AFADA EHOCHE v. ABU IJEGWA(2002)

AFADA EHOCHE v. ABU IJEGWA

(2002)LCN/1290(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 5th day of November, 2002

CA/J/278/2001

 

Before Their Lordships

OLUDADE OLADAPO OBADINAJustice of The Court of Appeal of Nigeria

AMIRU SANUSIJustice of The Court of Appeal of Nigeria

IFEYINWA CECILIA NZEAKOJustice of The Court of Appeal of Nigeria

Between

 

AFADA EHOCHEAppellant(s)

 

 

AND

ABU IJEGWARespondent(s)

OBADINA, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Benue State, sitting at Otukpo, delivered on the 21st of September, 2001. The respondent was the plaintiff, while the appellant was the defendant at the lower court.
Both the appellant and the respondent belong to Auke Clan of Ochekwu District in Apa Local Government Area of Benue State.  Both of them contested for a minor chieftaincy title, called, “Amana-Abo” of Auke Clan, in Apa Local Government Area of Benue State. The respondent then dragged the appellant before the Apa Traditional Council of the Apa Local Government, in January, 1999 to decide which of them was entitled to the stool of the “Amana-Abo” of Auke Clan. The parties gave evidence and called their respective witnesses before the Traditional Council. After the parties and their witnesses gave evidence, the Apa Traditional Council decided the dispute in favour of the appellant. See exhibit “A” at pages 21-40 of the record of appeal.
Apparently, dissatisfied with the decision of the Apa Traditional Council, the respondent instituted this action at the court below, against the appellant claiming the following reliefs:-
“(a) A declaration that by the custom and tradition of Auke people, the plaintiff who hails from Ai-Olonta lineage in Ai-Omoka sub Clan/kindred of Auke Clan in Ochekwu District of Apa Local Government Council, is the rightful and legitimate “Amana-Abo” of Auke Clan, the current turn being that of his lineage in accordance with the seniority of lineages in accession to traditional offices amongst the sub-Clans/kindred in Auke Clan.
(b) A declaration that by the custom and tradition of the people relating to accession to traditional offices in Auke Clan of Ochekwu District of Apa Local Government Council, the 1st defendant is not eligible for consideration or qualified for appointment or contest or hold the office of the “Amana-Abo” of Auke Clan, the current turn not being that of his lineage within Ai-Omoka sub Clan/kindred of Auke Clan.
(c) A declaration that the resolution of the 2nd defendant making the 1st defendant eligible to hold the office of the “Amana-Abo” of Auke Clan in the present turn constitutes a gross violation of the custom and tradition of the people and thus null and void and of no consequence whatsoever.
(d) An order of perpetual injunction restraining the 1st defendant from parading himself or conducting himself in any manner howsoever as the “Amana-Abo” of Auke Clan in Ochekwu District of Apa Local Government Council or performing any of the functions and duties of the said office of “Amana-Abo” of Auke Clan.
(e) An order of perpetual injunction restraining the 2nd defendant from recognising or causing to be recognized the 1st defendant as the “Amana-Abo” of Auke Clan in Ochekwu District of Apa Local Government Council.”
Pleadings were filed and exchanged by the parties. After the exchange of pleadings, the appellant, as defendant, filed a motion on notice dated 23rd of May, 2001 praying the court to strike out the case on the ground that the issue of “Amana-Abo” of Auke Clan had already been decided by Apa Traditional Council, and that the respondent, as plaintiff, was estopped from raising the issue again.
The application was heard by the learned trial Judge who in his reserved ruling dismissed the application on the 21st of September, 200l.
Dissatisfied with the trial court decision contained in the said ruling of 21st of September, 2001, the appellant has appealed to this court on two (2) grounds of appeal. From the two (2) grounds of appeal, the appellant formulated two (2) issues for the determination of the court, namely:-
“(1) Was the learned trial Judge right to have held in his ruling that the decision of the Apa Traditional Council as per exhibit “A” was neither published to the parties nor was it accepted by the parties?
(2) Whether the learned trial Judge was bound to give effect to exhibit “A” as binding the parties in view of the Supreme Court decision (Per Nnaemeka-Agu, J.S.C.) in Igwego and others v. Ezeugo and others (1992) 6 NWLR (Pt. 249) 561; (1992) 7 SCNJ (Pt. 11) page 284 at 297-298.”
