AUGUSTINE IKEM V. VIDAH PACKAGING LTD. & ANOR.
(2011)LCN/4724(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of July, 2011
CA/E/84/2007
RATIO
REPLY BRIEF: PURPOSE OF A REPLY BRIEF; CIRCUMSTANCE IN WHICH A REPLY BRIEF WOULD NOT BE NECESSARY
Reply Brief is meant to answer or respond to new or fresh points raised in the respondent’s brief of argument. it is not an avenue through which or by which an appellant should canvass or proffer further or repeat arguments in support of an appeal on the pretext of replying on points of law. Consequently, where new points do not arise from the respondent’s brief, a Reply Brief would not be necessary and when filed, will not be in accordance with the provisions of the Court of Appeal Rules. if the respondent’s brief has joined issues with the appellant’s brief, the appellant need not repeat the issues joined, by emphasis or expatiation See ODON V. AMANGE (2010) All FWLR (509) 496: and IYAGBA V. SEKIBO (2010) All FWLR (Pt.518) 949. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
ISSUE FOR DETERMINATION: WHO NOMINATES THE ISSUES FOR DECISION IN A CASE
The position of the law is that it is a plaintiff who brings a suit that also nominates the issues for decision in the case. See NKUMA V. ODILI (2006) All FWLR (Pt. 313) 24. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
COUNTER-CLAIM: WHAT A COUNTER-CLAIM ENTAILS
The settled position of the law concerning counter-claim is that it is a cross or independent action completely distinct from the one brought by the original plaintiff even though a counter-claim is tried in the original plaintiff’s action. In a counter-claim the defendant/counter-claimant stands in the position of a plaintiff, while the original plaintiff assumes the position of a defendant. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
DUTY OF A DEFENDANT: WHETHER WHERE PARAGRAPHS OF THE STATEMENT OF CLAIM ARE NOT SPECIFICALLY DENIED, THE STATEMENT OF DEFENCE MUST BE CONSIDERED AS A WHOLE TO SEE WHETHER IT IN EFFECT DENIES THE MATERIAL AVERMENTS IN THE STATEMENT OF CLAIM BY NECESSARY IMPLICATION.
The duty of a defendant in respect of the plaintiff’s pleading includes admission of what he deems fit and denial of material allegations, specifically or by necessary implication. Denials must not be evasive. Where paragraphs of the statement of claim are not specifically denied, the statement of defence must be considered as a whole to see whether it in effect denies the material averments in the statement of claim by necessary implication. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
CUSTOMARY ARBITRATION: CONDITIONS THAT MUST BE PROVED BY A PARTY SEEKING TO RELY ON THE EXISTENCE OF THE DECISION OF A CUSTOMARY ARBITRATION
In the case of AGALA V. EGWEBE [2010] All FWLR (Pt.532) 1609 the Supreme Court dwelling on what customary arbitration is, said per Ogbuagu, JSC; at page 1638 thus: The conditions precedent to bindingness of a customary arbitration are as follows: (a) There must have been a voluntary submission of the dispute by the parties to the non-judicial body; (b) The parties must have agreed to be bound by the decision of the non-judicial body 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.” ……………and Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385: (1991) 4 SCNJ 56. In the last case, Nnaemeka-Agu, JSC stated at page 533 inter alia, as follows: “Parties to dispute will do well to remember that such persons or bodies though highly placed and respected are not judicial bodies. Before their decisions on any matter in dispute between parties can be relied upon an estoppeel, all the above requirements of a binding customary arbitration must be shown to have been observed. The pleadings and evidence in the case fall short of those requirements. Once such is time position, time case must be decided on the relative strengths of other facts established by evidence.” (The italics mine). It is settled law that where the intervention was merely an attempt at settlement of the dispute between the parties no such consequence follows. Awosile v. Chief Sotunbo at page 532…………….An arbitration is a reference to the decision of one or more persons either with or without an umpire of a particular matter in difference between the parties. In the case of Agu v. Ikewibe, this court – per Karibi-Whyte, JSC in respect of the second requirement put it thus: “The indication of willingness of the parties to be bound by the decision of the non-judicial body or freedom to reject the decision where not satisfied.” In respect of the third requirement, it is stated thus: “that neither of the parties has resiled from the decision so pronounced.” Also in the case of KOTOYE V. OBIASO (2010) All FWLR (Pt.526) 489 the Supreme Court dwelling on customary arbitration per Adekeye, JSC; said at page 509 thus:- “A party can prove the existence of a customary arbitration by pleading and establishing the following: (a) That there has been a voluntary submission of the matter in dispute to an arbitration of one or more person. (b) That it was agreed by parties either expressly or by implication that the decision of the arbitrators 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. (e) That the decision or award was accepted at the time it was made.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
IMPORTANCE OF DOCUMENTARY EVIDENCE
The position of the law is settled that documentary evidence being permanent in form is more reliable than oral evidence and is used as a hanger to test the credibility of oral evidence. See C.D.C. (NIG.) LTD V. SCOA (NIG.) LTD (2007) 6 NWLR (Pt. 1030) 300 (SC); and OGBEIDE V. OSIFO (2007) All FWLR (Pt. 365) 548 (CA). PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
WHETHER ADDRESSES OF COUNSEL AND BRIEFS OF ARGUMENT ARE EVIDENCE
The law is that addresses of counsel and briefs of argument are not evidence. See EZUMA V. NKWO MARKET COMMUNITY BANK LTD (2000) FWLR (Pt. 28) 2243 at 2263. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
JUSTICES
MOHAMMED LADAN-TSAMIYA Justice of The Court of Appeal of Nigeria
AYOBODE O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
AUGUSTINE IKEM Appellant(s)
AND
1. VIDAH PACKAGING LTD.
2. DR. JOSEPH C. ENWEZOR Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment): This appeal is against the judgment delivered on 282/2007 by the Anambra State High Court (hereafter simply referred to as the “lower court”) presided over by Hon. Justice J.C. Nwadi (hereafter simply referred to as “the learned trial Judge”). The lower court entered judgment in favour of the Plaintiffs (hereafter referred to as “the Respondents”) in the case, and also dismissed the counter-claim of the Defendant (hereafter referred to as “the Appellant”) filed in the action, for want of substance and merit being nothing but an exercise in futility.
The Respondents initiated an action against the Appellant claiming the sum of N2,400,000.00 “being the balance unpaid of the sum the defendant admitted in writing that he owes the plaintiffs”. The Respondents also claimed interest of 5o/o on the sum, from the date of judgment until the entire debt is fully liquidated. The Respondents initially commenced the case under the undefended list procedure of the Civil Procedure Rules of the lower court. However the suit was on 6/5/2004 transferred to the general cause list for hearing and determination on the merit.
The case set up by the Respondents in their Statement of Claim dated 3/6/2004 and filed on the same date, put briefly, is that at the invitation of the Appellant, the 2nd Respondent upon conditions specified by him, entered into a joint venture with the Appellant in the Appellant’s business involving the importation of kits for diagnosis of HIV/AIDS, pregnancy, syphilis and hepatitis B. After placing two importation orders (solely financed by the 2nd Respondent) in respect of kits/items in December, 2001 and April, 2002 respectively, there was a disagreement between the parties concerning the accounting system employed by the Appellant and which resulted in unexplained loss of money to the Respondents’ detriment. The Respondents were compelled to institute two separate actions against the Appellant in the High Court, as the report of the matter made by the 2nd Respondent to the head of the Enwezor family failed to resolve the matter. While the suits were pending, the 2nd Respondent also made a report to the Police. This eventually resulted in the Appellant being charged before the Chief Magistrate’s Court. The Appellant was arrested and released on bail to one Eselu Bosah who along with others requested the Police to give them time to enable parties settle the matter amicably. A settlement meeting was later held in the presence of members of the families and friends of both parties together with the parties themselves. At the meeting, the Appellant accepted owing the Respondents the sum of N3,400,000.00. The 2nd Respondent was prevailed upon to accept the sum the Appellant admitted owing the 2nd Respondent in full and final settlement of all the monies due to him from the Appellant and the 2nd Respondent so accepted. Consequent to the settlement, the Appellant on 20/5/2003 at the Police Headquarters, Awka, made a statement admitting his indebtedness to the Respondents in the sum of N3,400,000.00 and followed this up by paying to the 2nd Respondent at the Police Station the sum of N1,000,000.00 in cash with a written promise to pay the balance of N2,400,000.00 in installments. That the 2nd Respondent later instructed his solicitor to discontinue the two civil cases instituted against the Appellant in the High Court consequent to the advice by the said solicitor that it was unnecessary to continue to litigate the civil cases and criminal charge at the Magistrate’s court in view of the payment of N1,000,000.00 made by the Appellant. The Respondents said that in spite of the promise of the Appellant to make final payment by 31/7/2003, he has failed to make any further payment.
