination above leaves me in no doubt that the said DW1 was subjected to rigorous cross-examination on the customary arbitration. I begin to wonder whether the Respondent’s counsel adverted his mind to this portion of the record of appeal and appreciated DW1’s testimony properly before his submission that the Appellant failed to cross-examine DW1 on the customary arbitration. I would rather want to see the submission as a failed attempt to mislead the Court. I am not in the least amused or impressed.

I am left in no doubt that the Appellant effectively denied the fact that there was a customary arbitration to which he submitted and participated in. That leaves the Respondent with the onus of proof. Proof that the Appellant submitted himself to, and participated in a customary arbitration.

For there to be a valid and binding customary arbitration, five ingredients must be pleaded:
(a) That there had been a voluntary submission of the matter in dispute to an arbitration of one or more persons.
(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitration would be accepted as final and binding.
(c) That the said arbitration was in accordance with the custom of the parties or of their trade or business.
(d) That the arbitrators reached a decision and published their award.
(e) That the decision or award was accepted at the time it was made.
See the case of Afada Ehoche v. Abu (2002) LPELR- 7054 (CA) pp 9 – 14, paras F – D. See also the case of Duruaka Eke & Ors v. Udeozar Okwaranyia & Ors (2001) 12 NWLR 1403 at 1428 – 1429, where the Supreme Court itemized the said five ingredients. In the two cases, the Court held that anything short of these conditions will make any customary arbitration award risky to be enforced. In other words, unless the conditions are fulfilled, the arbitration award is unenforceable.

There are two indisputable facts from the evidence in this appeal:
(1) That the Oba of Benin set up or constituted the Committee (that is panel) but in all of its sitting, he was not in attendance. The Committee completed its assignment and gave him a report which he used to write his judgment. Under cross-examination DW1 stated:
“It is true that the Oba of Benin was not present at any of the sittings of the panel but he gave a judgment”. This was confirmed by DW2 who stated under cross-examination:
“it was on the day that the Oba was present that he delivered judgment”.

Agitated by this procedure, learned counsel to the Appellant submitted that the trial Judge was in error when he came to the conclusion that the so called judgment could constitute res judicata. He relied on the case of Shanu v. Afribank PLC (2003) 4 INRN 42 where the Supreme Court held:
“Where an inquiry is commenced before one adjudicator and completed by another, the second adjudicator cannot as a rule decide upon the evidence given by the first. It is the principle that the judicial discretion which an adjudicator has to exercise in cases brought before him must be based upon the evidence taken before him, and it is not competent for him generally to act upon evidence taken before another adjudicator unless there is a statutory provision permitting the procedure.”

Learned counsel to the Respondent argues that this case is not applicable to the instant appeal because, while it is a judicial proceedings, the instant appeal is a customary arbitration. I agree with him. A customary arbitration cannot be equated with a judicial proceedings, The Oba of Benin is the custodian of the custom and tradition of his people. I can see nothing wrong with him setting up a Committee of chiefs and elders to look into disputes amongst his people with a mandate to make a report and recommendation to him which he may either accept or reject. The burden will certainly lie on the person who alleges that the Oba’s action infringes on the custom and tradition of the people to prove. What is important is that before such an arbitration could be accepted as final and binding, it must meet all the conditions established in law. I have earlier stated those conditions which are five, in the course of this judgment.

Before the Court, there is no evidence that the action of the Oba in setting up a Committee of chiefs and elders to sit on arbitration as was done in this case is against the custom and tradition of Benin people. Therefore the argument of appellant’s counsel does not fly.

The second issue that arises from the proceedings at the lower Court as to what allegedly transpired at the arbitration proceedings is that the Appellant was called to the Oba’s palace after the Judgment. That means that he was not given a hearing before the Panel concluded its sitting and gave the report to the Oba and based on which the Oba gave his decision. On this issue, I refer to the witness statement on oath of Eghosa Samson Iyawe sworn to on 13th March, 2018, and adopted as his evidence in chief as DW2. See paragraphs 16 and 17 thereof. I wish also to refer to and rely on the witness statement on oath of Macpherson Samson Iyawe, deposed to on 13th March, 2018 as DW4. See particularly paragraphs 16 and 17 thereof. The fact of the Appellant being called only after the judgment is a fundamental issue to the complaint by the Appellant that he was not given fair hearing. However, the Respondent failed to address it in his brief of argument instead he drifted into a different argument to submit that there is no law that requires the Oba of Benin to rely on the written testimonies of witnesses to come to a conclusion on the case having set up a panel of chiefs according to Benin Customary practice. If one takes time to painstakingly read the written statement on oath of the witnesses that testified for the respondent, it will be seen that while some testified that the parties were all present and given a hearing, others – DW2 and DW4 gave evidence that the appellant was only called after the judgment. There are clear inconsistencies in the evidence of the witnesses on this point. If both are rejected, it can only lead to the conclusion that the appellant’s complaint of lack of fair hearing remain unanswered by the respondent. As submitted by the appellant’s counsel, that the panel received evidence of the respondent and his witnesses in the absence of the appellant is itself an admission of the infraction of the rule of fair hearing, which can only attract a nullification of the customary arbitration if indeed one was validly held. See Orakul Resources Ltd. & Anor v. Nigeria Communications Commission & Ors (supra), Prof. Dupe Olatunbosun v. Nigeria Institute of Social and Economic Research Council (1988) NWLR (Pt. 80) 25.

