MR. CHIKE ORJIEKWE & ANOR V. MRS. NGOZI ORJIEKWE & ANOR
(2012)LCN/5765(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 19th day of December, 2012
CA/E/30/2008
RATIO
ARBITRATION: WHETHER PEOPLE CAN RESORT TO CUSTOMARY ARBITRATION TO RESOLVE THEIR DISPUTE
It is no doubt now settled law that people can resort to customary arbitration for the purpose of resolving their dispute and that the law will not allow parties to a customary arbitration to resile from the decision given by the customary arbitrators. However, before parties to a customary arbitration can be held to be bound by the decision arrived thereat, the law has also set out clearly the conditions that must be shown to exist. See in this regard the case of AGU V. IKEWIBE (supra), cited by the parties herein and which was decided by the Supreme Court on 19/4/1991. The case is also reported as (1991) 4 SCNJ 56. The Supreme Court dwelling on customary arbitration in the case, stated per Karibi-Whyte, JSC; at pages 70 -72, thus:-
“It is somewhat of a surprise in view of the evidence before the learned justice of the Court of Appeal by both parties to the appeal before him ad submissions of learned counsel that he can hold and express such a strong view about a practice relied upon by the parties. The learned justice of the Court of Appeal held the view that on the strength of decided cases that the concept of customary arbitration was peculiar to the Akans of Ghana and declared at p.573:
“……………..
Without conceding that Nigerian law recognizes customary arbitration, the learned justice went on to hold that in the light of the vesting of the judicial powers of the Constitution in the Courts named in S.6(5) of the Constitution 1979, any other exercise of judicial power would be unconstitutional and invalid. Any question as to Arbitration could only apply to the extent that and in the manner permitted by the Arbitration Act.
There seems to me some misconception about some of the provisions of Constitution 1979, and the freedom between disputing parties to settle their differences in the manner acceptable to them. It is clearly unarguable that the judicial powers of the Constitution in S.6(1) is by S.6(5) vested in the Courts named in that section. Not so a Customary arbitration. What then is customary arbitration? I venture to regard Customary law arbitration as an arbitration is dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either Chiefs of Elders of their community, and the agreement to be bound by such decision or freedom to resile where unfavourable.
In the first place a customary arbitration is not an exercise of the judicial power of the Constitution not being a function undertaken by the Courts. Secondly, customary law is by virtue of Section 274(3),(4)(b) an “existing law” being a body of rules of law in force immediately before the coming into force of the Constitution 1979. Thus customary law which includes customary arbitration was saved by Section 274(3)(4)(b) of the Constitution 1979. See Giwa v Inspector-General of Police (1985) 6 N C.L.R. 369, Enyinna v. Commissioner of Police (1985) N.C.L.R. 464.
It is well-accepted that one of the many African modes of settling disputes is to refer the dispute to the family head or elders of the community for a compromise solution based upon the subsequent acceptance by both parties of the suggested award, which becomes binding only after such signification of its acceptance, and from which either party is free to resile at any stage of the proceedings up to that point. This is a common method of settling disputes in all indigenous Nigerian societies…………….
It can be deduced from the above decisions that Nigerian Law recognises arbitrations at customary law which are distinct and different arbitration under statute, if the following conditions are satisfied:-
(a) If parties voluntarily submit their dispute to a non-judicial body to wit their Elders or Chiefs as the case may be for determination; and
(b) The willingness of the parties to be bound by the decision of the non-judicial body or freedom to reject the decision where they are not satisfied is indicated.
(c) Neither of the parties has resiled from the decision so pronounced.”
In the case of OJIBAH V. OJIBAH (supra) cited by the Respondent and which was decided on 28/6/1991 and also reported as (1991) 6 SCNJ 156, the Supreme Court again had cause to dwell on customary arbitration and the Court per Nnaemeka-Agu, JSC; at page 169 stated thus: –
“As I indicated above, I do not think from the concurrent findings of the courts below on the point that the appellant expressed any reservation during the submission of the dispute to the customary arbitration body. I should also accept the concurrent finding that he did not even resile from the decision against him soon after the arbitral body handed down their award but that he tried to do so afterwards. He could not do that. In my view, the law is pretty settled that where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to customary law and agreed expressly or by implication that the decision of the arbitrators would be accepted as final and binding, then once the arbitrators reach a decision; it is not no longer open to either party to subsequently back out of such a decision.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
EVIDENCE: CIRCUMSTANCES WHERE AN ADMISSION AGAINST INTEREST WILL BE VALID IN FAVOUR OF THE ADVERSE PARTY
“Admission against interest” in my considered view never arises in vacuo. See in this regard the case of ODUTOLA V. PAPERSACK NIGERIA LTD (2006) 28 NSCQR 470, in which the Supreme Court dwelling on “admission against interest” per Tobi, JSC; stated thus at page 494:-
“I realize that the so-called admissions in Exhibits P3, P6 and the evidence of 1st appellant under cross-examination did not reflect the true legal position of the matter in respect of the status of the tenancy. There was a clear mistaken belief on the part of the parties as to the true legal position and this court cannot deviate from the position of the law merely because there are admissions; admissions which are not borne out in law. After all, this is a court of law and must therefore uphold the law as its clientele.
An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the court; it must also vindicate and reflect the legal position. Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intents and purposes as superfluous. And a court of law is entitled not to assign any probative value to it.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
EVIDENCE: WHETHER DOCUMENTS MADE BY A PERSON INTERESTED WHEN PROCEEDINGS ARE PENDING ARE ADMISSIBLE
The authorities are at one that documents made by a person interested when proceedings are anticipated or pending are inadmissible in civil proceedings. See NIGERIA SOCIAL INSURANCE TRUST FUND MANAGEMENT BOARD V. KLIFCO NIGERIA LTD. (2010) All FWLR (Pt.5344) 73; and OWIE V. IGHIWI (2005) 22 NSCQR 297. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. MR. CHIKE ORJIEKWE
2. MR. GODSON ORJIEKWE Appellant(s)
AND
1. MRS. NGOZI ORJIEKWE
2. CYRACUS ONYEDIKA Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 28/6/2008 by the Anambra State High Court of Justice, holden at Onitsha Judicial Division (hereafter simply referred to as “the lower court”) presided over by Hon. Justice J.I. Nweze (hereafter simply referred to as “the learned trial Judge”).
The case was tried upon pleadings filed and exchanged by the Plaintiff and 2nd Defendant and the pleadings of the said parties were amended as considered appropriate. The Plaintiff who initiated the action died during its pendency and was substituted by the parties on record as Appellants herein, by the order of the lower court made on 22/3/1996. The 1st Defendant in the action equally died during its pendency before the lower court and the said deceased 1st Defendant was also substituted at the lower court with the present 1st Respondent on record in the appeal. The facts of the case as gathered from the Further Amended Statement of Claim dated 13/5/2005 and filed on the same date before the lower court are that the Appellant’s father was the lease-hold owner of the property known as No. 9 Miss Elems Street, Fegge-Onitsha, pursuant to a building lease dated 28/9/1962 and registered as No. 83 at Page 83 in Volume 329 of the Lands Registry Enugu (now Awka). The 1st Defendant in the process – Samuel Orjiekwe, is said to be the first son of the Appellants’ father, while the 2nd Respondent is a businessman in Onitsha. The Appellants not only claimed that their father had been in possession and occupation of the property since the time of the lease but narrated some acts their father exercised in the use and enjoyment of the property. It is the case of the Appellants that sometime in September, 1991; their father was confronted by the 2nd Respondent who claimed to now own the property and started making moves to take possession of the same. That the 2nd Respondent with the use of the Police and intimidation, dispossessed the Appellants’ father of the property by alleging that the said Appellants’ father and Samuel Orjiekwe sold the property to him and thereafter commenced moves to obtain necessary title papers from the Appellants’ father and which moves the Appellants’ father resisted. The Appellants’ father was subsequently arrested and detained for two weeks by the Police at the instigation of the 2nd Respondent who also went about boasting that the Appellants’ father will not be granted bail until he signed the document to perfect the 2nd Respondent’s ostentatious title. That not only were the applications for bail made by the Appellants’ father refused by the Onitsha Area Commander – Mr. I.N. Onozie, but the 2nd Respondent’s complaint to the Police was later followed up with a criminal charge preferred against the Appellants’ father and which charge has long been struck out. The Appellants claimed that sometime in 1998, Samuel Orjiekwe surfaced from nowhere and that the sighting was reported to both the Area Commander’s office and Chief Ezeuko SAN (of blessed memory) but that they do not know what was made of the said Samuel Orjiekwe by these people. The Appellants stated that Samuel Orjiekwe died in 1998 and that it was when they came for the burial of the said Samuel Orjiekwe that they saw an affidavit made by him detailing what he did with the 2nd Respondent with respect to the property in dispute. In the premises, the Appellants claimed against the Samuel Orjiekwe and the 2nd Respondent jointly and severally the following reliefs:-
“a) A declaration that the Plaintiff is the person entitled under the Land Use Act to the right of occupancy in respect of the property known as No. 9 Miss Elem’s Street, Onitsha within jurisdiction.
b) N200,000.00 being damages against the Defendant (sic) jointly and severally for trespass into the aforesaid property known as No. 9 Miss Elem’s Street Fegge – Onitsha.
c) Perpetual injunction restraining the above-mentioned Defendants, their Servants, Agents and Privies from committing further acts of trespass into the aforesaid property.”