In his Statement of Defence and Counter-Claim dated 12/7/2004 and filed on the same date, the Appellant denied the circumstances pleaded by the Respondents as to how the joint venture between them came to be. The Appellant alleged that the 2nd Respondent had been envious of his success in his business and that the 2nd Respondent had conceived a scheme to take over the business from him. The Appellant not only disclosed that it was long after the 2nd Respondent had commenced an action in court that he deemed it fit to report the matter to the Enwezor family, but also alleged that the arbitration to which he and the 2nd Respondent submitted, was the one undertaken by the firm of Iroh Godson & Co. a firm of Chartered Accountants. He also denied ever admitting that he owed the Respondents as they have claimed or at all as the Police are not debt collectors. The Appellant said that it was five months after the Respondents had commenced an action in court that he decided to go to the Police to report a purely civil action. The Appellant alleged that his arrest by the Police was a scheme hatched by the 2nd Respondent and the Asst. Commissioner State C.I.D. to intimidate and extract money from him. That he was detained for five days at the State C.I.D. and asked to bring N1,000,000.00 otherwise he would not be released and that given his age and state of health which made him to fear for his life, he had to write the statement dictated to him by the I.P.O. That he never admitted any liability to the Respondents in his first statement to the Police. That it was after his lawyer confronted the Asst. Commissioner State C.I.D., that the Police panicked and charged him to court for stealing the sum of N2.4 million belonging to the 2nd Respondent based on a transaction involving test kits. The Appellant denied reaching any agreement with the 2nd Respondent or any other person and that he was relying on the arbitration report of the chartered accountant. In his counter-claim, the Appellant having pleaded his adoption of the averments in the Statement of Defence claimed for: (i) return of N1 million in the custody of the Police from the Respondents as special damages; and (ii) general, exemplary and punitive damages of N10 million from the Respondents for wrongful arrest, false imprisonment and inhuman and degrading treatment.
The Respondents filed a Reply and Defence to Counter-Claim. Therein they joined issues with the Appellants on all the new issues he brought up in his Statement of Defence and Counter-Claim.
As earlier stated the lower court gave judgment in favour of the Respondents and dismissed the counter-claim of the Appellant. The Appellants being dissatisfied with the judgment of the lower court appealed against the same by a Notice of Appeal dated 5/3/2007 and filed on 6/3/2007. The Notice of Appeal contains four grounds of appeal. The grounds, shorn of their respective particulars read thus:-
“GROUNDS OF APPEAL
i) ERROR IN LAW
The learned trial judge erred in law when he held as follows; “Exhibit “O” was made by the defendant based on customary arbitration of the parties (sic) kinsgmen (sic)”.
ii) ERROR IN LAW
The learned trial Judge erred in law when he held as follows: “Exhibit “Q” which was tendered by defence witness number one is of no evidential value. It is neither an arbitration and cannot go in as an expert evidence having been made after the dispute had been settled.
Funny enough the said Exhibit “Q” was dated 31-7-2003 (31st was inserted with long hand). This was the day the defendant was supposed to have completed his payment. The court is satisfied that that the said Exhibit Q was made for some other purpose other than this suit.
The said Exhibit “Q” was made to ban boozle (sic) the court.”
(iii) ERROR IN LAW
The learned trial judge (sic) erred in law when he dismissed the counter claim in the following words:
“The court is in complete agreement with the submission of the plaintiffs counsel that the counter-claim is bogus. lt is a case of a man running from pillar to post.
No particulars of such arrest or detention were given. The court had earlier remarked that it was the duty of the defendant to call Chief Eselu Bosah to testify for him.
He did not do so because he will know that his testimony will certainly be against him.
(V) The judgment is against the weight of evidence.”
In accordance with the Rules of this Court, parties filed and exchanged Briefs of Argument. Appellant’s Brief of Argument is dated 27/2/2008 and filed on 3/3/2008 but deemed as properly filed and served on 4/6/2008; while his Reply Brief is dated 11/5/2009 and filed on 12/5/2009. Both Briefs of Argument were settled by Chief Ikenna Egbuna. Respondents’ Brief of Argument dated 30/1/2009 and filed on the same date but deemed as properly filed and served on 27/4/2009 was settled by Onyechi Araka. The appeal was entertained on 11/5/2011. Learned lead counsel for the Appellant, Chief Ikenna Egbuna and learned counsel for the Respondents, Onyechi Araka, respectively, adopted and relied on the Briefs of their clients as hereinbefore identified.
In the Brief of Argument of the Appellants, three issues are formulated for the determination of the appeal. They are: –
“1. Whether or not exhibit O is binding on the parties as result of local arbitration.
2. Whether or not the appellant is entitled to succeed in his counter-claim.
3. Whether or not the judgment is against the weight of evidence.”
In the Respondents’ Brief of Argument, three issues are similarly formulated for the determination of the appeal. They read: –
“1. Whether the learned trial Judge was in any respect wrong in entering judgment for the Plaintiffs/Respondents in view of the admissions made by the Defendant/Appellant before the customary arbitration panel and at the Police Headquarters Awka on 20th May 2003
2. Whether the Defendant/Appellant had made out any case for a counter-claim against the Plaintiffs/Respondents,
3. Whether the judgment of the learned trial Judge was against the weight of evidence.”
The appeal will be determined upon the issues formulated by the Appellant as issues 2 and 3 formulated by both parties are basically the same; while Respondents’ issue 1, in my considered view can adequately be considered under Appellant’s issue 1 .
APPELLANT’S ISSUE 1
Dwelling on this issue, the Appellant referred to the averments in paragraphs 8 – 10 of the Respondents’ Statement of Claim as being the kernel of their case. The Appellant said that the evidence of the Respondents and their witnesses in respect of their case more than confirmed his own case. Having engaged in an extensive reproduction or review of the evidence adduced by the Respondents in support of their case, the Appellant stated that the germane question to ask in the circumstances of the case is, – what is customary arbitration?
It is the submission of the Appellant that customary arbitration is an arbitration in a dispute founded on the voluntary submission of the parties in the dispute to the decision of the arbitrators who are either the chiefs or elders of their community and the agreement to be bound by such decision or freedom to resile where unfavourable. The case of Okereke v. Nwankwo (2003) 1 NWLR (Pt 826) 592 at 613 – 614 was cited in aid. The Appellant submitted that if the conditions stated in the case under reference were applied to the pleading of the Respondents and the evidence adduced in support of the same, it is clear that the case of the Respondents must fail on the following grounds: (i) there was no voluntary submission to the arbitration by the Appellant as the case was already with the police. This is in the light of the evidence of PW2 wherein he admitted that in Exhibit “P” written under the hand of the Appellant, he maintained therein that he was not having the plaintiffs’ money; (ii) in Exhibit “O” it was stated that the Appellant will be dealt with if he did not keep to the terms of his statement; (iii) Exhibit “O” did not dispose of the matter between the parties as the Appellant was still expected to make payments by installments; (iv) the so called arbitration was not in accordance with the custom of the trade embarked upon by the parties; (v) the so called arbitrators did not reach any decision and never published any. Furthermore, that none of the arbitrators made a statement to the Police to state whether or not they played any role; and (vi) the so called unwritten and unpublished decision was not accepted by the Appellant. That it was the Appellant’s refusal to accept the decision that led to his being rearrested and charged to court. In the light of all these, the Appellant submitted that the lower court erred in law to have held that Exhibit “O” was made by him based on customary arbitration of his kinsmen. lt is the further submission of the Appellant that the Respondents failed woefully to establish their case. This is more so as parties are bound by their pleadings and as the Respondents who based their case on native arbitration have woefully failed to prove this. The case of Summit Finance Co. Ltd v. Iron Baba & Sons Ltd (2003) 17 NWLR (PT.848) 89 at 112 – 113 and two other cases were cited in support.
