SAMUEL IHEANACHO & ANOR v. EMMANUEL IWUAMADI & ANOR
(2013)LCN/6028(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of March, 2013
CA/OW/253/2010
RATIO
CUSTOMARY ARBITRATION: WHETHER A PARTY CAN DECIDE IF AN ARBITRAL AWARD IS NOT GOING TO BIND HIM
The decision becomes binding and has the same legal consequence or authority as the judgment of a Court or other judicial body, and may create an estoppel in a future dispute between the parties. Such a decision may also be enforced by the Courts of law, and none of the parties would be permitted to resile from the result of such an arbitration simply because it did not favour him. See ONWUANUMKPE v. ONWUANUMKPE (1993) 8 NWLR (Pt.310) p. 186; OKERE v. NWOKE (1991) 8 NWLR (Pt. 209) p.317; IGBOKWE v. NLECHI (1996) 2 NWLR (Pt. 429) p. 185; NZEOMA v. UGOCHA 9 2001) 29 W.R.N. p.179; OJIBAH v. OJIBAH (1991) 5 NWLR (Pt. 191) p. 295 and NWANKWO v. NWANKWO (1993) 5 NWLR (Pt.293) p. 293 at 308.PER HARUNA SIMON TSAMMANI, J.C.A
CUSTOMARY ARBITRATION: WHETHER A MERE SUBMISSION TO CUSTOMARY ARBITRATION IPSO FACTO BINDS A PARTY
It is however now accepted law that, a mere submission to customary arbitration by a party does not ipso facto bind such a party no matter the decision arrived at by such an arbitral body. The trend in judicial opinion is that, since the constitution has guaranteed a right of appeal, a person aggrieved by the decision reached in an arbitration could seek redress in a regular Court of the land, upto the highest Court, which is the Supreme Court. It is accepted that such a party is not required to submit willy – nilly to a decision that is clearly unjust to him. See OLOWU v. ABOLORE (1993) 5 NWLR (Pt. 293) p.253. Where the decision of a customary arbitration is challenged, Courts of law are expected to apply such decisions with circumspection Thus, AKPATA; J.S.C in the case of OHIAERI v. AKABEZE (1992) 2 NWLR (Pt.221) P.1 at 24 stated that:
“It is common feature of customary arbitration in a closely knit Community that some of the arbitrators, if not all, not only have prior knowledge of the facts of the dispute, but also have their prejudices and varying interests in the matter, and are therefore sometimes Judges in their own cause and are likely to pre-judge the issue. Prior knowledge and pre-judging issues are more pronounced in land disputes having bearing with the founding of the village and how families migrated to the village and came to occupy parcels of land. The arbitrators are well informed on these matters … Hence, it is essential before applying the decision of a customary arbitration as an estoppel for the court to ensure that all the conditions precedent to the application of the decision of a customary arbitration are satisfied.”PER HARUNA SIMON TSAMMANI, J.C.A
COURT: THE MAIN DUTY OF THE TRIAL COURT AND WHEN THE COURT OF APPEAL IS ALLOWED TO INTERFERE IN THE DUTIES OF THE TRIAL COURTS
The general rule is that the evaluation of evidence and the ascription of probative value reside within the province of the trial Court that saw, heard and accordingly assessed the witnesses. In other words, the duty of evaluating and ascribing probative value to all relevant oral and documentary evidence lies with the trial judge who had the advantage of seeing and hearing the witnesses. Accordingly, where the trial Court had diligently and justifiably evaluated and appraised the facts, an appellate court is usually reluctant or slow to interfere. See P.T.F v. W.P.C. LTD (2007) 14 NWLR (Pt. 1055) p.478; OMAYE V. OMAGU (2008) 7 NWLR (Pt. 1087) p.461; GAGARAU v. PASHIRI (2006) 1 NWLR (Pt.962) p. 521; ISMAIL v. STATE (2008) 15 NWLR (Pt. 1111) p. 593 and OJELEYE v. REGT. T.O.I.M.C. & S.C.N. (2008) 15 NWLR (Pt. 1111) p.520. In other words, it is only where the trial Court failed to evaluate or failed to properly evaluate that an appellate court can do what the trial Court ought to have done and accordingly, where the appellate Court so finds, it can set aside the findings made by the trial Court.PER HARUNA SIMON TSAMMANI, J.C.A
A PARTY WHO COMPLAINS THAT THE TRIAL COURT DID NOT EVALUATE THE EVIDENCE JUDICIALLY THAT WILL SHOW HOW THE JUDGMENT OF THE TRIAL COURT WILL BE FOUND WRONG
Generally, the onus is on the party who complains that the trial Court did not evaluate the evidence judicially, to show how the judgment of the trial Court would be found to be wrong if the omission or failure to evaluate properly is corrected.PER HARUNA SIMON TSAMMANI, J.C.A
APPEAL: WHAT THE APPELLANT COURT SHOULD LOOK AT WHEN DETERMINING AN ISSUE
In the determination of the issue, what should occupy the mind of the appellate court is whether the trial court made proper findings and thus reached the correct decision or judgment upon the facts before it. The factors to be considered by the appellate court on whether or not to interfere are:-
(a) whether there is sufficient evidence to sustain the judgment:
(b) whether the trial Court failed to make proper use of the opportunity of seeing, hearing and observing the witnesses;
(c) whether the findings of fact of the trial Court cannot be regarded as resulting from the evidence;
(d) whether the trial court has drawn wrong conclusion from accepted evidence; or has taken an erroneous view of the evidence adduced before it
(f) whether the findings of the trial Court are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before it.
See AKINDIPE v. state (2008) 15 NWLR (Pt. 1111) p. 560; MAFIMISEBI v. EHUWA (2007) 2 NWLR (Pt.1018) p.385; P.T.F v. W.P.C LTD (supra) at p.498 paras. A-E and ANYAFATU v. AGAZIE (2006) 5 NWLR (Pt.973) p.260.PER HARUNA SIMON TSAMMANI, J.C.A
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. SAMUEL IHEANACHO
2. EDMUND OKECHUKWU Appellant(s)
AND
1. EMMANUEL IWUAMADI
2. SAMUEL NWODU Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A (Delivering the Leading Judgment): This appeal is against the judgment of the Imo State Customary Court of Appeal sitting at Owerri delivered on the 30th day of September, 2009.
The Appellants herein, were the Defendants before the Customary Court, Eziama in Ikeduru Local Government Area, while the Respondents herein where by order of the said trial Customary Court, the Plaintiffs. The parties had filed separate suits before the trial Customary Court in respect of the subject matter of the action.
The Respondents’ action before the trial customary court which was dated the 14/05/2001 had Suit No. CC/EZ/IK/23/2001, while the Appellants’ action which was dated the 2nd day of November, 2002 and filed the 19/12/2002 had Suit No. CC/EZ/IK/51/2002.
The Respondents’ claim before the trial Customary Court was therefore earlier in time. By the said action, the Respondents claimed as follows:
“The Plaintiffs claim against the Defendants as follows:
(1) A declaration that the lands known as and called:-
(a) Ala Uhu Nwaokoro,
(b) Ala Uhuama,
(c) Ala Umuokpuala,
(d) Ala Isi Ogboachara,
lying and situate at Okpuala Iho Dimeze in the Ikeduru Local Government area within jurisdiction are the joint property of the entire UMUNWAYI DOMEONU, UMU IWUAMADI and UMU NWAODU families.
(2) An order that the said landed property that is to say a-d ALAUHU NWAOKORO ALA UHUAMA, ALA UMUOKPUATA and ALA ISI OGBOACHARA be completely partitioned among the aforesaid families.”
The Appellants in Suit No. CC/EZ/IK/51/2002 on the other hand claimed as follows:
1. A Declaration by the Honourable Court that the Plaintiffs who are the resident natives of Okpuala Iho in Ikeduru Local Government Area of Imo State, are entitled to the Customary right of Occupancy of all the pieces or parcels of land known as and called “Ala Uhu Nwaokoro”, “Ala Isi Ogbo Achard”, Ala Uhuama”, “Ala Uhu Okpuala” and “Ala Ukuru Ikoro”, lying, being and situate at Okpuala Iho in Ikeduru Local Government Area of Imo State within the jurisdiction of this Court, the annual rental value of which is N10 (ten Naira) each.
2. Order of the Honourable Court that the pieces or parcels of land mentioned in claim ONE above are the exclusive property of the Plaintiffs and not the joint property of the entire Umunwanyi Domeonu, Umu Ihuamadi and Umu Nwaodu, as is being contended by the Defendant who is out of possession.
3. Perpetual Injunction restraining the Defendant, by himself, his servant agent and/or privies from committing further act of trespass on the Plaintiffs’ said lands or encouraging any act of trespass therein, or doing anything which is inconsistent with the rights of the Plaintiffs with respect to the pieces or parcels of land the subject matter of this suit.”
I find it pertinent to point out that, the Appellants’ claim at the trial Customary Court was began against the 1st Respondent alone. However, the 2nd Respondent (Samuel Nwodu) applied for and was granted leave to join in the action as the 2nd Plaintiff in suit No. CC/EZ/IK/23/2001 and the 2nd Defendant in suit No. CC/EZ/IK/51/2002, on the 16/9/2003. See pages 9-10 of the records. In the same vein, in the course of the proceedings, one Paul Chiemenike who was the 2nd Defendant in Suit No. CC/EZ/IK/23/2001, and 1st Plaintiff in Suit No. CC/EZ/IK/2002, died and his name was struck out of both Suits by order of the trial Customary Court dated the 16/7/2003. Furthermore, in the cause of the proceedings, the parties applied for and the trial Court consolidated the two Suits and heard same as such, so as to save time and cost, as evidence to be led in both Suits is the same. The Appellants were then designated the Defendants, while the Respondents became the Plaintiffs.
At the trial both parties were agreed that they are descended from one common ancestor called Duruoha. It was also agreed that the pieces or parcels of land in dispute were the properties of Nwaopara Nwaiwu who also descended from the same Duruoha as the parties, but died extinct i.e. without leaving a successor. By the evidence, both parties were agreed that, under their custom, where a person dies extinct or without an heir, his properties would be inherited by his relations in accordance with their maternal lineage. In other words, the relations of such a deceased person of same mother will inherit him, but where he has no relations of the same mother surviving him, then his relation of the same father will inherit him.
By the above stated custom, the Respondents claimed that, Nwaopara Nwaiwu who died extinct did not descend from the same maternal lineage with any of the parties to this dispute. That Nwaopara Nwaiwu having descended from one of the wives of Duruoha different from the mothers of the Appellants and the Respondents, and having died extinct, his estate was by the custom to be shared among them, having all descended from Duruoha, their common ancestor. The Appellants on the other hand, claimed that Nwaopara Nwaiwu was the son of Nwaiwu, and that Nwaiwu was the second (2nd) son of Duruoha’s first wife Nwanyi Domeonu. That Nwanyi Domeonu also had other sons called Duruanyanwu, Durunna and Chiyere; all of whom were of the same mother as Nwaiwu, the father of Nwaopara. It is thus the contention of the Appellants that Nwaopara, the son of Nwaiwu having died extinct or without an heir, they as the descendants of Nwaiwu’s brothers of the same mother, are the only persons entitled to inherit the estate of Nwaopara, to the exclusion of their other Kinsmen though descended from Duruoha, but are of different maternal lineage.
At the hearing, and after taking evidence from the parties and their witnesses the trial Customary Court, made its findings and disbelieved the evidence of the Respondents and therefore entered judgment in favour of the Appellants. The trial Court accordingly held that the Appellants who are the descendants of Nwanyi Domeonu, Duruoha’s first wife are solely entitled to inherit the estate of Nwaopara Nwaiwu, to the exclusion of the Respondents. The Respondents who were not satisfied with the decision of the trial Customary Court, appealed to the Customary Court of Appeal i.e. Court below. The Court below set aside the judgment of the trial Customary Court and granted the relieves sought by the Respondents in their claim before the trial Customary Court. The Appellants being dissatisfied with the judgment of the Court below have now appealed to this Court.
The Notice of Appeal which was dated the 28/10/2009 and filed the 30/10/20009 consists of 9 (nine) Grounds of Appeal. The Grounds of Appeal without their particulars are as follows:-
1. The lower Court erred in law by holding that Ground 1 of the Appellants grounds of appeal is a ground involving questions of Customary Law.
2. The Lower Court erred in law in refusing and or failing to judicially and judiciously consider and rule upon each of the 2nd to 7th grounds of Appeal in respect of which in acknowledged that Respondents’ now (Appellants) Counsel had objected to.
3. The lower Court erred in law by assuming jurisdiction over grounds 1, 2, 3, 4, 5, 6 and 7 of the Appellants’ now (Respondent’s) grounds of Appeal.
4. The Lower Court erred in law in holding that the Respondents (now Appellants) were bound by the Customary arbitration in exhibits “A” and “C” when clearly they were not parties to it and were not represented thereat.
5. The Lower Court erred in law in holding that exhibit “D” a decision reached after an arbitration between the parties on record by the parties’ Traditional Ruler is not binding on the Appellants (now Respondents) simply because it was made after exhibit B and the filing of suit No. CC/EZ/IK/23/2001
6. The Lower court erred in law in misdirecting itself or misinterpreting a paragraph of exhibit “D” and turning around to “hold that the Lower court did not properly evaluate the evidence before it, before arriving at its decision.”
7. The Lower court erred in law in assuming jurisdiction over an appeal it has no jurisdiction to entertain.
8. The judgment of the Lower court was against the weight of evidence available.
9. That more grounds of Appeal may be filed upon receipt of the entire record of appeal in this Appeal.
As the Rules of this court demand, the parties filed and exchanged Briefs of Arguments. The Appellants’ Brief of Arguments was dated the 14/09/2010 and filed the same day. The Respondents’ Brief of Arguments is dated the 04/02/2011 and deemed fifed the 26/4/2012, vide motion on Notice dated the 04/2/2011 and granted the 26/4/2012. The Appellants then filed a Reply Brief to the Respondents’ Brief of Argument. It is dated the 09/05/2012 and filed the same day. In their Brief of Arguments, the Appellants formulated three issues for determination as follows:
1. Whether the Customary Court of Appeal of Imo State has the statutory jurisdiction to entertain Grounds 1, 2, 3, 4, 5, 6, 7 and 8 of the Respondents’ Appeal. (Grounds 1, 2, 3 and 7).
2. Whether the decision of the local Arbitration exhibits “A” AND “C” bind the Appellants. (Ground 4).
3. Whether the Customary Court of Appeal was right in setting aside the judgment of the trial Customary Court. (Grounds 5, 6 and 8).
The Respondents adopted the issues formulated by the Appellants, but proceeded to add a 4th issue, which is:
“Whether the Court below was right in holding that the landed property of Nwaopara Nwaiwu who died extinct is the joint property of the parties and not of the Appellants’ alone.”
I am of the view that, the Appellants’ third issue having covered Ground 8 of the Grounds of Appeal, the formulation of another issue out of the same Ground 8 by the Respondent is unnecessary. This is more so as Respondents have adopted the issues formulated by the Appellants. Accordingly, I propose to determine this appeal on the three issues nominated by the Appellants.