I cannot but state that I find it most amazing that the Appellants in a process (i.e. Further Amended Statement of Claim) dated 13/5/2005 and filed on the same date could be claiming anything against the 1st Defendant in the process when by their own showing the said 1st Defendant died sometime in 1998. The case of the 2nd Respondent as gathered from his Further Amended Statement of Defence and Counter-Claim dated 27/4/2006 and filed on 3/5/2006, briefly stated are that the Appellants’ father, Mazi Christian Orjiekwe, was the owner of No. 9 Miss Elems Street, Fegge, Onitsha. That in August, 1991, the Appellants’ father sold and transferred his leasehold interest in the properly in dispute to the 2nd Respondent. The 2nd Respondent claimed that the lease of the Appellants’ father as referred to in the Further Amended Statement of Claim had been superseded by a new lease dated 30/7/1965 and registered as No 93 at Page 93 in Volume 409 of the Lands Registry, Enugu (now Awka). It is the case of the 2nd Respondent that though the Appellants’ father fraudulently concealed the aforementioned lease, but that this is the lease which the Appellants’ father handed over to the 2nd Respondent after the 2nd Respondent had purchased the property in dispute. The 2nd Respondent not only narrated how he came to purchase the properly in dispute and the consideration paid therefore, but also disclosed that the matter of the sale of the property in dispute was the subject of customary arbitration to which himself and the Appellants’ father willingly submitted. This was sequel to the denial of the sale of the property in dispute after the Appellants’ father in collusion with the 1st Respondent had collected the consideration therefore and also executed all necessary title documents. Also relying on the case as set up in the Further Amended statement of Defence, the 2nd Respondent counter-claimed against the Appellants as follows:-
“1. A DECLARATION that the 2nd Defendant is the person entitled under the Land Use Act to the Statutory Right of Occupancy in respect of the property known as No. 9 Miss Elems Street, Fegge, Onitsha.
2. POSSESSION of the said property.
3. ACCOUNT of all rents collected from the said property by the plaintiff from 1st day of September 1991 until possession is given as may be ordered by the court and payment to the 2nd Defendant of the amount found due.
4. Twenty Thousand Naira (#20,000.00) damages for trespass.
5. INJUNCTION restraining the Plaintiff, his servants and agents from interfering with the 2nd Defendant’s right of occupancy over the said property commonly known as and called No. 9 Elems Street, Fegge, Onitsha.”
In their Further Amended Reply to the 2nd Respondent’s pleading dated 16/5/2005 and filed on 23/5/2005, the Appellants still reflected the 1st Defendant in the case to be Samuel Orjiekwe. In the process in question, the Appellants in the main denied that their father ever sold the disputed property to the 2nd Respondent herein either personally or through any agent. The Appellants claimed that their father had no knowledge of any sale of the disputed property to the 2nd Respondent talk less of being a party thereto and that if any of their father’s title deeds is in the custody of the 2nd Respondent, he must have come about the same by stealth and no more. The Appellants also claimed that their father at the time of instructing counsel could not lay hands on the lease of 30/7/1965 and was therefore unaware of any subsequent lease made to him and that if the said lease is with the 2nd Respondent, he must have clandestinely removed the same from their father. In their defence to the counter-claim of the 2nd Respondent, the Appellants denied the entitlement of the said 2nd Respondent to his claims and urged the court to dismiss the same as frivolous, unfounded and fraudulent and set out the particulars of fraud. The Appellants aside from relying on the averments in their Further Amended Statement of Claim and their Reply in defence to the counter claim of the 2nd Respondent; also pleaded illiteracy in the alternative. The lower court heard evidence of the witnesses called by the parties, Exhibits were also admitted and marked as appropriate. After an evaluation of the evidence adduced by the parties in respect of their respective cases, and having also had the benefit of the written addresses of the parties, the learned trial Judge entered judgment in the following manner at pages 334 – 336 of the record:-
“In the light of the foregoing, I am of the view that the parties herein are bound by the decision of the arbitrators as contained in Exhibit D.6. This decision raises the problem of the appropriate order the court should make having regards to the reliefs claimed by the parties. The award was to the effect that Mazi Christian Orjiekwe should refund the money paid by Cyricus Onyedika within two months failing which he should hand over the property to Chief Onyedika. The plaintiffs in their statement of claim sought a declaration that they are the persons entitled to the right of occupancy over the property known as No. 9 Elems Street, Onitsha. That order could only have been made if they had refunded the sum of N400,000 as provided in the award. Having failed to do so that prayer fails and with it the claim for damages and injunction.
The 2nd Defendant counter claimed for a declaration that he is the person entitled to the right of occupancy over the property. Consequent upon default of the plaintiffs in refunding his money he is entitled in line with the arbitral award to be handed over the property. He is therefore entitled to the declaratory reliefs. He is also entitled to possession of the building with effect from 30th of April, 1992. From that same day he also became entitled to an account of all the rent received on the property.
Ordinarily therefore I should enter judgment for him immediately I have however decided to exercise the powers conferred by Section 35(2) and (4) of the High Court Civil Procedure Rules to give effect to the arbitral award. I therefore make the following orders:
(a) The plaintiffs shall within 2 months of today refund the 2nd defendant the sum of N400,000 together with compound interest at the prevailing rate chargeable by commercial banks on loans and overdrafts from the 30th of April, 1992 until the date of final liquidation of the debt or until the 28th of August, 2007 whichever is earlier.
To facilitate the plaintiffs and the 2nd defendant shall separately file in this court within 14 days of today, the amount due to the 2nd defendant as per the order above, verified by affidavit. In the event that the figures differ the parties may apply to the Court for directions. This order shall abate and be void if by the 28th of August the amount adjudged has not been refunded.
In its place the following orders shall take effect from 28th of August, 2002 (in default of the order of refund)
(a) It is declared that the 2nd defendant is entitled to the right of occupancy over the property situate at No. 9 Miss Elems Street, Fegge, Onitsha,
(b) The plaintiffs shall give up and deliver possession of the said property to the 2nd Defendant.
(c) The plaintiffs shall file an account verified by affidavit of all the rent collected on the property situate at No. 9 Miss Elems Street, Fegge Onitsha from the 30th of April, 1992 to the 28th of August, 2007, not later than the 10th of September, 2007. The amount found due on taking the account shall be paid over to the 2nd defendant not later than the 17th of September, 2007.
(d) The Plaintiffs are hereby restrained by themselves, their servants, agents and privies from interfering with the 2nd defendant’s right of occupancy over the said property.
There are 32 appearances in this suit. The Rules of this court prescribe cost of N2,000 per appearance. There shall be cost of N64,000 in favour of the 2nd defendant against the plaintiffs.”
The Appellants being aggrieved with part of the judgment of the lower court appealed against the same vide their Notice of Appeal dated 11/7/2007 and filed on 12/7/2007. Another Notice of Appeal dated 5/5/2008 was filed on 6/5/2008 by the Appellants. The part of the judgment of the lower court the Appellants complained of, as stated in the Notice of Appeal is “that part of the judgment that made monetary award to the 2nd Defendant in default of which the counter-claim takes effect”. Appellants’ Notice of Appeal contains six grounds of appeal. The said grounds of appeal shorn of their respective particulars read thus:-
GROUNDS OF APPEAL
GROUND 1
The Learned Trial Judge having found that the original Plaintiff (Mazi Christian Orjiekwe) was not the person that signed any of the Title documents upon which the 2nd Defendant based his defence and counter-claim erred in law when he refused to grant the plaintiffs’ claim and to dismiss the 2nd Defendant’s Counter-Claim.
GROUND 2
The Learned Trial Judge erred in law when he held that “the parties herein are bound by the decision of the arbitrators as contained in Exhibit D.6”.
GROUND 3
The Learned Trial Judge erred in law when he held that “….The plaintiffs have however not led evidence to show that it is contrary to the custom of Akokwa people to do so”.
GROUND 4
The Learned Trial Judge erred in law when he held to the effect that parties even when their case is in court can always resort to native arbitration with its binding effect on them.
GROUND 5
The Learned Trial Judge having found that the Plaintiffs rejected Exhibit D.6 albeit post award erred in law when he held that they are bound by the said Exhibit D.6.
GROUND 6
The Learned Trial Judge erred in law when he rejected in evidence the admission in the affidavit of the original 1st Defendant on the ground that it was made by a person interested and at a time when a suit was pending.”
The Respondent also being aggrieved with part of the judgment of the lower court lodged a Notice of Appeal dated 24/9/2007 and filed on the same date. The part of the judgment of the lower court complained of is “that part of the judgment which says that the signatures said to be those of Mazi Christian Orjiekwe are not his signature”. The Notice of Appeal lodged by the 2nd Respondent contains two grounds of appeal and the said two grounds of appeal shorn of their respective particulars read thus:-
“GROUNDS OF APPEAL
GROUND 1
The learned trial judge erred in law when he held that the signatures said to be those of Mazi Christian Orjiekwe are not his signatures.
GROUND 2
The learned trial Judge misdirected himself on the evidence led at the trial when he held that he was convinced that the signatures as (sic). Exhibit D5″, the Deed of Assignment, Exhibit P3 and Exhibit P4, the irrevocable Power of Attorney and Exhibit P.17 and Exhibit D3, the receipt, were not the signature of Mazi Christian Orjiekwe.”
