UFONDU OKWULEHIE & ANOR v. CHIEF OTUOCHERE OBASI (2014)

UFONDU OKWULEHIE & ANOR v. CHIEF OTUOCHERE OBASI

(2014)LCN/7557(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of November, 2014

CA/OW/307/2011

RATIO

COURT; MISCARRIAGE OF JUSTICE, THE MEANING OF MISCARRIAGE OF JUSTICE

The term “miscarriage of Justice” can be described as failure on the part of a Court to do substantial Justice to a party in a Civil or Criminal Proceedings contrary to the weight of evidence before such a Court. It is a failure of Justice. A departure from doing what is right in a given judicial deliberation or decision. I call in aid the decision of the apex Court in the Land in the case of CHIEF ALEX OLUSOLA OKE & ANOR. VS. DR. RAHMAN OLUSEGUN MIMIKO & ORS. (2014) 1 NWLR (PART 1388) 332 at 372 a – G where PETER ODILI, JSC said:
“From the standpoint of the appellants, a miscarriage of justice had been visited on them. On what amounts of miscarriage of justice this court has in a long line of judicial authorities set out some definitions on what can in the course of adjudication be termed “miscarriage of justice”. Tobi, JSC in Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) 282 at 306 treated it thus:
“Miscarriage of justice connotes decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantiated rights of the party. Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it”.

In Aigbobahi V. Aifuwa (2006) 6 NWLR (Pt. 979) 270 at 290 – 291 this court said.
“… miscarriage of justice can be said to be such a departure from the Rules which permeate all judicial process as to make what happened not in the proper sense of the word judicial procedure at all. What constitutes a miscarriage of justice vary, not only in relation to particular facts, but with regard to the jurisdiction invoked by the proceedings in question. It is enough if what is done is not justice according to law”. per. PETER OLABISI IGE, J.C.A.

COURT: THE DUTY OF THE COURT; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO THEM AND WHETHER AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF THE TRIAL COURT THAT IS NOT PERVERSE

It is trite Law that ascription of probative value to the evidence of witnesses who testified before a trial Court is preeminently the business of the trial court who actually saw and heard them testified. The Appellate Court will not interfere save in exceptional circumstances. See:
(1) CHIEF SAIPEREMOR PREYE AMAREMOR VS. THE STATE (2014) 7SCM 1 at 20 F – G.
(2) MRS. LOIS CHITURU UKEJE & ANOR. VS. MISS. GLADY’S ADA UKEJE (2014) 11 NWLR (PART 1418) 384 at 405H where RHODES – VIVOUR JSC Said:

“It is well settled that it is the duty of the trial Court which saw and heard witnesses to evaluate the evidence and pronounce on their credibility and ascribe probative value.”

Thus where the findings of facts made by a trial Judge is supported by credible evidence on record such findings will not be tampered with by Appellate Court.
See: MICHAEL ACHILIHU & ORS. VS. EZEKIEL ANYAZONWU (2013) 1 SCM 1 at 18 per AKA’AHS JSC who held:
“It is settled that an Appellant Court should not ordinarily disturb or tamper with the findings of facts made by the trial Court particularly if such findings and conclusions reached are supported by credible evidence. This principle is premised on the fact that the duty of appraisal of evidence given at the trial is preeminently that of the trial Court that saw and heard the witnesses.” per. PETER OLABISI IGE, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER DOCUMENTS TENDERED BEFORE A COURT AT THE TRIAL OF A CASE IS PART AND PARCEL OF THE EVIDENCE TO BE CONSIDERED IN THE DETERMINATION OF ISSUES

This Court can properly consider and examine Exhibit “C” which the Appellant complained was wrongly relied upon by the trial Judge to hold the defendants now Appellants bound by the decision of arbitration panel. This Court can draw the appropriate inferences on Exhibit “C” since that has nothing to do with the credibility of the witnesses who testified before the trial Court. This will enable this Court discern whether the lower Court’s finding on Exhibit “C” was right.
See CHIEF NYA EDIM EKONG V. CHIEF ASUQUO E. OTOP 7 ORS. (2014) 11 NWLR (PART 1419) 549 at 573 F – H per OKORO, JSC who said:
“It is trite that documents tendered before a Court at the trial of a case is part and parcel of the evidence to be considered in the determination of issues before the Court. Such documents usually referred to as exhibits are subject to scrutiny and to be tested for credibility and weight by the trial Court. Where the trial Court fails to examine documents tendered before it, an appellate Court is in a good position to evaluate such exhibits. See Ayem V. Dada (1978) 3SC 35; Bamgboye V. Olanrewaju (1991) 22 NSCC (Pt. 1) 501. (1991) 4 NWLR (Pt. 184) 132. I think since exhibit “C” was tendered before the trial Court and was part of the record of appeal before the court below, the justices of that court were eminently qualified to draw such inferences as they found fit and proper so to do” per. PETER OLABISI IGE, J.C.A.

EVIDENCE; PROOF OF TITLE TO LAND; WAYS OF PROVING TITLE TO LAND AND WHAT A PLAINTIFF WHO CLAIMS OWNERSHIP OF LAND THROUGH INHERITANCE MUST PLEAD

The law is now firmly settled that in a claim for declaration of title to land or right of occupancy to land and claim for trespass which in law is rooted in exclusive possession, the Claimant/Plaintiff, must establish his right to exclusive with possession with a very clear or lucid evidence. He must demonstrate in his pleading and evidence the original founder of the land; how he came to be founder of the land and intervening owners through whom the Claimant/Plaintiff is claiming. Their particulars must be pleaded. See (1) THOMAS NRUAMAH & ORS VS REUBEN EBUAZOEME & ORS (2013) NWLR (PART 1372) 47 at 494 C -F where ARIWOOLA, JSC had this to say
“In an action for title to land, it has long been settled that there are five methods by which title to land may be proved. They are
(a) By traditional evidence.
(b) By production of documents of title duly authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See D.O. IDUNDUN & ORS VS DANIEL OKUMAGBA (1976) 9-10 SC 227. LLAC Vol. 1. 177 at 190 – 191 (2002) s 20 WRN 127 at 186; (1976) 1 NMLR 200.

However, a plaintiff or claimant is not required to prove all the above five methods or ways to establish his claim for declaration of title. The methods are not conjunctive. It is sufficient if one of the five ways is proved. This will suffice to entitle the claimant to the declaration.”
(2) GODWIN C. ONOVO VS ORS VS FERDINAND MBA & ORS (2014) 14 NWLR (PART1427) 391 at 420 F-H to 421 A-D per OGUNBIYI JSC
(3) CHUKWU EMEKA ANYAFULU & ORS Vs MADUEGBUNA MEKA & ORS (2014) 6SCM 1 at 14 B-1 to 15 A-B where AKA’AHS, JSC said:
“A Plaintiff who claims ownership of land through inheritance must plead and give evidence of the persons who have held title or on whom title devolved in respect of he land before the plaintiff took control of the land, where evidence of traditions is relied upon in proof of declaration of title to land, the plaintiff in order to succeed must plead and established the following facts.

(i) who founded the land
(ii) How he founded it; and
(iii) The particulars of the intervening owners through whom he claims down to him. SEE NKADO VS. EBINNO (1997) 5 NWLR (PART 503) 31; EZE VS ATASIE (2000) 10 NWLR (PART 676) 470.”
(4) MR AUDU OTUKPO VS APA JOHN & ANOR (2012) 7 NWLR (PART 1299) 357 at 376 A F per ONNOGHEN JSC
(5) MICHAEL AYEOLA VS RAMOJA YELANI PEDRO (2014) 13 NWLR (PART 1424) S.409 at 443 C-F and 446 E-H per PETER -ODILI JSC.

However where the case of the defendant who counter-claims for the same piece of land support the assertion or claim of the claimant or Plaintiff to the land in dispute the Plaintiff/Claimant can take advantage of evidence given by such a defendant or his witnesses supporting claimant/plaintiff’s case . The same is true where the defendant has no counter-claim. This is an exception to this general rule that a claim to statutory right of occupancy or title to land cannot be granted or decreed in favour of a plaintiff/claimant on the admission of a defendant.
See :
(1) THOMAS NRUAMAH & ORS VS REUBEN EBUZOEME & ORS (2013) 13 NWLR (PART 1372) 474 at 494 H to 495 A-B per ARIWOOLA JSC.
(2) AUDU OTUKPO VS APA JOHN SUPRA page 376 H to 377A where ONNOGHEN JSC said:
“It is settled law that a plaintiff in an action for declaration of title to land must succeed on the strength of his case and not on the weakness of the defence though where the case of the defence supports that of the plaintiff, the plaintiff can take advantage of same in establishing his claim see WOLUCHEM VS GUDI (1981) 5 SC 291; MOGAJI VS CADBURY NIG. LTD (1985) S 2 NWLR (PT. 7) 393”

(3) NWANKWO OGUANUHU & ORS VS DR EMMANUAL I. CHIEGBOKA (2013) 3 SCM 146 AT 158 b-d where GALADIMA, JSC, held as follows:
“Most importantly, in a claim for a declaration of title to land as in this case, the onus is on the Plaintiff to prove his case. In doing this he relied on the strength of his case and not on the weakness of the adverse party’s case. It is only where evidence of traditional history is inconclusive to establish Plaintiff’s title that the traditional history must be tested by reference to the fact in recent years as established by evidence. However, there is nothing wrong for Plaintiff to take advantage, evidence adduced by the defence which tends to establish the Plaintiff’s title” per. PETER OLABISI IGE, J.C.A.