I will now consider the issue whether the respondent led any credible evidence to establish the existence of a valid and binding customary arbitration between his predecessor in title and the appellant.

Learned counsel for the appellant pointed out that from the synopsis of evidence in the case the following documents were proved to be in existence in proof of the customary arbitration:
“(1) That there is a written report of the proceedings of the arbitration panel which was delivered to the Oba of Benin.
(2) That an attendance register of the meeting of the panel was kept.
(3) That the Oba of Benin wrote his judgment and gave to the parties concerned on the day he purportedly delivered the judgment.

It is therefore submitted that against the backdrop of the appellant’s denial of an arbitration proceedings, the documents became a hanger with which to assess and evaluate the oral evidence of the parties. The failure to produce any, or all of the documents, counsel further submits is fatal to the case of the respondent.
I cannot agree more with counsel on this submission. The cases cited by counsel on this submission – Abubakar v. Waziri (2008) All FWLR (Pt. 436) p. 2025 at 2047, Egharevba v, Osagie (2010) All FWLR (Pt. 573) 1255 at 1277 are apt.
This situation in my view, elicits the invocation of Section 167(d) of the Evidence Act, 2011.

The respondent made heavy weather of Exhibit “1” and placed much premium on it as the judgment of the customary arbitration. As submitted by the appellant’s counsel, Exhibit “1” has no probative value. It cannot qualify as the judgment which was said to have been delivered by the Oba of Benin. It is purportedly a letter written by the secretary of the Oba of Benin in response to a letter dated 25th January, 2010 from one J. Ikpewe, Esq. The letter is dated 5th March, 2020. It bears no information on the date the judgment of the customary arbitration was delivered, and the names of the chiefs who resolved the issue were not disclosed. The addressee on Exhibit “1” is J. Ikpewe, Esq., John Ikpewe & Co, Barristers and Solicitors, 96, Siluko Road, Benin City.

DW5 in his evidence stated that Exhibit “1” was personally handed over to him by secretary to the Oba of Benin. This piece of evidence conflicts with the evidence of DW1 who in his written deposition stated that the Oba of Benin gave copies of his judgment to the parties concerned. The question might be asked if indeed the Oba gave copies of his judgment to the parties concerned, why was it difficult for the respondent to obtain the copy given to his predecessor in title, so as to tender it in evidence in the light of the appellant’s denial of a customary arbitration in respect of the land in dispute between him and the respondent’s predecessor in title?

In his submission, learned counsel to the respondent contended that the trial Judge made findings of fact on page 279 lines 10 – 21 of the record after a careful evaluation of the available evidence including Exhibit ‘1″ upon which it reached its judgment. That the Court of Appeal cannot interfere with or disturb it since it has not been established that it is perverse as occasioned any miscarriage of justice. Really? I think I should take a short judicial trip to the record of appeal, particularly pages 278 – 280 of the record to ascertain the cogency of the submission of appellant’s counsel.

The learned trial Judge at page 278 lines 20 – 21 to page 279 lines 1 – 9 stated:
“DW1 testified that the judgment of the Oba of Benin on the dispute between the parties was given to the parties the said judgment was not tendered in evidence. What was tendered is a reply to solicitor’s letter signed by the secretary to the Oba of Benin. Ordinarily, the content of a document is provable by the production of the document itself, and oral evidence of the content of a document not produced in Court is inadmissible.
It is also the law on withholding evidence, i.e. Section 167(d) of the Evidence Act, 2011 that there is a presumption that the document was not produced because its content would be unfavourable to the person who failed to produce it.”