In arguing issue No. one (1), Learned Counsel for the Appellants contended that, by Section 282(1) of the 1999 Constitution of the Federal Republic of Nigeria, a Customary Court of Appeal shall exercise appellate and supervising jurisdiction in the proceedings involving questions of Customary law. That a party wishing to appeal to a Customary Court of Appeal, must therefore ensure that his appeal is a question of Customary law arising from the decision of the Court being appealed from, learned Counsel then cited the cases of EGBE v. YUSUF (1992) 6 NWLR (Pt. 254) p.1 at 16 and UNION BANK v. SAX NIG. LTD (1994) 9 SCNJ p.1 at 14 to submit that this court is bound to interpret and apply that provision as it is. That it is the Appellant s appeal as shown in the Notice and Grounds of Appeal that reveals whether or not there is jurisdiction in the appellate court to entertain the appeal. He referred to the Respondents’ Ground of Appeal before the court below as contained in pages 83-88 of the records, to contend that it is apparent that the complaints therein in all the grounds of appeal is improper evaluation and attachment of weight by the trial Court to the evidence before it and the exercise of judicial discretion. The cases of HIRNOR v. YONGO (2003) FWLR (Pt. 159) p. 1358 at 1375-1376; EDEBE v. IGIADEGHO (1994) 1 C.C.A.LR P.64 at 67- 68; OKHAE v. GOV. OF BENDET STATE (1990) 4 NWLR (pt. 144) p. 327; USMAN v. UMARU (1992) 7 SCNJ (pt.2) p.388 at 397-400, were also cited to further submit that, the complaints contained in Grounds 1-8 of the Grounds of Appeal filed by the Respondents at the Lower Court are unmistakably, grounds of fact, procedure, evaluation or exercise of judicial discretion. That those are matters which the Customary Court of Appeal of a State lacks the jurisdiction to entertain, as they are not complaints involving any question of customary law.
Learned Counsel for the Appellants then alluded to the decision of AYOOLA, JSC in the case of PAM v. GWOM on what constitutes a question of Customary law, to submit that Grounds 1, 2, 3, 4, 5, 6 and 7 are no doubt complaints about the appraisal and evaluation of evidence by the trial Court and therefore incompetent. That Ground 8 which is the omnibus ground of appeal cannot be disputed that, it is incompetent. The case of DAKUR v. WEDTET (2005) ALL FWLR (Pt. 278) p.1116 was cited in support. Learned Appellants’ Counsel then took a brief over-view of all the Grounds of Appeal as contained in the Notice of appeal filed by the Respondents in the Court below, to also submit that, by no stretch of imagination has the Respondents’ Appeal at the court below, raised any question of customary law. That rather, those grounds of appeal raised issues of evaluation of evidence, and therefore the court below had no jurisdiction to entertain an appeal from the trial customary court on those issues. We were then urged to allow the appeal on this ground alone.
In arguing this issue, learned counsel for the Respondents seemed to have mixed up issues which should be canvassed in either issues 2 or 3 formulated by the Appellants. In that respect, I shall endeavour to pick out the arguments as presented by the Respondents’ Learned Counsel as are found germaine or relevant to the determination of the issue under consideration. That being so, it is pertinent to point out that Learned Counsel for the Respondents had contended that, the Court below was perfectly seised of the jurisdiction to entertain grounds 1-8 of the Grounds of appeal filed by the Respondents before it. That Ground 1 of the grounds of appeal filed at the court below dealt with oath as a way of resolving customary land dispute between competing claimants, and therefore, the court below rightly assumed jurisdiction to entertain a complaint on that ground. That Ground 2 dealt with the issue of local or customary arbitration, as evidenced by exhibits A, B, C and D, which is part of customary law of the people, as a way of resolving disputes over land.
Learned Counsel for the Respondents went on to submit that grounds 4, 5, 6, and 7 and 8 filed by the Respondents at the Court below are also grounds of customary law. That ground 5 dealt with exhibits A and C as to the persons bound by them and the capacities of the parties thereto, while ground 5 is a ground of customary law because it borders on family property of a member who died extinct under customary law. That grounds 7 and 8 are also trite grounds of Customary law because, they pertain to the effect of oath taking as a way of determining disputes over land between parties. That, where the trial Court failed to give effect to oath taking and the refusal of oaths taking, the party adversely affected thereby will be right to complain to the court below, and that the Court below rightly assumed jurisdiction to entertain same. We were then urged to resolve this issue against the Appellants.
The only point which I consider worthy of consideration in the Appellants, Reply Brief is at page 5 paragraph 1.OZ of the said Reply Brief. Therein, the Appellants’ Learned Counsel contended that, the Respondents did not counter the Appellants’ argument that ground 3 of the Respondents’ ground of appeal at the court below did not disclose any question of customary law. That nowhere in the Respondents’ brief is any argument proffered on ground three. It was then submitted that, every material point in the Appellants, Brief of argument which is not countered by the Respondent’s Brief of Argument is deemed admitted or conceded to. Aside that point, all the other arguments in the Appellants’ Reply brief are not in concert or do not meet the requirements of a reply brief.
I Make the point above because, the function of a reply brief is to reply to any new point or points of law raised and canvassed in the Respondent’s Brief. It is not meant to either emphasise or repeat what has been canvassed in the Appellant’s Brief of Argument. That being so, a reply brief that does not deal with any new point arising from the Respondent’s brief is unnecessary, not being within the contemplation of order 17 Rule 5 of the Court of Appeal Rules, 2011 which stipulates that:
“The Appellant may also, if necessary, within fourteen days of the service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s Brief.”
By the underlined words used in order 17 Rule 5 (supra) it is clear that, where no new points are raised in the Respondent’s brief, a reply brief would be unnecessary. See OKPAGA & ANOR v. IBEME & ORS (1989) 2 NWIR (Pt. 102) p. 208; OKENIRA v. MILITARY GOV; IMO STATE & ORS (1990) 5 NWLR (Pt. 152) p. 594; NWALI v. THE STATE (1991) 3 NWLR (Pt. 182) p. 663; EZEKWESILI v. ONWUAGBU (1998) 3 NWIR (Pt.541) P.217 AND CHUKWUOGOR v. A.G.; CROSS RIVERS STATE (1993) 1 NWLR (Pt.534) p. 375. In the instant case, it would be seen that the Respondents merely responded to the issues raised by the Appellants in their Brief of Arguments on the competence of the grounds of appeal filed at the Court below. Though the Respondents laced their arguments with issues which I consider as not relevant to the issue under consideration, they cannot be considered as new points arising from the Respondents’ brief which require a reply by the Appellants. I therefore hold that arguments in the Appellants’ reply brief, save for that earlier pointed out, are not relevant to the determination of issue one. I accordingly discountenance same.
Now, I find it necessary to point out at this juncture that the jurisdiction of Courts in Nigeria are generally donated by the constitution or other statute giving specific jurisdiction to the Courts in certain matters. The jurisdiction of the Customary Court of Appeal of a state in Nigeria is donated by Section 282 of the Constitution of Federal Republic of Nigeria, 1999 (as amended). That provision stipulates that:
“1. A Customary Court of Appeal of a state shall exercise Appellate and supervisory jurisdiction in civil proceedings involving questions of customary law.
2. For the purpose of this section, a Customary Court of Appeal of a state shall exercise such jurisdiction and decided such questions as may be prescribed by the House of Assembly of the state for which it is established.”
It is clear therefore that a customary court of Appeal of a state has its jurisdiction limited to appellate and supervisory jurisdiction in civil proceedings involving questions of Customary law or to such other jurisdiction as may be conferred on it by the House of Assembly of the state which establishes it. The pertinent question in this appeal is how to determine whether the questions or complaints brought to the Customary Court of Appeal are on questions involving Customary law alone. The provision of Section 282 (1) of the 1999 Constitution (supra) thus limits the right of appeal to the Customary Court of Appeal to an appeal in civil proceedings involving questions of Customary law and such other matters as may be prescribed by the House of Assembly that establishes it. Accordingly, any ground of appeal which does not raise questions of Customary law would be incompetent.
Learned Counsel for the Appellant would appear to rely heavily on the decision of the Supreme Court in HIRNOR v. YONGO (2003) FWLR (Pt. 159) p.1358 at 1375-1875. Therein the Supreme Court held that:
“A decision is in respect of a question of Customary law when the controversy involves a determination of what the relevant customary law is and the application of customary law so ascertained to the question in controversy. Where the parties are in agreement as to what applicable customary law is and the customary court of Appeal does not need to resolve any dispute as to what the applicable customary law is, no decision as to any question of customary law arises. However, where notwithstanding the agreement of the parties as to the applicable customary law, there is a dispute as to the extent and manner in which such applicable Customary law determines and regulates the right, obligation or relationship of the parties having regard to the facts established in the case, a resolution of such dispute can be regarded as a decision with respect to a question of Customary law.
When the decision of Customary Court of Appeal turns purely on facts or on question of procedure, such decision is not with respect to a question of Customary.”
The portion of the judgment reproduced above, was copiously cited by Learned Counsel for the Appellants. However, in canvassing his arguments, Learned Counsel found it convenient to avoid the entire portion of the judgment quoted by him, and to rely on the last paragraph of the quotation; and to hold that the entire grounds of appeal filed by the Respondents in the Court below were complaints against procedure, evaluation of evidence or exercise of judicial discretion. I believe that if Learned Counsel had adverted his mind to or not closed his eyes to the entire portion of the judgment quoted and relied on by him, his position on the issue would have been different. I hold this view because, in the opening passage of the judgment reproduced above, the Supreme Court made it clear that, when the controversy involves a determination of what the relevant Customary law is AND THE APPLICATION of CUSTOMARY LAW SO ASCERTAINED to the question in controversy, the question so raised would be a question of Customary law. Furthermore, that when notwithstanding the agreement of the parties as to the applicable Customary law, there is a dispute as to the extent and manner in which such applicable Customary law determines and regulates the rights, obligations or relationship of the parties having regard to the facts established in the case, a resolution of such dispute can be regarded as a decision involving questions of Customary law. See also PAM v. GWOM (2000) 2 NWLR (Pt. 644) P.322 at 324; C.C.A; EDO STATE v. AGUELE (2000) 12 NWLR (Pt. 995) p.545 and GOLOK v. DIYALPWAN (1990) 1 NWLR (Pt. 139) p.41.
I have carefully perused the Notice and Grounds of appeal filed by the Respondents at the Court below. Upon a careful consideration, I am of the view and do hold that Grounds 1, 2 and 3 dealt with the determination and application of customary arbitration to the controversy between the parties. However, I am of the view that Grounds 4, 5, 6 and 7 dealt squarely with appraisal and or evaluation of the evidence on the facts established before the trial Customary Court. They cannot be regarded as matters of facts simpliciter or mere procedure. Certainly without a resolution of the facts or evidence I cannot see how the Court could arrive at the applicable Customary law to the dispute between the parties. The decisions cited above, did not state it as the law, that where the question before the Customary Court of Appeal involve appraisal or evaluation of the evidence by the court in order to arrive at what the customary law is and its application to the dispute, it would not be a question of Customary law. The Court below was therefore right in upholding their competence. However, Ground 8 which was an omnibus or general ground is incompetent, and should have been struck out. See HIRNOR v. YONGO (supra). On the whole therefore issue No. 1 is resolved against the Appellants.
Arguing on issue two (2), Learned Counsel for the Appellants alluded to exhibit “A” which is the Arbitration Report of Umudim Family of Okpuala Iho, which also concluded that since Paul Chiemenike failed to swear to an Oath, Ala Ukwu Ikoro land should be shared, to submit that Paul Chiemenike appeared before the Arbitration Panel in his personal capacity, and not in a representative capacity on behalf of himself and the Appellants. That the Respondents’ called one Paulinus Chidozem who testified that he was the Secretary of Iho-Dimeze Town Union and also the Secretary that made Exhibit “C”, and testified under cross-examination that the Appellants did not participate as parties to the arbitration by Iho-Dimeze Town Union. He then submitted that the testimony of Paulinus Chidozem then corroborates the evidence of the Appellants that they did not appear before the Iho-Dimeze Town Union and that of the Umudim family of Okpuala Iho-Dimeze which reached the decisions in Exhibits “A” AND “C” respectively.
Learned Appellants Counsel further contended that the P.W.2 stated that they looked only into the Ala Ukwu Ikoro land in the arbitration. He then submitted that it shows that, the decision in exhibit “C” did not relate to all the other lands of Nwaopara Nwaiwu claimed by the parties to this action. He also listed the requirements of a binding customary arbitration as stated in the case of AWONUSI v. AWONUSI (2007) ALL FWLR (Pt. 391) p. 1642 at 1662 – 1663 paras. G-A; to further contend that in the instant case, the Appellants were not parties to the arbitration, and that they never expressly or by implication consented to the arbitration. That there is also no evidence that Paul Chiemenike claimed the entire estate of Nwaopara Nwaiwu either in his personal or representative capacity, but rather the evidence shows that, he claimed only Ala Ukwu Ikoro in his personal capacity. The cases of KALU v. ONWUEGBU (2003) ALL FWLR (Pt. 435) p.1713 AT 1734-1735 and OHIARE v. AKABUEZE (1992) 2 NWLR (Pt. 221) P. 1, to Further submit that, the Appellants on records having not associated themselves with the decisions in Exhibits “A” and “C” were not bound by the result of such arbitration. We were then urged to resolve this issue in favour of the Appellants.
Learned Counsel for the Respondents, relied on the cases of BALOGUN v. ADEJOBI & ANOR (1995) 2 NWLR (pt. 376) P.131 at 137, OKEREKE v. NWANKWO (2003) FWLR (Pt. 158) p.1246 at 1248-1249 and OPARAJI v. OHAWU (1999) 9 NWLR (Pt.618) P.290, to contend that, it is too late in the day for the Appellants to doubt the bindingness of Exhibits “A” and “C”. That the PW1 stated clearly that the Umudim family of Okpuala looked into this matter and decided on oath taking which the Appellants reneged from as shown by exhibit “A.” That the subject matter in Exhibit “A” is Ala Ukwu Ikoro, one of the landed properties of Nwaopara Nwaiwu who died extinct and to which the parties are jointly entitled to inherit, and that the late Paul Chiemenike merely sought to change the status of that joint ownership by claiming without proof that his father bought Ala Ukwu Ikoro from Nwaopara. That, after Exhibit A, the two Appellants on record joined in demanding the release of Ala Ukwu Ikoro for joint sharing.
Learned Respondents’ Counsel contented that the position is made clearer by Exhibit “C”, wherein the Appellants were represented by Paul Chiemenike as shown by fines 15-34 at page 22 of the records. He contended that, Exhibits “A” and “C” are therefore binding on the Appellants who never challenged same. The case of EZERIOHA v. IHEZUO (2010) ALL FWLR (Pt. 540) p. 1259 at 1260-1272 was cited in support. That it was the Appellants’ intransigence and recalcitrance as evidenced by their contempt for the Arbitrations of 1996 and 1998 that led to the Respondents’ filing of Suit No. CC/IK/EZ/23/2001 at the trial customary court, Ikeduru. Learned Counsel then submitted that Exhibits “A” and “C” satisfied the requirements of a customary arbitration, and that the Appellants who did not challenge the awards made therein are bound thereby. The cases of OKEREKE v. NWANKWO (2003) FWLR (pt. 158) p. 1.246 at 1248-1249; OPARAJI v. OHANU (supra) at 290 and OHAERI v. AKABAEZE (1992) 2 NWLR (Pt. 221) p.1 were cited in support. He also cited the case of EZERIOHA & ORS v. IHEZUO (2010) ALL FWLR (Pt. 540) p. 1259 at 1260, to submit that failure of the Appellants to challenge the award in Exhibits A and C, is evidence that they accepted the awards made therein. That the Court below was therefore right in holding that the Appellants were bound by Exhibits A and C. We were then urged to hold that the failure of the trial Customary Court to place proper weight on Exhibits A & C had led to a miscarriage of justice and that the Court below was therefore right in setting that decision of the trial court, aside and to resolve this issue against the Appellants.
The response of the Appellants is at pages 6-7 paragraphs 2.OC-2.OG of the Respondents’ Reply Brief. Therein Learned Appellants’ Counsel submitted that, the contention of the Respondents that it is too late for Appellants to doubt the binding effect of Exhibits “A” and “C” is very misleading, because, at the earliest opportunity, the Appellants before the trial court, disassociated themselves from Exhibits “A” and “C” and which was corroborated by PW2 who testified to the effect that the Appellants did not participate at the arbitration. That the contention of the Respondents that the Appellants submitted to the arbitration and stated their case, and that they accepted the grounds, is not borne out of the record. That this fact is further corroborated by the testimony of pw2 who categorically stated that the Appellants did not participate in the arbitration, and which subject matter was on Ala Ukwu Ikoro land only. We were then urged to discountenance the submissions of Learned Counsel for the Respondents on this issue, and to resolve this issue in favour the Appellants.