APPELLANT’S ISSUE 2
Dwelling on this Issue, and having referred to what the lower court said concerning the counter-claim at page 96 of the record, the Appellant not only submitted that the pronouncement of the lower court has no basis having regard to his pleading, but also that evidence and law show conclusively that there is no basis for the conclusion of the learned trial Judge. Referring to paragraph 10 of the Statement of Defence and Counter-Claim, the Appellant posed the relevant question to be, “whether there was any cogent reason for the Respondents to have brought the Police into the matter between the parties at the time they did”. The Appellant answered the question in the negative. This, the Appellant said, is because the matter is a purely civil one and referred to paragraphs 7 and 8 of the Respondents’ Statement of Claim in this regard. The Appellant referred to the testimony of PW2 under cross-examination as showing that there was denial of the events as pleaded by the Respondents. The Appellant submitted that the fact of his arrest by the Police and detention at Onitsha and Awka is common ground. That the points on which parties differ, relate to the period of detention and condition of detention. The Appellant referred to the evidence-in-chief of PW2 and submitted that it is elementary that it is only a person in custody that is granted bail. It is also the submission of the Appellant that where a party to a suit claims to have been unlawfully arrested by another, the burden of proving the legality or constitutionality of the arrest and imprisonment, is on the party who effected the arrest by adducing evidence that the arrested person was arrested on a reasonable suspicion of his having committed a criminal offence, or that the arrest was reasonably necessary to prevent his committing a criminal offence and cited in aid the case of C.O.P. (Ondo State) v. Obolo (1989) 5 NWLR (Pt 120) 130 at 137 – 138 Also, referring to Section 9(1) of the Actions Law of Anambra State, Cap. 3, Laws of Anambra State, 1991, the Appellant said that the law in Anambra State where this cause of action arose is that if an aggrieved person feels that a wrong done to him constitutes both a felony and a civil wrong, the first thing he has to do is to make a report to the police and that the person whose right is thus infringed or who thus suffers damage, shall not bring an action against the person doing the felonious act until such person shall have been prosecuted for the felony, unless satisfactory explanation is given for non-prosecution. The Appellant not only submitted that no explanation had been given in the instant case, but also that at the time of his arrest both parties had stated what their cases and competing rights were, in the two suits admitted in evidence as Exhibits “D” and “E”, lt is however to be noted the Appellant made reference to pages 102 – 113 of Exhibit “D” and pages 114 – 128 of Exhibit “F”. (What a muddle up). Stating that he had filed his notice of intention to defend, and that the High Court of Onitsha had transferred the suits unto the general cause list, the Appellant further submitted that the only reason the Respondents had for going to the Police at the stage they did, was to use the Police to intimidate the him and get urgently what they could not get in court. lt is the further submission of the Appellant that the Respondents had no reasonable cause to do so. That no reasonable person would have had cause to effect the arrest of the Appellant at such stage if an objective test is applied to the course of events and the case of C.O.P (Ondo State) (supra) was cited in aid. The Appellant urged the Court to order the Respondents to return the sum of N1,000,000.00 (One Million Naira) taken from him by the Police and handed over to the Respondents forthwith. Referring to Exhibit “H” the Appellant said that the Police told the Magistrate’s court that they are keeping this money as exhibit while PW2 testified that the said money had been released to the 2nd Respondent on bond.
The Appellant also submitted that this is a proper case for the awards of general, exemplary and punitive damages. This is because there has grown in this country, a pernicious practice whereby people use the police contrary to their constitutional role; to perpetuate illegalities especially in the settlement of commercial disputes as in the present case. The Court was urged to resolve this issue in favour of the Appellant.
APPELLANT’S ISSUE 3
Dwelling on this issue, the Appellant submitted that the lower court failed in its duty to place the totality of evidence adduced by the parties, side by side, in an imaginary scale and weigh them together. That if the lower court done this, it would have discovered that the case of the Respondents was built on a foundation of lies. The Appellant said that in the bid to wriggle out of his contractual obligations, the 2nd Respondent in his evidence introduced subjective terms and blatant lies. In this regard, reference was made to paragraph 4 of the Statement of Claim wherein the Respondents pleaded the terms of the contract between the parties and the testimony of PW1, (i.e . 2nd Respondent) where he introduced the issue of the sharing of profit on equal basis, as being subject to good conduct as well as the evidence of the witness under cross-examination where he testified to the effect, that profits were to be shared between the parties equally, upon the Appellant being upright and honest. It is the submission of the Appellant that the pieces of evidence that he will get his due under the contract subject to good behavior, or good conduct, or upon his being honest and upright, all of which are subjective phrases, run contrary to the pleadings and ought to have been discountenanced by the lower court. The Appellant also said that the Respondents admitted in paragraph 4 of their Statement of Claim that he contributed N300,000.00 out of the sum of N500,000.00 agreed under the contract. Also referring to his evidence in chief and having observed that no question was asked under cross-examination concerning what he testified about, the Appellant submitted that the only reasonable deduction flowing from his evidence; is that he met his own side of the contractual obligations. Again, the Appellant referred to paragraph 4(e) of the Statement of Defence and Counter-Claim where he made serious allegations against the 2nd Respondent and observed that no attempt was made by the Respondents to deny the allegations in their Reply and Answer to Counter-Claim and submitted that as the Respondents did not deny the allegations specifically in their Reply and Answer to Counter-Claim, they are deemed to have admitted them. The case of Lewis & Peak (N.R.I) Ltd v. Akhimien (1976) All NLR 365 at 371 was cited in aid. It is the submission of the Appellant that aside from the admissions, he went further to prove the allegations in question through the cross-examination of PW1 and Exhibits J and K – K1 tendered through the said PW1. Again, the Appellant stated that it is worthy of note that in the Statement of Claim, the Respondents concealed the fact that the parties appeared before a chartered accountant for arbitration, before the matter came to court. That he however pleaded that fact in paragraph 6 of the Statement of Defence and Counter-Claim. The Appellant also said that though the Respondents in paragraph 6 of their Reply and Defence to Counter-Claim denied attending the arbitration meeting or submitting any documents, the 2nd Respondent said he sent, in his hand writing, claims to which he was allegedly entitled. The Appellant said that PW1 is a lying witness and in the bid to resile from the arbitration report, gave evidence that is at variance with his pleading. That nowhere in the Respondents’ pleading was it stated that the chartered accountant was hired by the Appellant. The Appellant referred to the evidence of the chartered accountant – Mr. Godson iroh (i.e. DW1) wherein he stated that both parties jointly briefed him to look into their accounts; that both parties presented their respective documents to him; and that both parties also saw him on several occasions for clarifications before the publication of the report. The Appellant said that the only question of note that was put to DW1 was whether both parties signed page 16 of Exhibit “Q” where they are stated to be partners and that the answer of the witness was an emphatic No. It is the submission of the Appellant that the whole of Exhibit “Q” is the work of a chartered accountant, an expert in his field and would not have been signed by any of the parties. That the column for signatures, was to show the entitlement of each party after calculations. The Appellant said that he gave evidence of what happened in accordance with his pleadings. It is the submission of the Appellant that where there is oral as well as documentary evidence, the documentary evidence should be used as a hanger from which to assess or evaluate the oral testimony and the Summit case (supra), was cited in aid. It is also the submission of the Appellant that in accordance with Section 57 of the Evidence Act, when a court has to form an opinion upon a point, inter alia of science or art, the opinions upon that point of persons specially skilled in such science or art, are relevant and such persons are called experts. The case of Adava v. The State (2003) 5 NWLR (Pt 814) 619 at 634 was cited in aid. That under cross-examination, DW1 was asked whether there is any part of his report in which he summarized his findings and he answered in the affirmative and referred to page 4 where he found that the Appellant is “in debited” to the Respondents to the tune of N603,495.00. It is the submission of the Appellant that the lower court fell into grave error when he rejected this finding by the arbitrator without any convincing reason. That the reasons given by the court had nothing to do with the facts proved in the case. lt is the submission of the Appellant that the Respondents in the first place did not challenge the competence of DW1. That they also never challenged the date on which DW1 signed the document, either in their pleading or under cross-examination. That how the lower court came about its findings in relation to Exhibit “Q” is still a wonder and that it is risky for the said court to reject the findings of the DW1. That in order to reject an expert opinion, the court needs to have cogent reasons (such as a contrary and reliable expert opinion on the same subject) for doing so and the case of NICON v. Nze (2004) 15 NWLR (Pt. 896) 245 at 264 and another case, were cited in aid. The Appellant urged the Court to resolve issue 3 in his favour.
The Respondents argued their issues 1 and 3, together in their Brief of Argument. These two issues in my considered view are the same in purport with Appellant’s issues 1 and 3. Dwelling on the issues, the Respondents submitted that the learned trial Judge had no other option than to enter judgment for them, in view of the wholesome admissions made by the Appellant before the customary arbitration panel and before the Police at Awka. The Respondents proceeded to reproduce the evidence of the parties in order to show that the Appellant had been economical with the truth when he argued that Exhibit “O” was not made by him “based on customary arbitration of the parties kinsmen”. Having referred extensively to the evidence adduced in the case, the Respondents observed that it is most surprising that inspite of the highly compelling and devastating evidence they led to buttress their contention that the Appellant had admitted his indebtedness to them before the customary arbitration panel and the Police, all that the Appellant had to say in his defence at page 50 of the records of proceedings is “There was no arbitration where one Eselu Bosah was present”. That a glance at the pleadings of the Appellant shows how hollow and puerile the explanation of the Appellant concerning the circumstances leading to the admissions made by him at the Police Station Awka, on 20th May 2003, is.