In accordance with the Rules of this Court, parties (save for the 1st Respondent) filed and exchanged Briefs of Argument Appellants’ Brief of Argument dated 5/5/2008 and filed on 6/5/2008 as well as Cross-Respondents’ Brief of Argument dated 6/7/2011 and filed on 7/7/2011, were settled by J.R. Nduka. 2nd Respondent’s Brief of Argument dated 31/11/2011 and filed on 14/2/2011 as well as Cross-Appellant’s Brief of Argument dated 10/2/2011 and filed on 14/2/2011; were settled by G.E. Ezeuko (Jnr.). The main appeal and the cross-appeal were entertained on 8/10/2012 and both learned lead counsel for the Appellants and 2nd Respondent, namely J.R. Nduka and G.E. Ezeuko respectively, adopted the Briefs of Argument of their clients as hereinbefore identified in aid of their positions in the appeals. The 1st Respondent on record aside from not filing any Brief of Argument in the appeals also did not participate at the hearing of the appeals even though she was served on 3/10/2012 with hearing notice in relation thereto.
In their Brief of Argument, the Appellants formulated four issues for the determination of the main appeal from their six grounds of appeal. The issues are as follows:-
(i) Whether the trial Court that found that the original Plaintiff did not execute any of the documents upon which the 2nd Defendant relied for his title was right not to give judgment to the Appellants. (Ground 1).
(ii) Whether the Appellants, in the peculiar facts of this case, are bound by the arbitration Exhibit D.6. (Grounds 2, 3 and 5)
(iii) Whether a party who took his case to the Court for adjudication can be subjected to a customary arbitration without infringing his rights guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (Ground 4).
(iv) Whether the learned trial court was right in rejecting in evidence a document containing admissions made by a party to a suit. (Ground 6)
In their Cross-Respondents’ Brief of Argument the sole issue formulated by the Appellants as Cross-Respondents, is as to whether the learned trial Judge was right in accepting the evidence of the Appellants’ expert witness in preference to the evidence of the 2nd Respondent’s witnesses.
In his Brief of Argument, the 2nd Respondent formulated three issues for the determination of the main appeal. The issues read thus:-
“ISSUE 1
Whether the finding of the trial court that the original plaintiff did not execute the document of sale or transfer is correct in law.
ISSUE 2
Whether the parties are bound by the customary arbitration in Exhibit D6.
ISSUE 3
Whether the learned trial court was right in rejecting in evidence a document made by a party interested during the pendency of litigation.”
In his Cross-Appellant’s Brief of Argument the sole issue formulated for the determination of the cross-appeal is as to whether the finding of the learned trial Judge in rejecting the direct evidence of all the Respondent’s witnesses on the sole ground that they have an interest to serve was perverse.
I intend to consider the main appeal first and in doing this, the appeal will be determined upon the issues as formulated by the Appellants. This is against the backdrop of the fact that the Appellants unlike the 2nd Respondent clearly married each of the issues they formulated to the ground/grounds of appeal in the Notice of Appeal. Aside from this, it is my considered view that the issues as formulated by the 2nd Respondent are conveniently covered by the issues formulated by the Appellants. Furthermore, the 2nd Respondent will hereafter be simply referred to as the Respondent. This is in the light of the fact that he is the only Respondent contesting the appeal, I will also wish to state that though the appeal will be resolved upon the issues as formulated by the Appellants, I however will not consider the issues in the same order the Appellants argued them in their Brief of Argument. In this wise, I consider it pertinent to observe that while Appellants’ issue 1 questions the correctness of the judgment of the lower court despite its haven found that the Appellants’ father did not execute the title documents relied upon by the Respondent, the Appellants in arguing the said issue predicated their stance upon the wrong finding by the lower court on the question of customary arbitration which is the subject of Appellants’ issues 2 and 3. In the circumstance, I therefore consider it more apt or appropriate to first resolve the said issues 2 and 3.
APPELLANTS’ ISSUES 2 AND 3
Though these two issues were not argued together in the Appellants’ Brief of Argument, they are being considered together in this judgment as the Appellants adopted the argument in relation to the second part of their issue 2 as their argument in respect of their issue 3.
In dwelling on their issue 2, the Appellants posed two sub-issues for consideration, namely (i) whether Exhibit D.6 is a customary arbitration property so called; and (ii) if Exhibit D.6 is a customary arbitration properly so called; and (ii) if Exhibit D.6 is a customary arbitration properly so called, whether it is binding on the parties.
Dwelling on the question as to whether Exhibit D.6 is a customary arbitration properly so called, the Appellants set out the five ingredients of traditional arbitration that must be pleaded and proved and cited the cases of Eke v Okwaranyia (2001) 20 WRN 132, and Okereke v. Nwankwo (2003) 9 NWLR (Pt. 826) 592 at 621, amongst others in aid. It is the stance of the Appellants that there was no evidence of voluntary submission to the arbitration by their father. Elaborating on the submission the Appellants stated to the effect that the original Plaintiff (i.e their father) sued on the 23/10/1991 on the 11/11/1991, the 2nd Respondent reported their father to his traditional ruler and that Exhibit D6 is the end product of the report. The Appellants said to the effect that all that happened consequent to the report made by the 2nd Respondent occurred while the instant case was in court and that their father at no time showed or evinced any tendency towards discontinuing with the pursuit of his constitutional rights in the lower court. Furthermore, it is the stance of the Appellants that there was no evidence that it is the custom of the parties that a customary arbitration can be set up in relation to a matter pending before a court of competent jurisdiction. The Appellants stated to the effect that instead of the lower court placing the onus in this regard on them, it ought to have taken judicial notice of the fact that a proceeding before it cannot be interfered or intermeddled with. It is also the stance of the Appellants that there was evidence before the lower court that the decision or award was rejected by their father at the time it was made. In this regard, the Appellants referred to the finding made by the lower court at page 333 of the-record to wit: “what I understand from this testimony is that the protest was after the arbitrators had made their decision and not before nor during the arbitration.”Given, the understanding on the part of the lower court in this regard, the Appellants submitted that the view later expressed by the said lower court that they (Appellants) were bound by the customary arbitration since the rejection was not made before or during the arbitration did not accord with the established principles upon which enforcement of customary arbitration is based. That the lower court was duty bound to reject the award as a binding customary arbitration award, in the light of its initial finding to the effect that their father rejected the decision of the arbitrators. The Appellants submitted to the effect that the very fact that their father continued with his pending suit is enough evidence of the rejection of the award. The case of Okereke v. Nwankwo (2003) 25 WRN 88 (where the institution of a suit at the end of customary arbitration was regarded as evidence of non-acceptance of the outcome of arbitration) as well as the case of Awosile v. Sotunbo (1992) 5 NWLR (Pt.243) 514, were cited in aid.
Dwelling on the question as to whether Exhibit D.6 is binding on the parties if there was a proper customary arbitration, the Appellants referred to Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as entitling any citizen whose civil rights and obligations is in question, to seek redress in a “court or other tribunal established by law”. It is their stance that their father in exercise of his Constitutional right, went to the High Court and filed the instant case. That the 2nd Respondent on the other hand took the matter before their father’s traditional ruler whereat what is now called arbitration ensured. That at the end of the so called “arbitration”, their father continued with the prosecution of his case in court to completion. The Appellants posed the question as to whether the lower court could now hold them bound by what went on before the arbitrators while the case initiated by their father was pending in Court. Having re-produced the provisions of Sections 48(1)- (3) and 49(1) and (2) of the High Court Law of Anambra State, the Appellants not only submitted to the effect that there was non-compliance with the said provisions, but that in the circumstance, whatever Exhibit D.6 represents cannot override the fundamental right guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999. The Appellants further submitted that for a court before which a case is pending to bend backwards to rely on such a document as Exhibit D.6, as the basis of its judgment, is not only an infringement of the fundamental right guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999, but also an abdication of her constitutional duty including the duty to do justice. The Appellants submitted to the effect that the reasoning of the lower court in holding them bound by Exhibit D.6 was wrong. That it was obvious that the lower court was confusing amicable settlement of a suit effected by parties; with arbitration. The Appellants submitted that the two are different and that the legal consequences of both are also different. The Appellants stated that it is trite that the parties in a suit on their own can settle their dispute out of court and that the court follows up such settlement by entering a consent judgment in the case. That in cases, wherein parties on their own settle their differences out of court, the court in entering a consent judgment is duty bound to ensure that parties are ad idem as far as the terms of their compromise or agreement are concerned and their consent must be free and voluntary. The case of Vulcan Gases Ltd v. Gesellschaft Fur Industries Gasvererwertung A.G. (GIV) (2011) 26 WRN 1 was cited in aid. That on the other hand, customary arbitration as accepted by the courts is based on the doctrine of estoppel whereby it is unconscionable for a person who has agreed to be bound by a decision of arbitrators to be allowed subsequently to resile there from. The cases of Agu v. Ikewibe (supra) and Ndah v Chianuokwu (2006) 17 NWLR (Pt. 1007) 74 at 90 were cited in aid. The Appellants submitted that there was no basis for the argument that a man who took his case to court for adjudication can be said to be estopped from having his case determined by the same Court. That indeed, if the foregoing should be acquiesced to by the courts, it would portend a very dangerous precedent as every litigant who has a doubtful case, would abandon the court, contrive a customary arbitration and run back to the court for the necessary blessing upon it. The Appellants further submitted that a party whose case is in court cannot be bound by any such “arbitration” but may be bound by a settlement between the parties.
Respondent’s Issue 2 in my considered view clearly relates to Appellants, issues 2 and 3 and the issue will accordingly be treated hereunder.