The trial Customary Court in the determination of the case before it, resolved in respect of the issue of the arbitral awards as evidenced by Exhibits “A”, “C” and D as follows:-
“In this matter some Exhibits were tendered in evidence. Exhibit “A” is a document indicating that Emmanuel Iwuamadi brought Paul Chiemenike before Umudim family of Okpuala Iho-Dimeze in respect of sharing of the estate of Nwaopara Nwaiwu. That Exh. A contains information in paragraph one that the Umunwanyi Domeonu had been in possession of the estate of Nwaopara Nwaiwu for over 50 years ago of the death or extinction of Nwaopara Nwaiwu. This implies that the fathers of the parties did not contest this situation but allowed the sleeping dog to lie for whatever reasons they had. However this arbitration of Umudim family decided on Oath-taking which did not take place but accepted that the estate of Nwaopara Nwaiwu is jointly owned by the descendants of Duruoha. Exh. D which is the decision of H.R.H. Eze E.O. Onwuegbu in Council ruled that, the property of Nwaopara Nwaiwu shall be inherited by the family of Umunwanyi Domeonu since; Nwaopara family is in their mother’s lineage. The Eze’s decision favoured the Defendants in this case.
Exhibit C is the decision of Iho-Dimeze Town Union which favoured the Plaintiffs in this case. It was based on the refusal of Paul Chiemenike to take Oath as decided. Though the Defendants did not associate themselves with that arbitration and the arbitration of Umudim family of Okpala Iho-dimeze.
The Defendants maintained that they did not show up or participate in any of the arbitrations as claimed by the Plaintiffs except in the arbitration of Eze E. O. Onwuegbu in Council.”
It is therefore clear that the trial customary court rejected the finding and conclusion of the Umudim family when they arbitrated on the issue, as per Exhibit A. Rather, they accepted the decision of the Eze of Iho-Dimeze in council as shown by Exhibit D to find for the Appellants who were defendants before it. Basically, the trial Customary Court therefore arrived at its decision on the ground that the Nwanyi Domeonu kindred or lineage of Umuduruoha had been in possession of the land for about 50 years since the death of Nwaopara Nwaiwu without any contest from the Respondents’ Parents.
After considering the submissions of Counsel and the record before it, the Court below decided that the trial Customary Court was wrong to have based its judgment on part of the decision reached in Exhibit “D”. It arrived at this conclusion when it found at page 232 lines 5-10 as follows:
“I have read through the records and also the exhibits mentioned in this appeal. There is no doubt that after a careful perusal of the evidence of PW1, Pw2 and PW3, there is obvious fact that exhibit D was issued after suit No. CC/EZ/IK/23/2001 had commenced. Therefore, the issuance of exhibit D, is contrary to the contents of exhibit B issued by the same Eze O. Onuegbu. Exhibit D therefore in my candid opinion is not binding on the Appellants.”
It is now settled law under the Nigerian legal system that, one of the methods of settling disputes is by way of customary arbitration, wherein a dispute between parties is referred to the family head or an elder or elders of the Community or other body of men, be they Chiefs or some other respected persons in the Community. Such person or body of persons then act as arbitrators over the dispute between the parties and accordingly their decision becomes binding; once it is shown that both parties to the controversy submitted to the arbitration; they accepted the terms of the arbitration and agreed to be bound by the decision or award made therein.
The decision becomes binding and has the same legal consequence or authority as the judgment of a Court or other judicial body, and may create an estoppel in a future dispute between the parties. Such a decision may also be enforced by the Courts of law, and none of the parties would be permitted to resile from the result of such an arbitration simply because it did not favour him. See ONWUANUMKPE v. ONWUANUMKPE (1993) 8 NWLR (Pt.310) p. 186; OKERE v. NWOKE (1991) 8 NWLR (Pt. 209) p.317; IGBOKWE v. NLECHI (1996) 2 NWLR (Pt. 429) p. 185; NZEOMA v. UGOCHA 9 2001) 29 W.R.N. p.179; OJIBAH v. OJIBAH (1991) 5 NWLR (Pt. 191) p. 295 and NWANKWO v. NWANKWO (1993) 5 NWLR (Pt.293) p. 293 at 308.
It is however now accepted law that, a mere submission to customary arbitration by a party does not ipso facto bind such a party no matter the decision arrived at by such an arbitral body. The trend in judicial opinion is that, since the constitution has guaranteed a right of appeal, a person aggrieved by the decision reached in an arbitration could seek redress in a regular Court of the land, upto the highest Court, which is the Supreme Court. It is accepted that such a party is not required to submit willy – nilly to a decision that is clearly unjust to him. See OLOWU v. ABOLORE (1993) 5 NWLR (Pt. 293) p.253. Where the decision of a customary arbitration is challenged, Courts of law are expected to apply such decisions with circumspection Thus, AKPATA; J.S.C in the case of OHIAERI v. AKABEZE (1992) 2 NWLR (Pt.221) P.1 at 24 stated that:
“It is common feature of customary arbitration in a closely knit Community that some of the arbitrators, if not all, not only have prior knowledge of the facts of the dispute, but also have their prejudices and varying interests in the matter, and are therefore sometimes Judges in their own cause and are likely to pre-judge the issue. Prior knowledge and pre-judging issues are more pronounced in land disputes having bearing with the founding of the village and how families migrated to the village and came to occupy parcels of land. The arbitrators are well informed on these matters … Hence, it is essential before applying the decision of a customary arbitration as an estoppel for the court to ensure that all the conditions precedent to the application of the decision of a customary arbitration are satisfied.”
That being so, before a party to a case before the court with jurisdiction to hear the matter before it can defeat the right of his adversary to have the case determined by the Court on grounds that there has been a previous binding arbitration which raises an estoppel between the parties, certain conditions precedent must be satisfied. In other words, for a party to rely on customary arbitration in support of his case, he has the onus to show that the arbitration satisfied some conditions precedent. These conditions have been set down by the courts in a plethora of decisions of the Supreme Court and of this court. These are that:-
(a) there must have been a voluntary submission of the dispute by the Parties to a non-judicial body;
(b) the parties must have agreed to be bound by the decision of the non judicial body as final;
(c) the decision must be in accordance with the custom of the people or their trades or business;
(d) the arbitration must have reached a decision and published their award. See OHIAERI v. AKABEZE (supra); AWOSILE v. SOTUNBO (1991) 5 NWLR (Pt. 243) p. 514; ANYABUNSI v. UGWUNZE (1995) 6 NWLR (Pt.401) p. 255; OSUIGWE v. NWIHIM (1995) 3 NWLR (PT.386) P.752 AT 766-767; EKE v. OKWARANYIA (2001) 12 NWLR (Pt.726) P.181 AT 208; NWOSU v. NWOSU (1995) 2 NWLR (Pt.428) p.64 and AGU v. IKEWIBE (1991) 3 NWLR (Pt. 180) p.385.
In the instant case, the 1st Respondent who testified as PW1 stated that, in 1996, he reported the matter to Umudim Okpuala Iho family meeting for the sharing of the parcels of land in dispute. That the Appellants who refused to share the land were asked to take an Oath that they alone buried Nwaopara Nwaiwu and that Nwaopara Nwaiwu is from their mother, but they refused to take the oath. That on refusal of the Appellants to swear to the oath, the Umudim Okpuala family meeting ruled or decided that the parcels of land be shared amongst the Umunwanyi Domeonu, Umuiwuamadi and Umu-nwodu. That arbitral decision is in evidence as exhibit “A”. The Exhibit indicates that the parties therein were Emmanuel Iwuamadi & Co and Paul Chiemenike & Co. It is obvious therefore that the parties on record in Exhibit “A” that are apparent are Emmanuel Iwuamadi and Paul Chiemenike. However other oral evidence on record and the contents of the said exhibit point to the fact that the two names indicated were not the only parties to the arbitration in the said exhibit A.
The PW.1 who is the 1st Respondent testified under cross-examination before the trial Court that, all along he has been suing in a representative capacity. See page 24 line 11 of the records. He also stated under cross-examination at page 27 line 8 that the Appellants’ were invited to the Umudim family meeting in 1995 on the issue of sharing of the lands in dispute. He further stated under cross examination at page 28 lines 28-30 as follows:-
“The Umudim family meeting decided on oath taking or sharing but the defendants refused the two options. I was Plaintiff in that arbitration. When they refused I sued before the Eze.”
The Defendants referred to by the Respondent in the passage quoted above are the Appellants. The Appellants’ witness Beniah Uchenna who testified at pages 39-41 if the records tried to deny the authenticity of at Exhibit “A”. He also tried to contend that the arbitration of Umudim Family meeting as evidenced by Exhibit “A” was inconclusive. He however admitted that he signed same as the Secretary of Umudim Family meeting. He stated thus:
“At the time of the arbitration I was the chairman. I signed a document which was the decision of Umudim Family meeting. Many people took part in the arbitration. No decision was reached on this arbitration. The venue of the meeting was Umudim Hall. I and the President were invited by Samuel Nwodu, the former chairman to his house where we signed a document presented to us by Samuel Nwodu. I did not read the document because it was 8.00 p.m. I do not know how to read and write very well.”
It is obvious from the testimony of the appellant’s witness above, that, the said witness gave the impression of a person struggling to disown and thus impugn the authenticity of the arbitration conducted by the Umudim Family meeting. This is so as can be seen that under cross examination at page 40 of the records, he stated that he is a contractor who can read building plans and engage workers to build, and that he once was a Choir-Master in the Church. That cannot be the attributes of a person who could barely read and write. He however admitted that he signed the arbitration decision of the Umudim family meeting and at page 41 lines 3-4 that the Appellants were represented by Paul Chiemenike (late). The Appellants’ 2nd witness, Reuben Iheanacho, who is of the same Umunwanyi- Domeonu Kindred with the Appellants stated that he is not aware of any arbitration by Umudim Okpuala Iho-Dimeze but said the only arbitration he knows is that of the Eze in Council which favoured the Appellants. He did not however state that there was no such arbitration by the Umudim Family meeting between the Appellants and the Respondents.
The 1st Appellant who testified as the D.W.4 was cross-examined at pages 36-38 of the record of appeal. He denied that Paul Chiemenike represented them in any of the arbitrations save for that conducted by the Eze in Council as evidenced by Exhibit D which favoured them but admitted that he was at the arbitration meeting of Umudim family. See page 37 lines 12-13 of the record. The attitude of the Appellants was therefore denial of participating in any other arbitration other than that of the Eze in Council (Exhibit “D”). However, this denial by the Appellants goes contrary to the grains or contents of Exhibit “A”. Exhibit “A” shows clearly that the disputants herein were those represented by Emmanuel Iwuamadi 1st Respondent) and others who demanded the sharing of Nwaopara Nwaiwu’s land against Mr. Paul Chiemenike and others of Umunwanyi Domeonu kindred. The Appellants in this case have been shown by the evidence to be of the Umunwanyi-Domeonu kindred. It should also be noted that the proceeding was before an arbitral body which is not required to follow any rule of procedure in its proceedings. Being members of Umunwanyi-Domeonu, they were certainly part of the arbitration by the Umudim family of Okpuala Iho-Dimeze. They were in it along with Paul Chiemenike who led them. This fact is established by the claim which they filed in suit No. CC/EZ/IK/51/2002 of which Paul Chiemenike was the 1st Plaintiff, with the Appellants as the 2nd and 3rd Respondents respectively. The same situation obtains in suit No CC/EZ/IK/23/2001. It is therefore safe to conclude that, the Appellants have been in the thick of the arbitrations in Exhibits A and D, and indeed the initiation of this action at the trial Customary Court. I am therefore of the view that the evidence on record show clearly that the Appellants were parties to Exhibit “A”.
Having carefully perused the said Exhibit “A” as contained at pages 91-93 of the records, I am of the view that it satisfies all the conditions precedent required of a valid Customary Arbitration. The parties therein agreed that, the case be discussed and settled by the Umudim family. The arbitrators made their findings on the narrow issue in controversy between the parties. They also reached a decision that, Paul Chiemenike & Co; which I have found included the Appellants should take an oath to affirm their claim that Nwaopara Nwaiwu was a direct son of Nwanyi Domeonu; that at the death of Nwaopara Nwaiwu the money raised for his burial came from Umunwanyi Domeonu lineage only, and that Umu-Nwaodu and Umu-Iwuamadi did not make any financial contribution. That; if they take the oath and survive if the estate of Nwaopara Nwaiwu would become the property of Umu Nwanyi Domeonu to the exclusion of Umu Nwodu and Umu-Iwuamadi kindreds. The Appellants were given three (3) weeks to think and take a decision but they failed to come forward to make their decision known, even after an additional three weeks was given them. The arbitrators therefore decided that since the Appellants failed to appear for the oath taking, the matter was determined in favour of the Respondents in accordance with their custom. The Appellants have not contended that oath taking as a way of settling disputes is not part of the custom of the Umudim family of Okpuala Iho-Dimeze. The end result therefore is that the Appellants were bound by Exhibit A.
Exhibit “C” was tendered by the Respondents at the trial Customary Court to show that they also referred the matter to the Iho-Dimeze Town Union for arbitration, upon refusal of the appellants to comply with the decision of the Umudim Family arbitration. Having perused the said Exhibit “C”, it shows clearly that Paul Chiemenike was not before that arbitral body as a representative of the Umunwanyi Domeonu kindred. In other words there is a nothing to show on Exhibit C that Paul Chiemenike appeared for Umunwanyi Domeonu kindred in a representative capacity. Indeed only one piece of land was involved in the arbitration, which the said Paul Chiemenike claimed title thereto exclusively on the ground that his father had bought the land in question. This fact is supported by the testimony of P.W.2 who was the Secretary at the arbitration in Exhibit C. It is therefore my view that Exhibit “C” has nothing to do with the parcels of land in dispute, and therefore cannot be relied upon by either party to this dispute as constituting estoppel.
On the face of Exhibit “D”, it is clear that the arbitration therein took place during the pendency of Suit No. C/EZ/IK/2001, filed by the Respondents at the trial Customary Court. This is evident from the date Exhibit D was made, i.e. 9/3/2002, while the said Suit No CC/EZ/IK/2001 was filed in May, 2001. By Section 91 (3) (now Section 83 (3) of the Evidence Act, 2011), Exhibit D is not admissible having been made during the pendency of Suit No. CC/EZ/IK/23/2001. In any case, it cannot be said that the arbitration by the Eze in Council as shown by Exhibit D, was initiated on the voluntary submission of the parties, as the arbitration was done on the prompting of the police. Furthermore, though the arbitration was said to have been done by the Eze and his Council, or cabinet, none of the cabinet members signed Exhibit “D”. It does not also purport to be final as it still left the door open to the Respondents to seek redress to a higher authority, if they were not satisfied with the decision therein. In other words, the arbitration in Exhibit “D” does not purport to be final, at least on the Respondents. I therefore hold that Exhibit “D” was not a final and binding arbitration, and so could not be used as estoppel against the Respondents.
It is therefore clear that only Exhibit “A” satisfies the requirements of a binding arbitration. It duly satisfies the conditions precedent for a binding arbitration. In any case, the Appellants have not disputed the custom on oath taking as a form of settling disputes under the custom of the people of Okpuala Iho-Dimeze, and the consequence on any person who is required to take the oath but refuses to do so. Accordingly I hold that Exhibit “A” is binding on the Appellants and may operate as estoppel against them. Issue two is therefore resolved against the Appellants.