COURT: INTERFERENCE; CIRCUMSTANCES WHERE THE FINDINGS OF A TRIAL COURT CAN BE DISPLACED

This Court cannot interfere with the above findings of the trial Court. The reason being that a trial court is always in a better position to assess, evaluate and give credit or discredit to the evidence of witnesses that appear and testify before it. It was the trial Court that saw and heard the oral testimonies of the witness and so it is the Court below that can tell of their demeanour and about the worth of or weight to be accorded the pieces of evidence proferred. The findings of a trial court can only be displaced or torpedoed in following circumstances viz:
1. Where the trial Judge failed to make proper use of his opportunity of seeing, hearing and observing the witnesses.
2. Where he failed to exercise his discretion properly or judicially.
3. Where the trial judge drew a wrong conclusion from the accepted evidence or formed an erroneous view thereon.
4. Where the findings or evaluation are perverse.
See (1) NEWMAN OLODO & ORS. VS. CHIEF BURTON M. JOSAIH & ORS. (2010) 12 SCM 157 at 182 A – B per ADEKEYE, JSC.
(2) VAB PETROLEUM INC. VS. MR. MIKE MOMAH (2013) 14 NWLR (PART 1374) 284 at 318 E – H where I . T. MUHAMMED, JSC said:
“The trite position of the law is that where the Court of Appeal wrongly disturbed any finding of fact of a trial Court, the Supreme Court will not hesitate in restoring that finding. See: Board of Customs and Excise V. Barau (1982) 10 SC 48. Finally on this issue, I may have to reiterate the function of an appellate court on question of facts. It is mainly limited to seeking whether or not there was evidence before the trial court upon which its decision on facts was based, whether it wrongly accepted or rejected any evidence tendered at the trial; whether evidence called by either party to the conflict was put on either side of the imaginary scale and weighed one against the other. In other words, whether the trial court properly evaluated the evidence, whether the trial court correctly approached the assessment of the evidence before it and whether the evidence properly admitted was sufficient to support the decision upon the inference drawn therefrom. This is the only way and procedure open to an appellate court in the consideration of an appeal brought before it.” per. PETER OLABISI IGE, J.C.A.

COURT: DUTY OF THE COURT; THE DUTY OF THE PARTIES BEFORE THE COURT WILL BEFORE THE COURT WILL DECIDE, THE DUTY OF THE TRIAL COURT IN EVALUATING AND ASCRIBING PROBATIVE VALUE TO EVIDENCE AND THE GUIDING PRINCIPLES TO BE FOLLOWED WHEN THE EVALUATION OF EVIDENCE BY A PARTICULAR TRIAL JUDGE IS IN ISSUE OR BEING CHALLENGED

Now before arriving at a decision in any cause or matter, the duty to be performed by the parties and the Court are well defined by the Rules of the relevant Court. The parties have the burden to call credible evidence in support of their pleadings. The Court will thereafter assess and evaluate the pieces of evidence led along with the various submissions of Learned Counsel to the parties. This must be done in accordance with the guidelines laid in MOGAJI V. ODOFIN (1978) 4 SC 91 and other settled principles of the law relevant and applicable to a particular case. I call in support the case of ALIYU BALOGUN VS. ALHAJI SHITTU LABIRAN (1988) 3 NWLR (PART 80) 66 at 84 A per the Late Legal Colossus and eminent jurist OPUTA JSC of blessed memory who had this to say:-
“Also when pleadings have been filed the onus is on the Plaintiff to prove the averments in his Statement of Claim and on Defendant to prove what he averred in his Statement of Defence. Proof by preponderance of evidence simply means that the evidence adduced by the Plaintiff should be put on one side of the scale mentioned in ODOFIN & ORS. VS. MOGAJI & ORS. (1978) 1 LRN 212 and the evidence adduced by the Defendant put on the other side of that scale and weighed together to see which side preponderates.” Therefore, when the evaluation of evidence by a particular trial Judge is in issue or being challenged, the guiding principles to be followed are as laid down in the case of MOGAJI VS. ODOFIN (1978) NSCC 275 at 277-278 by the Supreme Court per Late eminent Jurist FATAYI – WILLIAMS JSC who held:
In short, before a Judge before whom evidence is adduced by the parties be force him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects he should first of all put the totality of the testimony adduced by both parties on that imaginary scale, he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weight them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the Judge will naturally have regard to the following.
(a) whether the evidence is admissible;
(b) whether it is relevant
(c) whether it is credible
(d) whether it is conclusive; and
(e) whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted.” per. PETER OLABISI IGE, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDRICK O. OHO Justice of The Court of Appeal of Nigeria

Between

1. UFONDU OKWULEHIE
2. CHIEF SAM C. OKWULEHIE Appellant(s)

AND

CHIEF OTUOCHERE OBASI Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of ABIA STATE HIGH COURT contained in the judgment of Honourable Justice T.U. UZOKWE delivered on 19th day of July, 2010.
The Respondent had in Suit No. HU/30/99 vide a writ of Summons dated 18th day of March, 1999 and issued on 19th day of March, 1999 sued the Appellants claiming the following reliefs viz:

“1. A declaration that the Plaintiff is the holder of
or otherwise entitled to the statutory right of occupancy in respect of the piece or parcel of land in dispute known as and called “Asu Ulo Obasi” situate at Umuda Okpuala, Isingwu Umuahia North Local Government Area within the jurisdiction of this Honourable Court.

2. The sum of N100,000.00 (One Hundred Thousand Naira) general damages in that sometime in March 1999 the Defendants by themselves their servants workmen and/or Agents without the leave or licence of the Plaintiff broke into and entered the land in dispute at all material times in the possession of the Plaintiff and started erecting a building and farming thereon.

3. A perpetual injunction restraining the Defendants by themselves, their servants, workmen, agents and heirs or otherwise howsoever from further acts of trespass against or otherwise interfering with the land in dispute.”

The Respondent filed statement of claim dated 14th day of March 2000 on the same date pursuant to the leave of court granted in that behalf on 3rd day of March, 2000 wherein the reliefs sought on the writ of summons were replicated in the last paragraph thereof.
The Appellants filed their Statement of Defence dated 5th April 2001 on 6th April, 2001 and therein also counter-claimed against the Respondent as follows: –

“COUNTER-CLAIM
(i) The Defendants counter-claim against the Plaintiff as follows: –
A declaration that the Defendants are entitled to the Statutory Right of Occupancy of the land in dispute known as and called Azuelugwuama situate lying and being in Umuda Okpuala Isingwu, Umuahia North Local Government Area within the Umuahia Judicial Division and verged Green in Survey Plan No. AS A/ABD, 09/2000 of 16/5/2000, filed with this statement of defence.

(ii) An Order of injunction perpetually restraining the Plaintiff, his servants, agents, privies and or workmen from any act of trespass upon or any other act of interference with the land in dispute.”

At the end of the trial, the learned trial judge gave a considered judgment on 19th day of July, 2010.  (Pages 111 – 128 of the record).  On pages 126 – 128 of the record the Learned trial Judge held: –
“I do not agree with the learned defence counsel that paragraphs 19 and 22 of claimant’s pleadings, supports that defendants’ case by confirming that the 2nd and 3rd Defendants exhibited clear acts of ownership and possession of the disputed land, for what he said in said paragraphs is that about 1996 the 1st Defendant without the leave and licence of the claimants entered into the land in dispute – claimant stopped the 1st Defendant but 1st Defendant again entered the land 3 years later in 1999 without the leave and licence of the claimant.  This in my view, does not amount to the 1st Defendant exhibiting clear acts of ownership moreso as the claimant stopped him from trying to trespass.
I’m also afraid that paragraph 8 of the Statement of claim does not in any way confirm the evidence of D.W.1 and D.W.2.  That Nwokoukwu is a member of the Igodo family by birth, for the claimant stated in that paragraph that it was because of Nwokoukwu’s dexterity as a farm labourer, that claimant’s great grandfather Igodo adopted Nwokoukwu into the family.
Again the evidence of the D.W.3 at the arbitration (Exhibit “C”) does not in any way support the case of the Defendants with respect to Defendants’ alleged ownership and possession of the land in dispute as submitted by counsel for the Defendants in his written address.
I’m afraid that going by the evidence of the Defendant/counter claimants witnesses on the subject matter of this suit, the Defendants have not established title to the land in dispute.  The counter claim therefore fails.
On the other hand the claimant has successfully traced his root of title to his great grandfather Igodo who the arbitration panel in Exhibit “C” said is the original owner of the land in dispute.  The fact that Okwulohie and his wife Oyiridiya and daughter in law Rosaline farmed that land does not mean that the said Okwulehie had title to the land.  The law is that adverse possession no matter how long does not ripen to ownership.  The Supreme Court had held in AROMIRE V. AWOYEMI (1972) 1 ANCR 105 that

“A trespasser cannot claim to be in possession still remains in possession despite a purported eviction by a trespasser?
The claimant through the evidence of P.W.3 proved the boundaries of the land with certainty, while the defence witnesses could not identify the land in dispute.
It will suffice to say that the claimant has proved his case beyond a preponderance of evidence. The claimant is therefore entitled to judgment and I hereby enter judgment for him as follows:

(a) It is hereby declared that the claimant is the holder or otherwise entitled to the statutory right of occupancy in respect of the portion of the piece or parcel of land in dispute known as and called “Azu Ulo Obasi” situate at Umuda Okpuala Isingwu in Umuahia North Local Government Area of Abia State within jurisdiction of this Court and verged Red in the survey plan filed with the statement of claim.