Before starting his discuss on his issue 2, the Respondent made the observation to the effect that the Appellants despite having formulated one issue as his issue 2, went ahead and formulated two sub-issues under this heading thus splitting the issue. The Respondent stated that this court has consistently warned that it is patently undesirable to split the issue in a ground of appeal and that such practice is not permissible. The case of International Nigerbuild Construction Co Ltd v. Giwa (2003) FWLR (PT 207) 1312, was cited in aid. Furthermore, it is the stance of the Respondent that the practice of splitting an issue invariably leads to proliferation of issues and that the apex court takes a distasteful view of such and totally frowns at such practice and the cases of Labiyi v Anretiola (1992) 8 NWLR (Pt 258); 139 and Ogbunyinya v. Okudo (No.2) (1990) 4 NWLR (PT 146) 551; were cited in aid. That such practice negates accuracy, clarity and brevity.
Dwelling on the issue, the Respondent stated to the effect that he duly pleaded customary arbitration in respect of the subject matter of this case. That the case of the Appellants on their pleadings is that any purported decision of the serf-appointed arbitrators sought to be relied upon by him (i.e. Respondent) is irrelevant to this case, an afterthought and was made during the pendency of this suit without the court’s permission and despite protestations by their father. The Respondent stated to the effect that he adduced credible evidence in respect of the customary arbitration he set up in his pleading. That from the evidence he adduced, it is not in doubt that the parties herein voluntarily submitted to arbitration. The Respondent further submitted that the parties having fulfilled the condition as stipulated by the arbitrators to wit; presentation of wine etc. the question of voluntariness cannot arise. Like the Appellants, the Respondent too highlighted the essentials of valid customary arbitration and its consequence to wit: that the law is that when natives submit their dispute genuinely to a body of their fellow villagers or community whose members after hearing the parties gave a decision, neither side can resile from the decision and that the said decision has the same effect as a decision of the court. The Respondent submitted that an examination of Exhibit D6 clearly shows that it has satisfied the legal requirements so as to be binding on the parties. That the mere negation of Exhibit D6 because the court’s permission was not sought and obtained is totally irrelevant since parties can voluntarily settle their dispute out of court even when litigation is pending. It is the stance of the Respondent that what gives an arbitral body jurisdiction is the voluntary submission of both parties and not whether there is compliance with the Arbitration Law and the case of Nwaide v. Onwumere (1985) NSCC (Pt 1) 347 was cited in aid. That parties having voluntarily submitted their matter in controversy to arbitration according to customary law and having agreed expressly or by implication that the decision of the arbitrators would be final and binding, it was no longer open to either party to subsequently back out from whatever decision that was reached and the case of Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296, was cited in aid.
The Respondent also submitted that the provisions of Sections 48 and 49 of Anambra State High Court Law 1991, Cap 66, are totally inapplicable to customary arbitration; because these Sections do not refer to customary arbitrators rather the sections refer to arbitration under Arbitration and Reconciliation Act, Laws of the Federation 1990. Furthermore, the Respondent submitted that Sections 48 and 49 of Anambra State High Court Law do not in any way curtail the powers of the court under Section 26 of the same law.
I have hereinbefore re-produced the grounds of appeal and the issues for the determination of the appeal as formulated by the Appellants. The Appellants’ grounds of appeal are six in number and four issues are formulated for the determination of the appeal from the said six grounds. It is therefore my considered view, that on the face of the grounds of appeal vis-a-vis the issues formulated for the determination of the appeal by the Appellants, there is obviously no case of proliferation of issues made out inasmuch as the issues that have been distilled have not exceeded the number of grounds of appeal.
It is settled law that proliferation of issues occurs only when the number of issues formulated by a party for the determination of an appeal exceeds the number of grounds of appeal in the appeal. True it is that the Appellants in arguing their issue 2, chose to split the said issue into two sub-issues. I however do not think that this is of any serious consequence as issue 2 in question on its face is disclosed to have been distilled from three grounds of appeal namely, grounds 2, 3 and 5. The situation before the court therefore is not one in which more than an issue has been distilled from a ground of appeal, but at the worst, one where the Appellants have ended up formulating two issues from three grounds of appeal. The Respondent it should be noted has not remotely argued that the two sub-issues upon which the Appellants have predicated their arguments in respect of their issue 2 do not flow from the grounds of appeal from which issue 2 is said to have been distilled. Aside from this, all that I actually understand the Appellants as having done by splitting their issue 2 into two sub-issues is that they only disclosed the bases of what their arguments of their issue 2 would entail. The Appellants in my considered view simply engaged in the use of inappropriate phraseology to wit. “sub-issues” to describe the manner in which they intended to present their argument in relation to their issue 2. Against the backdrop of all that has been said, I therefore do not find the stance of the Respondent that the Appellants have engaged in proliferation of issues under their issue 2 to be correct.
It is no doubt now settled law that people can resort to customary arbitration for the purpose of resolving their dispute and that the law will not allow parties to a customary arbitration to resile from the decision given by the customary arbitrators. However, before parties to a customary arbitration can be held to be bound by the decision arrived thereat, the law has also set out clearly the conditions that must be shown to exist. See in this regard the case of AGU V. IKEWIBE (supra), cited by the parties herein and which was decided by the Supreme Court on 19/4/1991. The case is also reported as (1991) 4 SCNJ 56. The Supreme Court dwelling on customary arbitration in the case, stated per Karibi-Whyte, JSC; at pages 70 -72, thus:-
“It is somewhat of a surprise in view of the evidence before the learned justice of the Court of Appeal by both parties to the appeal before him ad submissions of learned counsel that he can hold and express such a strong view about a practice relied upon by the parties. The learned justice of the Court of Appeal held the view that on the strength of decided cases that the concept of customary arbitration was peculiar to the Akans of Ghana and declared at p.573:
“……………..
Without conceding that Nigerian law recognizes customary arbitration, the learned justice went on to hold that in the light of the vesting of the judicial powers of the Constitution in the Courts named in S.6(5) of the Constitution 1979, any other exercise of judicial power would be unconstitutional and invalid. Any question as to Arbitration could only apply to the extent that and in the manner permitted by the Arbitration Act.
There seems to me some misconception about some of the provisions of Constitution 1979, and the freedom between disputing parties to settle their differences in the manner acceptable to them. It is clearly unarguable that the judicial powers of the Constitution in S.6(1) is by S.6(5) vested in the Courts named in that section. Not so a Customary arbitration. What then is customary arbitration? I venture to regard Customary law arbitration as an arbitration is dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either Chiefs of Elders of their community, and the agreement to be bound by such decision or freedom to resile where unfavourable.
In the first place a customary arbitration is not an exercise of the judicial power of the Constitution not being a function undertaken by the Courts. Secondly, customary law is by virtue of Section 274(3),(4)(b) an “existing law” being a body of rules of law in force immediately before the coming into force of the Constitution 1979. Thus customary law which includes customary arbitration was saved by Section 274(3)(4)(b) of the Constitution 1979. See Giwa v Inspector-General of Police (1985) 6 N C.L.R. 369, Enyinna v. Commissioner of Police (1985) N.C.L.R. 464.
It is well-accepted that one of the many African modes of settling disputes is to refer the dispute to the family head or elders of the community for a compromise solution based upon the subsequent acceptance by both parties of the suggested award, which becomes binding only after such signification of its acceptance, and from which either party is free to resile at any stage of the proceedings up to that point. This is a common method of settling disputes in all indigenous Nigerian societies…………….
It can be deduced from the above decisions that Nigerian Law recognises arbitrations at customary law which are distinct and different arbitration under statute, if the following conditions are satisfied:-
(a) If parties voluntarily submit their dispute to a non-judicial body to wit their Elders or Chiefs as the case may be for determination; and
(b) The willingness of the parties to be bound by the decision of the non-judicial body or freedom to reject the decision where they are not satisfied is indicated.
(c) Neither of the parties has resiled from the decision so pronounced.”
In the case of OJIBAH V. OJIBAH (supra) cited by the Respondent and which was decided on 28/6/1991 and also reported as (1991) 6 SCNJ 156, the Supreme Court again had cause to dwell on customary arbitration and the Court per Nnaemeka-Agu, JSC; at page 169 stated thus: –
“As I indicated above, I do not think from the concurrent findings of the courts below on the point that the appellant expressed any reservation during the submission of the dispute to the customary arbitration body. I should also accept the concurrent finding that he did not even resile from the decision against him soon after the arbitral body handed down their award but that he tried to do so afterwards. He could not do that. In my view, the law is pretty settled that where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to customary law and agreed expressly or by implication that the decision of the arbitrators would be accepted as final and binding, then once the arbitrators reach a decision; it is not no longer open to either party to subsequently back out of such a decision.”
The two sides that contested the instant case adduced evidence in support of their respective stance about the customary arbitration pleaded by the Respondent. It is clear from the averment in paragraph B of the Appellants’ Further Amended Reply to the 2nd Defendant’s Statement of Defence at pages 97 – 100 of the record that the Appellant’s relied on (i) the fact that the arbitration pleaded by the Respondent was made during the pendency of the instant action without the permission of the lower court; and (ii) protestations by their father to the arbitration, to establish the fact that their father did not submit voluntarily to the said customary arbitration. These aspects of the Appellants’ case highlighted above, was in response to those of the Respondent in paragraph 9(a) and 9(b) of his Further Amended Statement of Defence at pages 120 – 124, of the record relating to the customary arbitration he pleaded.
Parties have not disputed that it is the Respondent who pleaded reliance on the customary arbitration, that has the burden to prove the existence of the elements or essentials of the customary arbitration put in issue. On the question of voluntary submission, the Respondent has submitted that he proved this having regard to his evidence at page 304 of the record that went thus: –
“The traditional rulers asked us if we desire that they settle the matter for us and we agreed. They then asked for the items they requested and I presented more (sic) whilst Mazi Christian Orjiekwe presented his own. They asked if we shall abide by the outcome of the arbitration and we both said we would.”