Issue No.3 enquires whether the Customary Court of Appeal was right in setting aside the judgment of the trial Customary Court. Learned Appellants’ counsel submitted on this ground that from the records and the authorities, the judgment of the trial Court is supportable and well grounded, and should not have been set aside by the Court below. He referred to and quoted copiously from the cases of DADA v. FALEYE (2007) ALL FWLR (Pt.349) p. 1134 AT 1136; POPOOLA v. BALOGUN (2007 ALL FWLR (Pt. 374) p.285 at 287 (ratio 1); A.G.; FEDERATION v. ABUBAKAR (2007) ALL FWLR (pt.375) p. 405 at 517 and WILLIAMS v. OGUNDIPE (2006) ALL FWLR (Pt.327) p.540 at 548, to submit that the law on setting aside of a trial Court’s decision is now fairly settled. That none of the exceptions warranting setting aside of the decision of a trial Court applies to this case, as the findings and judgment of the trial Customary court are reasonable, supportable and well grounded on the evidence led and the relevant law applicable thereto. That for an Appellate Court to set aside the judgment of a trial court, it must be shown that the judgment is either perverse, obtained by fraud or a nullity.
Learned Appellants’ counsel went on to submit that, the trial customary court believed the evidence of DW2 and DW4 who maintained that Nwanyi Domeonu had four sons, and that this piece of evidence is in line with Exhibit “D.” That the Customary Court of Appeal, misinterpreted paragraph 3 of Exhibit “D” to mean that Nwanyi Domeonu had 3 sons which contrasts with the testimony of DW2 and DW4. He insisted that the trial Customary Court gave the correct interpretation to paragraph 3 of Exhibit D to the effect that Nwanyi Domeonu had four (4) sons which included Nwaiwu, the father of Nwaopara. That while the Court below maintained that the contradictions in the number of sons of Nwanyi Domeonu between the testimonies of PW2 and PW4, and paragraph 3 of Exhibit “D” was material enough to warrant setting aside the judgment of the trial Court, however held that the contradiction between the testimony of PW1 in his evidence in chief and under cross-examination on the same issue was not material. He also pointed out the contradiction in the testimony of PW1 and that of PW3 on who the mother of Nwaiwu was. Learned Counsel then submitted that those contradictions are material enough for the trial Court that heard and saw the witnesses to disbelieve the evidence of the Respondents.
It is also the submission of Learned Counsel for the Appellants that, it is clear from the record that, Paul Chiemenike appeared before the arbitration panel for himself, and in respect of only one piece of land called Ukwu Ikoro and not the entire farmland disputed in this case. That there is no evidence that Paul Chiemenike represented the UMUNWANYI Domeonu lineage, and that the appellants are not bound by the decisions in Exhibits “A” and “C” as they had disassociated themselves from them. We were then urged to allow the appeal on this ground.
Arguing here, Learned counsel for the Respondents contended that the court below was right in setting aside the judgment of the trial Court upon the evidence led with regards to the local arbitrations in exhibits “A” AND “C”. That though an appellate Court is enjoin to refrain from meddling with facts found by a trial Court, where such findings of fact by the trial Court have not only became perverse, but has led to a miscarriage of justice, the trial Court would interfere. That, the failure of the trial customary court to place proper weight on Exhibits “A” and “C” which are awards made by local arbitrations, and to which the parties are bound, led to miscarriage of justice against the Respondents. That the authority cited by the Learned Counsel for the Appellants support the Respondents’ contention that the Customary Court of Appeal was right in setting aside the judgment of the trial Court.
It is the further submission of Learned Counsel for the Respondents that the evidence that Paul Chiemenike was the head of the Umunwanyi Domeonu lineage was not controverted. That, evidence that the same Paul Chiemenike represented the Nwanyi Domeonu lineage in the proceedings that led to Exhibits “A” and “C” was not controverted. That the evidence that Nwaopara Nwaiwu is not from NWANYI Domeonu remained the findings in Exhibits “A” and “C”. That it is also uncontroverted evidence that once one refuses to swear an oath, he forfeits that which he claims. That PW1 and PW2 conceded that there was decision for oath taking and that it was due to the refusal of Paul Chiemenike to swear the oath, that the lands of Nwaopara Nwaiwu were declared joint property of Umunwanyi Domeonu family of the Appellants and Umu-Iwuamadi and Umu-Nwaodu families of the Respondents. That in resolving the issues, the trial Customary Court only placed weight on that part of Exhibit “A” which states that Nwanyi Domeonu lineage has been in possession of the land of Nwaopara Nwaiwu for 50 years, but refused to advert to the verdict proper in Exhibit “A”. That the trial Court also refused to place weight on the evidence that 1st Respondent’s father disputed the Nwaopara Nwaiwu property in 1958 and a customary injunction was placed on the lands. Furthermore, that it was established as the Custom that, the property of a family member who died extinct and which is not shared is always kept in custody of the head or senior kitchen till sharing takes Place.
Learned counsel for the Respondents also contended that, in the face of Exhibits “A” and “C”, the holding of the trial court at page 80 of the records based on the fact of possession of the land by the Appellants and their predecessors for fifty years cannot stand. That even assuming that there was a 50 years possession by the appellants’ Kitchen as the eldest kitchen, in line with the custom, such possession cannot ripen into outright ownership so as to extinguish the rights of the Respondents. It was therefore submitted that, the trial Court disregarded credible evidence tendered by the Respondents as shown by Exhibits “A” and “C” as well as the native law and custom of the parties, and accordingly the Court below was right when it set aside the judgment of the trial Court. That Exhibit D is an inadmissible document and therefore does not avail the appellants. We were then urged to resolve this issue against the Appellants.
Responding in their Appellants’ reply brief at pages 7-8 thereof, the only point which I find of value in the resolution of this issue is at page 7 paragraph 2.OK of the Reply Brief. Therein Learned Appellants’ Counsel submitted that the Respondents contended that Exhibit D is inadmissible, but did not show how it is inadmissible. He however submitted that the said Exhibit “D” was properly admitted by the trial Court.
He accordingly urged us to allow this appeal, set aside the judgment of the Court below and restore the judgment of the trial Customary Court.
Now, it is not in doubt that the trial Customary Court had entered judgment in favour of the Appellants. However, the Court below (Customary Court of Appeal) being the appellate court from the decisions of the Customary Court, saw it differently, and set aside the said judgment and entered judgment for the Respondents instead. The general rule is that the evaluation of evidence and the ascription of probative value reside within the province of the trial Court that saw, heard and accordingly assessed the witnesses. In other words, the duty of evaluating and ascribing probative value to all relevant oral and documentary evidence lies with the trial judge who had the advantage of seeing and hearing the witnesses. Accordingly, where the trial Court had diligently and justifiably evaluated and appraised the facts, an appellate court is usually reluctant or slow to interfere. See P.T.F v. W.P.C. LTD (2007) 14 NWLR (Pt. 1055) p.478; OMAYE V. OMAGU (2008) 7 NWLR (Pt. 1087) p.461; GAGARAU v. PASHIRI (2006) 1 NWLR (Pt.962) p. 521; ISMAIL v. STATE (2008) 15 NWLR (Pt. 1111) p. 593 and OJELEYE v. REGT. T.O.I.M.C. & S.C.N. (2008) 15 NWLR (Pt. 1111) p.520. In other words, it is only where the trial Court failed to evaluate or failed to properly evaluate that an appellate court can do what the trial Court ought to have done and accordingly, where the appellate Court so finds, it can set aside the findings made by the trial Court.
Generally, the onus is on the party who complains that the trial Court did not evaluate the evidence judicially, to show how the judgment of the trial Court would be found to be wrong if the omission or failure to evaluate properly is corrected.
In the determination of the issue, what should occupy the mind of the appellate court is whether the trial court made proper findings and thus reached the correct decision or judgment upon the facts before it. The factors to be considered by the appellate court on whether or not to interfere are:-
(a) whether there is sufficient evidence to sustain the judgment:
(b) whether the trial Court failed to make proper use of the opportunity of seeing, hearing and observing the witnesses;
(c) whether the findings of fact of the trial Court cannot be regarded as resulting from the evidence;
(d) whether the trial court has drawn wrong conclusion from accepted evidence; or has taken an erroneous view of the evidence adduced before it
(f) whether the findings of the trial Court are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before it.
See AKINDIPE v. state (2008) 15 NWLR (Pt. 1111) p. 560; MAFIMISEBI v. EHUWA (2007) 2 NWLR (Pt.1018) p.385; P.T.F v. W.P.C LTD (supra) at p.498 paras. A-E and ANYAFATU v. AGAZIE (2006) 5 NWLR (Pt.973) p.260.
In the instant case, the matter was initiated before and heard by the trial Customary Court, Eziama in Ikeduru Local Government Area. That Court gave judgment in favour of the Appellants. The Respondents who were dissatisfied appealed to the Imo State Customary Court of Appeal and the said Court set aside the judgment of the trial Customary Court and instead entered judgment for the Respondents. The Court below upon considering the evidence on record before it found at page 234 lines 13- 15 of the record that an appellate Court cannot interfere with the findings of a lower court unless same is found to be perverse. It then held at the same p.234 lines 23-25 as follows:
“I therefore hold that the lower court did not properly evaluate the evidence before it before arriving at it decision. In the light of the above, this appeal succeeds and is resolved in favour of the Appellants.”
It is this finding and the conclusion of the Court below against the judgment of the trial Customary Court that the Appellants complain against. My duty here is to consider whether the Court below was right in view of the findings of the trial Court on the evidence before it.
I have carefully studied the record of appeal with particular attention to the oral and documentary evidence led at the trial Customary Court. I have also carefully studied the judgment of the trial Customary Court. I find that the trial Customary Court made the following findings at pages 79-80 of the records:
“1. That the parties are descendants of Duruoha who deforested the pieces of land in dispute.
2. There is an agreement by the parties that Nwaopara Nwaiwu is a descendant of Duruoha and had his own share of the estate of Duruoha.
3. Parties disagreed on the number of wives Duruoha had. Plaintiffs said five wives while Defendants said four wives.
4. It is established from the available evidence that Nwaiwu is a descendant of Duruoha. He begot Nwaopara Nwaiwu who inherited Nwaiwu.
5. Parties agreed that Nwaopara Nwaiwu had no surviving male issues. He died intestate.
6. The area of disagreement among the parties is who is the mother of Nwaiwu the father of Nwaopara Nwaiwu whose estate is to be shared.
7. The Defendants claim that Nwanyidomeonu the first wife of Duruoha had four sons namely; Duruanyanwu, Nwaiwu, Duruoha and Chinyere.
8. The Plaintiffs said that Nwaopara Nwaiwu is not of the linage of Nwanyi Domeonu but were uncertain if Nwaopara Nwaiwu is of the wife of Duruoha called Adachi.
9. The Defendants who claim close lineage with Nwaopara Nwaiwu from Nwanyi Domeonu buried Nwaopara Nwaiwu when he died and have been in possession of his estate for over 50 years now (See Exhibit A paragraph 1).
10. The possession of the estate of Nwaopara Nwaiwu by the Defendants had been peaceful and unchallenged by the grandfathers and fathers of the Plaintiffs for more than 50 years now until recently by the Plaintiffs.”
Based upon the above findings the trial customary court concluded that:
“In consideration of the above, the Honourable court is not satisfied with the narration of the genealogy of Nwaopara Nwaiwu as given by the Plaintiffs but considers that of the Defendants more acceptable and therefore finds for the Defendants.”
On appeal to the Customary Court of Appeal i.e. Court below, by the Respondents before us, the Court below held that the trial court did not properly evaluate the evidence before it, and consequently set aside the decision arrived at by the trial court.
It would be seen that from the evidence on record, though the parties did not specifically say so, both parties relied on traditional history in proof of their case. It should be noted that the trial was before a Customary Court where rules of pleadings is not the practice. What is considered is the substance and not the form the proceedings took. Having thus noted, it is also necessary for me to point out that, from the evidence on record, the narrow issue the trial Court had to determine is whether Nwaopara Nwaiwu is of the lineage or descendant of Nwanyi Domeonu. This is in view of the claims of the parties, vis-a-vis their custom on inheritance, which is to the effect that where a man dies without a male heir, his relations of the mother’s side would inherit, but where he dies without a male heir and without brothers from the mother’s side, his brothers of the same father would inherit. That is the established custom in this case. It was however shown and as rightly found by the trial Customary Court, that Nwaiwu the father of Nwaopara whose estate is in contention was descended from Duruoha as the parties in this case. It was also established that Nwaopara Nwaiwu died extinct or without a male heir. The Appellants thus claimed that Nwaiwu the father of Nwaopara was the 2nd son of their great grandmother Nwanyi Domeonu and therefore they as descendants of the brothers of Nwaiwu of the same mother are entitled to inherit the estate of Nwaopara to the exclusion of their brothers of Umu-Iwuamadi and Umu-nwaodu lineage who are represented by the Respondents. The Respondents claim that Nwaiwu the father of Nwaopara was not the son of Nwanyi Domeonu the first wife of Duruoha, but the son of another wife of Duruoha and therefore they as descendants of Duruoha were also entitled to inherit the estate of Nwaopara who died without a direct male heir.
It would be seen therefore that there was a sharp divergence or conflict in the traditional histories as put forward by the parties. It would be seen that neither the trial Customary Court or the Customary Court of Appeal made any effort to resolve this conflict. At least, the effort made by the Customary Court of appeal was feeble. The law is that, where both parties to a dispute rely on traditional history the trial Court has the duty to determine the preferred version having regard to the evidence presented in proof of the respective claims of the parties. See ONWUBUARIRI v. IGBOASOIYI (2011) 3 NWLR (Pt. 1243) p.357. However, where the Court finds itself in a dilemma or difficulty as to which of the parties’ traditional evidence to accept the Court is enjoined to follow the principle enunciated in KODJO II v. BONSIE (1957) 1 WLR. P.1223. That principle states that, where parties to a dispute rely on traditional histories to prove their cases, the proper cause to follow is to test the traditional histories of both parties by reference to the facts in recent years as established by other evidence before the Court, and thus resolving which of the two competing histories is more probable. See MOMOH v. UMORU (2011) 15 NWLR (Pt. 1270) p.217; EYO v. ONUOHA (2011) 11 NWLR (pt. 1257) p.1 at 46-47; WACHUKWU v. OWUNWANNE (2011) 14 NWLR (Pt. 1266) p.1 and DAKOLO v. REWANE DAKOLO (2011) 16 NWLR (Pt.1272) p.22. In that respect, a Court confronted by this dilemma would advert to and consider other evidence of acts in recent years established by evidence.
I had earlier held that the Court below did not try to resolve the conflict in the traditional histories led by the parties on the evidence on record. It would appear however, that the trial Court based its decision on the fact that it was established by Exhibit “A” that the appellants and their predecessors had been in possession of the estate of Nwaopara Nwaiwu for about 50 years without any contest from the Respondents’ predecessors. It should however be noted that, under Customary law, no prescriptive title can be declared in favour of a party inspite of his long possession of the land in dispute. In other words there is nothing known in customary law as prescriptive title except where the Court finds there is concrete and unavoidable evidence that there has been laches or acquiescence, so that strict application of such Customary law would inflict hardship and injustice on the adverse possessor. See MUEME v. KULUGHGAJI & ANOR (2001) 2 NWLR (Pt.607) P.289 at 303; ISUME v. PEVEREGA (2001) 2 NWLR (Pt.698) p. 566 at 574, MOGAJI v. CADBURY (1985) 2 NWLR (Pt.7) p.39 and OKEREKE v. NWANKWO (2003) 9 NWLR (Pt.826) p.592. In the instant case, there is no evidence of any acquiescence or laches against the Respondents. Indeed there is evidence on record that it is the custom that where a family member dies without an heir, his property would be held in trust for other inheritors by the head or most senior kitchen. There was also established evidence that Umu Nwanyi Domeonu was the most senior or eldest kitchen that is why the property of Nwaopara came to their custody. The 1st Respondent also testified that his father raised the issue of the estate of Nwaopara in 1958 and 1954 where a customary injunction was placed on the land. Those facts were not controverted or disputed by the Appellants at the trial. I therefore agree with Learned counsel for the Respondents that, the possession of the land for 50 years by the Appellants’ Kitchen as the eldest Kitchen cannot ripen into outright title as to extinguish the rights of the Respondents as joint inheritors to the estate of Nwaopara Nwaiwu.