In arguing the appeal, the learned counsel for the appellant conceded that the two issues formulated by him are similar and interrelated. He therefore treated the two issues together. He referred to the decision of the Apa traditional council at pages 21-40 of the record of appeal. He argued that it was not in dispute that the Apa traditional council had statutory power to decide controversy according to the customary law of the parties. He said it was the respondent that took the dispute to the Apa traditional council for resolution. He referred to the evidence of the parties and their witnesses before the traditional council as contained in exhibit “A”, the decision of the council in favour of the appellant. He said the respondent did not do anything after the decision of the council until 15th May, 2001, a period of over 2 years, when he instituted this action. He submitted that the learned trial Judge having found as of fact that both parties willingly submitted their dispute to the traditional council ought to have given effect to the decision of the council in exhibit “A”. He referred to page 64, lines 36-39, where the leaned trial Judge found that the parties submitted themselves to arbitration by the council. He referred to the case of Igwego and others v. Ezeugo and others (1992) 6 NWLR (Pt. 249) 561; (1992) 7 SCNJ (Pt. 11)page 284 at 297-298; Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296; (1991) 6 SCNJ 156 at 169 and submitted that the parties are bound by the decision of the Apa Traditional Council and that, objection by the losing party to the decision would not prevent the court from giving effect to the decision. He argued that if the learned trial Judge was properly guided by the Supreme Court decisions mentioned above, he would have upheld the plea of estoppel raised by the appellant by way of preliminary objection in this case.
He further submitted that the decision of the learned trial Judge that the decision of the Apa Traditional Council contained in exhibit “A” was neither published nor accepted by the parties, was erroneous. He referred to paragraph 6(1) and (11) of the respondent’s counter-affidavit on pages 41 and 42 of the record of appeal and submitted that the parties knew the verdict of the Apa traditional council. He submitted that acceptance of the decision of the arbitral body by the parties could be implied from their conduct. He urged the court to allow the appeal and strike out the suit on the plea of estoppel by customary arbitration.
In the respondent’s brief, the learned counsel for the respondents adopted the two issues formulated by the appellant as the issues arising from the appeal. He referred to the decision of the Apa traditional council embodied in exhibit “A’ and submitted that the decision of the traditional council did not meet the requirements of a valid customary arbitration to constitute estoppel. He argued that the mere fact that the parties appeared before the traditional council and voluntarily submitted their dispute involving the traditional title of “Amana-Abo” of Auke Clan for resolution was not sufficient to make the decision arrived at by the council binding and to operate as estoppel between the parties. He said that other essential elements must co-exist before the decision of such a body could be held valid and binding as to constitute estoppel. He referred to the case of Duruaku Eke v. Udeozor Okwaranyia (2001) 12 NWLR (Pt. 726) 181; (2001) 86 LRCN 1403 at 1428-1429. He referred to the decision of the said Apa traditional council – exhibit “A” and submitted that the conditions for a valid customary arbitration as stated by the Supreme Court have not been satisfied. He argued that there was no where in exhibit “A” showing any acceptance of the award by the parties. He submitted that the learned trial Judge was right in dismissing the preliminary objection. He referred to paragraph 18(c) of the statement of claim, and argued that the respondent, as plaintiff, sought for “a declaration that the resolution of the 2nd defendant making the 1st defendant eligible to hold the office of “Amana-Abo” of Auke Clan in the present turn constitutes a gross violation of the custom and tradition of the people and thus null and void and of no consequence whatsoever.”
He argued that by the above relief, the respondent was seeking to invalidate the proceedings of the Apa Traditional Council exhibit “A” on the ground that it was a nullity. He urged the court to dismiss the appeal.