On the other hand the evidence of the Appellants in relation to the customary arbitration pleaded by the Respondent as given by PW1 while being examined in chief and under cross-examination at pages 239 and 243 – 244 respectively of the record went thus:-
Page 239
“There was an arbitration to resolve this matter whilst this case was pending in court. My father protested against the arbitration and the purported decision of the arbitration. My father did not accept the outcome or decision which was made whilst this case was pending the chiefs requested for the passport of the 1st defendant and copies of bank draft. He did not do anything to verify the documents. The decision was an after thought. My father did not accept the decision. There was no permission sought or obtained from the court before the arbitration. My father protested vehemently.”
Pages 243-244
“I know His Royal Highness Eze Osita Okoli. He is the traditional ruler and in that capacity he is the custodian of Akokwa custom. His functions include the resolution of disputes between and amongst indigens (sic)
In November, 1991, I was in Ilorin. That was the day the arbitration took place. I have never heard of H.R.H .Eze Azike III but I know he was one of the arbitrators. I did not attend the arbitration as I had engagement in school, I am aware that my father attended the arbitration with members of our family. I am not aware that the patron of Akokwa town union was present on the day. I sent my younger brother to represent me and to observe what happened…………….
I stated that my father protested the conduct of the arbitration. The protest was not in writing but my father made it clear that he does not agree with decisions by the arbitration panel. That this case was already pending before the High Court and that the chief did not deem it necessary enough to take permission from the court before handling the case. The protest was after the arbitrators had reached their decision and pronounced it.
Q. This means that he voluntarily participated and submitted to the arbitration.
A. He did not protest during the Arbitration when my father was invited for the arbitration I went to the chief. He requested for the 1st defendant’s passport and cheque book. He informed me that he will not handle the case until he gets permission from the court. Based on that I went back to my station.”
PW4 is the brother of PW1, he too in his evidence-in-chief and under cross-examination at pages 252 – 259 of the record testified on the customary arbitration pleaded by the Respondent’ In a nutshell he expressed his belief that the arbitration was not properly done. He alleged that they had no prior notice of what the arbitration was about and that on getting to the arbitrators, his father protested as the matter involved was already in court. The witness also claimed that the traditional ruler before whom they appeared having promised that he will get the case withdrawn from court then proceeded to listen to the respective cases of the parties. The witness further testified to the effect that they protested and rejected the decision of the arbitrators hence the reason for still being in court. Under cross-examination the witness maintained his stand that they did not accept the decision of the arbitrators.
The lower court dwelled on the issue of arbitration on pages 331 – 333 of the record. Having alluded to the evidence of PW4 and pw1 the lower court stated to the effect that what he understood the testimony of PW1 to be, is that the protest that the Appellants’ father made, in respect of the customary arbitration was not before or during the arbitration and that this was consistent with Exhibit D6, Having also expressed the views amongst others to the effect (i) that the claim of pw4 that his father was not given their hearing as he did not know why he was called before the arbitrators cannot be correct; and (ii) that customary arbitration as in the instant case was an exploration of settlement which could be carried on even while the instant case was pending without leave of court being first procured, held that the parties were bound by the decision of the arbitrators as contained in Exhibit D6.
I have painstakingly perused Exhibit D6, and it would appear glaring that it was not on 17/1/1991 that the Respondent first caused his complaint to be brought before Eze E. E Ezike III, that the Appellants’ father consented to the customary arbitration pleaded by the Respondent. True it is that it was recorded in Exhibit D6 that “Efforts was (sic) made to reach Mr. Christian Anozie Orji and his consent was obtained and a date was fixed for 17th. Nov. 1991 to deliberate on the issue by both parties”, but I must observe that it was never disclosed the manner in which the Appellants ‘father manifested his consent and/or when this was done. It is in my view however clear from what has been quoted that if any consent of the Appellants’ father was obtained it was definitely not on 17/11/1991, and was also not in the presence of the Respondent. Given these observations, I find it difficult to accept the submission of the Respondent that his evidence at page 304 which has been earlier re-produced in this judgment, established the fact of the voluntary submission to the customary arbitration by the Appellants’ father. The lower court clearly did not avert its mind to the position of the Appellants who from the evidence they adduced, depicted their father as having attended the arbitration upon the assurance that the case in court would be withdrawn. The disclosure in Exhibit D 6 which failed to indicate the manner by which the consent of the Appellants’ father was obtained, in my considered view is more consistent with the position of the Appellants’ witnesses quoted above than the evidence of the Respondent which depicted that the voluntary submission by the Appellants’ father to the arbitration, was done or occurred on an occasion whereat they were both present. At the best and having regard to the evidence before the lower court, whatever submission to arbitration that occurred on the part of the Appellants’ father was conditional. And as the instant case was never withdrawn at all material time before the arbitrators reached their decision, the attendance of the Appellants’ father before the arbitrators cannot in my considered view be taken to be a voluntary submission. This situation seriously gives credence to the evidence of the Appellants’ witnesses earlier reproduced above that their father protested the decision of the arbitrators immediately on the ground of the pendency in court of the instant case.
The lower court from the views it expressed concerning the lack of need to have procured its leave before the parties proceeded to customary arbitration stated that no authority was cited that its leave needed to have been sought or obtained. The lower court clearly predicated this view on the ground that customary arbitration is an exploration of settlement of the case in court and that parties do not need to seek or obtain the leave of court to settle their case that is pending in court. I do not think the non-citing of any authority should have made the lower court not to consider the implication of customary arbitrators sitting over the very matter before it and doing this without the said case being withdrawn or specifically adjourned to abide the outcome of the customary arbitration that commenced later in time.
I have earlier highlighted the submission of the parties on this aspect of the judgment of the lower court. The submission of the Respondent that Sections 48 and 49 of the Anambra State High Court Law, 1991, have not been made applicable to customary arbitration and that it is in respect of arbitration under the Arbitration Act that the provisions in question are applicable is correct. Despite this, it is my considered view that the lower court glaringly failed to recognise and appreciate what customary arbitration vis-a-vis settlement is and thereby further failed to appreciate that customary arbitration in respect of a matter in court should not properly be embarked upon in respect of the case before the court without the said case being withdrawn or adjourned to abide the decision of the customary arbitration. It is in this con that I understand the submission of the Appellants’ relating to leave of the lower court being sought and obtained.
It cannot be sensibly disputed having regard to the processes in relation to this case that the Appellants’ father had submitted first in time to the lower court the very matter the Respondent caused to be brought before the customary arbitrators. To this extent the evidence of the Respondent at page 305 of the record to the effect that it was after the customary arbitrators had published their decision that the Appellants’ father filed the instant case against him and his son (i.e Samuel Orjiekwe), is glaringly incorrect.
In the case of AWOSILE V. SOTUNBO (supra) cited by the Appellants and which is also reported in (1992) 6 SCNJ [Pt. II) 182, the Supreme Court clearly made the point that a valid customary arbitration cannot be and is not on the same wavelength with a customary intervention in matter with a view to settlement. This cannot but be the case, as a customary arbitration necessarily ends in a decision. Such a decision need not be palatable or satisfactory to the parties to the dispute. A customary intervention in a matter with a view to settlement like any other settlement however must produce a compromise acceptable to the parties thereto. It is my considered view therefore that the situation in the instant case where the very dispute the Appellants’ father submitted to the lower court first in time was later caused to be submitted to customary arbitrators by the Respondent, created parallel proceedings as it were, between the lower court and the customary arbitrators in respect of the matter at hand.
The lower court clearly found that the Appellants’ father protested the customary arbitration relied upon by the Respondent albeit after the arbitrators had made their decision and not before or during the arbitration. However the lower court felt it will be remising in its duty if it annulled the customary arbitral award simply because its leave was not sought or obtained before proceeding with the arbitration. Having regard to the record, the lower court clearly did not avail itself of the authority of AWOSILE V. SOTUNBO (supra) which decides to the effect that the filing of a suit in court by the party which referred a matter to customary arbitrators is a positive demonstration that the party concerned did not believe that there was a binding arbitration. True it is that the Appellants’ father was not the party that referred the matter involved in the instant case to the customary arbitrators but the Respondent. It is however my considered view that the fact that the Appellants’ father never at anytime withdrew his case from the lower court and indeed continued with the prosecution of the instant case even after the decision of the arbitrators, a fortiori sufficiently demonstrated his stance that there was no valid customary arbitration which he considered to be binding on him and indeed lends credence to the stance of the Appellants that there was no voluntary submission by their father to the customary arbitration relied upon by the Respondent. I am also of the considered view that if the lower court had given appropriate consideration to settlement of a dispute by customary arbitration vis-a-vis customary intervention for the purpose of settling a matter in dispute between the parties, it would have been most apparent to it that it was most improper of the Respondent to have submitted the very dispute before it (i.e. lower court) to the customary arbitrators. The lower court therefore should not have felt that it would be a remiss for it if it should annul the arbitral award for any reason at all.
The Respondent by referring the very matter in dispute and which was first in time before the lower court to customary arbitrators, not only supplanted the constitutional role of the lower court and thereby created a fait accompli in respect of the matter before the said court, but the lower court too by countenancing and giving effect to the arbitral award as argued by the Appellants clearly displaced an abdication of its constitutional duty to determine the dispute submitted to it by the Appellants’ father.
Flowing from all that has been said is that Appellants issues 2 and 3 are resolved in their favour.
APPELLANTS’ ISSUE 1.