(b) The claimant is entitled to general damages in that on or about March, 1999 the Defendants by themselves, their servants, workmen and/or agents without the leave or licence of the claimant broke into and entered the land in dispute at all material times in the possession of the claimant and started erecting a building thereon, which damages I assess at N70,000.00

(c) Perpetual injunction as hereby ordered (sic) restraining the defendant by themselves, their servants, workmen or otherwise whomsoever from further act of trespass against, or otherwise interfering with the land in dispute.

(d) The claimant is also entitled to the cost of this suit. Mr. Uhegbu – we filed this suit in 1999 and different judges have handled this suit. We ask for N50,000.00 cost.

ORDER AS TO COST:
The Defendants are to pay the cost of this suit assessed at N40,000.00.”

The Appellants were aggrieved by the said judgment and they filed Notice of Appeal against the judgment. The said Notice of Appeal was dated and filed on 6th day of August, 2010. It has eight grounds of appeal. The Appellants amended their aforesaid Notice and grounds of Appeal pursuant to the leave of this court granted on the 20th day of February, 2013. The Appellants Amended Notice and Grounds of Appeal dated 28th day of January 2013 and filed on 6th day of February, 2013 was deemed properly filed and served on 20th day of February 2013. The Amended Notice of Appeal contains eight grounds which without their particulars are as follows:-

GROUND ONE
The learned trial judge erred in law when he held in favour of the Respondent as follows: –
“The parties agreed that the submitted themselves to a local arbitration of the Umuda Okpuala people who ruled in Exhibit “C: that “from the evidence within and beyond living memory it was established that Mazi Ogwuaji Igodo was the rightful owner of the land”.  So even if Defendants claim that Nwokoukwu was one the sons of Igodo were true, the said Nwokoukwu did not inherit the land from mazi Ogwuaji Igodo since Ogwuaji Igodo, was the one that inherited the land from Igodo.  I am satisfied that the Defendants are not the descendants of Igodo but are the descendants of Nwokoukwu.  It follows therefore like I earlier said that the Defendants cannot possibly trace their root of alleged titled to Igodo, the claimant’s great grandfather.
I’m afraid that since the parties in Exhibit “C” submitted to the arbitration panel, the judgment or ruling of the panel is binding on them and they can’t resile from it, moreso as there are other corroborative facts from the defence witnesses themselves which lends weight to the evidence of the claimants.  See the case of AGU V. IKEWIBE (1991) 3 NWLR (pt. 150) P. 385.
DW2 testified that he was Appollos boundary neighbor on the right but surprisingly could not identify the land on the survey plan tendered by the Defendants as Exhibit “F”.  When he was shown the said survey plan and asked to identify the land in dispute he said “I am confused.  I don’t know where the land is in but Defendant’s survey plan.  The Defendants land does not show what the land looks like”.
Again DW2 said that “My late father testified before the local arbitration panel that the land belong to the claimant”.  He went on to say “I do not know the land in dispute better than my late father”, thereby confirming that his later father’s evidence should be believed rather than his.  D.W.4 on his own part said “the land in dispute is not immediately behind the house of the late claimant but that it is behind it.  Surprisingly he went on to say that there’s no land between the land in dispute and the land of the claimant, which in effect means that the land in dispute is indeed immediately behind the claimant’s house. This assertions supports the claimant’s case.”

Thereby arriving at wrong decision contrary to the evidence led before the Court below and occasioning a miscarriage of Justice to the Appellants.

GROUND TWO
The learned trail judge erred in law in holding that the 2nd and 3rd Appellants failed to exhibit or show clear acts of ownership and possession when he held as follows: –
“The Claimant had maintained that it was when one Okwulehie the ancestor of the Defendant returned from Ohiya village on exile that he was shown a portion of land (that is the area verged blue in claimant’s plan Exhibit “A” not in dispute) to build on compassionate grounds. And that is the area where the 2nd and 3rd Defendants erected their respective buildings which is not part of the land in dispute. P.W.3 stated that the ancestors of the Defendants were strangers and therefore cannot inherit land and that when Defendants’ ancestor return from exile, he was shown a portion of land where to build. This place of evidence is corroborated at page 7 of Exhibit “C” by Olekanma Omekara where he stated “Ogwuaji gave Onwubike where he lived. Okwulehie has no portion in that compound. It is Ogwuaji that him (sic) the portion he built his house before coming home”.
I do not agree with the learned defence counsel that paragraphs 19 and 22 of claimant’s pleadings, supports that defendants’ case by confirming that the 2nd and 3rd Defendants exhibited clear acts of ownership and possession of the disputed land, for what he said in said paragraphs is that about 1996 the 1st Defendant without the leave and licence of the claimants entered into the land in dispute claimant stopped the 1st Defendant but 1st Defendant again entered the land 3 years later in 1999 without the leave and licence of the claimant. This in my view, does not amount to the 1st Defendant exhibiting clear acts of ownership moreso as the claimant stopped him from trying to trespass.

I’m also afraid that paragraph 8 of the statement of claim does not in any way confirm the evidence of D.W.1 and D.W.2. That Nwokoukwu is a member of the Igodo family by birth, for the claimant stated in that paragraph that it was because of Nwokoukwu’s dexterity as a farm labourer, that claimants great grandfather Igodo adopted Nwokoukwu into the family.
Again the evidence of the C.W.3 at the arbitration (Exhibit “C”) does not in any way support the case of the Defendants with respect to Defendants’ alleged ownership and possession of the land in dispute as submitted by counsel for the Defendants in his written address.
I’m afraid that going by the evidence of the defendant/counter claimants witnesses on the subject matter of this suit, the Defendants have not established title to the land in dispute. The counter claim therefore fails.” thereby occasioning a miscarriage of justice to the Appellant

GROUND THREE
The learned trial judge erred in law in holding that the Defendants have not established title to the land in dispute as well as proving their counter-claim when he held as follows: –
“On the other hand the claimant has successfully traced his root of title to his great grandfather Igodo who the arbitration panel in Exhibit “C” said is the original owner of the land in dispute. The fact that Okwulehie and his wife Oyiridiya and daughter in law Rosaline farmed that land does not mean that the said Okwulehie had title to the land. The law is that adverse possession no matter how long does not ripen to ownership. The Supreme Court has held in AROMIRE V. AWOYEMI (1972) 1 A.ACR 105 that “A trespasser cannot claim to be in possession by mere act of entry and clearing a claimant in lawful possession still remains in possession despite a purported eviction by a trespasser?
The claimant through the evidence of P.W. 3 proved the boundaries of the land with certainty, while the defence witnesses could not identify the land in dispute.
It will suffice to say that the claimant has proved his case beyond a preponderance of evidence. The claimant is therefore entitled to judgment and I hereby enter judgment for him as follows: –
a) it is hereby declared that the claimants is the holder or otherwise entitled to the statutory right of occupancy in respect of the portion of the piece or parcel of land in dispute known as and called “Azu ulo Obasi” situate at Umuda Okpuala Isingwu in Umuahia North Local Government Area of Abia State within jurisdiction of this court and verged Red in the survey plan filed with the statement of claim.
b) The claimant is entitled to general damage in that on or about March, 1999 the Defendants by themselves, their servants, workmen and/or agents without the leave or licence of the claimant broke into and entered the land in dispute at all material times in the possession of claimant and started erecting a building thereon, which damages 1 assess at N70,000.00.
c) Perpetual injunction as hereby ordered restraining the Defendants by themselves, their servants, workmen or otherwise whomsoever from further act of trespass against, or otherwise interfere with the land in dispute.” thereby occasioning a miscarriage of justice to the Appellants

“GROUND FOUR
The learned trial judge erred in law in failing to assess, analyze and evaluate dispassionately the evidence led, before finding for the Respondent and arriving at her conclusions contrary to the standard of evaluation of evidence laid down by the Supreme Court in Mogaji V. Odofin (1978) 4 SC 91, thereby resulting in a miscarriage of justice to the Appellants who have complained.

GROUND FIVE
The learned trial judge erred in law in failing to apply the test in Kojo vs. Bonsie (1957) 1WLR 1220 having demonstrated his failure to prefer one or the other of the traditional history put forward by the Respondent and Appellants.

GROUND SIX
The learned trial judge erred in law in holding that Exhibit “C” the arbitration proceeding was binding on the Appellants and in relying on same to give judgment in favour of the Respondent.

GROUND SEVEN
The learned trial judge erred in law when he held as follows: –

“So even if Defendants claim that Nwokoukwu was one of the sons of Igodo were true, the said Nwokoukwu did not inherit the land from Mazi Ogwuaji Igodo since Ogwuaji Igodo, was the one that inherited the land from Igodo” which occasioned a miscarriage of justice to the Appellants.