The case of the appellant as could be gathered from the two issues formulated for determination of this court, is that the decision of the Apa Local Government Traditional Council embodied in exhibit “A” – at pages 21-40 of the record of appeal, is a decision of a customary arbitration and it constitutes estoppel per rem judicata and thus operates as a bar to further action by the respondent. From the arguments contained in the briefs of the parties, it is not in dispute that the Apa Local Government Traditional Council had statutory power to decide the said chieftaincy controversy in accordance with the customary law of the parties. The issue for determination in the appeal is whether the decision of the Apa Local Government traditional council in this case, exhibit “A” really meets the requirements of a valid customary arbitration to constitute estoppel.
The learned counsel for the appellant referred to the finding of the learned trial Judge at page 64 lines 36-39, where the learned trial Judge stated as follows:-
“From this, it is evident that the parties appeared before the council, gave evidence and called witnesses. They therefore submitted themselves to arbitration by the council.”
The learned Counsel submitted that having regard to the circumstances of the case, the learned trial Judge ought to have given effect to the decision of the Traditional Council. He relied on the following cases: Igwego and others v. Ezeugo and others (1992) 6 NWLR (Pt. 249) 561; (1992) 7 SCNJ (Pt. 11) page 284 at 297-298; Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296; (1991) 6 SCNJ 156 at 169.
The issues as to the validity and bindingness of decision of customary arbitration has long been settled. In the first place, the general principle governing arbitration is well known, and it is set out, inter-alia, in the case of Omanhene Kobina Foli v. Ohene Obeng Akese (1930) 1 WACA 1 at page 2. In that case Deane, CJ. said:-
” … in submissions to arbitration, the general rule is that as the parties choose their own arbitrator to be the Judge in the disputes between them, they cannot when the award is good on its face, object to his decision, either upon the law or the facts.”
I might also refer to the case of EkuaAyafie v. Kwamina Banyea, 2nd Ed. page 8 Sarbatis Fanti, L. R., where it was held that where matters in difference between two parties are investigated at a meeting, and in accordance with customary law and general usage, a decision is given, it is binding on the parties and the Supreme Court will enforce such decision. In that case Bailey, C.J. said:-
” … after the arbitration was concluded, defendant objected to the award because it was against him. The
plaintiff, no doubt would have objected had the award been but this way … But notwithstanding that the object (sic) the court held the award was a good one. Mr. Akufo-Addo suggests that this case is distinguishable from the present one because the Fanti law does not exactly agree in detail with Akan law. That is no doubt true, but the general principles of native customary law are based on reason and good sense and it would take a lot to convince me that Akan customary law is so repugnant to good sense as to allow the losing party to reject the decision of arbitrators to whom he had previously agreed.”
The learned President then concluded:-
“In the result, it seems to me that as there was a proper and valid arbitrations, both the learned Judge and the Native Appeal Court, were wrong in ordering are-trial and the award of the arbitrators should stand.”
In a recent case of Emmanuel Okpala Igwego & others v. Fidelis Ojukwu Ezeugo & others (1992) 6 NWLR (Pt. 249) 561 at 576, the Supreme Court of Nigeria, stated what constitutes a customary arbitration and the bindingness of its decision. It said, Per Nnaemeka-Agu J.S.C., as follows:-
“Where parties to a dispute voluntarily submit their dispute to a customary body of persons such as the peace committee in this case for adjudication and agree to be bound by the decision of the body on the issues in controversy between them, if the body goes into the matter, hears both sides and reaches a decision, the law takes the view that the parties to the dispute had chosen their own forum rather than the courts. None of the parties will be allowed later to back out of the decision if it does not favour it. It will be bound thereby and the successful party can plead the decision as estoppel. This is the result of a long line of decided cases. Larbi v. Kwasi (1950) 13 WACA, 81 at 82; Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385.”