Now, I had earlier held that Exhibit “A” is a valid decision of customary arbitration between the parties. The parties and the issues thereto are the same as in the instant case. There was a valid decision by the arbitrators and which decision still subsists as it has not been set aside. I had also resolved that the Arbitration in Exhibit “A” was valid having satisfied the requirements of a valid customary arbitration. The Supreme Court held in the case of ODONIGI v. OYELEKE (2001) 6 NWLR (Pt.708) p. 12 at 27-28 that; it is now settled law that one of the many ways of settling disputes among African societies is to refer such a dispute to either the family head, or elders or chiefs of the community for settlement, and that a decision reached at by such an arbitral body may be proved as estoppel against any party claiming contrary to arbitration. In the same vein, I am of the view that, the trial customary court should have applied the contents of Exhibit “A” so as to properly resolve the conflict in the traditional histories of the parties. By Exhibit “A” therefore, the issue had been settled that the appellants and the Respondents are jointly entitled to share the estate of Nwaopara Nwaiwu who died extinct or without a direct heir. I therefore hold that the court below was on the evidence on record, right when it set aside the judgment of the trial Customary. This issue is also resolved against the Appellants.
Having resolved all the issues against the Appellants, it is obvious that this appeal has no merit. It fails and is accordingly dismissed. The judgment of the Imo State Customary Court of Appeal delivered on the 30th day of September, 2009 in Appeal No. CCA/OW/A/14/2009 is hereby affirmed.
I award fifty thousand Naira (N50, 000.00) as costs against the Appellants in favour of the Respondents.
UWANI MUSA ABBA AJI, J.C.A: I was privileged to read in draft the lead judgment of my learned brother H. S. Tsammani, JCA, just delivered.
I agree entirely with the reasoning and the conclusions reached therein by my learned brother that the appeal is devoid of any merit. I adopt the reasoning and conclusion as mine and have nothing more to add. I also dismiss this appeal.
I endorse the consequential order as to costs.
JOHN INYANG OKORO, J.C.A: I read before now the judgment of my learned brother Haruna Simon Tsammani; JCA just delivered and I agree that this appeal has no merit at all and is liable to be dismissed. My learned brother has meticulously and quite efficiently dealt with the salient issues submitted for the determination of this appeal and I hereby adopt both his reasoning and conclusions as mine. I also dismiss this appeal and abide by all consequential orders made in the lead judgment, that relating to costs, inclusive.
HARUNA SIMON TSAMMANI, J.C.A (Delivering the Leading Judgment): This appeal is against the judgment of the Imo State Customary Court of Appeal sitting at Owerri delivered on the 30th day of September, 2009.
The Appellants herein, were the Defendants before the Customary Court, Eziama in Ikeduru Local Government Area, while the Respondents herein where by order of the said trial Customary Court, the Plaintiffs. The parties had filed separate suits before the trial Customary Court in respect of the subject matter of the action.
The Respondents’ action before the trial customary court which was dated the 14/05/2001 had Suit No. CC/EZ/IK/23/2001, while the Appellants’ action which was dated the 2nd day of November, 2002 and filed the 19/12/2002 had Suit No. CC/EZ/IK/51/2002.
The Respondents’ claim before the trial Customary Court was therefore earlier in time. By the said action, the Respondents claimed as follows:
“The Plaintiffs claim against the Defendants as follows:
(1) A declaration that the lands known as and called:-
(a) Ala Uhu Nwaokoro,
(b) Ala Uhuama,
(c) Ala Umuokpuala,
(d) Ala Isi Ogboachara,
lying and situate at Okpuala Iho Dimeze in the Ikeduru Local Government area within jurisdiction are the joint property of the entire UMUNWAYI DOMEONU, UMU IWUAMADI and UMU NWAODU families.
(2) An order that the said landed property that is to say a-d ALAUHU NWAOKORO ALA UHUAMA, ALA UMUOKPUATA and ALA ISI OGBOACHARA be completely partitioned among the aforesaid families.”
The Appellants in Suit No. CC/EZ/IK/51/2002 on the other hand claimed as follows:
1. A Declaration by the Honourable Court that the Plaintiffs who are the resident natives of Okpuala Iho in Ikeduru Local Government Area of Imo State, are entitled to the Customary right of Occupancy of all the pieces or parcels of land known as and called “Ala Uhu Nwaokoro”, “Ala Isi Ogbo Achard”, Ala Uhuama”, “Ala Uhu Okpuala” and “Ala Ukuru Ikoro”, lying, being and situate at Okpuala Iho in Ikeduru Local Government Area of Imo State within the jurisdiction of this Court, the annual rental value of which is N10 (ten Naira) each.
2. Order of the Honourable Court that the pieces or parcels of land mentioned in claim ONE above are the exclusive property of the Plaintiffs and not the joint property of the entire Umunwanyi Domeonu, Umu Ihuamadi and Umu Nwaodu, as is being contended by the Defendant who is out of possession.
3. Perpetual Injunction restraining the Defendant, by himself, his servant agent and/or privies from committing further act of trespass on the Plaintiffs’ said lands or encouraging any act of trespass therein, or doing anything which is inconsistent with the rights of the Plaintiffs with respect to the pieces or parcels of land the subject matter of this suit.”
I find it pertinent to point out that, the Appellants’ claim at the trial Customary Court was began against the 1st Respondent alone. However, the 2nd Respondent (Samuel Nwodu) applied for and was granted leave to join in the action as the 2nd Plaintiff in suit No. CC/EZ/IK/23/2001 and the 2nd Defendant in suit No. CC/EZ/IK/51/2002, on the 16/9/2003. See pages 9-10 of the records. In the same vein, in the course of the proceedings, one Paul Chiemenike who was the 2nd Defendant in Suit No. CC/EZ/IK/23/2001, and 1st Plaintiff in Suit No. CC/EZ/IK/2002, died and his name was struck out of both Suits by order of the trial Customary Court dated the 16/7/2003. Furthermore, in the cause of the proceedings, the parties applied for and the trial Court consolidated the two Suits and heard same as such, so as to save time and cost, as evidence to be led in both Suits is the same. The Appellants were then designated the Defendants, while the Respondents became the Plaintiffs.
At the trial both parties were agreed that they are descended from one common ancestor called Duruoha. It was also agreed that the pieces or parcels of land in dispute were the properties of Nwaopara Nwaiwu who also descended from the same Duruoha as the parties, but died extinct i.e. without leaving a successor. By the evidence, both parties were agreed that, under their custom, where a person dies extinct or without an heir, his properties would be inherited by his relations in accordance with their maternal lineage. In other words, the relations of such a deceased person of same mother will inherit him, but where he has no relations of the same mother surviving him, then his relation of the same father will inherit him.
By the above stated custom, the Respondents claimed that, Nwaopara Nwaiwu who died extinct did not descend from the same maternal lineage with any of the parties to this dispute. That Nwaopara Nwaiwu having descended from one of the wives of Duruoha different from the mothers of the Appellants and the Respondents, and having died extinct, his estate was by the custom to be shared among them, having all descended from Duruoha, their common ancestor. The Appellants on the other hand, claimed that Nwaopara Nwaiwu was the son of Nwaiwu, and that Nwaiwu was the second (2nd) son of Duruoha’s first wife Nwanyi Domeonu. That Nwanyi Domeonu also had other sons called Duruanyanwu, Durunna and Chiyere; all of whom were of the same mother as Nwaiwu, the father of Nwaopara. It is thus the contention of the Appellants that Nwaopara, the son of Nwaiwu having died extinct or without an heir, they as the descendants of Nwaiwu’s brothers of the same mother, are the only persons entitled to inherit the estate of Nwaopara, to the exclusion of their other Kinsmen though descended from Duruoha, but are of different maternal lineage.
At the hearing, and after taking evidence from the parties and their witnesses the trial Customary Court, made its findings and disbelieved the evidence of the Respondents and therefore entered judgment in favour of the Appellants. The trial Court accordingly held that the Appellants who are the descendants of Nwanyi Domeonu, Duruoha’s first wife are solely entitled to inherit the estate of Nwaopara Nwaiwu, to the exclusion of the Respondents. The Respondents who were not satisfied with the decision of the trial Customary Court, appealed to the Customary Court of Appeal i.e. Court below. The Court below set aside the judgment of the trial Customary Court and granted the relieves sought by the Respondents in their claim before the trial Customary Court. The Appellants being dissatisfied with the judgment of the Court below have now appealed to this Court.
The Notice of Appeal which was dated the 28/10/2009 and filed the 30/10/20009 consists of 9 (nine) Grounds of Appeal. The Grounds of Appeal without their particulars are as follows:-
1. The lower Court erred in law by holding that Ground 1 of the Appellants grounds of appeal is a ground involving questions of Customary Law.
2. The Lower Court erred in law in refusing and or failing to judicially and judiciously consider and rule upon each of the 2nd to 7th grounds of Appeal in respect of which in acknowledged that Respondents’ now (Appellants) Counsel had objected to.
3. The lower Court erred in law by assuming jurisdiction over grounds 1, 2, 3, 4, 5, 6 and 7 of the Appellants’ now (Respondent’s) grounds of Appeal.
4. The Lower Court erred in law in holding that the Respondents (now Appellants) were bound by the Customary arbitration in exhibits “A” and “C” when clearly they were not parties to it and were not represented thereat.
5. The Lower Court erred in law in holding that exhibit “D” a decision reached after an arbitration between the parties on record by the parties’ Traditional Ruler is not binding on the Appellants (now Respondents) simply because it was made after exhibit B and the filing of suit No. CC/EZ/IK/23/2001
6. The Lower court erred in law in misdirecting itself or misinterpreting a paragraph of exhibit “D” and turning around to “hold that the Lower court did not properly evaluate the evidence before it, before arriving at its decision.”
7. The Lower court erred in law in assuming jurisdiction over an appeal it has no jurisdiction to entertain.
8. The judgment of the Lower court was against the weight of evidence available.
9. That more grounds of Appeal may be filed upon receipt of the entire record of appeal in this Appeal.
As the Rules of this court demand, the parties filed and exchanged Briefs of Arguments. The Appellants’ Brief of Arguments was dated the 14/09/2010 and filed the same day. The Respondents’ Brief of Arguments is dated the 04/02/2011 and deemed fifed the 26/4/2012, vide motion on Notice dated the 04/2/2011 and granted the 26/4/2012. The Appellants then filed a Reply Brief to the Respondents’ Brief of Argument. It is dated the 09/05/2012 and filed the same day. In their Brief of Arguments, the Appellants formulated three issues for determination as follows:
1. Whether the Customary Court of Appeal of Imo State has the statutory jurisdiction to entertain Grounds 1, 2, 3, 4, 5, 6, 7 and 8 of the Respondents’ Appeal. (Grounds 1, 2, 3 and 7).
2. Whether the decision of the local Arbitration exhibits “A” AND “C” bind the Appellants. (Ground 4).
3. Whether the Customary Court of Appeal was right in setting aside the judgment of the trial Customary Court. (Grounds 5, 6 and 8).
The Respondents adopted the issues formulated by the Appellants, but proceeded to add a 4th issue, which is:
“Whether the Court below was right in holding that the landed property of Nwaopara Nwaiwu who died extinct is the joint property of the parties and not of the Appellants’ alone.”
I am of the view that, the Appellants’ third issue having covered Ground 8 of the Grounds of Appeal, the formulation of another issue out of the same Ground 8 by the Respondent is unnecessary. This is more so as Respondents have adopted the issues formulated by the Appellants. Accordingly, I propose to determine this appeal on the three issues nominated by the Appellants.
In arguing issue No. one (1), Learned Counsel for the Appellants contended that, by Section 282(1) of the 1999 Constitution of the Federal Republic of Nigeria, a Customary Court of Appeal shall exercise appellate and supervising jurisdiction in the proceedings involving questions of Customary law. That a party wishing to appeal to a Customary Court of Appeal, must therefore ensure that his appeal is a question of Customary law arising from the decision of the Court being appealed from, learned Counsel then cited the cases of EGBE v. YUSUF (1992) 6 NWLR (Pt. 254) p.1 at 16 and UNION BANK v. SAX NIG. LTD (1994) 9 SCNJ p.1 at 14 to submit that this court is bound to interpret and apply that provision as it is. That it is the Appellant s appeal as shown in the Notice and Grounds of Appeal that reveals whether or not there is jurisdiction in the appellate court to entertain the appeal. He referred to the Respondents’ Ground of Appeal before the court below as contained in pages 83-88 of the records, to contend that it is apparent that the complaints therein in all the grounds of appeal is improper evaluation and attachment of weight by the trial Court to the evidence before it and the exercise of judicial discretion. The cases of HIRNOR v. YONGO (2003) FWLR (Pt. 159) p. 1358 at 1375-1376; EDEBE v. IGIADEGHO (1994) 1 C.C.A.LR P.64 at 67- 68; OKHAE v. GOV. OF BENDET STATE (1990) 4 NWLR (pt. 144) p. 327; USMAN v. UMARU (1992) 7 SCNJ (pt.2) p.388 at 397-400, were also cited to further submit that, the complaints contained in Grounds 1-8 of the Grounds of Appeal filed by the Respondents at the Lower Court are unmistakably, grounds of fact, procedure, evaluation or exercise of judicial discretion. That those are matters which the Customary Court of Appeal of a State lacks the jurisdiction to entertain, as they are not complaints involving any question of customary law.
Learned Counsel for the Appellants then alluded to the decision of AYOOLA, JSC in the case of PAM v. GWOM on what constitutes a question of Customary law, to submit that Grounds 1, 2, 3, 4, 5, 6 and 7 are no doubt complaints about the appraisal and evaluation of evidence by the trial Court and therefore incompetent. That Ground 8 which is the omnibus ground of appeal cannot be disputed that, it is incompetent. The case of DAKUR v. WEDTET (2005) ALL FWLR (Pt. 278) p.1116 was cited in support. Learned Appellants’ Counsel then took a brief over-view of all the Grounds of Appeal as contained in the Notice of appeal filed by the Respondents in the Court below, to also submit that, by no stretch of imagination has the Respondents’ Appeal at the court below, raised any question of customary law. That rather, those grounds of appeal raised issues of evaluation of evidence, and therefore the court below had no jurisdiction to entertain an appeal from the trial customary court on those issues. We were then urged to allow the appeal on this ground alone.
In arguing this issue, learned counsel for the Respondents seemed to have mixed up issues which should be canvassed in either issues 2 or 3 formulated by the Appellants. In that respect, I shall endeavour to pick out the arguments as presented by the Respondents’ Learned Counsel as are found germaine or relevant to the determination of the issue under consideration. That being so, it is pertinent to point out that Learned Counsel for the Respondents had contended that, the Court below was perfectly seised of the jurisdiction to entertain grounds 1-8 of the Grounds of appeal filed by the Respondents before it. That Ground 1 of the grounds of appeal filed at the court below dealt with oath as a way of resolving customary land dispute between competing claimants, and therefore, the court below rightly assumed jurisdiction to entertain a complaint on that ground. That Ground 2 dealt with the issue of local or customary arbitration, as evidenced by exhibits A, B, C and D, which is part of customary law of the people, as a way of resolving disputes over land.