GROUND EIGHT
The judgment is against the weight of evidence.

The Appellants filed Amended Appellants’ Brief of Argument dated the 1st day of April, 2014 on 15th day of April, 2014. It was deemed properly filed and served on 30th September, 2014. The Respondent filed his own Respondent’s Amended Brief of Argument dated 1st day of July 2014 on the same date. The Appellants also filed an Amended Appellants’ Reply Brief of Argument dated 1st day of April, 2014 on the 15th day of April 2014 but deemed properly filed on 30th day of September, 2014.
The appeal was heard on 30th day of September, 2014 when the learned counsel to the parties adopted their Briefs of Argument in the appeal.
Four issues were formulated by the Appellants for the determination of the appeal. The issues are:
1. Whether the learned trial judge was right in holding that the Appellants having submitted to the Local Arbitration Panel was binding on them and cannot resile from it. (Grounds 3 and 6 of the Amended Grounds of Appeal).

2. Was the learned trial judge right in holding that the Appellants did not establish title to the land in dispute, their counter-claim failing, and that the Plaintiffs proved their case on the preponderance of evidence (Grounds 1, 2, 3, 7 of the amended Grounds of Appeal and Grounds 8 of the Original Grounds of Appeal).

3. Whether the learned trial judge properly considered the entirety of the evidence led especially by the Appellants before arriving at his findings and judgment (Ground 4).

4. Whether the learned trial judge was right in not adverting to and recognizing the position that the Appellants who also proved long possession within the intendment and spirit of the decision in Kojo Vs. Bonsie (1957) 1 WLR 1220, having demonstrated her failure to prefer the one or other of the traditional history put forward by the Respondent and Appellant? (Ground 5 of the Amended Grounds of Appeal).

On his part the Respondent distilled two issues for the resolution of the appeal herein namely:
1. Whether the trial judge was right when he gave judgment for the Respondent and held that the Respondent proved his case based on the preponderance of evidence and dismissed the counter claim of the Appellants. (Grounds 1, 2, 3, 4, 7 and 8 of the Appellants’ Grounds of Appeal).

2. Whether the learned trial judge was right when he held that Exhibit “C” (judgment of the Local Arbitration panel), was binding on the Appellants and thus cannot resile from it. (Grounds 3 and 6).

I am of the view that this appeal can be determined on the issues formulated by the Appellants.

ISSUE 1
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE APPELLANTS HAVING SUBMITTED TO THE LOCAL ARBITRATION PANEL, WAS BINDING ON THEM AND CANNOT RESILE FROM IT (GROUNDS 3 AND 6 OF THE AMENDED GROUNDS OF APPEAL).

The Learned Senior Counsel to the Appellants Dr. (Sir) Amaechi Nwaiwu, SAN submitted that the Learned trial Judge was wrong in holding that the Local Customary Arbitration, EXHIBIT “C” was binding on the Appellants and they cannot resile from it. He stated that on page 72 of the record DW1 testified that the AMALA OF UMUDA OKPUAIA that looked into the dispute concerning the Land in dispute ruled in EXHIBIT “C” that the Land be divided into two between the Appellants and Respondent but that the Appellants rejected the Local Arbitrators’ findings and refused to accept their decision. That the evidence of DWI was corroborated or supported by PW4 on page 69 of the record that the defendants now Appellants rejected the decision of Amala of Umuda Okpuala, at the time it was made. The Learned silk submitted that one of the fundamental requirements of proving existence of a valid customary arbitration is that the decision or award must be accepted by the parties at the time it was made. The Learned Senior Counsel relied on the following cases viz:
1. OHAERI VS. AKABEZE & ORS. (1992) 2 NWLR (PT. 221)1.
2. AGU VS. IKEWIBE (1991) 3 NWLR (PT. 180) 385 at 418.
3. OKOYE VS. OBIASO (2010) 8 NWLR (PART 1195) 145 at 171.
4. EGESIMBA VS. ONUZURUIKE (2002) 15 NWLR (PART 791) 466 at 507 SC.
5. NJOKU VS. EKEOCHA (1972) 2 ESCLR 199 which Learned Senior Counsel said was adopted and relied upon by Supreme Court of Nigeria in EGESIMBA VS. ONUZURUIKE (Supra).
That in view of clear evidence that Appellants rejected the Local Arbitration Exhibit “C” the Learned trial Judge was wrong in holding that it was binding on Appellants. That the Appellants were at Liberty to reject Exhibit “C”. That a substantial miscarriage of Justice resulted which denied the Appellant opportunity of the benefit of rejecting the award and that Appellants were entitled to resile from the Local arbitration Exhibit “C” at the time it was made.
This issue was dealt with under issue 2 formulated by the Respondent. In his Reply to the submissions of Learned silk that the trial Judge was wrong in relying on the decision of Local Arbitration, the Learned Counsel to the Respondent O. A. UHEGBU Esq. submitted that the Learned trial Judge was right when he held that Exhibit “C” the arbitration proceedings was binding on the Appellants and they cannot resile from it. The Learned Counsel invited the attention of this Court to pages 1 – 10 of Exhibit “C”. He also relied on the case of PHILIP NJOKU VS. FELIX EKEOCHA (1972) 2 ECSLR 199 which was the same case relied upon by Appellants Learned Senior Counsel. UHEGBU Esq. also stated that KARIBI – WHYTE JSC cited same with approval in the case of AGU VS. IKEWIBE (1991) 3 NWLR Pt. 180 AT 390 where Learned Counsel stated IKPEAZU J. was quoted. That applying the Supreme Court decision to Exhibit “C” the parties in this appeal submitted to the arbitration, accepted the terms and agreed to be bound by the decision of the arbitral body.
The Learned Counsel to the respondent informed this Court that the Original Plaintiff at the Lower Court was MAXWELL OBASI while the Original 2nd Defendant was APPOLOS OKWULEHIE and they were parties in the Customary arbitration and privies to the present parties in the appeal. He relied on page 1 of Exhibit “C” to submit that the parties submitted to the arbitration and all of them called witnesses to support their respective cases before the Arbitration Body reduced its decision into writing at page 10 of Exhibit “C”. That there is nothing on Exhibit “C” to show that any of the parties (MAXWEL OBASI AND APPOLOS OKWULEHIE) rejected the decision. The Learned Counsel to the Respondent submitted that Exhibit “C” is binding on the parties.
That the Law is settled that documentary evidence is the yard stick for determining the truth or otherwise of oral evidence hence a Court of Law leans more in favour of documentary evidence to resolve conflict in oral evidence. The Respondent Learned Counsel relied on the cases of:
1. DAWODU V. MAJOLAGBE (2001) 3 NWLR (PT. 703) 234 ratio 2.
2. FASHANU V. ADEKOYA 1 ALL NLR (Pt. 1) 35 at 48.
That DW1 stated on page 73 of the record that his family freely participated in the proceedings leading to exhibit “C”. That in the same vein the DW3 also agreed under cross examination that the parties went before arbitration and that his own father (DW3) testified that the Land belongs to the Plaintiff.
He further submitted that one cannot use oral evidence to add or subtract from contents of a written document. He relied on Section 128(1) of the Evidence Act 2011 and the case of KWASI & OTHER V. LARBI (1951) 13 WACA 76 to the effect that walking out of an arbitration will not prevent an award to be made and such award, where made is binding on the party that walked out.
That the parties participated fully in the proceedings that led to Exhibit “C” and that the Appellants cannot resile from it. He urged the Court to resolve issue 1 against the Appellant and to dismiss the appeal.
I have read the Appellant Amended Reply Brief concerning the issue under consideration. I am of the view that the contention of Appellants therein are a rehash of their arguments on issue 1 distilled by them.
An Appellant Reply Brief is meant to be a reply to new issues or points of Law raised in a Respondents Brief of Argument and not an opportunity to reargue the Appellant’s appeal.
See NIDOCCO LIMITED VS. MRS. I. A. GBAJABIAMILA. (2013) 14 NWLR (PART 1374) 350 at 373 F per NGWUTA JSC. Who said:
“A reply brief is filed in answer to an issue of Law or facts or argument raised in the Respondent’s Brief calling for a reply. It should not be used to extend the scope of the arguments in the Appellant’s Brief. See Okon V. Njokamma (1999) 125 SCNJ 259 at 277; 1999 14 NWLR (PART 638) 250.”

See also: NWANKWO OGUANUHU & ORS. VS. DR. EMMANUEL I. CHIEGBOKA (2013) NWLR (PART 1351) 588 at 602H – 603A-B per GALADIMA, JSC.

The trial Judge held that the Appellants were and are bound by the decision in Exhibit “C” the Customary arbitration. The Appellants see the finding as a miscarriage of Justice and contrary to the settled principles of Law, according to the Appellant, that they are entitled to reject decision of a Customary arbitration and resile from it. The term “miscarriage of Justice” can be described as failure on the part of a Court to do substantial Justice to a party in a Civil or Criminal Proceedings contrary to the weight of evidence before such a Court. It is a failure of Justice. A departure from doing what is right in a given judicial deliberation or decision. I call in aid the decision of the apex Court in the Land in the case of CHIEF ALEX OLUSOLA OKE & ANOR. VS. DR. RAHMAN OLUSEGUN MIMIKO & ORS. (2014) 1 NWLR (PART 1388) 332 at 372 a – G where PETER ODILI, JSC said:
“From the standpoint of the appellants, a miscarriage of justice had been visited on them. On what amounts of miscarriage of justice this court has in a long line of judicial authorities set out some definitions on what can in the course of adjudication be termed “miscarriage of justice”. Tobi, JSC in Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) 282 at 306 treated it thus:
“Miscarriage of justice connotes decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantiated rights of the party. Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it”.