In a more recent case of Duruaku Eke & others v. Udeozor Okwaranyia & others (2001) 12NWLR (Pt. 726) 181 at 208; (2001) 86 LRCN 1403 at 1428-1429, the Supreme Court, per. Uwaifo, J.S.C., itemised the elements or ingredients of a valid customary arbitration.
He said:-
“that for there to be a valid customary arbitration, five ingredients must be pleaded and proved, namely:-
“(a) That there had been a voluntary submission of the matter in dispute to an arbitration of one or more persons.
(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitrator(s) would be accepted as final and binding.
(c) That the said arbitration was in accordance with the custom of the parties or of their trade or business.
(f) That the arbitrator(s) reached a decision and published their award.
(g) That the decision or award was accepted at the time it was made.”
The learned Supreme Court Justice concluded by saying:-
“I think anything short of these conditions will make any customary arbitration award risky to enforce. In
fact, it is better to say that unless the conditions are fulfilled, the arbitration award is unenforceable.”
Commenting on the need for the court to ensure that parties had voluntarily submitted to the arbitration before applying the decision of a customary arbitration as an estoppel, the Supreme court, per Akpata J.S.C., stated as follows, in Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1 at 24:-
“It is a 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 Judge 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 come to occupy parcels of land. The arbitrators are well informed on these matters. The position however is that traditional history is sometimes transmitted, received or construed with a slant by the person using it for a purpose. Hence it is essential before applying the decision of a customary arbitration as an estoppel for the court to ensure that parties had voluntarily submitted to the arbitration, consciously indicated their willingness to be bound by the decision and had immediately after the pronouncement of the decision unequivocally accepted the award.”
In the present case on appeal, the plaintiff, now the respondent in this appeal sued the appellant before Apa Local Government Traditional council seeking inter-alia, a declaration that by the custom and tradition of Auke people, the plaintiff who hailed from Ai-Olonta lineage in Ai-Omoka subclan/kindred of Auke Clan in Ochekwu District of Apa Local Government Traditional Council Area is the rightful and legitimate “Amana-Abo” of Auke Clan, the current turn being that of lineage in accordance with the seniority of lineages in accession to traditional offices amongst the subclan/kindreds in Auke Clan. The traditional council decided the dispute in favour of the appellant. The respondents again sued before the lower court seeking in effect the same relief in different words. After the exchanges of pleading, the 1st defendant, now the appellants filed a motion on notice praying that the suit be struck out on the ground that the issue of “Amana-Abo” of Auke Clan had already been decided by Apa Traditional Council, sued as the 2nd defendant.
In paragraphs 4 and 5 of the affidavit in support of the application to strike out the suit, it was deposed on behalf of the defendant/appellant as follows:-
“(4) That on 19th day of May, 2001 at about 11a.m. the appellant who came to our chambers at No. 30 Jericho Road Otukpo informed me of the following facts and I verily believe same to be true:-
(i) that he became the “Amana-Abo” of Auke to Chief Amonjenu Ododo the present Clan head of Auke Clan in1997.
(ii) that in 1999, the respondent reported him before the Apa Local Government Traditional Council contending inter-alia that he was the rightful person to be made the “Amana-Abo” of Auke Clan.
(iii) that both of them appeared before the traditional council with elders of their kindreds.
(iv) that after hearing both parties and their witnesses the council resolved the matter in favour of the applicant.
(v) that both parties and their people were happy with the decision of the traditional council and accepted same.
(vi) that since the decision of the traditional council on 11th January, 1999, the respondent did nothing to show that he did not accept the decision of the traditional council until 15th May, 2001, after a period of 2 years and four months when he filed this suit.
(5) The applicant’s counsel has also informed me and I verily believe him that the decision of Apa Traditional Council which is attached here as exhibit “A” is binding on both parties and the plaintiff is estopped from re-litigating the same matter before this court.”
The respondent who was the plaintiff in the case filed a counter-affidavit against the application to strike out the suit. From the counter-affidavit, the respondent did not deny that the parties had earlier taken their dispute before the Apa Traditional Council or that the Apa Traditional Council had decided the dispute in favour of the appellant. In paragraphs 3, 5 and 6 of the counter-affidavit, the respondent acknowledged that the parties had earlier referred their dispute on the Chieftaincy to the Apa Traditional Council and that the council has given a decision. He stated inter-alia as follows:-
“(3) that I know as of fact that in the substanti ve claim, the respondent herein is challenging the eligibility of the applicant to the office of the “Amana-Abo” of Auke Clan and an order setting aside the resolution of the 2nd defendant and other injunctive reliefs.