Dwelling on this issue, the Appellants referred to the provision of Section 137 of the Evidence Act as placing the burden of proof about the existence or non-existence of a fact in the first instance on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. The Appellants stated to the effect that going by the state of pleadings in the instant case, the original Plaintiff, Mazi Christian Orji or Mazi Christian Orjiekwe is the undisputed owner of the property known as and called No. 9 Miss Elems Street, Onitsha. That the issue before the lower court therefore was whether or not the Respondent had indeed bought the said property from the original Plaintiff (i.e. Appellants’ father). This is against the backdrop of the settled position of the law that the onus is on the person who has admitted that another party owns the land in dispute to establish any contrary title to that of the undisputed owner.
That the claim of the Respondent is that he became the owner of the disputed property when he paid a consideration of N400,000.00 therefore, and the title documents subsequently executed in his favour. That on the other hand, the position of the Appellants is that not only did their father ever sell the disputed property to anyone, but that he never collected any money or execute the documents of sale in relation thereto. The Appellants submitted to the effect that the Respondent therefore had to prove (i) that he paid money to their father for the disputed property; and (ii) that their father (i.e. the original Plaintiff,) executed the title documents in respect of the disputed property in his favour (i.e. Respondent). It is the stance of the Appellants that they led incontrovertible evidence before the lower court showing that the N400,000.00 the Respondent claimed to have paid for the disputed property was not paid to the Appellants’ father – Mazi Christian Orji but was paid to his son who opened an account at the New Nigerian Bank. Reference was made to Exhibit P7 in this regard. It is also the stance of the Appellants that the evidence they led to the effect that their father did not sign the title documents was accepted by the lower court.
This, the Appellants said is contrary to the position of the Respondent on the matter. The Appellants submitted that the onus was clearly on the Respondent to establish contrary title to the disputed property and they cited in aid the case of Ita v. Ekpenyong [2001] 9 WRN 147. The Appellants further submitted that in the circumstances there was no basis upon which the lower court could award title of the disputed property to the Respondent as he never proved by any scintilla of evidence the averment in his pleadings. That on the other hand, they (i.e. Appellants) who had no burden of proof to discharge in that regard, proved that their father did not receive any money nor sign any title documents.
The Appellants further submitted to the effect that the lower court by upholding the so called customary arbitration award in favour of the Respondent not only ignored the provisions of Section 137 of the Evidence Act but also ignored the statutory rule in Section 1071 (sic) of the Contracts Law of Anambra State Cap 32 which provides that “No action may be brought upon any contract for the disposition of a right of occupancy or any interest in land, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto by him lawfully authorized.” In other word that the Respondent’s counter-claim is not maintainable in law. The Appellants submitted to the effect that to allow the judgment as it is, to stand, is to bring in through the back door what could not go in through the front door legally.
Issue 1 as formulated for the determination of the appeal by the Respondent has been re-produced hereinbefore. I am of the considered view that the Issue is the same in purport to Appellants’ Issue 1 under consideration.
Dwelling on the Issue, the Respondent said to the effect that it was not in doubt from the Appellants’ pleading that their position is that their father denied having known or having had any transactions with him (i.e. Respondent). That in response to the relevant averments of the Appellants in respect of their position, he (i.e Respo6ent) copiously and comprehensively set out in his pleadings how he came into contact with the Appellants’ father, what transpired between them, the payment of money, the persons or witnesses present on the occasion and the customary arbitration, that took place between the parties.
That he also filed a counter-claim seeking for declaration of title, possession, account of rent, damages and injunction against the Appellants. The Respondent invited the Court to note from the onset that the Appellants totally and woefully failed to prove their case as none of their witnesses was present when the transaction was conducted. The stance of the Respondent is that the lower court relied upon the evidence of PW6 – Police handwriting expert; in coming to the conclusion that the signature of Mazi Christian Orjiekwe (the Appellants’ father) was forged. The Respondent submitted that the conclusion of the lower court in this regard was not founded on the evidence before it and law. To buttress his position in this regard, the Respondent made copious references to his own evidence-in-chief as well as the evidence-in-chief of DWs 1 – 3, and submitted that the decision of the learned trial Judge not to believe the evidence adduced by him (Respondent) on the ground that the aforementioned witnesses had an interest to serve has no legal basis. The Respondent submitted to the effect that the learned trial Judge should have preferred the direct evidence he adduced by himself and through his witnesses in relation to the title documents of the disputed property, to that of a witness such as PW6 who was engaged specifically for the case on the direction of the party that called him and cited the case of ELT (Nig.) Ltd v. Sitlo (1994) 6 NWLR (Pt 350) 258.
The Respondent stated the position of the law to be that opinion evidence by an expert is not by any means conclusive on the point on which he testifies solely because the opinion is that of an expert. That while expert evidence is relevant in certain cases and instances, it is not a desideratum in all cases as the court is not bound to accept expert evidence particularly when it is not consistent with the ordinary course of events as disclosed in or by the evidence by other witnesses. The cases of Ogiale v. Shell Pet. Dev. Co (Nig) Ltd (1997) 1 NWLR (Pt 480) 148; Udo v Eshiet (1994) 8 NWLR (Pt.363) 483; and C.O. P. v. Ogechukwu (1974) 4 ECSLR 147, amongst others were cited in relation to expert evidence and what should be the attitude of the courts thereto. The Respondent submitted that the learned trial Judge therefore ought not to have placed undue reliance on the opinion of the expert witness called by the Appellants in the face of direct evidence adduced by him as well as pieces of evidence adduced by the Appellants that supported the defence. This is because there is nothing sacrosanct in expert evidence including that of a handwriting expert.
Dwelling on the contention of the Appellants that their father did not receive any money for the sale of the property from him, the Respondent said that it was conclusively established at the trial that Samuel (i.e. the original 1st Defendant) was present throughout the transaction and that at his father’s direction, he (i.e. Respondent) paid N400,000.00 for the disputed property in the manner stipulated by the Appellants’ father, namely’ N280,000’00 in bank draft in the name of Mazi Christian Orjiekwe; N100,000.00 in the name of Samuel Orjiekwe to set him up in business and N20,000.00 also in the name of Samuel Orjiekwe to cash and return same to his father for his immediate financial need. That evidence in this regard is in line with the decision of the arbitrators.
The law is settled that it is a plaintiff who brings a suit before the court that also nominates the issues for decision in the case. See NKUMA V. ODILI (2006) All FWLR (Pt.313) 24. It is therefore clear that the issues nominated for decision in the Appellants’ case must be identified from their pleadings, while that or those for decision in the Respondent’s counter-claim must equally be identified therefrom. This is against the backdrop of the settled position of the law that a counter-claim though tried together with the main action is only done so for convenience as it is a separate action in which the defendant in the main action assumes the position of a plaintiff. It is also settled law that though a court is not to make a case for a party it should look at what is pleaded and the relief sought in order to determine the issues involved in the case. See F.A.A.N. V. GREENSTONE LTD. (2009) All FWLR (Pt.500) 741 and BANK OF THE NORTH LTD. V. GANA (2000) All FWLR (Pt.296) 862. Given the positions of the law as stated above, it would appear to be incontrovertible in the light of the claims of the Appellants (which have been reproduced hereinbefore) that the title of the parties to the disputed property is in dispute. In this wise it is to be noted that while the case of the Appellants simply put is that their father had never divested himself of his title to the disputed property at anytime to anyone and particularly the Respondent, the Respondent claims to have acquired title to the said property by way of purchase of the same from the Appellants’ father. It is for the purpose of proving the purchase of the property from the Appellants’ father that the Respondent has pleaded the payment of the consideration for the disputed property and the manner in which it was paid and the fact that the Appellants’ father was the one that executed the title documents of the property that he has in his possession.
The Appellants clearly disputed the fact that their father in his life time executed any title documents in evidence of the sale of the disputed property to the Respondent. The Appellants’ father at all material times before parties’ commenced giving evidence in the case had died. The saying is that dead men tell no tales; accordingly the Appellants’ father was not available to give any type of evidence concerning the title documents in respect of the disputed property which the Respondent relied upon in the proof of the aspect of his case that he bought the said property from the Appellants’ father. The Appellants relied on the evidence of a handwriting expert (i.e. PW6) to controvert the claim of the Respondent who called witnesses that testified to the fact that they were physically present when the Appellants’ father signed the title documents the Respondent relied on in the proof of the transaction.
The lower court in its judgment adequately reviewed and in my considered view properly evaluated the evidence adduced by the Appellants and the Respondent concerning the signatures on the title documents which the Respondent alleged to be those of the Appellants’ father. The lower court did this under Issue 1 as set out on page 327 onwards in the record. The learned trial Judge clearly stated that he was highly impressed by the evidence of the handwriting expert (i.e. PW6). He also expressed the view that he too thought the signatures on the title documents relied upon by the Respondent as curious and gave other reasons for being accepting the evidence of the handwriting expert. Suffice it to say that the lower court found that the signatures of the title documents relied upon by the Respondent and which were said to be those of the Appellants’ father were forged.