“It is well settled that it is the duty of the trial Court which saw and heard witnesses to evaluate the evidence and pronounce on their credibility and ascribe probative value.”

The Appellants and the Respondent actually joined issue on Exhibit “C” being impugned by the Appellants and contending it is not binding on them. The Respondent as Plaintiff at the trial Court pleaded facts relating to Exhibit “C”.

The Respondent duly pleaded and relied on the customary arbitration Panel decision and duly tendered Exhibit “C” to show that the arbitrators reached a decision and published their award. All the Respondent was expected to do and proved are the following viz:
(a) That there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons.
(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitrations will be accepted as final and binding.
(c) That the said arbitration was in accordance with the custom of the parties or of their trade or business.
(d) That the arbitrators reached a decision and published their award and
(e) That the decision or award was accepted at the time it was made.

See: DR. DAVID C.O. OKOYE & ANOR VS. CHRISTOPHER N. OBIASO & ORS (2010) 4 SCM 143 AT 163 per ONNOGHEN, JSC.

There is evidence on record that the parties complied with all the above conditions in submitting to the Arbitration Panel and the parties agreed to be bound with the decision of the Arbitration panel to resolve the land dispute between them. Both sides gave evidence before the Arbitration Panel. The evidence of the witnesses both in chief and under Cross Examination at the trial court positively established that the parties to this appeal willingly submitted the dispute over the subject matter of this action for arbitration by the Customary arbitration Panel.
Exhibit “C” clearly confirms what actually transpired before the said Panel. Exhibit “C” exposed the fact of a voluntary submission of the dispute over the land in dispute to the Umuda Okpuala people in IKAWUANO Umuahia Urban Local Government Area and the Arbitration Panel met on 14-11-87 to settle the land case between Maxwell Obasi and Appolos Okwulehie and both sides presented gifts and kola to Umuda Okpuala people. The Customary Arbitration made their findings after giving both parties opportunity of stating their respective cases and calling of witnesses. The decision of the Panel was reduced into Exhibit “C” signed by all those who witnessed the proceedings of the customary arbitration. Even after the conclusion of evidence from witnesses, it is shown on page 9 of Exhibit “C” that the Panel asked MAXWELL OBASI and APPOLOS OKWULEHIE parties to the Arbitration to make closing remarks and the following are what they said respectively:

“MAXWELL”
From the look of things, as I know it, Okpuala should tell Appolos to leave my Land for me, and not to step into that Land again.

APPOLOS OKWULEHIE
Okpuala should look into it very well, if it belongs to Maxwell give it to him, and if it belongs to me give it to me.”
The Native Arbitration Panel then rendered its decision as follows:-
“(1) From evidence within and beyond living memory it was established that Mazi Ogwaju Igodo was the rightful owner of the Land in dispute.
(2) For allowing Mazi Okwulehie to farm, ripe the farm fruit (economic …) on the Land for a very long time (over twenty years) it appears that Mazi Ogwuju’s children slept over their right of ownership.
(3) For the interest of peace the piece of Land in dispute should be partitioned thereby bringing total peace within the family.
(4) If any third party owns any piece of Land within the said portioned Land, the owner of the partition Land within where it falls, will have to negotiate peacefully with the rightful owner.”
SGD                            SGD
MICHEAL ELEWEKE               ORISA EMELOGU
(CHAIRMAN)                         (SECRETARY)”

There is nothing to show on the quoted Judgment and the signatures thereon that REV. APPOLOS OKWULEHIE protested or expressed his dissatisfaction against the decision of the Arbitration Panel. There is nothing inconclusive in the Arbitration Panel’s decision. The Appellants waited since 5th December 1987 without any complain until this matter was instituted. The Learned trial Judge was right in holding that the Appellants cannot resile from the customary arbitration decision EXHIBIT “C” and that the Appellants were bound by the decision therein.

The decision of the Arbitration Panel has effectively created estoppel as between the parties and their privies, including the Appellants in this Appeal over the subject matter of the appeal. They cannot walk out of it. The reasonable inference to draw from Exhibit “C” is that the parties to it eminently evinced the intention to be bound by the decision of the Arbitration Panel. The closing remarks of the parties on Exhibit “C” supported the inference.
See: The cases of:
(1) MICHAEL IFEANYI OJIBAH VS. UBAKA OJIBAH (1991) 65CNJ 156 at 169 where NNAEMEKA – AGU, JSC said:
“In my view, the law is pretty settled that where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to Customary Law and agreed expressly or by implication that the decision of the arbitrators would be accepted as final and binding then once the arbitrators reach a decision, it is no longer open to either party to subsequently back out of such a decision.”
(2) CHUKWUDOZIE ANYABUNSI VS. EMMANUEL UGWUNZE (1995) 6 NWLR (PART 401) 255 at where IGUH, JSC held firmly thus:
“It is also in evidence that both parties consented to this customary arbitration, submitted themselves to this body and, together with their witnesses testified before the elders. The trial Court found it established, and this was affirmed by the Court below, that this customary arbitration ended in favour of the Respondent’s family. This finding is that the Land was adjudged to belong to the respondent and the appellant was asked to resume payment of his tributes to the said respondent.
It cannot be over emphasized that where two parties to a dispute as in the present case, voluntarily submit their matter in controversy to an arbitration according to Customary Law and agreed, whether expressly or by implication, that the decision of the arbitrators would be accepted as final and binding, then once the arbitrators reach a decision it will no longer be open to either party to subsequently back out of such a decision. A party rejecting such a decision must prove that it was wrong in principle. See Michael Ojibah V. Ubako Ojibah (1991) 22 NSCC (Pt. 2) 130; (1991) 5 NWLR (PART 191) 296 and Omanhene Kobina V. Akese W.A.C.A. 1 at 2.” (underlined mine)

All the welter of oral evidence on the issue relating to Exhibit “C” which is against the Appellants from both the Respondent and the Appellants which was believed by the trial Judge cannot be faulted.

Exhibit “C” highly complemented the evidence of traditional history of ownership of the land as given by the Respondent to proof ownership of the land by inheritance. The evidence on record which support the findings of the learned trial Judge actually shows that with or without Exhibit “C” the finding of the trial Judge in favour of Respondent is justified.
Issue 1 is hereby resolved against the Appellants.

ISSUE NO. 2
WAS THE LEARNED TRIAL JUDGE RIGHT IN HOLDING THAT THE APPELLANTS DID NOT ESTABLISH TITLE TO THE LAND IN DISPUTE, THEIR COUNTER CLAIM FAILING AND THAT THE PLAINTIFFS PROVED THEIR CASE ON THE PREPONDERANCE OF EVIDENCE (GROUNDS 1, 2, 3, 7 OF THE AMENDED GROUNDS OF APPEAL AND GROUND 8 OF THE ORIGINAL GROUNDS OF APPEAL).

I must point out at once that the Learned Silk, with profound respect to him, having dealt with grounds 3 and 6 of the Amended Grounds of Appeal under issue 1 cannot again argue issue 2 under the auspices of Ground 3 among other grounds. There cannot be two issues distilled from a ground of appeal. See HON. PROF. CHUDI UWAZURIKE & ANOR. VS. CHIEF AUSTIN NWACHUKWU & ANOR. (2103) 3 NWLR (PART 1342) 503 at 517 H – 518A per ONNOGHEN JSC who said:
“Looking closely at the above issues, it is clear that there is only one Issue for determination as what Learned Senior Counsel calls Issue No. 2 can only be considered in the alternative. It is only if that issue is considered as an alternative to Issue no. 1, that it can be valid as the Law is long settled that though an appellant or party may raise an issue for determination in an appeal from either a single ground or combination of grounds of appeal, he is not permitted to raise more than an issue from a ground or combination of the same grounds of appeal as in the instant appeal, where the same grounds 1, 2, 3, 4 of the grounds of appeal are said to support and ground issues 1 and 3 formulated for determination.”
In effect ground 3 will no longer be reckoned with in consideration of Issue 2.

The Appellant also stated that Issue 2 covers ‘ground 8′ of the Original Grounds of Appeal. This cannot be right also. The appellants having obtained the Leave of this Court to amend the original grounds of Appeal which was filed on 6/2/2013 but deemed properly filed on 20/2/2013, can no longer rely on the Original Notice of Appeal which has been effectively displaced by the aforesaid AMENDED NOTICE AND GROUNDS OF APPEAL.
See: (1) AFRIBANK (NIGERIA) PLC. VS. MR. CHIMA AKWARA (2006) 5 NWLR (PART 974) 619 at 640 F per OGUNTADE, JSC who said:
“It is undisputed that this Court on 25th June 2003 granted the appellant six weeks to file an amended notice of appeal. The effect of applying for and obtaining an order to amend an existing notice of appeal is to vacate the notice of appeal and render it non – existent.”
(2) UNITY BANK PLC. & ANOR VS. MR. EDWARD BOUARI (2008) 7 NWLR (PART 1086) 373 at 399 A – B, where OGBUAGU, JSC also said:
“As a matter of fact, an amended notice of appeal, is certainly not a new notice of appeal. This is because and this also firmly settled that an amendment, relates back to the date in which the document, was originally filed just like an amended Statement of Claim. In other words, it is retrospective.”
In effect issue two has bearing only with grounds 1, 2, and 7 of the Amended Grounds of Appeal.