Learned Counsel for the Respondents went on to submit that grounds 4, 5, 6, and 7 and 8 filed by the Respondents at the Court below are also grounds of customary law. That ground 5 dealt with exhibits A and C as to the persons bound by them and the capacities of the parties thereto, while ground 5 is a ground of customary law because it borders on family property of a member who died extinct under customary law. That grounds 7 and 8 are also trite grounds of Customary law because, they pertain to the effect of oath taking as a way of determining disputes over land between parties. That, where the trial Court failed to give effect to oath taking and the refusal of oaths taking, the party adversely affected thereby will be right to complain to the court below, and that the Court below rightly assumed jurisdiction to entertain same. We were then urged to resolve this issue against the Appellants.
The only point which I consider worthy of consideration in the Appellants, Reply Brief is at page 5 paragraph 1.OZ of the said Reply Brief. Therein, the Appellants’ Learned Counsel contended that, the Respondents did not counter the Appellants’ argument that ground 3 of the Respondents’ ground of appeal at the court below did not disclose any question of customary law. That nowhere in the Respondents’ brief is any argument proffered on ground three. It was then submitted that, every material point in the Appellants, Brief of argument which is not countered by the Respondent’s Brief of Argument is deemed admitted or conceded to. Aside that point, all the other arguments in the Appellants’ Reply brief are not in concert or do not meet the requirements of a reply brief.
I Make the point above because, the function of a reply brief is to reply to any new point or points of law raised and canvassed in the Respondent’s Brief. It is not meant to either emphasise or repeat what has been canvassed in the Appellant’s Brief of Argument. That being so, a reply brief that does not deal with any new point arising from the Respondent’s brief is unnecessary, not being within the contemplation of order 17 Rule 5 of the Court of Appeal Rules, 2011 which stipulates that:
“The Appellant may also, if necessary, within fourteen days of the service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s Brief.”
By the underlined words used in order 17 Rule 5 (supra) it is clear that, where no new points are raised in the Respondent’s brief, a reply brief would be unnecessary. See OKPAGA & ANOR v. IBEME & ORS (1989) 2 NWIR (Pt. 102) p. 208; OKENIRA v. MILITARY GOV; IMO STATE & ORS (1990) 5 NWLR (Pt. 152) p. 594; NWALI v. THE STATE (1991) 3 NWLR (Pt. 182) p. 663; EZEKWESILI v. ONWUAGBU (1998) 3 NWIR (Pt.541) P.217 AND CHUKWUOGOR v. A.G.; CROSS RIVERS STATE (1993) 1 NWLR (Pt.534) p. 375. In the instant case, it would be seen that the Respondents merely responded to the issues raised by the Appellants in their Brief of Arguments on the competence of the grounds of appeal filed at the Court below. Though the Respondents laced their arguments with issues which I consider as not relevant to the issue under consideration, they cannot be considered as new points arising from the Respondents’ brief which require a reply by the Appellants. I therefore hold that arguments in the Appellants’ reply brief, save for that earlier pointed out, are not relevant to the determination of issue one. I accordingly discountenance same.
Now, I find it necessary to point out at this juncture that the jurisdiction of Courts in Nigeria are generally donated by the constitution or other statute giving specific jurisdiction to the Courts in certain matters. The jurisdiction of the Customary Court of Appeal of a state in Nigeria is donated by Section 282 of the Constitution of Federal Republic of Nigeria, 1999 (as amended). That provision stipulates that:
“1. A Customary Court of Appeal of a state shall exercise Appellate and supervisory jurisdiction in civil proceedings involving questions of customary law.
2. For the purpose of this section, a Customary Court of Appeal of a state shall exercise such jurisdiction and decided such questions as may be prescribed by the House of Assembly of the state for which it is established.”
It is clear therefore that a customary court of Appeal of a state has its jurisdiction limited to appellate and supervisory jurisdiction in civil proceedings involving questions of Customary law or to such other jurisdiction as may be conferred on it by the House of Assembly of the state which establishes it. The pertinent question in this appeal is how to determine whether the questions or complaints brought to the Customary Court of Appeal are on questions involving Customary law alone. The provision of Section 282 (1) of the 1999 Constitution (supra) thus limits the right of appeal to the Customary Court of Appeal to an appeal in civil proceedings involving questions of Customary law and such other matters as may be prescribed by the House of Assembly that establishes it. Accordingly, any ground of appeal which does not raise questions of Customary law would be incompetent.
Learned Counsel for the Appellant would appear to rely heavily on the decision of the Supreme Court in HIRNOR v. YONGO (2003) FWLR (Pt. 159) p.1358 at 1375-1875. Therein the Supreme Court held that:
“A decision is in respect of a question of Customary law when the controversy involves a determination of what the relevant customary law is and the application of customary law so ascertained to the question in controversy. Where the parties are in agreement as to what applicable customary law is and the customary court of Appeal does not need to resolve any dispute as to what the applicable customary law is, no decision as to any question of customary law arises. However, where notwithstanding the agreement of the parties as to the applicable customary law, there is a dispute as to the extent and manner in which such applicable Customary law determines and regulates the right, obligation or relationship of the parties having regard to the facts established in the case, a resolution of such dispute can be regarded as a decision with respect to a question of Customary law.
When the decision of Customary Court of Appeal turns purely on facts or on question of procedure, such decision is not with respect to a question of Customary.”
The portion of the judgment reproduced above, was copiously cited by Learned Counsel for the Appellants. However, in canvassing his arguments, Learned Counsel found it convenient to avoid the entire portion of the judgment quoted by him, and to rely on the last paragraph of the quotation; and to hold that the entire grounds of appeal filed by the Respondents in the Court below were complaints against procedure, evaluation of evidence or exercise of judicial discretion. I believe that if Learned Counsel had adverted his mind to or not closed his eyes to the entire portion of the judgment quoted and relied on by him, his position on the issue would have been different. I hold this view because, in the opening passage of the judgment reproduced above, the Supreme Court made it clear that, when the controversy involves a determination of what the relevant Customary law is AND THE APPLICATION of CUSTOMARY LAW SO ASCERTAINED to the question in controversy, the question so raised would be a question of Customary law. Furthermore, that when notwithstanding the agreement of the parties as to the applicable Customary law, there is a dispute as to the extent and manner in which such applicable Customary law determines and regulates the rights, obligations or relationship of the parties having regard to the facts established in the case, a resolution of such dispute can be regarded as a decision involving questions of Customary law. See also PAM v. GWOM (2000) 2 NWLR (Pt. 644) P.322 at 324; C.C.A; EDO STATE v. AGUELE (2000) 12 NWLR (Pt. 995) p.545 and GOLOK v. DIYALPWAN (1990) 1 NWLR (Pt. 139) p.41.
I have carefully perused the Notice and Grounds of appeal filed by the Respondents at the Court below. Upon a careful consideration, I am of the view and do hold that Grounds 1, 2 and 3 dealt with the determination and application of customary arbitration to the controversy between the parties. However, I am of the view that Grounds 4, 5, 6 and 7 dealt squarely with appraisal and or evaluation of the evidence on the facts established before the trial Customary Court. They cannot be regarded as matters of facts simpliciter or mere procedure. Certainly without a resolution of the facts or evidence I cannot see how the Court could arrive at the applicable Customary law to the dispute between the parties. The decisions cited above, did not state it as the law, that where the question before the Customary Court of Appeal involve appraisal or evaluation of the evidence by the court in order to arrive at what the customary law is and its application to the dispute, it would not be a question of Customary law. The Court below was therefore right in upholding their competence. However, Ground 8 which was an omnibus or general ground is incompetent, and should have been struck out. See HIRNOR v. YONGO (supra). On the whole therefore issue No. 1 is resolved against the Appellants.
Arguing on issue two (2), Learned Counsel for the Appellants alluded to exhibit “A” which is the Arbitration Report of Umudim Family of Okpuala Iho, which also concluded that since Paul Chiemenike failed to swear to an Oath, Ala Ukwu Ikoro land should be shared, to submit that Paul Chiemenike appeared before the Arbitration Panel in his personal capacity, and not in a representative capacity on behalf of himself and the Appellants. That the Respondents’ called one Paulinus Chidozem who testified that he was the Secretary of Iho-Dimeze Town Union and also the Secretary that made Exhibit “C”, and testified under cross-examination that the Appellants did not participate as parties to the arbitration by Iho-Dimeze Town Union. He then submitted that the testimony of Paulinus Chidozem then corroborates the evidence of the Appellants that they did not appear before the Iho-Dimeze Town Union and that of the Umudim family of Okpuala Iho-Dimeze which reached the decisions in Exhibits “A” AND “C” respectively.
Learned Appellants Counsel further contended that the P.W.2 stated that they looked only into the Ala Ukwu Ikoro land in the arbitration. He then submitted that it shows that, the decision in exhibit “C” did not relate to all the other lands of Nwaopara Nwaiwu claimed by the parties to this action. He also listed the requirements of a binding customary arbitration as stated in the case of AWONUSI v. AWONUSI (2007) ALL FWLR (Pt. 391) p. 1642 at 1662 – 1663 paras. G-A; to further contend that in the instant case, the Appellants were not parties to the arbitration, and that they never expressly or by implication consented to the arbitration. That there is also no evidence that Paul Chiemenike claimed the entire estate of Nwaopara Nwaiwu either in his personal or representative capacity, but rather the evidence shows that, he claimed only Ala Ukwu Ikoro in his personal capacity. The cases of KALU v. ONWUEGBU (2003) ALL FWLR (Pt. 435) p.1713 AT 1734-1735 and OHIARE v. AKABUEZE (1992) 2 NWLR (Pt. 221) P. 1, to Further submit that, the Appellants on records having not associated themselves with the decisions in Exhibits “A” and “C” were not bound by the result of such arbitration. We were then urged to resolve this issue in favour of the Appellants.
Learned Counsel for the Respondents, relied on the cases of BALOGUN v. ADEJOBI & ANOR (1995) 2 NWLR (pt. 376) P.131 at 137, OKEREKE v. NWANKWO (2003) FWLR (Pt. 158) p.1246 at 1248-1249 and OPARAJI v. OHAWU (1999) 9 NWLR (Pt.618) P.290, to contend that, it is too late in the day for the Appellants to doubt the bindingness of Exhibits “A” and “C”. That the PW1 stated clearly that the Umudim family of Okpuala looked into this matter and decided on oath taking which the Appellants reneged from as shown by exhibit “A.” That the subject matter in Exhibit “A” is Ala Ukwu Ikoro, one of the landed properties of Nwaopara Nwaiwu who died extinct and to which the parties are jointly entitled to inherit, and that the late Paul Chiemenike merely sought to change the status of that joint ownership by claiming without proof that his father bought Ala Ukwu Ikoro from Nwaopara. That, after Exhibit A, the two Appellants on record joined in demanding the release of Ala Ukwu Ikoro for joint sharing.
Learned Respondents’ Counsel contented that the position is made clearer by Exhibit “C”, wherein the Appellants were represented by Paul Chiemenike as shown by fines 15-34 at page 22 of the records. He contended that, Exhibits “A” and “C” are therefore binding on the Appellants who never challenged same. The case of EZERIOHA v. IHEZUO (2010) ALL FWLR (Pt. 540) p. 1259 at 1260-1272 was cited in support. That it was the Appellants’ intransigence and recalcitrance as evidenced by their contempt for the Arbitrations of 1996 and 1998 that led to the Respondents’ filing of Suit No. CC/IK/EZ/23/2001 at the trial customary court, Ikeduru. Learned Counsel then submitted that Exhibits “A” and “C” satisfied the requirements of a customary arbitration, and that the Appellants who did not challenge the awards made therein are bound thereby. The cases of OKEREKE v. NWANKWO (2003) FWLR (pt. 158) p. 1.246 at 1248-1249; OPARAJI v. OHANU (supra) at 290 and OHAERI v. AKABAEZE (1992) 2 NWLR (Pt. 221) p.1 were cited in support. He also cited the case of EZERIOHA & ORS v. IHEZUO (2010) ALL FWLR (Pt. 540) p. 1259 at 1260, to submit that failure of the Appellants to challenge the award in Exhibits A and C, is evidence that they accepted the awards made therein. That the Court below was therefore right in holding that the Appellants were bound by Exhibits A and C. We were then urged to hold that the failure of the trial Customary Court to place proper weight on Exhibits A & C had led to a miscarriage of justice and that the Court below was therefore right in setting that decision of the trial court, aside and to resolve this issue against the Appellants.
The response of the Appellants is at pages 6-7 paragraphs 2.OC-2.OG of the Respondents’ Reply Brief. Therein Learned Appellants’ Counsel submitted that, the contention of the Respondents that it is too late for Appellants to doubt the binding effect of Exhibits “A” and “C” is very misleading, because, at the earliest opportunity, the Appellants before the trial court, disassociated themselves from Exhibits “A” and “C” and which was corroborated by PW2 who testified to the effect that the Appellants did not participate at the arbitration. That the contention of the Respondents that the Appellants submitted to the arbitration and stated their case, and that they accepted the grounds, is not borne out of the record. That this fact is further corroborated by the testimony of pw2 who categorically stated that the Appellants did not participate in the arbitration, and which subject matter was on Ala Ukwu Ikoro land only. We were then urged to discountenance the submissions of Learned Counsel for the Respondents on this issue, and to resolve this issue in favour the Appellants.
The trial Customary Court in the determination of the case before it, resolved in respect of the issue of the arbitral awards as evidenced by Exhibits “A”, “C” and D as follows:-
“In this matter some Exhibits were tendered in evidence. Exhibit “A” is a document indicating that Emmanuel Iwuamadi brought Paul Chiemenike before Umudim family of Okpuala Iho-Dimeze in respect of sharing of the estate of Nwaopara Nwaiwu. That Exh. A contains information in paragraph one that the Umunwanyi Domeonu had been in possession of the estate of Nwaopara Nwaiwu for over 50 years ago of the death or extinction of Nwaopara Nwaiwu. This implies that the fathers of the parties did not contest this situation but allowed the sleeping dog to lie for whatever reasons they had. However this arbitration of Umudim family decided on Oath-taking which did not take place but accepted that the estate of Nwaopara Nwaiwu is jointly owned by the descendants of Duruoha. Exh. D which is the decision of H.R.H. Eze E.O. Onwuegbu in Council ruled that, the property of Nwaopara Nwaiwu shall be inherited by the family of Umunwanyi Domeonu since; Nwaopara family is in their mother’s lineage. The Eze’s decision favoured the Defendants in this case.
Exhibit C is the decision of Iho-Dimeze Town Union which favoured the Plaintiffs in this case. It was based on the refusal of Paul Chiemenike to take Oath as decided. Though the Defendants did not associate themselves with that arbitration and the arbitration of Umudim family of Okpala Iho-dimeze.
The Defendants maintained that they did not show up or participate in any of the arbitrations as claimed by the Plaintiffs except in the arbitration of Eze E. O. Onwuegbu in Council.”
It is therefore clear that the trial customary court rejected the finding and conclusion of the Umudim family when they arbitrated on the issue, as per Exhibit A. Rather, they accepted the decision of the Eze of Iho-Dimeze in council as shown by Exhibit D to find for the Appellants who were defendants before it. Basically, the trial Customary Court therefore arrived at its decision on the ground that the Nwanyi Domeonu kindred or lineage of Umuduruoha had been in possession of the land for about 50 years since the death of Nwaopara Nwaiwu without any contest from the Respondents’ Parents.
After considering the submissions of Counsel and the record before it, the Court below decided that the trial Customary Court was wrong to have based its judgment on part of the decision reached in Exhibit “D”. It arrived at this conclusion when it found at page 232 lines 5-10 as follows:
“I have read through the records and also the exhibits mentioned in this appeal. There is no doubt that after a careful perusal of the evidence of PW1, Pw2 and PW3, there is obvious fact that exhibit D was issued after suit No. CC/EZ/IK/23/2001 had commenced. Therefore, the issuance of exhibit D, is contrary to the contents of exhibit B issued by the same Eze O. Onuegbu. Exhibit D therefore in my candid opinion is not binding on the Appellants.”