The Respondents observed that the Appellant began his argument on ISSUE NO. 1, in his Brief of Argument, by stating the kernel of their (Respondents’) case, to be as contained in paragraphs 8 – 10 of their Statement of Claim. The Respondents said it is therefore necessary to see what the response of the Appellant is to paragraphs 8 – 10 of their Statement of Claim identified by him as the kernel of their case. The Respondents in this regard, referred to paragraph 7 of the Statement of Defence and Counter-Claim wherein the Appellant simply stated that he never agreed that he owes them (Respondents) as claimed or at all, as the Police are not debt collectors. While saying that no one has ever said that the Police are debt collectors, the Respondents noted that the Appellant never reacted to the allegation that he was taken on bail by one Eselu Bosah or that the said Eselu Bosah, along with other persons, asked the police for time to enable the parties reach an amicable settlement. That more particularly, the Appellant never reacted to the allegation that a settlement meeting was held in the presence of families and friends of both parties with the parties also in attendance or that at the settlement meeting, the parties presented their sides of the matter and accounts. Similarly, the Respondents said that the Appellant never reacted to the averment that he had admitted owing the Respondents the sum of N3,400,000.00, and that the 2nd Respondent was put under intense pressure to accept the said amount in full and final settlement of all Appellant’s indebtedness to the Respondents. That again the Appellant never reacted to the allegation that on 20/5/2003 at the Police Headquarters Awka, he made a statement in which he admitted owing the Respondents the sum of N3,400,000.00 which he followed up by paying the 2nd Respondent the amount of N1,000,000.00 at the Police Station with a written statement to pay the balance in installments. The Respondents stressed that all that the Appellant said in his oral evidence in court in connection with his alleged admissions before the customary arbitration panel was “There was no arbitration where one Eselu Bosah was present”. It is the submission of the Respondents that if the Appellant was not being economical with the truth, one would obviously, have expected the Appellant to have testified to the effect that he knew of no arbitration where Chief Akunnia Bosah, Chief Eselu Bosah, Akunwata Bosah, the 2nd Respondent and himself (Appellant), were present and which took place at No 12 Tasia Road, Onitsha or at any other place for that matter. It is the submission of the Respondents that it is not for the Appellant to speak for Eselu Bosah as this would clearly amount to hearsay. That the Appellant should have called Chief Eselu Bosh as a witness if his case was merely that “There was no arbitration where one Eselu Bosah was present”. That what is more, in the written application by Eselu Bosah to take the Appellant on bail which was tendered in evidence as Exhibit “N”, the Appellant was not only described as a brother to Eselu Bosah but that both Eselu Bosah and the Appellant signed Exhibit “N”. The Respondents having further observed: (i) that the 2nd Respondent and Akunnia Bosah (the Chairman of the customary arbitration panel) had both identified Eselu Bosah as the initiator of the arbitration panel in their respective evidence in court; and (ii) that there was evidence from PW2 that Eselu Bosh, after taking the Appellant on bail had prayed the Police to give them time to effect amicable settlement; submitted that if the Appellant’s case is that all their (Respondents’) witnesses were not truthful and that there was no customary arbitration, then the Appellant’s evidence in court should not have been that “there was no arbitration where one Eselu Bosah was present”. The Respondents raised the question as to why the Appellant did not call his brother and kinsman, Eselu Bosah, to deny in court that there was customary arbitration at which he was present, or that there was customary arbitration meeting at No. 12 Tasia Road, Onitsha. Against the backdrop of all these, the Respondents submitted that the lower court was entitled to come to the conclusion that if Eselu Bosah had been called, his evidence would have gone against the Appellant’s case. The Respondents dwelled on the main defence of the Appellant which was to the effect that there had been arbitration under DW1 – Mr. Godson lroh who claimed to be a chartered accountant and who tendered a report prepared by him, as Exhibit “Q”. The first comment the Respondents made in relation to Exhibit “Q” is as to the date the matter could be said to have been referred to the witness by the parties. The Respondents said that when the learned trial Judge was admitting the report in evidence, he clearly noted that “Arbitration report by G.C. Iroh dated 31/7/2003 is hereby admitted in evidence and marked Exhibit Q”. The Respondents said that it was not in doubt from the evidence of the witness and information disclosed on the face of the report that the matter was referred to the witness, Mr. Iroh, in July 2003. This is because at the front cover of the report the date – July 2003 would be seen clearly written under the words “ONITSHA, NIGERIA”; while the signature of the witness Mr. G.C. Iroh would be seen under the words “Dated this 31st day of July, 2003”. The Respondents submitted that it was therefore clear beyond any doubt, that the reference to DW1, was after the customary arbitration proceedings which according to the evidence of PW3 was sometime between March and April, 2003. Furthermore, the Respondents said it should be borne in mind that the admission of the Appellant’s indebtedness to the Respondents was made to the Police at Awka, on 20/5/2003 as per Exhibit “O” with a firm promise to complete the payment in instalments by 31/7/2003. It is the submission of the Respondents that at the time the reference was made to DW1, parties had already reached an amicable understanding as to the amount owed to the Respondents by the Appellant. That it is therefore not surprising that when reference was made to the witness in July 2003, the Appellant still had up to the 31st July, 2003 to liquidate completely his indebtedness of N2,400,000.00 to the Respondents which had already been well sealed by the 20th day of May, 2003 as per the statement admitted in evidence as Exhibit “O”. That the reference to DW1, was never intended to be a review of the agreement already reached by the parties, but could at best be a catalyst to getting the parties to work harder to promote the interest of their joint venture and reference in this regard, was made to the evidence of PW3 who had stated that after the parties had accepted the decision of the customary arbitration panel, they agreed to carry on their business in harmony and that he broke the kolanut, they shook hand and he took wine and poured libation that they will be rich. lt was also submitted by the Respondents that the learned trial Judge can in no way be faulted in his conclusion when he said to the effect that “the evidence of the Appellant and his only witness is most unreliable. Exhibit “Q” which was tendered by defence witness number one is of no evidential value. It is neither an arbitration and cannot go in as an expert evidence having been made after the dispute was duly settled”. It is also the submission of the Respondents that the conclusion of the learned trial Judge is strengthened by the admission of DW1 under cross-examination that he was not aware of any settlement by the family. The Respondents submitted that no reasonable tribunal or arbitrator would find Exhibit “Q” of any relevance given the fact that it was made without any consideration being given to the amicable settlement of the matter to which it relates, by the customary arbitration panel. The Respondents also said that DW1 in his evidence in court showed quite clearly, that the so-called arbitration he conducted was conducted in an unorthodox manner. This is because the witness under cross-examination said to the effect that at times he met with the parties together, and at other times he met with them individually, depending on what he needed at any point in time. It is the submission of the Respondents that it is not competent for any reasonable tribunal or arbitrator, for that matter, to meet the parties in any dispute separately, depending on whatever the tribunal or arbitrator might consider that he needed at any point in time. That the parties must be present at any hearing, so that each would be aware of whatever was being said by the other party. Reference was also made to the testimony of the Appellant to the effect that out of the six times that DW1 sat, the 2nd Respondent came only twice, and that when the job was completed the 2nd Respondent examined it and refused to sign. Again reference was made to the testimony of the 2nd Respondent to the effect that he presented his own side of the story to DW1 who looked into the matter and that he decided not to further attend before the witness because the Appellant never showed up for even a day. That in effect he withdrew from that arbitration. The Respondents submitted that it is clear that attendance by the parties at the so-called arbitration was haphazard and no conclusion has been reached before any reasonable tribunal or arbitrator. The Respondents further submitted that non-signing of Exhibit “Q” by both the 2nd Respondent and the Appellant showed completely how irrelevant the parties themselves had considered it to be. That a glance at Exhibit “Q” clearly shows that the parties were expected to sign it, but that neither of them signed and that this meant that Exhibit “Q” was of no consequence to either of them and not acceptable nor accepted by either of them. The Respondents also said that the fact that the Appellant has not at anytime accepted that he owes them, equally showed that the Appellant did not accept Exhibit “Q”. That it is surprising that despite the Appellant’s admission that he had not paid the said sum of N603,495.00 to the Respondents up till today, the Appellant still maintained in his pleadings, evidence-in-chief as well as under cross examination that he is not owing the Respondents even a kobo. That despite this, the Appellant had the effrontery to put up a counter-claim for the return and payment back to him the sum of N1,000,000.00 he had paid to the 2nd Respondent through the Police at Awka on 20/5/2003. It is the submission of the Respondents that the conduct of the Appellant alone proved quite convincingly and completely, the irrelevance of the so called arbitration and showed how right the learned trial Judge was in his conclusion that “Exhibit “Q” which was tendered by defence witness number one is of no evidential value”.