The grouse of Appellant under issue 2 is that the Learned trial Judge was wrong in holding that the Appellants did not establish title to the Land in dispute and in holding that the Plaintiff proved his case on preponderances of evidence. The Appellant relied on the evidence of DW One and stated that the Appellants are also descendants of Igodo and rightly traced their title to Igodo. That there is evidence in the printed record to show that NWOKEUKWU Son of Igodo inherited his own portion of the AZU ELUGWU AMA Land in dispute like other sons of Igodo. That the trial Judge misunderstood it and failed to appreciate that all sons of IGODO had their own respective portion of Land. That evidence of the Appellants supported their claim as laid out in their pleadings. The Appellants stated that there are clear and unchallenged evidence of DW1, DW2, DW3 and DW4 on the Appellants ownership and possession of the Land in dispute. That evidence of tradition given by Appellants on their Defence and Counter Claim particularly that of DW1 and DW2 showed clear and credible consistent evidence of devolution and inheritance and genealogical tracing. That Appellants led uncontradicted evidence of having building structures on the Land in dispute coupled with the fact that the wife of Okwulehie namely Oyiridiya Okwulehie was farming on the Land in dispute until she died at the ripe age of 105 years in 1986. That the evidence was not challenged under cross examination and was not rebutted. That the trial Court should have accepted the evidence. The Appellants relied on the cases of:
i. OMOREGBE VS. LAWANI (1980) 3 – 4 SC 108.
ii. NMSL VS. AFOLABI (1978) 2 SC 79 at 81 – 82.
iii. AIKHIOBARE VS. OMOREGBE (1976) 12 SC 1 at 18.
iv. ODULAJA V. HADDARD (1973) 11 SC 357 at 362 and
v. IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 227.
That the Learned trial Judge failed to advert her mind to the fact that the arbitration panel ruled that the Land be shared equally between the two parties and which the appellants rejected. That the Learned trial Judge has a duty to accept the traditional evidence of the Appellants which, according to the Appellants, was probable without any competing or conflicting evidence by plaintiffs. That it was important bearing in mind that the Plaintiff, according to Appellants failed to prove that Nwokeukwu Igodo was from Ututu in Arochukwu   L. G. A. Abia State. The Learned silk relied on the case of;
(1) ALKONBARE VS. OMOREGBE Supra.
(2) ALADE VS. LAWRENCE AWO (1975) SC 143 at 151.
(3) NWAFOR V. NWOSU (1992) 9 NWLR 264 at 240 (Sic).
(4) ABINABINA VS. CHIEF ENYIMADU (1953) AC 207 at 215 – 216.
(5) ISHOLA VS. ABAKE (1972) SC 321 at 329 – 330.
(6) AKINLOYE VS. EYIYOLA (1968) NMLR 92 and
(7) OHAERI VS. AKABEZE (1992) 2 NWLR (PART 225) 1.
That Appellants led traditional evidence of title and proved who founded the Land in dispute and particulars of intervening owners through whom they claim, relying on:
1. ANABARAONYE VS. NWAKAMMA (1997) 1 NWLR (Pt. 482) 374.
2. OHIAERI VS. AKABEZE Supra.
3. MOGAJI VS. CADBURY NIG. LTD. (1985) NWLR (Pt. 7); (sic).
4. ELEGUSHI VS. OSENI (2005) 14 NWLR (Pt. 945) 348 and
5. ALIKOR VS. OGWO (2010) 5 NWLR 281 at 309.
The Learned Silk to the Appellant further submitted that appellant proved their Counter Claim on the preponderance of evidence and balance of probabilities.  He cited Sections 132, 133(1)(2) and 134 of the Evidence Act 2011 and the cases of
1.  ISEIAS VS OMO-PARE (19820 5SC 25.
2.  MOGAJI VS ODOFIN (1978) 4SC 91 ONYEN MA VS AMAH (1988) 1 NWLR (PT 73) 772 at 782.
3. NMS LTD VS AFOLABI (1978) 2SC 79-84.
That the Learned trial Judge misapplied the decision in ARMOIRE VS AWOYEMI.  He urged the Court to resolve issue 2 in favour of the Appellants.
Responding to the above submissions on issue 2, the Learned Counsel to the Respondent referred to the Counter Claim of the Appellants.  That the Defendants were like a Plaintiff claiming title to the land and must with certainty define the boundaries of the land in dispute.  That contrary to the submissions of the Appellants that the boundary of the land in dispute was not an issue, Respondent referred the Court to  the pleadings  of the parties to contend that issues were joined on the identity and boundary of the land in dispute.  That the Defendants were bound to prove the boundaries of the land in dispute.  That the Appellants also denied the boundaries pleaded by Respondent  and one of Defence witnesses gave evidence  showing that he was confused and that Defendants plan did not show what the land looks like.  That DW3 also stated that his own father testified before the Arbitration Panel stating that the land belonged to the Respondent’s father.  That DW3 evidence supported Respondent’s case.  He relied on Section 35 of the Evidence Act 2011.
That the pieces of evidence given by DW3 and DW4 supported the case of Respondent and that with that type of evidence no declaration could have been made in favour of the Appellants. He relied on the case by AMATA VS MODEKWE & ORS 14 WACA 500.  That the finding of facts made by the trial Judge in refusing to grant the counter Claim was borne out of the record.  That the submission of the Appellant that the Defendants had building structures on the land in disputes and farming thereon is like making mountain out of a mole hill.  Respondent stated that he gave evidence to the effect that when the ancestor of the Appellants returned from Ohiya village on exile, the Defendants/appellants’ ancestor was shown a portion of land (that is the area verged Blue in Respondent’s plan Exhibit A, which is not dispute) to build on compassionate grounds.  Respondent stated that that is the area where 2nd and 3rd Defendants erected their respective buildings which, the Respondent said it is not part of the land in dispute.  The respondent relied on page 7 of the Arbitration proceedings Exhibit “C” and page 54 of the record.
That assuming without conceding that there were acts of possession on the land by Appellants, Respondent contended that no matter how long an adverse possession it would not ripen into ownership.  He relied on the case of AWOYEMI VS AROMIRE (1972) 1 ALL NLR 101.  That the case was properly applied by the trial Court. That the trial Judge did proper evaluation of the evidence relying on the case of MOGAJI VS ODOFIN (1978) 4 SC 91

Respondent also submitted that ascription of weight to the testimonies of witnesses are the exclusive prerogatives of the trial court. He cited the case of EBBA VS OGODO (1984) 1 SC NLR. 372. That the findings are not perverse and urge this Court not to interfere. He relied on the cases of NZEKWU VS NZEKWU (1989) 2 NWLR (PART 104) 373 and CHUKWUEKE VS NWANKWO (1985) 2 NWLR (PT.6) 195.

In paragraph 6.32 of the Amended Appellants Brief of argument they relied on evidence of traditional history of inheritance. They pleaded and testified that their father NWOKEUKWU was one of the direct sons of IGODO who both parties said founded and first settled on the land in dispute. Appellants said the portion of the land was known and called AZU ELUGWU AMA and that it was this portion of the land known as AZUELUGWU AMA that NWOKEUKWU the father of the Appellants inherited from IGODO. The Respondent traced his title to the land to IGODO who the Plaintiff (now Respondent) pleaded was the original owner of the land and that the land is known as AZU ULO ABASI. The Appellants had specifically pleaded that when IGODO the original founder and owner of the land died his three sons shared or partitioned the land. They pleaded in paragraph 6(d) (e) (i) thus:
“When IGODO died, his three sons named above inherited his lands including the AZUELUGWU AMA land which they partitioned. Each son got a share. (e) (i) The portion verged Green in the Defendants’ survey plan fell to the share of NWOKEUKWU who thus became owner an in possession farming/cash crops therein fruits from the Palm and other economic trees/cash crops therein without disturbance.”