As it can be seen from the submissions of the Respondent that have been highlighted hereinbefore, it is the stance of the said Respondent that the lower court placed undue reliance on the expert evidence adduced by Appellants concerning the purported signatures of their father. I do not intend to set out the submissions made by the Respondent in this regard again. I must state that the Respondent in attacking the reliance placed on the expert evidence adduced by the Appellants would appear to have conveniently forgotten that the Appellants’ father whose signatures were in dispute had died and there would appear to be no other way for the Appellants to go about the proof of their assertion that their father did not sign the documents in question except by resorting to expert evidence. In other words, expert evidence was most necessary in the circumstances of the instant case, parties having joined issue on the signature of the Appellants’ father. True it is that the Respondent called witnesses that testified to the effect that they were physically present when the Appellants’ father signed the tile documents in question. It should however be noted that the position of the law is that documentary evidence is the hanger for oral evidence. It is my considered view, that the Appellants by the expert evidence they called concerning the signatures on the documents relied upon by the Respondent in the proof of his case seriously indicted the evidence of all the witnesses called by the Respondent to establish the fact that the Appellants’ father signed the documents in question. The evidence of the handwriting expert was not rendered incredible in any manner whatsoever. The situation in the instant case is not one in which the Respondent being very aware of the expert evidence adduced by the Appellants called any expert evidence in rebuttal or to remotely indict the evidence of the expert witness called by the Appellant. The situation on ground in the instant case having regard to the expert evidence in relation to the signatures on the questioned documents vis-a-vis the evidence of the witness of the Respondent thereon glaringly shows that in the absence of any discrediting factor, the lower court was most justified in accepting the evidence of the expert witness.
Now, the complaint of the Appellants is that the lower court having found that the signatures of their father on the title documents were forged ought to have entered judgment in their favour, I am of the considered view that the Appellants are on firm grounds in this regard. This is more so in the light of Exhibit P7 which does not support the Respondent’s case that money in any sum was paid to the Appellants’ father. It is clear from the judgment of the lower court that the learned trial Judge decided not to decide or resolve the case before him upon the evidence concerning the signatures of the Appellants’ father which I have said before now, was properly evaluated, simply because he was of the view that it would be a remiss for him to annul the arbitral award contained in Exhibit D6. I am of the considered view that the prior resolution of Appellants’ Issues 2 and 3 in favour of the said Appellants has glaringly shown that the lower court ought to have resolved the instant case on the evidence adduced before it and that it was wrong of the said court to have based its judgment on the enforcement of the arbitral award flowing from the improper customary arbitration initiated at the instance of the Respondent. It is in my considered view clear as crystal that if the lower court had decided the instant case in the light of its finding to the effect that the Appellants’ father was not the one that signed the title documents relied upon by the Respondent which finding clearly dealt a mortal blow to the case of the said Respondent, the learned trial Judge would have had no choice in the matter but to give judgment to the Appellants.
Flowing from all that has been said is that Issue 1 is hereby resolved in favour of the Appellant.
APPELLANT’S ISSUE 4
Dwelling on this issue, the Appellants stated to the effect that there was evidence before the lower court that in 1998, the original 1st Defendant surfaced and that the Police Area Commander was informed. That the said original 1st Defendant later died and that it was in the course of his burial, that an affidavit was discovered. That in the affidavit the said original 1st Defendant detailed the transaction he had with the 2nd Defendant and that a certified true copy of the affidavit was obtained from the Magistrate’s Court where the affidavit was sworn to. That when the affidavit was sought to be tendered in evidence, the lower court ruled that it was inadmissible upon the objection of the 2nd Respondent. The Appellants submitted to the effect that the certified copy of the affidavit in question is admissible by virtue of Sections 20 and 23 of the Evidence Act being an admission against the interest of the said original 1st Defendant and therefore relevant, as the original 1st Defendant was a party in the instant suit.
In the premises, the Appellants submitted that the admission made by the original 1st Defendant is admissible in evidence and that the weight the lower court would ascribe to it is an entirely different matter. The Appellant submitted that the lower court was in error in rejecting the said affidavit in evidence.
The Respondent dealt with Appellants’ issue 4 above, under issue 3 as formulated in his Brief of Argument. Dwelling on the issue, the Respondent said the Appellants sought to tender an affidavit purportedly made by the original 1st Defendant. That the said original 1st Defendant was not only the first son of the Appellants’ father but was also the eldest brother of the Appellants. The Respondent disclosed that he objected to the admissibility of the certified copy of the affidavit in question on the ground that the document offends Section 91(3) of the Evidence Act, Cap, 112 Laws of the Federation 1990 in that the affidavit was made by the original 1st Defendant while litigation was pending. The Respondent submitted to the effect that the provision of the aforementioned Section completely caught the original 1st Defendant as he was undoubtedly “a person interested” in the instant case; and as the rejected document T.R.L. was definitely made while proceedings were pending in the instant case. That, the original 1st Defendant – Samuel Orjiekwe, clearly had a personal as well as family interest to serve to the detriment of the 2nd Respondent. This is particularly so as rejected document was conveniently tailor-made while litigation was pending by a party to the suit who has a personal interest to further to the detriment of the 2nd Respondent. The Respondent submitted that admitting the document would have deprived him of the opportunity to cross examine the maker of the document which would defeat his right to fair hearing.
It is the stance of the Respondent that as the rejected document marked T.R.I is an affidavit purportedly sworn to by the original 1st Defendant who is a party interested when litigation is pending, such affidavit is totally inadmissible and the case of Onuh v. Idu (2002) FWLR (Pt. 94) 66 was cited in aid. Furthermore, the Respondent stated that it was curious that the affidavit the Appellants conveniently sought to tender at the late stage of the trial was purportedly made by the original 1st Defendant – Samuel Orjiekwe (a dead man) who the appellants had earlier testified that they had not seen for several years since 1991.
It is my considered view that the challenge to the correctness or otherwise of the rejection in evidence of the certified copy of the affidavit made by the original 1st Defendant in the instant case, is better considered in the light of the case set up by the Appellants in their pleadings vis-a-vis the oral evidence adduced at the hearing particularly in relation to the rejected document. This is against the backdrop of the position of the law that a party can prove or establish its case as set up in the pleadings by oral evidence, or documentary evidence, or a combination of oral and documentary evidence.
The case of the Appellants as set up in their pleadings in the instant case in-the main is that their father owned the disputed property in his life time and that he never parted with the ownership of the said property at anytime to anybody particularly the 2nd Respondent by way of sale or otherwise. It is also clear from the case set up by the Appellants in their pleadings that they are alleging that the original 1st Defendant sold the disputed property to the 2nd Respondent stealthfully or sneakily without the knowledge of their (Appellants’) father. The averments in the Appellants’ pleadings in relation to the certified true copy of the affidavit that was rejected in evidence by the lower court can be found in paragraphs 12 – 15 of the Further Amended Statement of Claim. The read thus:-
“Paragraph 12
The Plaintiffs aver that sometime in 1998, the 1st Defendant surfaced from nowhere. As soon as the Plaintiffs sighted him, they immediately alerted the Area Commander’s Office at Onitsha as well as the renowned Counsel Chief Ezueko (S.A.N.) [of the blessed memory].
Paragraph 13
The Plaintiffs are not in a position to know what was made of the 1st Defendant by the above named persons.
Paragraph 14
The Plaintiffs aver that the 1st Defendant died in 1998.
Paragraph 15
The Plaintiffs further aver that when they came for the burial of the 1st Defendant, they saw an affidavit detailing what he did with the 2nd Defendant with respect to the property in dispute.”
It would appear from the record of appeal, that it was through PW1 and PW5 that the Appellants adduced evidence in respect of the averments quoted above. However, it was through PW1 that the Appellants sought to tender the certified copy of the affidavit that was rejected in evidence by the lower court. The evidence of PW1 while being examined in chief as well as under cross-examination and also during re-examination can be found at pages 228 – 246 of the record. The evidence of PW5 while being examined in chief as well as under cross-examination is at pages 260 – 264 of the record. I have earlier stated that it was through PW1 that the certified true copy of the affidavit made by the original 1st Defendant was sought to be tendered. The portion of the evidence of PW1 relevant to the matter/issue at hand as contained on page 232 of the record is hereby re-produced:-
“We went home for the burial of my brother the 1st defendant, who died in late 1998 whilst we discovered an affidavit detailing all the transactions between him and the 2nd defendant. I took the document and showed it to my solicitor. I found out the court where the affidavit was sworn. It was at the Ideato Magistrate Court. I went there and obtained a certified true copy of the affidavit.”
Upon learned counsel for the Appellants seeking to tender the certified copy of the said affidavit, learned counsel for the Respondent opposed the admissibility of the document on the ground that it was made by “a person interested” at a time when the instant proceedings were pending. He relied on, or invoked the provision of Section 91(3) of the Evidence Act and also cited the cases of Onuh v. Idu 2002 FWLR (Pt. 94) 66 at 88 and Alibo v. Dokusin 2003 FWLR (Pt. 139) 1439.
The stance of the Appellants before the lower court was that the document is admissible as Section 91(3) of the Evidence Act does not apply to other sections of the said Act. That it is not the law that if a party to a suit admits facts which the adversary does not, the document wherein the admission was made becomes inadmissible thereby. That such a document is admissible as an admission against the interest of the party that made it such as the original 1st Defendant in the instant case. The Appellants while conceding that the original 1st Defendant was yet to be substituted with a living party as at the time the certified true copy of the affidavit was made, further submitted that the court has discretion to exercise in the matter by virtue of Section 91(5) of the Evidence Act.
In its ruling on the matter, the lower court stated thus concerning the admissibility of the document in question: –
“In my view there is no question that this document is made by a party interested at a time when litigation is pending. I also agree that Section 91(3) of the evidence act (sic) makes no distinction by precluding only documents made by or at the instance of the party seeking to tender it. That in my view is understandable considering that an admission could be made in the pleadings. In the circumstances it is my view that this document is inadmissible. It is rejected and marked tendered and rejected T.R.I.”