The Respondents submitted that they made out a very strong case against the Appellant which was accepted by the learned trial Judge. That the learned trial Judge painstakingly reviewed all the evidence led at the trial, evaluated them properly, weighed them fully on the imaginary scale, and came to the right decision.
The Respondents said that the sequence of events is very clear. That the Appellant, was arrested on 22/2/2003 and taken to Awka. He was on the same day, released on bail on the application of Chief Eselu Bosah (Exhibit “N”) who had described the Appellant in Exhibit “N” as his brother. Chief Eselu Bosah pleaded for time to effect an amicable settlement. A panel was constituted between March and April, 2003 and a settlement was reached. The Appellant acknowledged his indebtedness to the Respondents to the tune of N3,400,000.00. Following this acknowledgement, the Appellant on 20/5/2003 went to the Police at Awka and made a statement – Exhibit “O” confirming his indebtedness to the Respondents, paid the sum of N1,000,000.00 to the Police for the Respondents, promising to liquidate the balance of N2,400,000.00 by installments before 31/7/2003. It is the submission of the Respondents that the Appellant cannot now renege from the acknowledgement of his indebtedness to them in the sum of N2,400,000.00. It is also the submission of the Respondents that a valid customary arbitration panel had been constituted when PW3, Chief Eselu Bosah and others sat to look into the dispute between the parties. That both parties presented their respective sides of the dispute, and the panel published their award to the parties which was to the effect that the 2nd Respondent should accept the amount the Appellant admitted he owed. That the 2nd Respondent, accepted this. The Respondents said that all these are in accord with the principles enunciated in the Supreme Court case of Eke v. Okaranyia (2001) 12 NWLR (Pt. 726) 181 at page 208. Other cases on customary arbitration were cited by the Respondents. The Respondents said that the most relevant issue is whether the decision or award was accepted by the parties at the time it was made, and not whether either party had made moves later on, to resile or renege from the award. The Respondents said that the truth of the matter is that at the customary arbitration, the parties accepted the decision of the panel that the sum of N3,4000,000.00 was to be paid by the Appellant to the Respondents kolanut was broken and the parties shook hands whilst libation was poured praying that they would become very rich. The Appellant followed this up by paying the sum of N1,000,000.00 on 20/5/2003 through the Police at Awka to the Respondents after making a new statement Exhibit “O” in which he promised to complete paying the total amount before 31/7/2003. It was only on September 9, 2003 that the Appellant was charged before the Chief Magistrate Court at Onitsha vide Exhibit “N”. That it was therefore a blatant lie for the Appellant to say that the decision of the panel at the time it was made was not accepted by him and that it was the refusal to accept it that led to his being rearrested and charged to court. Furthermore, the Respondents submitted that the fact that the Appellant is now saying that it was his refusal to accept the decision of the arbitrators that led to his being rearrested and charged to court, is an admission that a customary arbitration panel was actually constituted. It is the submission of the Respondents that it is not open to the Appellant to resile from the decision of the arbitrators given his initial acceptance of the same. That as there is sufficient and most credible evidence that the parties had fully accepted the decision of the customary arbitration panel at the time it was made, it is not competent for either side to turn round later, to say that he had not accepted the decision of the panel. That both parties are bound by the decision of the customary arbitration panel unless the Appellant can show that native law and custom recognizes his right to resile from the decision of the panel and this he has failed to do. The case of Kwasi v. Larbi 13 WACA 76 was cited in aid. The Respondents urged the Court to resolve the two issues under consideration in their favour.
Dwelling on their issue 2, the Respondents submitted that the learned trial Judge was perfectly right in his conclusion that “the counter claim is bogus”. It is the further submission of the Respondents that the counter claim was really intended to act as a sort of distraction in the case. The Respondents said that the Appellant’s bid to show that the learned trial Judge was wrong in his conclusion that “No particulars of such arrest or detention were given”, relied on the averment in paragraph 10 of the Statement of Defence and Counter-Claim. The Respondents stated the unanswered question to be – on what day was the first arrest and detention made and on what day was the second arrest and detention made? That anyone alleging or complaining about a wrongful or false arrest and detention must be prepared to state the dates of such wrongful or false arrest and detention. What is more, that this lapse was not cured by the Appellant’s oral evidence in court as he had failed throughout in his evidence to give the dates of his so called arrest and detention. The Respondents also said that the Appellant did not call, as a witness, his brother, Chief Eselu Bosah, who, as stated by PW2 in his testimony, took the Appellant on bail, on the same day he was arrested. The witness testified that the Appellant was never detained even for a day. The bail bond signed by the Appellant, his brother, Chief Eselu Bosah, and the PW2 i.e. Exhibit “N” was relied upon. The Respondents said that the ipse dixit of the Appellant alone is not sufficient in proof of the allegation of his having been arrested and detained at the Police Station. That in the absence of any corroborative evidence, the conclusion of the learned trial Judge could in no way be faulted.
The Respondents also submitted that it is elementary that when a report of the commission of a crime is made to the Police, the Police act administratively in effecting the arrest of the suspect. That it is only when there is no bona fide belief in the genuineness of the report or when there is no reasonable grounds to believe that an offence had been committed, that the person who had made the report may be answerable in an action for false imprisonment and the case of Parker v. Tribal Authority of lkagboro Chiefdom 14 WACA 328 was cited in support. The Respondents submitted that in the instant case, there is ample evidence about the false accounting made by the Appellant leading to the report made to the Police and ultimate reference to customary arbitration whereat the Appellant agreed that he was owing the sum of N3,400,000.00 and followed this up by payment of N1,000,000.00 to the Police for the Respondents with a firm undertaking in writing to liquidate the balance before July 31, 2003. That anyone in the position of the Respondents would be driven inevitably to the conclusion that the offence of embezzlement had been committed. That it should be borne in mind that the arbitrator who gave evidence as DW1 had equally put the amount embezzled by the Appellant at N603,495.00. The Respondents asked whether anyone in the face of this evidence, could say that the Respondents did not have reasonable grounds to believe that they had been out done by the Appellant. The Respondents submitted that Issue No. 2 should be resolved in their favour and that the Court should confirm the dismissal of the counter claim.
As earlier stated in this judgment, the Appellant filed a Reply Brief in answer to the Respondents’ Brief of Argument. Reply Brief is meant to answer or respond to new or fresh points raised in the respondent’s brief of argument. it is not an avenue through which or by which an appellant should canvass or proffer further or repeat arguments in support of an appeal on the pre of replying on points of law. Consequently, where new points do not arise from the respondent’s brief, a Reply Brief would not be necessary and when filed, will not be in accordance with the provisions of the Court of Appeal Rules. if the respondent’s brief has joined issues with the appellant’s brief, the appellant need not repeat the issues joined, by emphasis or expatiation See ODON V. AMANGE (2010) All FWLR (509) 496: and IYAGBA V. SEKIBO (2010) All FWLR (Pt.518) 949.
In the instant appeal the Appellant has clearly engaged in what a reply brief is not meant for, in his Reply Brief. However, as there is no objection to it from the Respondents, I will not discountenance it. I will make reference to it when it is considered expedient so to do.
I will consider issues 1 and 3, of the Appellant together. The Respondents in their case at the lower court predicated their main claim for the sum of N2,400.000.00 being the balance unpaid of the sum the Appellant owes them, upon a writing in which the Appellant admitted that he owes the Respondents the said sum. The admission in writing relied upon is the one made by the Appellant in the statement he made to the Police on 20/5/2003. The statement was tendered and admitted as Exhibit “O” before the lower court. The Respondents pleaded the facts that led to the making of the statement admitted as Exhibit “O” in paragraphs 5, 6, 7 , 8, 9 and 10 of the Statement of Claim. In paragraph 11 of the same process, the Respondents further pleaded what transpired in the matter between them and the Appellant as a result of the statement admitted at the trial as Exhibit “O”. In paragraph 12, the Respondents alleged that the Appellant has not made any further payment despite his promise to do this by 31/7/2003. The case presented by the Respondents through the averments in the paragraphs mentioned above has already been highlighted in this judgment.
The case set up by the Appellant in the Statement of Defence contained in his Statement of Defence and Counter-Claim, in response to the case of the Respondents has equally been highlighted in this judgment.
In his Brief of Argument, the Appellant identified the kernel of the Respondents’ case to be as contained in the averments in paragraphs 8 – 10 of the Statement of Claim. He said that the Respondents have sought to take advantage of the incidents of customary arbitration by the averments in the paragraphs in question. The Appellant submitted to the effect that customary arbitration did not avail the Respondents given their pleading and evidence adduced before the lower court.