(5) That I am also informed by the said counsel and I verily believe him that since the resolution of the 2nd defendant is being challenged for being invalid and contrary to custom of the people same cannot constitute estoppel or remove the jurisdiction of the Honourable court to inquire into same.
(6) That I am informed by the respondent in the chambers of P. A. Omengala, Esq., at No.5 Asa Road, Otukpo, Benue State, on the 26th day of May, 2001, at about 4pm and I verily believe him as follows:-
(i) That immediately the decision of the 2nd defendant was given, he immediately rejected same and gave notice of his intention to challenge same which he has now done.
(ii) …
(iii) That his community has never accepts the decision of the 2nd defendant which is considered a violation of the custom and tradition of the people and hence the decision to challenge same.
(iv) That the current turn of “Amana-Abo” belongs to his community and not that of the applicant.”
When the affidavit and counter affidavit in respect of the application to strike out the suit are read together, it is clear from the averment by the appellant that he i.e. the appellant became the “Amana-Abo” of Auke Clan to Chief Amonjenu Ododo, the present Clan head of Auke Clan in 1997, is not denied; it is also not disputed that it was the respondent who reported the dispute before the Apa Traditional Council, contending that he i.e. the respondent was the rightful person to be made the Amana-Abo of Auke Clan. The respondent did not also controvert the evidence that both parties appeared before the Traditional Council with the elders, gave evidence and called their respective witnesses before the council, and that the council gave a decision on the dispute in favour of the appellant on the 11th of January, 1999.
Again, pages 21-40 of the record of appeal- exhibit “A”, are the minutes of Apa Local Government Traditional Council meeting on the 11th of January, 1999, to settle the said Chieftaincy title dispute. Exhibit “A” is specifically headed “Minutes of Apa Local Government Traditional Council meeting held on the 11th of January, 1999, to settle “Amana-Abo” Chieftaincy title dispute in Ai-Omoka sub Clan of Auke between Abu Ijegwa and Afada Ehoche.”
Exhibit “A” clearly shows that the respondent was the complainant, while the appellant was the defendant. This really means that the respondent in particular, voluntarily submitted the dispute to the Apa Local Government Traditional Council i.e. a customary arbitration.
Exhibit “A” also shows that the parties each testified before the Apa Local Government Traditional Council and called witnesses in their respective defences. At the end of the hearing the council stated inter-alia as follows:-
“On this date, all parties were present and members of the traditional council were present without any absence.
After necessary appeals for peace and due prayers by the chairman of the traditional council, the Secretary read out the whole statement made by the parties and their witnesses to the acceptance of the parties in the case.
Carefully reviewing the whole case, the council came out with the following that:-
(1) Ai-Omoka kindred of Auke Clan is made up of three sub-kindreds – Ai-Ogbeikwu, Ai-Olonta, and Ai-Oblete.
(2) The seniority order is as shown in No.1.9
(3) In Auke Clan, ascendancy into Chieftaincy title and subsequently throne is in the order of seniority.
(4) There had been a chieftaincy title in dispute between Ai-Olonta and Ai-Oblete which was determined in favour of Ai-Oblete due to circumstance of equitable distribution of power.
(5) Since the determination and settlement of the dispute, about fifty years ago there had not been any protest nor appeal from anybody.
(6) The recipient of the chieftaincy titles -Amana-Abo (Afada Ehoche) received the unanimous selection, blessing and presentation by the entire Ai-Omoka led by Onu Ijegwa the co-contendant to the title.
Resolution:
In view of the above, the council resolved that the present turn is for Afada Ehoche of Ai-Oblete. He is therefore the legitimate Amana-Abo of Auke.”- page 39 of the record of appeal.
As indicated earlier, for there to be a valid customary arbitration, five ingredients must be pleaded and proved, namely:-
(i) that there had been a voluntary submission of the matter in dispute to an arbitration of one or more persons.
(ii) That it was agreed by the parties either expressly or by implication that the decision of the arbitrator(s) would be accepted as final and binding.
(iii) That the said arbitration was in accordance with the custom of the parties or of their trade or business.
(iv) That the arbitrator(s) reached a decision and published their award.
(v) That the decision or award was accepted at the time it was made.
In this case, exhibit “A” clearly shows that the respondent took the dispute before the traditional council and the appellant submitted to the jurisdiction of the council. Exhibit “A” also shows that the parties each gave evidence in their respective defences and called witnesses. This, to my mind is a clear evidence that the parties had agreed by implication that the decision of the arbitrators i.e. the traditional council, would be accepted as final and binding.