It is now settled law under the Nigerian legal system that, one of the methods of settling disputes is by way of customary arbitration, wherein a dispute between parties is referred to the family head or an elder or elders of the Community or other body of men, be they Chiefs or some other respected persons in the Community. Such person or body of persons then act as arbitrators over the dispute between the parties and accordingly their decision becomes binding; once it is shown that both parties to the controversy submitted to the arbitration; they accepted the terms of the arbitration and agreed to be bound by the decision or award made therein.
The decision becomes binding and has the same legal consequence or authority as the judgment of a Court or other judicial body, and may create an estoppel in a future dispute between the parties. Such a decision may also be enforced by the Courts of law, and none of the parties would be permitted to resile from the result of such an arbitration simply because it did not favour him. See ONWUANUMKPE v. ONWUANUMKPE (1993) 8 NWLR (Pt.310) p. 186; OKERE v. NWOKE (1991) 8 NWLR (Pt. 209) p.317; IGBOKWE v. NLECHI (1996) 2 NWLR (Pt. 429) p. 185; NZEOMA v. UGOCHA 9 2001) 29 W.R.N. p.179; OJIBAH v. OJIBAH (1991) 5 NWLR (Pt. 191) p. 295 and NWANKWO v. NWANKWO (1993) 5 NWLR (Pt.293) p. 293 at 308.
It is however now accepted law that, a mere submission to customary arbitration by a party does not ipso facto bind such a party no matter the decision arrived at by such an arbitral body. The trend in judicial opinion is that, since the constitution has guaranteed a right of appeal, a person aggrieved by the decision reached in an arbitration could seek redress in a regular Court of the land, upto the highest Court, which is the Supreme Court. It is accepted that such a party is not required to submit willy – nilly to a decision that is clearly unjust to him. See OLOWU v. ABOLORE (1993) 5 NWLR (Pt. 293) p.253. Where the decision of a customary arbitration is challenged, Courts of law are expected to apply such decisions with circumspection Thus, AKPATA; J.S.C in the case of OHIAERI v. AKABEZE (1992) 2 NWLR (Pt.221) P.1 at 24 stated that:
“It is common feature of customary arbitration in a closely knit Community that some of the arbitrators, if not all, not only have prior knowledge of the facts of the dispute, but also have their prejudices and varying interests in the matter, and are therefore sometimes Judges in their own cause and are likely to pre-judge the issue. Prior knowledge and pre-judging issues are more pronounced in land disputes having bearing with the founding of the village and how families migrated to the village and came to occupy parcels of land. The arbitrators are well informed on these matters … Hence, it is essential before applying the decision of a customary arbitration as an estoppel for the court to ensure that all the conditions precedent to the application of the decision of a customary arbitration are satisfied.”
That being so, before a party to a case before the court with jurisdiction to hear the matter before it can defeat the right of his adversary to have the case determined by the Court on grounds that there has been a previous binding arbitration which raises an estoppel between the parties, certain conditions precedent must be satisfied. In other words, for a party to rely on customary arbitration in support of his case, he has the onus to show that the arbitration satisfied some conditions precedent. These conditions have been set down by the courts in a plethora of decisions of the Supreme Court and of this court. These are that:-
(a) there must have been a voluntary submission of the dispute by the Parties to a non-judicial body;
(b) the parties must have agreed to be bound by the decision of the non judicial body as final;
(c) the decision must be in accordance with the custom of the people or their trades or business;
(d) the arbitration must have reached a decision and published their award. See OHIAERI v. AKABEZE (supra); AWOSILE v. SOTUNBO (1991) 5 NWLR (Pt. 243) p. 514; ANYABUNSI v. UGWUNZE (1995) 6 NWLR (Pt.401) p. 255; OSUIGWE v. NWIHIM (1995) 3 NWLR (PT.386) P.752 AT 766-767; EKE v. OKWARANYIA (2001) 12 NWLR (Pt.726) P.181 AT 208; NWOSU v. NWOSU (1995) 2 NWLR (Pt.428) p.64 and AGU v. IKEWIBE (1991) 3 NWLR (Pt. 180) p.385.
In the instant case, the 1st Respondent who testified as PW1 stated that, in 1996, he reported the matter to Umudim Okpuala Iho family meeting for the sharing of the parcels of land in dispute. That the Appellants who refused to share the land were asked to take an Oath that they alone buried Nwaopara Nwaiwu and that Nwaopara Nwaiwu is from their mother, but they refused to take the oath. That on refusal of the Appellants to swear to the oath, the Umudim Okpuala family meeting ruled or decided that the parcels of land be shared amongst the Umunwanyi Domeonu, Umuiwuamadi and Umu-nwodu. That arbitral decision is in evidence as exhibit “A”. The Exhibit indicates that the parties therein were Emmanuel Iwuamadi & Co and Paul Chiemenike & Co. It is obvious therefore that the parties on record in Exhibit “A” that are apparent are Emmanuel Iwuamadi and Paul Chiemenike. However other oral evidence on record and the contents of the said exhibit point to the fact that the two names indicated were not the only parties to the arbitration in the said exhibit A.
The PW.1 who is the 1st Respondent testified under cross-examination before the trial Court that, all along he has been suing in a representative capacity. See page 24 line 11 of the records. He also stated under cross-examination at page 27 line 8 that the Appellants’ were invited to the Umudim family meeting in 1995 on the issue of sharing of the lands in dispute. He further stated under cross examination at page 28 lines 28-30 as follows:-
“The Umudim family meeting decided on oath taking or sharing but the defendants refused the two options. I was Plaintiff in that arbitration. When they refused I sued before the Eze.”
The Defendants referred to by the Respondent in the passage quoted above are the Appellants. The Appellants’ witness Beniah Uchenna who testified at pages 39-41 if the records tried to deny the authenticity of at Exhibit “A”. He also tried to contend that the arbitration of Umudim Family meeting as evidenced by Exhibit “A” was inconclusive. He however admitted that he signed same as the Secretary of Umudim Family meeting. He stated thus:
“At the time of the arbitration I was the chairman. I signed a document which was the decision of Umudim Family meeting. Many people took part in the arbitration. No decision was reached on this arbitration. The venue of the meeting was Umudim Hall. I and the President were invited by Samuel Nwodu, the former chairman to his house where we signed a document presented to us by Samuel Nwodu. I did not read the document because it was 8.00 p.m. I do not know how to read and write very well.”
It is obvious from the testimony of the appellant’s witness above, that, the said witness gave the impression of a person struggling to disown and thus impugn the authenticity of the arbitration conducted by the Umudim Family meeting. This is so as can be seen that under cross examination at page 40 of the records, he stated that he is a contractor who can read building plans and engage workers to build, and that he once was a Choir-Master in the Church. That cannot be the attributes of a person who could barely read and write. He however admitted that he signed the arbitration decision of the Umudim family meeting and at page 41 lines 3-4 that the Appellants were represented by Paul Chiemenike (late). The Appellants’ 2nd witness, Reuben Iheanacho, who is of the same Umunwanyi- Domeonu Kindred with the Appellants stated that he is not aware of any arbitration by Umudim Okpuala Iho-Dimeze but said the only arbitration he knows is that of the Eze in Council which favoured the Appellants. He did not however state that there was no such arbitration by the Umudim Family meeting between the Appellants and the Respondents.
The 1st Appellant who testified as the D.W.4 was cross-examined at pages 36-38 of the record of appeal. He denied that Paul Chiemenike represented them in any of the arbitrations save for that conducted by the Eze in Council as evidenced by Exhibit D which favoured them but admitted that he was at the arbitration meeting of Umudim family. See page 37 lines 12-13 of the record. The attitude of the Appellants was therefore denial of participating in any other arbitration other than that of the Eze in Council (Exhibit “D”). However, this denial by the Appellants goes contrary to the grains or contents of Exhibit “A”. Exhibit “A” shows clearly that the disputants herein were those represented by Emmanuel Iwuamadi 1st Respondent) and others who demanded the sharing of Nwaopara Nwaiwu’s land against Mr. Paul Chiemenike and others of Umunwanyi Domeonu kindred. The Appellants in this case have been shown by the evidence to be of the Umunwanyi-Domeonu kindred. It should also be noted that the proceeding was before an arbitral body which is not required to follow any rule of procedure in its proceedings. Being members of Umunwanyi-Domeonu, they were certainly part of the arbitration by the Umudim family of Okpuala Iho-Dimeze. They were in it along with Paul Chiemenike who led them. This fact is established by the claim which they filed in suit No. CC/EZ/IK/51/2002 of which Paul Chiemenike was the 1st Plaintiff, with the Appellants as the 2nd and 3rd Respondents respectively. The same situation obtains in suit No CC/EZ/IK/23/2001. It is therefore safe to conclude that, the Appellants have been in the thick of the arbitrations in Exhibits A and D, and indeed the initiation of this action at the trial Customary Court. I am therefore of the view that the evidence on record show clearly that the Appellants were parties to Exhibit “A”.
Having carefully perused the said Exhibit “A” as contained at pages 91-93 of the records, I am of the view that it satisfies all the conditions precedent required of a valid Customary Arbitration. The parties therein agreed that, the case be discussed and settled by the Umudim family. The arbitrators made their findings on the narrow issue in controversy between the parties. They also reached a decision that, Paul Chiemenike & Co; which I have found included the Appellants should take an oath to affirm their claim that Nwaopara Nwaiwu was a direct son of Nwanyi Domeonu; that at the death of Nwaopara Nwaiwu the money raised for his burial came from Umunwanyi Domeonu lineage only, and that Umu-Nwaodu and Umu-Iwuamadi did not make any financial contribution. That; if they take the oath and survive if the estate of Nwaopara Nwaiwu would become the property of Umu Nwanyi Domeonu to the exclusion of Umu Nwodu and Umu-Iwuamadi kindreds. The Appellants were given three (3) weeks to think and take a decision but they failed to come forward to make their decision known, even after an additional three weeks was given them. The arbitrators therefore decided that since the Appellants failed to appear for the oath taking, the matter was determined in favour of the Respondents in accordance with their custom. The Appellants have not contended that oath taking as a way of settling disputes is not part of the custom of the Umudim family of Okpuala Iho-Dimeze. The end result therefore is that the Appellants were bound by Exhibit A.
Exhibit “C” was tendered by the Respondents at the trial Customary Court to show that they also referred the matter to the Iho-Dimeze Town Union for arbitration, upon refusal of the appellants to comply with the decision of the Umudim Family arbitration. Having perused the said Exhibit “C”, it shows clearly that Paul Chiemenike was not before that arbitral body as a representative of the Umunwanyi Domeonu kindred. In other words there is a nothing to show on Exhibit C that Paul Chiemenike appeared for Umunwanyi Domeonu kindred in a representative capacity. Indeed only one piece of land was involved in the arbitration, which the said Paul Chiemenike claimed title thereto exclusively on the ground that his father had bought the land in question. This fact is supported by the testimony of P.W.2 who was the Secretary at the arbitration in Exhibit C. It is therefore my view that Exhibit “C” has nothing to do with the parcels of land in dispute, and therefore cannot be relied upon by either party to this dispute as constituting estoppel.
On the face of Exhibit “D”, it is clear that the arbitration therein took place during the pendency of Suit No. C/EZ/IK/2001, filed by the Respondents at the trial Customary Court. This is evident from the date Exhibit D was made, i.e. 9/3/2002, while the said Suit No CC/EZ/IK/2001 was filed in May, 2001. By Section 91 (3) (now Section 83 (3) of the Evidence Act, 2011), Exhibit D is not admissible having been made during the pendency of Suit No. CC/EZ/IK/23/2001. In any case, it cannot be said that the arbitration by the Eze in Council as shown by Exhibit D, was initiated on the voluntary submission of the parties, as the arbitration was done on the prompting of the police. Furthermore, though the arbitration was said to have been done by the Eze and his Council, or cabinet, none of the cabinet members signed Exhibit “D”. It does not also purport to be final as it still left the door open to the Respondents to seek redress to a higher authority, if they were not satisfied with the decision therein. In other words, the arbitration in Exhibit “D” does not purport to be final, at least on the Respondents. I therefore hold that Exhibit “D” was not a final and binding arbitration, and so could not be used as estoppel against the Respondents.
It is therefore clear that only Exhibit “A” satisfies the requirements of a binding arbitration. It duly satisfies the conditions precedent for a binding arbitration. In any case, the Appellants have not disputed the custom on oath taking as a form of settling disputes under the custom of the people of Okpuala Iho-Dimeze, and the consequence on any person who is required to take the oath but refuses to do so. Accordingly I hold that Exhibit “A” is binding on the Appellants and may operate as estoppel against them. Issue two is therefore resolved against the Appellants.
Issue No.3 enquires whether the Customary Court of Appeal was right in setting aside the judgment of the trial Customary Court. Learned Appellants’ counsel submitted on this ground that from the records and the authorities, the judgment of the trial Court is supportable and well grounded, and should not have been set aside by the Court below. He referred to and quoted copiously from the cases of DADA v. FALEYE (2007) ALL FWLR (Pt.349) p. 1134 AT 1136; POPOOLA v. BALOGUN (2007 ALL FWLR (Pt. 374) p.285 at 287 (ratio 1); A.G.; FEDERATION v. ABUBAKAR (2007) ALL FWLR (pt.375) p. 405 at 517 and WILLIAMS v. OGUNDIPE (2006) ALL FWLR (Pt.327) p.540 at 548, to submit that the law on setting aside of a trial Court’s decision is now fairly settled. That none of the exceptions warranting setting aside of the decision of a trial Court applies to this case, as the findings and judgment of the trial Customary court are reasonable, supportable and well grounded on the evidence led and the relevant law applicable thereto. That for an Appellate Court to set aside the judgment of a trial court, it must be shown that the judgment is either perverse, obtained by fraud or a nullity.
Learned Appellants’ counsel went on to submit that, the trial customary court believed the evidence of DW2 and DW4 who maintained that Nwanyi Domeonu had four sons, and that this piece of evidence is in line with Exhibit “D.” That the Customary Court of Appeal, misinterpreted paragraph 3 of Exhibit “D” to mean that Nwanyi Domeonu had 3 sons which contrasts with the testimony of DW2 and DW4. He insisted that the trial Customary Court gave the correct interpretation to paragraph 3 of Exhibit D to the effect that Nwanyi Domeonu had four (4) sons which included Nwaiwu, the father of Nwaopara. That while the Court below maintained that the contradictions in the number of sons of Nwanyi Domeonu between the testimonies of PW2 and PW4, and paragraph 3 of Exhibit “D” was material enough to warrant setting aside the judgment of the trial Court, however held that the contradiction between the testimony of PW1 in his evidence in chief and under cross-examination on the same issue was not material. He also pointed out the contradiction in the testimony of PW1 and that of PW3 on who the mother of Nwaiwu was. Learned Counsel then submitted that those contradictions are material enough for the trial Court that heard and saw the witnesses to disbelieve the evidence of the Respondents.
It is also the submission of Learned Counsel for the Appellants that, it is clear from the record that, Paul Chiemenike appeared before the arbitration panel for himself, and in respect of only one piece of land called Ukwu Ikoro and not the entire farmland disputed in this case. That there is no evidence that Paul Chiemenike represented the UMUNWANYI Domeonu lineage, and that the appellants are not bound by the decisions in Exhibits “A” and “C” as they had disassociated themselves from them. We were then urged to allow the appeal on this ground.