Having stated the above, there is no justification for the same learned trial Judge to find in favour of a binding customary arbitration on page 279 lines 10 – 21 to page 280 lines 1 – 14 of the record wherein he stated:
“Be that as it may, when the evidence of the defendant’s witnesses and Exhibit 1 are considered holistically and put on an imaginary scale of justice, it preponderates in favour of holding that there was indeed a customary arbitration at the Palace of the Oba of Benin in which DW1 was the chairman of the panel of chiefs constituted by the Oba of Benin to look into the matter, that the Oba of Benin made an award on the issue as communicated to one J. Ikpewe Esq., in Exhibit 1. The genuiness of Exhibit 1 was not raised.
P.I. Ogieva is not the claimant and the fact that he was avoiding the palace cannot be taken to mean that the claimant did not voluntarily submit to the customary arbitration of the palace of the Oba of Benin.
Similarly, the fact that the claimant went into hiding instead of leaving the property and handing over the title document to DW4 does not mean that he did not accept the award. It only shows that he failed to comply with the award. Rejection of an award ought to be at the time the award is made and not afterwards. There is no evidence that the award was rejected in the presence of the Oba who made the award.
From the foregoing, I hold that the defendant has successfully proved the existence of a valid and binding customary arbitration between the claimant and the defendant’s predecessor in title.
Where, as in this case, the defendant successfully proved the existence of a customary arbitration, the claimant cannot be allowed to relitigate the matter all over again. See the case of OKOYE v. OBIASO (SUPRA). In the circumstances, I hold that this suit is caught by the doctrine of res judicata which robs the Court of its jurisdiction to entertain same.”

In my view, the finding of the learned trial Judge in favour of the customary arbitration between the appellant and the respondent’s predecessor that can constitute res judicata is perverse. What amounts to a perverse decision was thus defined in the case of Audu Adingarwa & Ors v. Ibrahim Assandariyu (2021) LPELR – 54645 (CA), Pp. 29 – 30 paras E – C, thus:
“The question is: What is a perverse decision? A perverse decision was defined by the Apex Court in ATOLAGBE VS. SHORUN (1985) 1 NWLR (PT. 2) 360, where his Lordship Oputa, JSC held thus: “Perverse simply means persistent in error, different from what is reasonable or required, against weight of evidence. A decision may be perverse where the trial judge took into account, matters, which he ought not to have taken into account or where the judge shuts his eyes to the obvious.” See also UDENGWU VS. UZUEGBU & ORS (2003) 13 NWLR (PT. 836) 136, ADIMORA VS. AJUFO (1988) 3 NWLR (PT. 80) 1 and MAMONU & ANOR VS. DIKAT & ORS (2019) LPELR – 46560 (SC).”
Per UWA, JCA (Pp. 29-30, paras. E-C)
See also Fixity Investment Ltd. v. Gumel (2016) LPELR-41549(CA), pp. 12 – 13, paras E – A.

In law, a perverse finding of the Court below cannot in fairness be allowed to stand – Usman v. Kilange (2015) LPELR- 40627 (CA) p. 60 paras. D – E, Odumosu & Ors v. Oluwole & Anor (2002) LPELR- 12307 (CA), P. 50 paras. A – B, Jolayemi & Ors v. Alaoye & Anor (2004) LPELR – 1625 (SC), pp. 36 – 37, paras. E- A.

The two issues thus having been resolved in favour of the appellant, the appeal has merit, and is hereby allowed. In consequence, the judgment of the trial Court delivered on 28th June, 2019 striking out the suit is hereby set aside.

UCHECHUKWU ONYEMENAM, J.C.A.: I have read before now the lead judgment just delivered by my learned brother, JAMES GAMBO ABUNDAGA, JCA.

I agree with the holdings of my learned brother in the two issues submitted for determination in the lead judgment, I also hold that the appeal has merit and the same is accordingly allowed. I too set aside the judgment of the High Court of Edo State, sitting at Benin, delivered on 28th June, 2019 by D. I. OKUNGBOWA J, in Suit No: 3/648/2012.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the opportunity of reading in advance the judgment just delivered now by my Lord, JAMES GAMBO ABUNDAGA JCA and I am in agreement with the reasoning and conclusion therein. They are well thought out and I have nothing more to add except to say that:
For a Court to rely on a customary arbitration, it must be valid and binding and possess all the necessary ingredients/conditions for a binding customary arbitration. See the cases of MARK v IRONU & ORS (2019) LPELR – 47026 (CA) and UDOSEN v NDE (2019) LPELR – 47157 (CA).

The customary arbitration between the Appellant and the Respondents predecessor lacks the requisite conditions, therefore has no binding force.

For this and all other reasoning in the judgment, I too hold that the appeal is meritorious and accordingly succeeds.

The judgment of the High Court of Edo State delivered by Hon. Justice D. I. Okungbowa on 28th June, 2019 is hereby set aside.

I abide by all other consequential orders in the leading judgment.