The position of the law is that it is a plaintiff who brings a suit that also nominates the issues for decision in the case. See NKUMA V. ODILI (2006) All FWLR (Pt. 313) 24.
The facts in respect of which the parties are to join issues in the case brought against the Appellant by the Respondents are therefore to be identified from the pleading of the Respondents.
The Appellant has a counter-claim in the action taken out against him by the Respondents. The settled position of the law concerning counter-claim is that it is a cross or independent action completely distinct from the one brought by the original plaintiff even though a counter-claim is tried in the original plaintiff’s action. In a counter-claim the defendant/counter-claimant stands in the position of a plaintiff, while the original plaintiff assumes the position of a defendant.
Accordingly, the facts in respect of which parties in the instant case are to join issues in the counter-claim of the Appellant are to be identified from the counter-claimant’s pleading in support of the counterclaim. The Appellant dealt with the issue of his entitlement to judgment in respect of his counter-claim under his issue 2. Appellant’s issue 2 will be dealt with later.
The duty of a defendant in respect of the plaintiffs pleading includes admission of what he deems fit and denial of material allegations, specifically or by necessary implication. Denials must not be evasive. Where paragraphs of the statement of claim are not specifically denied, the statement of defence must be considered as a whole to see whether it in effect denies the material averments in the statement of claim by necessary implication.
The Appellant has shown that he understands the kernel of the Respondents’ case to be as disclosed by the averments in paragraphs 8 – 10 of the Statement of Claim and that by the averments, the Respondents seek to take advantage of the incidents of customary arbitration which is the foundation of their case. The pertinent question then, is what is the reaction of the Appellant to the case of the Respondents as identified by him? The responses of the Appellant to paragraphs 7 – 13 of the Statement of Claim which undoubtedly include paragraphs 8 – 10 have earlier been highlighted in this judgment. Having regard to the responses of the Appellant in question, it is in my considered view glaring, that the Appellant never denied any of the averments in paragraphs 1- 10 expressly. In paragraph 6 of the Statement of Defence and Counter-Claim, the Appellant made averments in respect of arbitration conducted into the dispute between him and the Respondents by DW1, a chartered accountant and principal partner in the Firm of Iroh Godson & Co. and pleaded his reliance the arbitration report amongst other. The arbitration in question having regard to the averment in paragraph 6 of the Appellant’s pleading was the offshoot or came to be as a result of the Appellant’s solicitor’s letter dated 22/11/2002 and 2nd defendant’s (sic) letter, both of which the Appellant pleaded his reliance upon at the trial.
It is to be noted that the case of the Appellant on the pleading is that he never agreed that he owes the Respondents as they claim or at all, as the Police are not debt collectors. The Appellant equally claimed that he did not reach any agreement with the 2nd Respondent or any other person and in this regard relied fully on the arbitration report.
It is my considered view, that taking the Statement of Defence as contained in the Statement of Defence and Counter-Claim of the Appellant as a whole, he cannot also be said to have denied the kernel of the Respondents’ case by implication inasmuch as he never denied the fact of the settlement meeting pleaded by the Respondents and neither pleaded the report of the arbitrator i.e. Exhibit “Q”, as being the evidence of the arbitration between him and the Respondents and which showed the actual sum in which he is indebted to the Respondents. The Appellant in the circumstances therefore did not join issues with the Respondents in respect of the facts pleaded by the Respondents on the issue the Respondents nominated for the decision of the lower court in this case, and which issue the Appellant has said to the effect is the kernel of the Respondents’ case and is designed to take advantage of the incidents of customary arbitration.
What is the purport or meaning of customary arbitration? In the case of AGALA V.EGWEBE [2010] All FWLR (Pt.532) 1609 the Supreme Court dwelling on what customary arbitration is, said per Ogbuagu, JSC; at page 1638 thus:
The conditions precedent to bindingness of a customary arbitration are as follows:
(a) There must have been a voluntary submission of the dispute by the parties to the non-judicial body;
(b) The parties must have agreed to be bound by the decision of the non-judicial body 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.”
………..and Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385: (1991) 4 SCNJ 56.
In the last case, Nnaemeka-Agu, JSC stated at page 533 inter alia, as follows:
“Parties to dispute will do well to remember that such persons or bodies though highly placed and respected are not judicial bodies. Before their decisions on any matter in dispute between parties can be relied upon an estoppeel, all the above requirements of a binding customary arbitration must be shown to have been observed. The pleadings and evidence in the case fall short of those requirements. Once such is time position, time case must be decided on the relative strengths of other facts established by evidence.” (The italics mine).
It is settled law that where the intervention was merely an attempt at settlement of the dispute between the parties no such consequence follows. Awosile v. Chief Sotunbo at page 532…………….An arbitration is a reference to the decision of one or more persons either with or without an umpire of a particular matter in difference between the parties.
In the case of Agu v. Ikewibe, this court – per Karibi-Whyte, JSC in respect of the second requirement put it thus:
“The indication of willingness of the parties to be bound by the decision of the non-judicial body or freedom to reject the decision where not satisfied.”
In respect of the third requirement, it is stated thus:
“that neither of the parties has resiled from the decision so pronounced.”
Also in the case of KOTOYE V. OBIASO (2010) All FWLR (Pt.526) 489 the Supreme Court dwelling on customary arbitration per Adekeye, JSC; said at page 509 thus:-
“A party can prove the existence of a customary arbitration by pleading and establishing the following:
(a) That there has been a voluntary submission of the matter in dispute to an arbitration of one or more person.
(b) That it was agreed by parties either expressly or by implication that the decision of the arbitrators 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.
(e) That the decision or award was accepted at the time it was made.”
I am in no doubt that the Respondents by the averments in paragraphs 8 and 9 of their pleading sufficiently pleaded the fact of the settlement of the dispute between them and the Appellant concerning the sum of money the Appellant was owing the 2nd Respondent and which settlement was brought about or activated about by Eselu Bosah who in getting the Appellant released to him on bail at the Police Station, asked the Police for time to enable parties amicably settle the matter in dispute between them. At the trial, the Respondents not only gave evidence of the settlement and those who effected the settlement as well as those present at the settlement meeting through the 2nd Respondent, but they also called PW3 who chaired the settlement meeting as a witness. PW3 in his evidence on record not only gave evidence of those who sat with him in arbitration over the matter between the Respondents and the Appellant as well as their relationship to the parties; but also that himself and the other arbitrators with him, after an analytical review of the matter unanimously agreed to uphold the sum of N3.4 million the Appellant admitted owing the 2nd Respondent; while they would also prevail on the 2nd Respondent to drop his claim for N5.3 million. The witness further disclosed that the parties agreed to accept their decision when the same was made known to them. It is also the evidence of the witness that he thereafter broke kolanut and parties shook hands and that he also took wine and poured libation. lt is the evidence of the witness that they also asked the Appellant to go back to the Police and tell them that the matter had been settled and that the Appellant not only consented to this but that he knows that the Appellant went to the Police Station and thereat paid N1 million Naira as part-payment of the sum which he agreed that he owed the 2nd Respondent. Under cross-examination it was elicited from the witness that it was Eselu Bosah that brought the matter involving the parties to the notice of the witness (PW3) and that the witness became aware of the matter between March – April, 2003.
In his pleading, the Appellant did deny that Eselu Bosah took him out on bail at the Police Station. Indeed it would have been foolhardy or unwise for the Appellant to have pleaded or testified that he was not taken out on bail by Eselu Bosah having regard to the evidence of PW2 and Exhibit “N”. As earlier stated the Appellant never denied specifically the fact of the convening of the meeting for the amicable settlement of the dispute between him and the 2nd Respondent. It is to be noted that in the face of the averment of the Respondents that “a settlement meeting was held in the presence of families and friends of both parties with the parties in attendance .”, the Appellant never demanded for further particulars if he was in any doubt about the families and friends of both parties that were in attendance at the meeting. Given this position, I am of the considered view that it was eminently proper for the Respondents to have adduced evidence about those at the meeting and the details of what transpired at the meeting. See A.B.U. ZARIA V. MOLOKWU (2004) All FWLR (Pt. 238) 664 at 679. Indeed the testimony of the Appellant during examination-in-chief when he said thus: “There was no arbitration where one Eselu Bosah was present” in my considered view not only shows that he knows the settlement meeting the Respondents pleaded and testified about, but that he was at the said meeting. This is because if he was not at the settlement meeting, he could not have known whether or not Eselu Bosah was there. However the denial of his being present at the settlement meeting equally makes unbelievable his assertion that there was no arbitration at which Eselu Bosah was present. Indeed the testimony of the Appellant to the effect that there was no arbitration at which Eselu Bosah was present, simply goes to no issue, in the light of the fact that he never denied the averment of the Respondents to the effect that it was Eselu Bosah that sought for time from the Police to allow parties amicably settle their difference at the time of bailing the Appellant. It is only the evidence of Eselu Bosah that can successfully challenge the evidence adduced by the Respondents to the effect that the settlement meeting was initiated by him (i.e. Eselu Bosah) and who was also in attendance at the said settlement meeting.