I have examined the record of proceedings and in particular the evidence given by the appellants’ four (4) witnesses and none of them testified concerning partition of IGODO’S land by ‘his three sons’ The onus is thus on the appellants as Counter Claimants to prove partition or sharing of the land of IGODO by his three sons one of whom the appellants claimed to be their father NWOKEUKWU. The partition must be proved to the hilt in order to show that the land in dispute was actually shared or partitioned to NWOKEUKWU and has become exclusive property of his children. See (I) BODE SOWUNMI & ORS VS MRS FLORA IYA BODE SHOWUNMI AYINDE & ANOR (2011) LPELR (4973) 23 B-E per KEKERE – EKUN JCA now JSC.
(2) A. OLA YUSUFU VS ROBINSON OLUSEYI ADAMA (2010) 3 SCM 224 at 236 C-G per OGUNTADE, JSC who held:
“The simple question before this court is whether or not there was sufficient evidence before the trial court to enable it concludes that there was indeed a valid partition of the land of Lamidi Balogun. The facts in this case would appear to be the reverse of those in Gbadamosi Ajayi & Ors. V. Gabriel Folaji Pabiekun & Ors, (1970) All N.L.R. 146 at 149 where this court per Coker JSC said:
The present action concerns the radical title to the land and we must decide that question without reference to the inter pleader proceedings and its consequences. The parties eventually agreed that the land in dispute falls within lands at one time owned by Lukugba their common ancestor. The plaintiffs say that the land is still part of his family land. The defendants allege that there was a partition as a result of which their own sub-branch took the land in dispute absolutely. Surely the burden of proving the partition is squarely on them. The defendants called no evidence at the trial and the provisions of section 136 of Evidence Act must apply. The result is that the judge was entitled to find as he did that the ownership of the land in dispute still remains in the Lukugba family which of course includes the Pabiekun sub-branch.”
and (3) NEWMAN OLODO 7 ORS. VS. CHIEF BURTON M. JOSIAH 7 ORS. (2010) 12 SCM 157 at 169 D – E where FABIYI JSC said:
“The Appellants had the onus to prove exclusive ownership of the Land they called Okpuza. This is as dictated by Section 135 of the Evidence. Act 1990. It is incumbent on a party who asserts the existence of a fact to prove same. As found by the Learned Chief Judge and the Court below there was no evidence of partition. In this case the burden of proof rests on the Appellants. See Osawaru Vs. Ezeiruka (1978) 6 – 7 SC 135. Since the appellants failed to discharge the onus of proof which rests on them, their claim must fail.”

The Learned trial Judge who heard and saw the witnesses testified before him had held in his judgment as follows:
“Having carefully considered the evidence adduced on both sides and after a careful perusal of the Exhibits tendered by the parties, I must state at once that I had no difficulty in choosing between the evidence of the claimant and that of the defendants.
It is common ground that the land was deforested by an Igodo, but while the claimant said that the land in dispute was founded and deforested by his late grandfather, Chief Ugwuaji Igodo who lived and farmed on the said land, the defendants claimed that they inherited the land from Nwokoukwu, who was one of the sons of Igodo. The claimant however contend that Nwokoukwu was not the son of Igodo but rather a farm labourer who as a result of his dexterity in farm work was adopted into the family by claimant’s great grandfather Igodo. The claimant who relied on traditional history, which is one of the ways of proving title to land, said that upon the death of Ogwuaji Igodo the said land passed to his on Obasi Ogwuaji and from Obasi Ogwuaji to Chief Maxwell Ajomiwe Obasi and when Chief Maxwell Ajomiwe Obasi died the land devolved to the claimant Otuechere Obasi under Umuda Okpuala Isingwu native law and custom. The parties agreed that they (sic) submitted themselves to a local arbitration. I am satisfied that the defendants are not the descendants of Igodo but are the descendants of Nwokeukwu. It follows therefore like I earlier said that the defendants cannot possibly trace their root of alleged title to IGODO, the claimants great grandfather.” – pages 124 – 125 of the record.

On page 127 of the record the Learned trial Judge also found:
“I am afraid that going by the evidence of the defendant/Counter Claimants witnesses on the subject matter of this, the defendants have not established title to the Land in dispute. The Counter Claim therefore fails”

The trial Judge did not run foul of the aforesaid circumstances. The Appellant also under issue 2 accused the learned trial Judge of misapplication of the principle of Law as espoused in the case of AROMIRE VS. AWOYEMI (1972) 1 ALL NLR (Pt) 101. The principle in the case is to the effect that the Law ascribes possession to a claimant with better title irrespective of whether the defendant had been on the Land for some years. Where as in this case the Appellants are also asserting that the title in the Land in dispute belong to them, title has been put in issue and in order to succeed the Plaintiff must show better title. It is true that a trespasser cannot by acts of his trespass acquire title or ownership of the Land see: CHIEF IGBOAMA EZEKWESILI & ORS. VS. CHIEF BEMAH AGBAPUONWU & ORS. (2003). 9 NWLR (PART 825) 337 per OGUNDARE JSC.

The Lower Court also made it clear that the Respondent proved the boundary of the Land with certainty while the defence witnesses could not identify the Land in dispute and also did not succeed in their evidence of traditional history.

I agree with the Learned Counsel to the Respondent that the evidence given under cross examination by the DW2, DW3 and DW4 supported the case of the Respondent. I am of the view that the admissions of the said witnesses enure for the benefit of the Respondent and he could take advantage of such evidence to shore up or advance his case. See EWMAN OLODO & ORS VS CHIEF BURTON LM. JOSAIAH & ORS (2010) 18 NWLR (PART 1225) 653 at 673 C-D per FABIYI, JSC who held:
“The Court below rightly in my view, appraised the above. It found that from the evidence of Cershown Newman and DW3 there emerged a major conflict. It felt that the effect of it was that it succeeded to destroy the case of the Appellants and knocked off the bottom of their claim to title and left the case of the Respondents solid and monolithic. I agree with same. This is because where as in this case for a declaration of title, the appellants and their witnesses gave conflicting history of Appellant’s root of title such root would be treated as unreliable.”

The complaints of the Appellants under issue two are unmeritorious. Issue 2 is resolved against the appellants.

ISSUE 3
WHETHER THE LEARNED TRIAL JUDGE PROPERLY CONSIDERED THE ENTIRETY OF THE EVIDENCE LED ESPECIALLY BY THE APPELLANTS BEFORE ARRIVING AT HIS FINDINGS AND JUDGMENT. (GROUND 4).

The Learned Senior Counsel to the Appellants stated that the learned trial Judge failed to assess, analyze and properly evaluate the evidence led before arriving at her judgment. That this was contrary to the standard of evaluation laid down in MOGAJI VS. ODOFIN (1978) 4 SC 91. That the trial Court failed to properly consider the traditional evidence of the appellant as well as the evidence of long possession and recent acts of possession.

That there is evidence that members of Appellants family Madam Oyiridiya and Roseline Okwulehie consistently farmed on the Land in dispute without disturbance until Oyiridiya died in 1986 at the ripe age of 105 years. That there is uncontradicted pleadings and evidence that Nwokeukwu lived and farmed on the land in dispute and that while Okwulehie was away, he still retained possession of the Land in dispute on his return and farmed on the remaining portion. That the Respondent admitted under cross examination that Oyiridiya wife of the Okwulehie farmed on the Land in dispute that the Land in dispute was completely fenced by the Appellants. That the Learned trial Judge went on and relied on Exhibit “C” the Arbitration decision. That the trial Judge ought to consider the rejection of Exhibit “C” by Appellants. That the identity of the Land was not in dispute and that the mere fact that the DW2 could not identify the Land on Survey Plan was immaterial since he is not a survey or Map reader. That there was improper evaluation and that this court is in a good position as the trial Judge to do its own evaluation. He relied on the cases of:
1. ABISI VS. EKWEALOR (1993) 6 NWLR (PART 304) 643 at 673, and
2. NAMMAL & SONS (NIG) LTD. VS. NIGER BENUE TRANSPORT COMPANY LTD. (1989) 2 NWLR (PART 106) 730 at 742.

That the Learned trial Judge glossed over the Statement of Defence and evidence led by the Appellants. That after reviewing the evidence but before assessing and evaluating the evidence made up her mind to give Judgment to Respondent. The Learned silk urged this Court to resolve issue 3 in favour of the Appellants.

In response to argument on issue 3, the Learned Counsel to the Respondent submitted that the Learned trial Judge properly evaluated the evidence before arriving at his judgment. That the evidence was properly reviewed and weighed on an imaginary scale as laid down in Mogaji Vs. Odofin (1978) 4 SC 91. That it is the Judge of first instance who had the opportunity to see, hear or listen to the witnesses that can form an impression of the evidence. That the trial Court was in a better position than this Court in the ascription of probative value to the evidence of witnesses before the Lower Court. He relied on the case of EBBA VS. OGODO (1984) 1 SCNLR 372. He submitted that the finding of the trial Court was not perverse and that Appellate Court cannot interfere. He cited the cases of NZEKWU VS. NZEKWU (1989) 2 NWLR (Pt. 104) 373 and CHUKWUEKE VS. NWANKWO (1985) 2 NWLR (Pt. 6) 195.

Therefore, when the evaluation of evidence by a particular trial Judge is in issue or being challenged, the guiding principles to be followed are as laid down in the case of MOGAJI VS. ODOFIN (1978) NSCC 275 at 277-278 by the Supreme Court per Late eminent Jurist FATAYI – WILLIAMS JSC who held:
In short, before a Judge before whom evidence is adduced by the parties be force him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects he should first of all put the totality of the testimony adduced by both parties on that imaginary scale, he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weight them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the Judge will naturally have regard to the following.
(a) whether the evidence is admissible;
(b) whether it is relevant
(c) whether it is credible
(d) whether it is conclusive; and
(e) whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted.”

The Learned trial Judge emphatically found on page 124 of the record that:

“Having carefully considered the evidence adduced on both sides and after a careful perusal of the exhibits tendered by the parties, I must state at once that I had no difficulty in choosing between the evidence of the claimant and that of the defendants.”