As to whether the arbitration was in accordance with the custom of the parties or their trade or business, section 5 of the Benue State Council of Chiefs and Traditional Council Edict, 1991 created four Area Traditional Councils; section 8 thereof, created the Local Government Traditional Councils; section 9(i) of the Edict empowers the Traditional Council to determine questions relating to chieftaincy matters and control of traditional titles. Further more, by virtue of the Benue State Council of Chiefs and Traditional Council (Amendment) Edict, 1991, Apa Local Government traditional council, among other councils, is empowered to determine the issue of chieftaincy in dispute between the parties.
As regards the issue of whether the arbitrators reached a decision and published their award, exhibit ‘A’ clearly shows that the council reached and published its award in the presence of all the members of the traditional council and the parties to the dispute when the council resolved as follows:-
“In view of the above, the Council resolved that the present turn is for Afada Ehoche of Ai-Oblete. He is
therefore the legitimate “Amana-Abo” of Auke.” See page 39 of the record of appeal.
As regards the condition that the decision or award must be accepted at the time it was made, in paragraph 4(vi) of the affidavit in support of the application to strike out suit, the appellant deposed that the decision of the traditional council was given on the 11th of January, 1999, and that the respondent did not do anything to show that he did not accept the decision. The law is that for there to be valid customary arbitration, the decision or award must have been accepted at the time it was made. See Eke v. Okwaranyia (2001) 12 NWLR (Pt. 726) 181; (2001) 86 LRCN 1403 at 1429. In this case, I cannot see any better evidence of acceptance of the decision and the award, than the respondent’s inaction against the decision/award for over two years.
The learned trial Judge in his ruling after holding that the patties submitted themselves to arbitration by Apa Traditional Council, went further to say that he could not find any evidence of acceptance of the decision and the award or any agreement that the parties have agreed to be bound by the decision of the council. I do not think the learned trial Judge is right. From the evidence before the trial court, especially exhibit “A”, the respondent was the complainant before the Traditional Council. On the date of the hearing, the respondent was present. He gave evidence and called witnesses in support of his claim. The appellant was also present, gave evidence and called witnesses in his own defence. The question arises; what could have been the intention of the parties, especially, the respondent at the time he took the dispute before the council, and stated their respective cases before the council? I would say their intention was that the council should look into the dispute and give a decision on the dispute and they (the parties) would be bound by the decision. The parties need not expressly agree to be bound. The agreement may be by implication. See Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296 at 314. Where the Supreme court. Per Nnaemeka-Agu, J.S.C. stated the law as follows:-
“As I indicated above, I do not think from the concurrent findings of the courts below on the point that the
appellant expressed any reservation during the submission of the dispute to the customary arbitration body. I should also accept the concurrent finding that he did not even resile from the decision against him soon after the arbitral body handed down their award but that he tried to do so afterwards. He could not do that. In my view, the law is pretty settled that where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to customary law and agreed expressly or by implication that the decision of the arbitrators would be accepted as final and binding, then once the arbitrators reach a decision, it is no longer open to either party to subsequently back out of such decision.” – see on this Ozo Ezejiofor Oline & others v. Jacob Obodo & Ors. (1958) 3 FSC 84 at 86; (1958) SCNLR 298; Opanin Asong Kwasi & Ors. v. Larbi 13 WACA 76; Philip Njoku v. Felix Ekeocha (1972) 2 ECSLR 199.”
In the present case, I think there is abundant evidence of the acceptance of the decision and the award.
As regard the issue of publication mention by the trial Judge, I think the award was well published as shown by exhibit “A”. It was read out in the presence of the respondent. In paragraph 6(1) of the counter-affidavit, the respondent admitted publication of the award and said that he rejected the decision of the traditional council immediately it was given. There is no evidence of the said rejection until after two years. Paragraph 6(iii) of the said counter-affidavit shows that it was the respondent’s community that rejected the decision after two years and not the respondent himself. The respondent is clearly estopped from going back to court.
In the final analysis, it is my view that there is merit in the appeal and should be allowed. I therefore allow the appeal, set aside the decision of the lower court contained in its ruling dated 21st of September, 2001, and strike out the suit No. OHC/65/2001 before the lower court on the ground that the issue of Amana-Abo of Auke Clan has already been decided by Apa Traditional Council.
The respondent shall pay costs assessed at (N10,000.00) Ten thousand naira only to the appellant.