In his pleading, the Appellant did not deny making Exhibit “O”. He however claimed that he was detained for 5 days and was asked to bring N1,000,000.00 failing which he would not be released. He also claimed that he had to write the statement dictated to him by the IO, given his age and as he was in fear of his life. Exhibit “O” is dated 20/5/2003. PW2 did not deny recording the statement; he however said that he recorded exactly what the Appellant told him. The picture painted by the Appellant in his pleading is that it was after he was re-arrested and had been in detention for 5 days that he wrote what was dictated to him by PW2 and also paid N1 million. It is most incomprehensible that in his evidence-in-chief, the Appellant did not remotely disclose the date he was arrested after the initial arrest of 22/2/2003 and release on bail on the same date as evidenced by Exhibit “N”. Under cross-examination, the Appellant in trying to recollect the date of his arrest and detention that preceded the making of Exhibit “O” said: “….. I told the court I was detained in police cell for 5 days. I cannot say exactly but it was contain (sic) May 2006. That was first two days in (sic) return from China I was arrested.” I can only say that the Appellant knowing his case, could have readily refreshed his memory about the date of his alleged re-arrest and detention for 5 days, from his travel documents before he came to court. This of course is if indeed he travelled to China. In his evidence-in-chief, the Appellant said “Upon my arrest I was detained for five days and I then became ill. There and then the Police persuaded me to sign a statement written by the IPO. The Asst. Commissioner of Police told me to sign or he will take to (sic) Amaku, a detention camp. So I signed it.”
The first statement which the Appellant made at the Police Station on 22/2/2003 (the date he was released on bail) and which was admitted and marked Exhibit “P” was relied upon in aid of the assertion that he was forced into making Exhibit “O”. lt is however clear from Exhibit “N” that the Appellant was not detained despite his not admitting any liability to the Respondents in Exhibit “P” which he made on 22/2/2003. Exhibit “O” contains a revelation of what PWS 1 and 3 testified about concerning the settlement meeting at which the Appellant admitted that he owed the 2nd Respondent the sum of N3.4 million. There is no evidence on record suggesting that PW2 was present at the settlement meeting, or that he had prior knowledge of what transpired at the settlement meeting, prior to the date and time the of the making of Exhibit “O” which the Appellant has never denied that he signed. To the extent therefore that Exhibit “O” contains details of what transpired at the settlement meeting, I am in no doubt that the evidence of PW2 to the effect that he recorded what the Appellant told him is credible; and that the evidence of the Appellant to the effect that he simply signed what PW2 wrote down for him to sign, upon threat of detention at Amuka is most fanciful. Indeed, the making of Exhibit “O” which is later in time to Exhibit “P” only goes to show that at the Appellant saw the futility of continuing to deny that he was indebted to the 2nd Respondent as a result of settlement meeting which the Respondents pleaded and in respect of which they adduced evidence. The arguments of the Appellant founded on Exhibit “H” in both his Brief of Argument and Reply Brief are not lost on me. The Appellant would appear to be of the view that the content of Exhibit “H” constitutes evidence in the instant case simply upon its being tendered. I do not think this is the correct position of the law. PW2 in his evidence-in-chief testified to the effect that the N1,000,000.00 paid by the Appellant sequel to the making of Exhibit “O” was handed over to the O/C Monitoring Unit and that the money had been released on bond to the 2nd Respondent. Definitely, if the Appellant wanted to make any issue out of Exhibit “H” as it relates to the N1,000,000.00, with PW2, (who was not the Prosecutor in the criminal charge) the Appellant should have confronted the witness with the proceedings he relied upon. This would have enabled the witness make any explanation he might have in respect of the matter, before whatever he says can be used to impeach his credibility if there was no reasonable explanation. It is not the law that a material used to impeach the credibility of a witness becomes the truth of the matter; talk less of a material that was never used for that purpose.
The Appellant in his evidence-in-chief testified to the effect that it was the IPO/Area Command that suggested to the parties to contact an independent arbitrator and that the 2nd Respondent confirmed that Eddy Iroh should do the job. That Eddy Iroh took the job and invited himself, the 2nd Respondent and the IPO handling the matter. That parties tendered documents. That he (Appellant) tendered his claim for selling and clearing the 3rd order. That out of six times, the 2nd Respondent came only twice, and that when the job was completed, the 2nd Respondent examined it and refused to sign it. DW1 in his evidence-in-chief testified amongst others to the effect that the parties engaged his services to reconcile and arbitrate in their joint business. He tendered Exhibit “Q” as the report of what he did. Under cross-examination, the witness amongst others stated to the effect that the parties nominated him in writing for the job he undertook. Though the witness stated that he had the document (i.e. writing) by which he was appointed/nominated; no such document was tendered by him. The witness also admitted under cross-examination that neither of the parties signed the report he made. It is to be noted that the witness never said that the parties were not expected or obligated to sign the report.
Though the position of the law amongst others as stated in the case of BAMGBEGBIN V. ORIARE [2009]1 All FWLR (Pt. 484) 1460 at 1480 is that it is not the requirement of the law that all documents pleaded by a plaintiff must be tendered in evidence, it is my considered view, that in the instant case, there was need for the Appellant to have tendered the copy of the letter by which the 2nd Respondent opted for the arbitration conducted by DW1 as specifically pleaded by him (i.e. Appellant) in paragraph O of his pleading. This is against the backdrop of the evidence of the 2nd Respondent denying that he submitted to the arbitration of DW1. Indeed, it is my considered view as well that the Appellant too needed to have tendered the copy of his solicitor’s letter dated 22/11/2002 specifically pleaded by him in his pleading and by which the Appellant’s said his solicitor suggested that the matter between him and the 2nd Respondent be taken to arbitration for reconciliation of the parties accounts. This is against the backdrop of the testimony of the Appellant during his evidence-in-chief to the effect that it was the IPO/Area Command that suggested to parties to contact an independent arbitrator. The position of the law is settled that documentary evidence being permanent in form is more reliable than oral evidence and is used as a hanger to test the credibility of oral evidence. See C.D.C. (NIG.) LTD V. SCOA (NIG.) LTD (2007) 6 NWLR (Pt. 1030) 300 (SC); and OGBEIDE V. OSIFO (2007) All FWLR (Pt. 365) 548 (CA).
As earlier stated, DW1 under cross-examination admitted that Exhibit “Q” was not signed by either of the parties that allegedly commissioned him to arbitrate in the dispute between them. It was not his evidence that the parties who retained his services were not required to sign the report even though column for their signatures were provided therein. It is also to be noted that the witness (i.e. DW1) was not re-examined on the non-signing of the report by the parties. In his Brief of Argument at page 20, the Appellant gave reasons for the non-signing of the report by the parties. The law is that addresses of counsel and briefs of argument are not evidence. See EZUMA V. NKWO MARKET COMMUNITY BANK LTD (2000) FWLR (Pt. 28) 2243 at 2263.
Evidence that the signing of the report is not necessary or that the non-signing by the parties is of no effect or the purpose of the unsigned columns, ought to have been extracted from the witness by the Appellant while he was testifying. The need for this became more compelling in the instant case as parties were clearly not ad idem in their respective pleadings and evidence adduced at the trial as to their attendance before the arbitrator and which fact the 2nd Respondent also attributed for his not signing the report. Indeed the testimony of the Appellant that after DW1 made the report, the 2nd Respondent examined the same and refused to sign it, goes a long way to show that parties were expected to sign the report if they agreed with it. If they parties were not expected to indicate their agreement in respect of Exhibit “Q” by signing it, why was it shown to them? The position of the law is that the authenticity (which means amongst others, truthfulness or legal validity) of a document which ought to have been signed but is not so signed is always in doubt. See AIKI V. IDOWU (2006) 9 NWLR (Pt. 984) 50.
Finally, the fact that there was no arbitration the parties agreed as binding on them, in the circumstances pleaded by the Appellant, is a foregone conclusion in the light of the fact that the Appellant, given his case on the pleading never took the decision in Exhibit “Q” as binding on him. This is because he never admitted any liability to the Respondents not even in the sum of N603,495.00 which as stated in Exhibit “Q”, he is to refund to the Respondents, and also in the light of his evidence at the trial, to the effect that he does not owe the 2nd Respondent N2.4 million and that he is not prepared to pay him 5% interest on the said sum.