Arguing here, Learned counsel for the Respondents contended that the court below was right in setting aside the judgment of the trial Court upon the evidence led with regards to the local arbitrations in exhibits “A” AND “C”. That though an appellate Court is enjoin to refrain from meddling with facts found by a trial Court, where such findings of fact by the trial Court have not only became perverse, but has led to a miscarriage of justice, the trial Court would interfere. That, the failure of the trial customary court to place proper weight on Exhibits “A” and “C” which are awards made by local arbitrations, and to which the parties are bound, led to miscarriage of justice against the Respondents. That the authority cited by the Learned Counsel for the Appellants support the Respondents’ contention that the Customary Court of Appeal was right in setting aside the judgment of the trial Court.
It is the further submission of Learned Counsel for the Respondents that the evidence that Paul Chiemenike was the head of the Umunwanyi Domeonu lineage was not controverted. That, evidence that the same Paul Chiemenike represented the Nwanyi Domeonu lineage in the proceedings that led to Exhibits “A” and “C” was not controverted. That the evidence that Nwaopara Nwaiwu is not from NWANYI Domeonu remained the findings in Exhibits “A” and “C”. That it is also uncontroverted evidence that once one refuses to swear an oath, he forfeits that which he claims. That PW1 and PW2 conceded that there was decision for oath taking and that it was due to the refusal of Paul Chiemenike to swear the oath, that the lands of Nwaopara Nwaiwu were declared joint property of Umunwanyi Domeonu family of the Appellants and Umu-Iwuamadi and Umu-Nwaodu families of the Respondents. That in resolving the issues, the trial Customary Court only placed weight on that part of Exhibit “A” which states that Nwanyi Domeonu lineage has been in possession of the land of Nwaopara Nwaiwu for 50 years, but refused to advert to the verdict proper in Exhibit “A”. That the trial Court also refused to place weight on the evidence that 1st Respondent’s father disputed the Nwaopara Nwaiwu property in 1958 and a customary injunction was placed on the lands. Furthermore, that it was established as the Custom that, the property of a family member who died extinct and which is not shared is always kept in custody of the head or senior kitchen till sharing takes Place.
Learned counsel for the Respondents also contended that, in the face of Exhibits “A” and “C”, the holding of the trial court at page 80 of the records based on the fact of possession of the land by the Appellants and their predecessors for fifty years cannot stand. That even assuming that there was a 50 years possession by the appellants’ Kitchen as the eldest kitchen, in line with the custom, such possession cannot ripen into outright ownership so as to extinguish the rights of the Respondents. It was therefore submitted that, the trial Court disregarded credible evidence tendered by the Respondents as shown by Exhibits “A” and “C” as well as the native law and custom of the parties, and accordingly the Court below was right when it set aside the judgment of the trial Court. That Exhibit D is an inadmissible document and therefore does not avail the appellants. We were then urged to resolve this issue against the Appellants.
Responding in their Appellants’ reply brief at pages 7-8 thereof, the only point which I find of value in the resolution of this issue is at page 7 paragraph 2.OK of the Reply Brief. Therein Learned Appellants’ Counsel submitted that the Respondents contended that Exhibit D is inadmissible, but did not show how it is inadmissible. He however submitted that the said Exhibit “D” was properly admitted by the trial Court.
He accordingly urged us to allow this appeal, set aside the judgment of the Court below and restore the judgment of the trial Customary Court.
Now, it is not in doubt that the trial Customary Court had entered judgment in favour of the Appellants. However, the Court below (Customary Court of Appeal) being the appellate court from the decisions of the Customary Court, saw it differently, and set aside the said judgment and entered judgment for the Respondents instead. The general rule is that the evaluation of evidence and the ascription of probative value reside within the province of the trial Court that saw, heard and accordingly assessed the witnesses. In other words, the duty of evaluating and ascribing probative value to all relevant oral and documentary evidence lies with the trial judge who had the advantage of seeing and hearing the witnesses. Accordingly, where the trial Court had diligently and justifiably evaluated and appraised the facts, an appellate court is usually reluctant or slow to interfere. See P.T.F v. W.P.C. LTD (2007) 14 NWLR (Pt. 1055) p.478; OMAYE V. OMAGU (2008) 7 NWLR (Pt. 1087) p.461; GAGARAU v. PASHIRI (2006) 1 NWLR (Pt.962) p. 521; ISMAIL v. STATE (2008) 15 NWLR (Pt. 1111) p. 593 and OJELEYE v. REGT. T.O.I.M.C. & S.C.N. (2008) 15 NWLR (Pt. 1111) p.520. In other words, it is only where the trial Court failed to evaluate or failed to properly evaluate that an appellate court can do what the trial Court ought to have done and accordingly, where the appellate Court so finds, it can set aside the findings made by the trial Court.
Generally, the onus is on the party who complains that the trial Court did not evaluate the evidence judicially, to show how the judgment of the trial Court would be found to be wrong if the omission or failure to evaluate properly is corrected.
In the determination of the issue, what should occupy the mind of the appellate court is whether the trial court made proper findings and thus reached the correct decision or judgment upon the facts before it. The factors to be considered by the appellate court on whether or not to interfere are:-
(a) whether there is sufficient evidence to sustain the judgment:
(b) whether the trial Court failed to make proper use of the opportunity of seeing, hearing and observing the witnesses;
(c) whether the findings of fact of the trial Court cannot be regarded as resulting from the evidence;
(d) whether the trial court has drawn wrong conclusion from accepted evidence; or has taken an erroneous view of the evidence adduced before it
(f) whether the findings of the trial Court are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before it.
See AKINDIPE v. state (2008) 15 NWLR (Pt. 1111) p. 560; MAFIMISEBI v. EHUWA (2007) 2 NWLR (Pt.1018) p.385; P.T.F v. W.P.C LTD (supra) at p.498 paras. A-E and ANYAFATU v. AGAZIE (2006) 5 NWLR (Pt.973) p.260.
In the instant case, the matter was initiated before and heard by the trial Customary Court, Eziama in Ikeduru Local Government Area. That Court gave judgment in favour of the Appellants. The Respondents who were dissatisfied appealed to the Imo State Customary Court of Appeal and the said Court set aside the judgment of the trial Customary Court and instead entered judgment for the Respondents. The Court below upon considering the evidence on record before it found at page 234 lines 13- 15 of the record that an appellate Court cannot interfere with the findings of a lower court unless same is found to be perverse. It then held at the same p.234 lines 23-25 as follows:
“I therefore hold that the lower court did not properly evaluate the evidence before it before arriving at it decision. In the light of the above, this appeal succeeds and is resolved in favour of the Appellants.”
It is this finding and the conclusion of the Court below against the judgment of the trial Customary Court that the Appellants complain against. My duty here is to consider whether the Court below was right in view of the findings of the trial Court on the evidence before it.
I have carefully studied the record of appeal with particular attention to the oral and documentary evidence led at the trial Customary Court. I have also carefully studied the judgment of the trial Customary Court. I find that the trial Customary Court made the following findings at pages 79-80 of the records:
“1. That the parties are descendants of Duruoha who deforested the pieces of land in dispute.
2. There is an agreement by the parties that Nwaopara Nwaiwu is a descendant of Duruoha and had his own share of the estate of Duruoha.
3. Parties disagreed on the number of wives Duruoha had. Plaintiffs said five wives while Defendants said four wives.
4. It is established from the available evidence that Nwaiwu is a descendant of Duruoha. He begot Nwaopara Nwaiwu who inherited Nwaiwu.
5. Parties agreed that Nwaopara Nwaiwu had no surviving male issues. He died intestate.
6. The area of disagreement among the parties is who is the mother of Nwaiwu the father of Nwaopara Nwaiwu whose estate is to be shared.
7. The Defendants claim that Nwanyidomeonu the first wife of Duruoha had four sons namely; Duruanyanwu, Nwaiwu, Duruoha and Chinyere.
8. The Plaintiffs said that Nwaopara Nwaiwu is not of the linage of Nwanyi Domeonu but were uncertain if Nwaopara Nwaiwu is of the wife of Duruoha called Adachi.
9. The Defendants who claim close lineage with Nwaopara Nwaiwu from Nwanyi Domeonu buried Nwaopara Nwaiwu when he died and have been in possession of his estate for over 50 years now (See Exhibit A paragraph 1).
10. The possession of the estate of Nwaopara Nwaiwu by the Defendants had been peaceful and unchallenged by the grandfathers and fathers of the Plaintiffs for more than 50 years now until recently by the Plaintiffs.”
Based upon the above findings the trial customary court concluded that:
“In consideration of the above, the Honourable court is not satisfied with the narration of the genealogy of Nwaopara Nwaiwu as given by the Plaintiffs but considers that of the Defendants more acceptable and therefore finds for the Defendants.”
On appeal to the Customary Court of Appeal i.e. Court below, by the Respondents before us, the Court below held that the trial court did not properly evaluate the evidence before it, and consequently set aside the decision arrived at by the trial court.
It would be seen that from the evidence on record, though the parties did not specifically say so, both parties relied on traditional history in proof of their case. It should be noted that the trial was before a Customary Court where rules of pleadings is not the practice. What is considered is the substance and not the form the proceedings took. Having thus noted, it is also necessary for me to point out that, from the evidence on record, the narrow issue the trial Court had to determine is whether Nwaopara Nwaiwu is of the lineage or descendant of Nwanyi Domeonu. This is in view of the claims of the parties, vis-a-vis their custom on inheritance, which is to the effect that where a man dies without a male heir, his relations of the mother’s side would inherit, but where he dies without a male heir and without brothers from the mother’s side, his brothers of the same father would inherit. That is the established custom in this case. It was however shown and as rightly found by the trial Customary Court, that Nwaiwu the father of Nwaopara whose estate is in contention was descended from Duruoha as the parties in this case. It was also established that Nwaopara Nwaiwu died extinct or without a male heir. The Appellants thus claimed that Nwaiwu the father of Nwaopara was the 2nd son of their great grandmother Nwanyi Domeonu and therefore they as descendants of the brothers of Nwaiwu of the same mother are entitled to inherit the estate of Nwaopara to the exclusion of their brothers of Umu-Iwuamadi and Umu-nwaodu lineage who are represented by the Respondents. The Respondents claim that Nwaiwu the father of Nwaopara was not the son of Nwanyi Domeonu the first wife of Duruoha, but the son of another wife of Duruoha and therefore they as descendants of Duruoha were also entitled to inherit the estate of Nwaopara who died without a direct male heir.
It would be seen therefore that there was a sharp divergence or conflict in the traditional histories as put forward by the parties. It would be seen that neither the trial Customary Court or the Customary Court of Appeal made any effort to resolve this conflict. At least, the effort made by the Customary Court of appeal was feeble. The law is that, where both parties to a dispute rely on traditional history the trial Court has the duty to determine the preferred version having regard to the evidence presented in proof of the respective claims of the parties. See ONWUBUARIRI v. IGBOASOIYI (2011) 3 NWLR (Pt. 1243) p.357. However, where the Court finds itself in a dilemma or difficulty as to which of the parties’ traditional evidence to accept the Court is enjoined to follow the principle enunciated in KODJO II v. BONSIE (1957) 1 WLR. P.1223. That principle states that, where parties to a dispute rely on traditional histories to prove their cases, the proper cause to follow is to test the traditional histories of both parties by reference to the facts in recent years as established by other evidence before the Court, and thus resolving which of the two competing histories is more probable. See MOMOH v. UMORU (2011) 15 NWLR (Pt. 1270) p.217; EYO v. ONUOHA (2011) 11 NWLR (pt. 1257) p.1 at 46-47; WACHUKWU v. OWUNWANNE (2011) 14 NWLR (Pt. 1266) p.1 and DAKOLO v. REWANE DAKOLO (2011) 16 NWLR (Pt.1272) p.22. In that respect, a Court confronted by this dilemma would advert to and consider other evidence of acts in recent years established by evidence.
I had earlier held that the Court below did not try to resolve the conflict in the traditional histories led by the parties on the evidence on record. It would appear however, that the trial Court based its decision on the fact that it was established by Exhibit “A” that the appellants and their predecessors had been in possession of the estate of Nwaopara Nwaiwu for about 50 years without any contest from the Respondents’ predecessors. It should however be noted that, under Customary law, no prescriptive title can be declared in favour of a party inspite of his long possession of the land in dispute. In other words there is nothing known in customary law as prescriptive title except where the Court finds there is concrete and unavoidable evidence that there has been laches or acquiescence, so that strict application of such Customary law would inflict hardship and injustice on the adverse possessor. See MUEME v. KULUGHGAJI & ANOR (2001) 2 NWLR (Pt.607) P.289 at 303; ISUME v. PEVEREGA (2001) 2 NWLR (Pt.698) p. 566 at 574, MOGAJI v. CADBURY (1985) 2 NWLR (Pt.7) p.39 and OKEREKE v. NWANKWO (2003) 9 NWLR (Pt.826) p.592. In the instant case, there is no evidence of any acquiescence or laches against the Respondents. Indeed there is evidence on record that it is the custom that where a family member dies without an heir, his property would be held in trust for other inheritors by the head or most senior kitchen. There was also established evidence that Umu Nwanyi Domeonu was the most senior or eldest kitchen that is why the property of Nwaopara came to their custody. The 1st Respondent also testified that his father raised the issue of the estate of Nwaopara in 1958 and 1954 where a customary injunction was placed on the land. Those facts were not controverted or disputed by the Appellants at the trial. I therefore agree with Learned counsel for the Respondents that, the possession of the land for 50 years by the Appellants’ Kitchen as the eldest Kitchen cannot ripen into outright title as to extinguish the rights of the Respondents as joint inheritors to the estate of Nwaopara Nwaiwu.
Now, I had earlier held that Exhibit “A” is a valid decision of customary arbitration between the parties. The parties and the issues thereto are the same as in the instant case. There was a valid decision by the arbitrators and which decision still subsists as it has not been set aside. I had also resolved that the Arbitration in Exhibit “A” was valid having satisfied the requirements of a valid customary arbitration. The Supreme Court held in the case of ODONIGI v. OYELEKE (2001) 6 NWLR (Pt.708) p. 12 at 27-28 that; it is now settled law that one of the many ways of settling disputes among African societies is to refer such a dispute to either the family head, or elders or chiefs of the community for settlement, and that a decision reached at by such an arbitral body may be proved as estoppel against any party claiming contrary to arbitration. In the same vein, I am of the view that, the trial customary court should have applied the contents of Exhibit “A” so as to properly resolve the conflict in the traditional histories of the parties. By Exhibit “A” therefore, the issue had been settled that the appellants and the Respondents are jointly entitled to share the estate of Nwaopara Nwaiwu who died extinct or without a direct heir. I therefore hold that the court below was on the evidence on record, right when it set aside the judgment of the trial Customary. This issue is also resolved against the Appellants.
Having resolved all the issues against the Appellants, it is obvious that this appeal has no merit. It fails and is accordingly dismissed. The judgment of the Imo State Customary Court of Appeal delivered on the 30th day of September, 2009 in Appeal No. CCA/OW/A/14/2009 is hereby affirmed.
I award fifty thousand Naira (N50, 000.00) as costs against the Appellants in favour of the Respondents.
UWANI MUSA ABBA AJI, J.C.A: I was privileged to read in draft the lead judgment of my learned brother H. S. Tsammani, JCA, just delivered.
I agree entirely with the reasoning and the conclusions reached therein by my learned brother that the appeal is devoid of any merit. I adopt the reasoning and conclusion as mine and have nothing more to add. I also dismiss this appeal.
I endorse the consequential order as to costs.
JOHN INYANG OKORO, J.C.A: I read before now the judgment of my learned brother Haruna Simon Tsammani; JCA just delivered and I agree that this appeal has no merit at all and is liable to be dismissed. My learned brother has meticulously and quite efficiently dealt with the salient issues submitted for the determination of this appeal and I hereby adopt both his reasoning and conclusions as mine. I also dismiss this appeal and abide by all consequential orders made in the lead judgment, that relating to costs, inclusive.
Appearances
I. C. Prince Onunwa (Mrs)For Appellant
AND
F. U. Iziako; Esq.For Respondent