The Learned trial Judge thereafter set out to carefully consider the weight or value of the evidence adduced on both sides of the scale. The Learned trial Judge actually made positive findings that Okwulehie has no title to the Land in dispute. The trial Judge also made findings after assessing the evidence called by Appellants to the effect that the Respondent never condoned the Appellants trespass and farming activities by the Appellants on the Land in dispute, the Respondent having left the portion of Land given to Appellants to build house for them.

The fundamental procedure laid down in MOGAJI VS. ODOFIN Supra was dutifully and meticulously followed by the trial Judge and she was perfectly right and correct in the conclusion reached by her. No miscarriage of Justice resulted thereby. Issue 3 is thus resolved against the Appellants.

ISSUE NO. 4
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN NOT ADVERTING TO AND RECOGNIZING THE POSITION THAT THE APPELLANTS WHO ALSO PROVED LONG POSSESSION WITHIN THE INTENDMENT AND SPIRIT OF THE DECISION IN KOJO VS. BONSIE (1957) 1 NLR 1220, HAVING DEMONSTRATED HER FAILURE TO PREFER THE ONE OR OTHER OF THE TRADITIONAL HISTORY PUT FORWARD BY THE RESPONDENT AND APPELLANTS? (GROUND 5 OF THE AMENDED GROUNDS OF APPEAL).
It is the submission of the Learned Silk that the trial Judge was wrong in not adverting to and recognizing the position of the Appellants who also proved long possession within the intendment and spirit of the decision in KOJO VS. BOSIE having, according to the Learned Senior Counsel, the trial Judge demonstrated her failure to prefer one or other of the traditional history put forward by the Respondent and the Appellants.

That the Respondent did not prove that he was ever in possession of the dispute Land. That Appellants on their part led evidence of possession within living memory coupled with uncontradicted evidence that Okwulehie the only son of Nwokeukwu farmed on the Land in dispute with his Late widow Oyiridiya Okwulehie. That she farmed on the land until she died in 1986 at ripe age of 105 years. That the Respondent pleaded in paragraph 10(C) of the Statement of Claim building structures of the Appellants on Azuegwuama Land sharing boundary according to Appellants, with part of the Azuegwu Land which was in dispute showing correction to the Land in dispute. He relied on the case of ISEOGBEKUN VS. ADELAKUN (2013) 2 NWLR 140 at 178 to further contend that Respondent was never in possession of the Land and therefore the Learned trial Judge was wrong in granting ownership of the Land to the Respondent.

In his brief reply on issue four, the Learned Counsel to the Respondent disagreed with the contention of the Appellants and submitted that the Rule in Kojo V. Bosie Supra, does not apply to the facts of this case. That the Learned trial Judge did not find the traditional history inconclusive. He relied on the case of AGWU & ANOR. VS. IBENYE 62 LRCN 4805 where according to the Learned Counsel to the Respondent UWAIFO JSC explained the Rule in KOJO V. BOSIE (1957) 1 WLR 1223. He urged this Court to dismiss the Appellants appeal.

I believe it is necessary here to bring to the fore the rule in KOJO V. BONSIE Supra in order to decipher whether the Appellants are justified in their attack against the Court below for not invoking the rule. The Rule was neatly and succinctly reenacted recently by the apex Court in the case of ALHAJI FATAI ALANI MATANMI & ORS. VS. VICTORIA DADA & ANOR (2013) 4 SCM 120 at 132 D – E by FABIYI, JSC, who said:
“What then is the Rule in Kojo II V. BONSIE? The Rule which has stood the test of time for quite some time now is that where traditional evidence proffered by the parties are inconclusive, the Court is enjoined to take into consideration facts in recent times given by the parties in order to determine which of the traditional evidence is more probable. To resort to the rule, the traditional evidence of the parties must be capable of being believed but that since the two are competing, a Court cannot prefer one to the other, Rather, it is enjoined to look out for further facts in recent times to see which of the traditional history is more probable.”
In the earlier case of CHIEF SAMUSIDEEN AFOLABI AYORINDE & ORS. VS. CHIEF HASSAN SOGUNRO & ORS. (2012) 7 SCM 77 at 90 G – 91 A-B BODE RHODES – VIVOUR JSC explained the rule in this way:
It is only where evidence of tradition history is inconclusive to establish plaintiffs title that traditional history must be – tested by reference to the facts in – recent years as established by evidence.
In the case of Kojo II V. Bonsie & Anor. 1957 1 WLR p. 1223 the Privy Council explained the position in these words;
“The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers, In this regard it must be recognized that in the course of transmission from generation to generation mistakes may occur without any dishonest motives whatever Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago, where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be their eanor is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable,
This is the Rule in Kojo II V. Bonsie Supra, and it has been followed repeatedly in our Courts, See Ekpo V. Ita II NLR p. 68 Okiji V. Adejobi 1960 5FSC p. 44 Jegede V. Gbajumo 1974 10 SC p. 183.”

The Learned trial Judge left no one in doubt in her judgment that the evidence of traditional history called by the Respondent found favour with the learned trial Judge. The Learned trial Judge made several findings in favour of the Respondent which the learned trial Judge held confirmed the evidence of traditional history pleaded by the Respondent.

The Learned trial Judge was right in her conclusion that the Respondent has proved his case on the preponderance of evidence. The evidence on the printed record justified that conclusion. The Rule in KOJO V. BONSIE has no application to this case. The evidence of traditional history relied upon by the Appellant was out rightly rejected.
The trial Judge cannot be faulted in her decision in favour of the Respondent and in her finding dismissing the Appellant’s Counter Claim. Where as in this appeal the trial Court had reached the right decision, the reason given for it is immaterial. It suffices if the pieces of evidence on record justify the finding.
See: (1) ALHAJI SANDA NDAYAKO & ORS. VS. ALHAJI HALIRU DANTOSHO & ORS. (2004) 13 NWLR (PART 889) 187 at 220 B – C where B – C where EDOZIE, JSC said:
“An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons are. Where the judgment of the Court is right but reasons are wrong, the appellate court does not interfere. It is only where the misdirection has caused the court to come to a wrong conclusion that the Appellate Court will interfere.”
(2) DAIRO VS. U.B.A. PLC. (2007) 16 NWLR (PART 1059) 99 at 161 a decision of the Supreme Court where OGBUAGU, JSC said:
“It is now firmly settled that where a decision of a Court is right, the reason given for so holding is immaterial”

On the whole the Appellants appeal lacks merit and the same is hereby dismissed in its entirety. The Judgment of Abia State High Court contained in the judgment of Honourable Justice T. U. UZOKWE delivered on 19th day of July 2010 in favour of the Respondent is hereby confirmed.
The Appellants shall pay costs assessed at N30,000.00 (Thirty Thousand Naira) in favour of the Respondent.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

FREDERICK O. OHO, J.C.A.: I have had the privilege of reading in draft the judgment of my learned Brother PETER O. IGE, JCA just delivered and agree with his reasoning and conclusions therein in dismissing the appeal as lacking in merit. What seemed to attract my comment in this case is the appellant’s decision to renege on the terms of the Customary Arbitration between the parties in Exhibit ‘C’. The learned trial judge in the findings had rightly held that the said Exhibit ‘C’ was binding on the appellants, who however, saw the need to believe otherwise. In the first of the four (4) issues nominated by the appellants for the determination of this appeal, the appellants have asked as follows;
“Whether the learned trial judge was right in holding that the appellants having submitted to the local Arbitration Panel was binding on them and cannot reside from it?”
In the case of AGALA vs. OKUSIN (2010) 10 NWLR (PT.1202) 412, the Supreme Court per OGBUAGU JSC had this to say on the subject,
“…the conditions precedent to bindingness of a Customary Arbitration are as follows;
a. There must have been a voluntary submission of the disputes by the parties to the non-judicial body.
b. The parties must have agreed to be bound by the decision of the non-judicial as final;
c. That the decision was in accordance with the custom of the people or of their trade or business; and
d. That the arbitrators reached a decision and published their award”…

it is important to note that at the lower court, it was not only given in evidence that the respondent pleaded the said Exhibit C, but also that the parties clearly agreed to be bound by it at the time it was made and that the award duly published. Had the lower court ignored the Exhibit ‘C’ it would have amounted to nothing but a travesty of justice. Here is a situation, in which both sides to the dispute not only attended before the Local Arbitration Panel with their witnesses, but also at the time agreed to be bound by its outcome. I am in agreement with the lower court that the appellants cannot at the ninety-ninth hour be allowed to wriggle out of an Arbitration, to which they freely subscribed. See the case of AWOSILE VS. SOTUBO (1992) LPELR – 658(SC); See also the case of AGU vs. IKEWIBE (1991) LPELR – 253 (SC) and legion of decided cases on the subject. On the strength of this and other issues ably decided against the appellants by my learned Brother, I too will dismiss this appeal as lacking in merit and affirm the Judgment of the Abia State High Court delivered on the 19th day of 2010 in favour of the respondent.

Appearances

Dr. Amaechi Nwaiwu SAN with L.O. Osuji MrsFor Appellant

AND

O. A. UhegbuFor Respondent