In their submissions before the lower court and in their Brief of Argument before this Court concerning the admissibility in evidence of the certified true copy of the affidavit made by the original 1st Defendant the Appellants have been steadfast in the submission that the document in question consists of an admission against interest. “Admission against interest” in my considered view never arises in vacuo. See in this regard the case of ODUTOLA V. PAPERSACK NIGERIA LTD (2006) 28 NSCQR 470, in which the Supreme Court dwelling on “admission against interest” per Tobi, JSC; stated thus at page 494:-
“I realize that the so-called admissions in Exhibits P3, P6 and the evidence of 1st appellant under cross-examination did not reflect the true legal position of the matter in respect of the status of the tenancy. There was a clear mistaken belief on the part of the parties as to the true legal position and this court cannot deviate from the position of the law merely because there are admissions; admissions which are not borne out in law. After all, this is a court of law and must therefore uphold the law as its clientele.
An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the court; it must also vindicate and reflect the legal position. Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intents and purposes as superfluous. And a court of law is entitled not to assign any probative value to it.”
Against the backdrop of the above, the pertinent question then is what is the interest of the original 1st Defendant in the disputed property in the instant case? It is clear from the case set up by the Appellants in their pleadings that they do not ascribe any interest in the disputed property to the original 1st Defendant that the said Defendant is capable of disposing at all talk less of disposing such non-existent interest to the Respondent. The said original 1st Defendant on his part never filed a defence to the Appellants’ case at all material times before he died. The present 1st Respondent on record after she was substituted as a party in the case in the place of the deceased original 1st Defendant, also never filed any defence to the Appellants’ case. It therefore cannot be said that the original 1st Defendant or the 1st Respondent at anytime disclosed that they have an interest in the disputed property, talk less of the nature of such interest. How then can it be said as argued by the Appellants that the original 1st Defendant made any admission against his interest in the suit brought by the Appellants? It is in my considered view clear as crystal in the instant case that the certified true copy of the affidavit the Appellants sought to tender through PW1 did not in any way vindicate the legal position of any interest the original 1st Defendant at anytime portended to have in the instant case. The said document is therefore not admissible in evidence by virtue of Sections 20 and 23 of the Evidence Act, as submitted by the Appellants.
It clearly cannot be disputed that the original 1st Defendant being a party on record at all material times before the Appellants sought to tender the certified true copy of affidavit that was rejected in evidence by the lower court was a person interested in the instant case. It also cannot be disputed that the certified copy of affidavit in question was made while proceedings in the instant case were pending. In the light of these two undisputable facts, I simply do not see how it can be successfully argued that the lower court was wrong in rejecting in evidence the certified true copy of the affidavit which the Appellants sought to tender. The authorities are at one that documents made by a person interested when proceedings are anticipated or pending are inadmissible in civil proceedings. See NIGERIA SOCIAL INSURANCE TRUST FUND MANAGEMENT BOARD V. KLIFCO NIGERIA LTD. (2010) All FWLR (Pt.5344) 73; and OWIE V. IGHIWI (2005) 22 NSCQR 297. Indeed it is conceivable that this Court can ever hold that the affidavit in question was not rightly rejected in evidence against the backdrop of the evidence of PW5 at pages 261 – 262 of the record. The relevant portion of the evidence of the witness in this regard goes thus:-
“I know the plaintiffs in this suit. They are my relations. I know late Samuel Orjiekwe. He is the brother of the plaintiffs. The late Christian Orjiekwe is their father. Samuel Orjiekwe died in 1988. I know because there was a time he caused trouble and disappeared. Sometime in 1988 he came back and went to his mother’s place to lodge. The mother’s village is Akokwa where he lodged is also in Akokwa. He came back with a serious sickness. He sent words that we should take him back and forgive him for what he did ………….
The matter was reported to the elders that night. This was about 7p.m. The elders adduced that we accept him as that is his father’s house. So we accepted him. We then sent for the 1st plaintiff. He was asked why he caused all the problems. The 1st plaintiff on his return reported to their lawyer for as (sic) to ensure that those that arrested the father in the absence of the son will now see the accused. The 1st defendant also took him for treatment treatment ………
Samuel Orjiekwe told us that his father was not aware of his transaction or the 2nd defendant over the land. He said he had a friend who is Sabastine who told him that he can get a person to forge the father’s signature which they did. We decided at that stage to take him to the Magistrate’s Court Ideato to depose to these things in an affidavit so that we can have a copy.”
The evidence of this witness in my considered view not only clearly shows that no affidavit was stumbled upon when the Appellants came to bury the original 1st Defendant but that the said affidavit was made for the purposes of the instant case.
Flowing from all that has been said before now, is that I find the rejection in evidence by the lower court of the certified true copy of affidavit made by the original 1st Defendant and the marking of the same as T.R.I. to be eminently correct. Accordingly, Appellants Issue 4 is resolved against them
CROSS-APPEAL.
The Issue for determination of the cross-appeal as differently couched by both the Cross-Appellant and Cross-Respondents (who will hereafter be simply referred to as “Appellant” and “Respondents” respectively) simply questions the correctness of the finding of the lower court in accepting the evidence of the expert witness called by the Respondents in the proof of their assertion that the said Respondents’ father did not sign the documents relied upon by the Appellant in the proof of the purchase of the disputed property. The issue to this effect was dwelled upon by the Appellant (as Respondent) in his issue 1 in the main appeal.
I have read the Briefs of Argument of the parties in the cross-appeal. The Appellant has in the main argued that the rejection of the evidence of his witnesses that testified that they saw the Respondents’ father sign the title documents he relied upon in support of his case is perverse as it is founded on a wrong evaluation of evidence adduced. This is particularly so as the disbelief of the evidence of the said witnesses by the lower court on the ground that the said witnesses have interest to serve does not amount to discrediting of their evidence and that the evidence of the said witnesses could only be properly disregarded if it was discredited under cross-examination. As expected the Respondents argued that the line of action taken by the lower court was correct.
I do not think that it can be properly said that the fact that the Appellant’s witnesses who were the only living persons that testified that they saw the Respondents’ father sign the documents have interest to serve in the matter was a figment of the imagination of the lower court. The fact of the various interests of the witnesses was clearly brought out during their respective cross-examination. The proper time to cast aspersion on the evidence of any witness is during cross-examination. See REYNOLDS CONSTRUCTION CO. (NIG.) LTD V. EDOMWONYI (2003) FWLR (Pt.147) 1150 at 1165 and the Appellants in my considered view did a good job of this in their cross-examination of the Respondent and his witnesses by exposing their various interests.
The learned trial Judge as I have earlier stated properly evaluated the evidence adduced before him and I am of the considered view that as the interest the Appellant’s witnesses have to serve in testifying in the manner they did was clearly brought out, the lower court was rightly influenced by the same in ascribing more probative value to the evidence of the expert witness called by the Respondents as against the evidence of the Appellant’s witnesses concerning the issue of the signatures of the Respondents’ father they testified on.
As for the stance of the Appellant that the lower court over relied on the evidence of the expert evidence called by the Respondents, it would appear that the Appellant failed to realize that the evidence of the said expect even went to settle the fact that the Respondents’ father could not even be said to have varied or changed his own signature having regard to the fact that the evidence in question dwelled on the characteristic features of the Respondents’ father writing. It would therefore appear clear that whether it was the shortened form of the name of the Respondents’ father or his long name that is being considered, the evidence as to the characteristic features of the said Respondents’ father writing clearly justified the reliance placed on the evidence of the Respondents’ expert witness by the lower court.
Flowing from all that has been said is the fact that the Issue for determination of the cross-appeal is resolved against the Appellant as I do not find the rejection of the evidence adduced by the Appellant’s witnesses in relation to the title documents relied upon by the Appellant in support of his case, to be perverse in any manner.
In the final analysis, and given the resolution in favour of the Appellants of the Issues formulated by them for the determination of the main appeal (save Issue 4), I find the main appeal to be meritorious and hereby allow the appeal.
Furthermore, having resolved the sole Issue for the determination of the cross-appeal against the Appellant therein, I find the same to be unmeritorious and hereby dismiss the said cross-appeal.
Given the success of the main appeal, the judgment of the lower court delivered on 28/6/2007 is set aside in its entirety. In its place and as claimed in their Notice of Appeal, judgment is hereby entered for the Appellants in the terms of their reliefs before the lower court. Furthermore, the Counter-Claim of the Respondent/Cross-Appellant is dismissed.
Costs in the sum of N40,000.00 is awarded in favour of the Appellants/Cross’ Respondents and against the Respondent/Cross-Appellant.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I have had the benefit of reading in draft the lead Judgment of my learned brother Lokulo-Sodipe, JCA.
I entirely agree with the views therein expressed and the conclusion that the appeal is meritorious and equally the views that the cross-appeal is unmeritorious. Accordingly I allow the appeal and dismiss the cross-appeal. In view of the success of the main appeal, the Judgment of the lower court delivered on 28/6/2007 is set-aside in its entirety. In its place Judgment is hereby entered for the Appellants in the terms of their reliefs before the lower court. Furthermore, the counter-claim of the Respondent/Cross Appellant is dismissed.
I abide by the order as to costs contained in the lead judgment.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading before now, the lead judgment of my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA just delivered. My learned brother has painstakingly considered the issues raised in both the appeal and the cross appeal and I agree with the reasoning as well as the conclusion that while the appeal is meritorious the cross appeal is devoid of merit. I therefore dismiss the cross-appeal and allow the appeal. I abide by the consequential order in the lead judgment, including the costs awarded.
Appearances
J.R. Nduka with S.A. Okorie for the Appellants/Cross-Respondents.For Appellant
AND
G.E. Ezeuko with A.C. Ezeodili for the 2nd Respondent/Cross-Appellant.For Respondent