SANUSI, J.C.A.: I read in draft from the judgment delivered by my learned brother Obadina, JCA. I am in full agreement with the reasons of the learned justice of Court of Appeal that the appeal has merit and ought to be allowed. I accordingly allow it and endorse the order on cost made in the lead judgment.

NZEAKO, J.C.A.: I have had a preview of the judgment of my learned brother Obadina, JCA.
I agree with the reasoning and conclusions. From the facts of this case carefully outlined in the said judgment which I adopt as mine, and from the evidence on record, there is no doubt that it was the respondent who submitted the dispute between him and the appellant to the Apa Local Government Council for determination.
The council determined it after both parties participated. It reached a decision and published it. See exhibit “A”.
There can therefore be no doubt that both parties submitted themselves to the arbitration of the council. If the respondent was not aware of the result and did not accept it, what effective action did he take? That it took the respondent two whole years after conclusion and decision of the council to bring this action is in my view further evidence of acquiescence to and acceptance of the award. I hold the view that all requirements for a binding arbitration were present in this case. The courts have developed the principles and it has become trite law that once parties voluntarily submit to what is known as customary arbitration under certain elements shown to exist, that parties thereto are not permitted to resile there from. The decision becomes binding on them. It constitutes an estoppels barring the parties, even the losing party, from any further suit on the issues determined by the arbitrators. See Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561 at 576 Sc. See also Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385.
The required conditions have been fully outlined by my learned brother in the leading judgment and I adopt them. I hold the view that those elements have been shown to be present and fulfilled in this case. The arbitration is binding on the parties. The court below ought to have upheld the objection to this suit raised by the appellant when the respondent against whom the arbitration went, sought, by filling this suit, to resile from the decision of the council – arbitrators to which he himself had voluntarily submitted the dispute. The learned trial Judge was in error in not doing so.
I too find merit in this appeal. I allow it, set aside the ruling delivered on 21/9/2001 by Itodo, J. the suit filed in the High Court of Benue State, at Otukpo is hereby struck out.
I abide by the order of costs made by my learned brother Obadina, JCA.

Appeal allowed.

 

Appearances

  1. E. OgboFor Appellant

 

AND

  1. A. OmaleFor Respondent

 

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