Arbitration has been defined as a reference to the decision of one or more persons, either with or without an umpire of a particular matter in difference between the parties. Decided cases also have it, that the legal basis of all arbitration is voluntary agreement. That if there is a distinct agreement to appoint an umpire to determine the difference between the parties and other conditions are present there is arbitration.
The lower court having reviewed the evidence adduced by witnesses in the case at pages 78 – 90 of record and having also evaluated the evidence of the witnesses, thereafter, said in relation to Exhibit “O” thus at pages 94 – 95 of the record: –
Exhibit “O” was made by the defendant based on the customary arbitration of the parties (sic) kinsmen In the case of DURUAKU EKE vs UDEOZOR OKARANYIA (2001) 12 NWLR 9Pt.728) 181 at 298, Uwaifo JSC stated the elements of customary arbitration to be:-
“1. Voluntary submission of the matter in dispute to an arbitrator or (sic) one person or more persons.
2. Agreement by the parties either expressly or by implication that the decision of the arbitrators would be final and biding (sic).
3. That the arbitration will be in accordance with the custom of the parties, trade or business.
4. That the arbitrators reached a decision and published an award.
5. That the decision of the award was accepted at the time it was made. Vide Egesimba Vs onuzarike (2002) 15 NWLR (Pt 791) 466
The court agrees with the submission of counsel for the plaintiff Chief O.R. Ulasi that it seems stupid that a man would part with N1,000.000.00 (One Million naira) under duress and yet fail to or neglect to take action the moment he regained his freedom,
Chief Ikenna made a submission that customary arbitration is an arbitration founded on the voluntary submission of the parties to the decision of the arbitrators who are either Chiefs or elders of their community and the agreement to be bound by such decision or the freedom to resile where unfavourable. In support he cited the case of LIVINUS OKEREKE & ORS VS. CHINYERE NWANKWO & ORS (2003) 1 NWLR (Pt. 826) 592 at 613. This case also listed out the elements of valid arbitration award as in the Egesimba case (supra). Counsel however did not tell the court when the defendant resiled from the arbitration. Was it after he made he made a part payment of N1,000,000,00.”
The Appellant is by his issue 1, challenging the conclusion or finding of the lower court as it concerns Exhibit “O” in that he has asked whether or not the Exhibit is binding on the parties as a result of local arbitration.
I am of the view that it has been sufficiently demonstrated that the Appellant never controverted what he identified to be the kernel of the Respondents’ case in his pleading and also that he did not challenge the same with any measure of success at the trial. The unchallenged evidence adduced by the Respondents in support of the kernel of their case, in my view has clearly established the elements of a valid customary arbitration to which the 2nd Respondent and the Appellant voluntarily submitted and the decision of which the two of them clearly accepted. This is in the light of the evidence-in-chief of PW3 to the effect that after the parties had agreed to accept their decision, he broke kolanut; the parties shook hands; he poured libation that they will be rich; and we asked the defendant to go back to the Police to tell them the matter had been settled and he complied. The witness also said to the effect that he knows the Appellant went to the Police and that he paid N1 million Naira at the Police Headquarters. The evidence adduced by the Respondents (and which I must again say was not challenged with any measure of success) shows that decision that the dispute between the parties be amicably settled was initially hinted or suggested at the Police Station by Eselu Bosah who took the Appellant on bail on 22/2/2003. The failure of the Appellant to controvert the pleading of the Respondents that the amicable settlement of the dispute between the parties arose from the intervention of Chief Bosah; and the lack of any credible evidence challenging that adduced by the Respondents that Chief Eselu Bosah and the Appellant amongst others were also present at the settlement meeting, clearly lends credence to the fact that the Appellant voluntarily submitted to the arbitration over the dispute between the 2nd Respondent and him, by PW3 and others that sat with him. The provision of the Actions Law of Anambra State referred to by the Appellant in his Brief of Argument clearly shows a civil wrong can give rise to criminality; but the fact that it was at the Police Station that Chief Eselu Bosah hinted at the possibility of the amicable settlement of the dispute between the parties clearly does not rob the settlement that was later achieved of voluntariness on the part of the parties and particularly the Appellant, in the absence of any evidence remotely suggesting that the said settlement was at the instigation or prompting of the Police. Also, PW3 and the others that sat with him having settled the dispute between the parties customarily, it was in the circumstances only reasonable for the arbitrators to have asked the Appellant to go back to the Police to let them know that the matter that has led to the complaint lodged against him has been settled. The making of Exhibit “O” at the Police Station and payment of the sum of N1,000,000.00 thereat, in my considered view was a clear manifestation or demonstration of the acceptance of the decision of the arbitrators by the Appellant. The circumstances of the instant case, simply do not reveal the Police as having set out to be debt collectors.
Given the case of the Respondents on the pleading and the evidence adduced in support of the same, it definitely cannot be argued or suggested that the parties do not consider Exhibit “O” to be binding on them. Indeed, the very fact that the Respondents’ case is predicated on the Exhibit clearly lends credence to the fact that the Respondents took and still take the Exhibit as binding on them; hence their not claiming for the sum which the 2nd Respondent put up as being due to him before the arbitrators. This aside, the fact that the two civil cases the Respondents instituted against the Appellant were withdrawn from court consequent to the amicable settlement of the dispute between them clearly shows that the Respondents accepted the decision of the arbitrators that settled the dispute between the 2nd Respondent and the Appellant. It is the Appellant that disputes the bindingness of Exhibit “O” on him. It would however appear and glaringly too, that it is too late in the day for the Appellant to now argue that the Exhibit is not binding on him in the light of the authenticity of the Exhibit (as earlier stated) and against the backdrop of the circumstances that led to its making by the Appellant to wit: the settlement of the dispute between him and the Respondents by customary arbitration. See EZERIOHA V. IHEZUO (2010) All FWLR (Pt.540) 1259 at 1274 where Eko, JCA; dealing on the essence of arbitration and attitude of court to it, said thus:-
“The very essence of arbitration is not only alternative dispute resolution, but the promotion of the public policy to the effect that, it is in the interest of the community that there should be an end to disputes, Where parties and concerned members of the community elect that a dispute be settled out of court and in furtherance of the same there was a mediation and the terms of settlement announced which are acceptable to the parties, the court of justice should not treat such mediation lightly, Since agreements are meant to be honoured and equity acts in personam, the law and equity will act in unison to estop a party to such mediation or out of court settlement who had accepted the terms of settlement from reneging and acting to the contrary of what he had accepted.”
See also OKOYE V. OBIASO (supra); and KOLAWOLE V. OLORI [2010] All FWLR (Pt.514) 35. These cases clearly show that once the decision or award of an arbitrator is accepted as at the time it was made, the parties to the dispute settled by the arbitrator, will not be allowed to resile or renege from the decision. From all that has been said in relation to Exhibit “O”, I am of the settled view that the lower court was eminently correct when it held that it was made by the Appellant based on the customary arbitration of the parties kinsmen. The said Exhibit “O” is clearly binding as a result of the customary arbitration it flowed from. Issue 1 is accordingly resolved against the Appellant.
The Respondents’ by the case they set up in their pleading are clearly not asking that what is due to them under the joint venture agreement between them and the Appellant should be computed by the lower court. Indeed, by the action they instituted the Respondents are not claiming whatever it is that they believe is their proper due under the joint venture agreement between them and the Appellant. Therefore all the arguments by parties relating to which of them breached any provision of the joint venture agreement are not directly in issue, in the instant case the issues of which were donated by the pleading of the Respondents. This being the case the judgment of the lower court cannot be held to be against the weight of evidence upon facts relating to the joint venture agreement, antecedent to the customary arbitration cum written statement – Exhibit “O” upon which the Respondents’ case is predicated.
The Appellant has argued to the effect that it was wrong of the lower court not to have acted on Exhibit “Q”. Reproduced hereunder is what the lower court said at pages 92 – 93 of the record in relation to Exhibit “Q” tendered by the Appellant through DW1:-
The evidence of the defendant and his only witness is most unreliable. Exhibit ‘Q’ which was tendered by the defense witness number one is of no evidential value. It is neither an arbitration and can not (sic) go in as an expert evidence having been made after the dispute was duly settled. Funny enough the said Exhibit “Q” was dated 31/7/2003 (31st was inserted with long hand). This was the day defendant was supposed to have completed his payment. The court is satisfied that the said Exhibit ‘Q’ was made for some other purpose other than this suit. The said exhibit ‘Q’ was made to bamboozle the court.”
Before now, I have in this judgment dwelled on the submissions of the parties in respect of the report admitted as Exhibit “Q” at the trial before the lower court. The question that continues to agitate my mind is the purpose for which the Appellant pleaded the report admitted as Exhibit “Q”. The need for this becomes more compelling against the position of the law that a piece of documentary evidence pleaded to establish a particular fact can only be used to establish that fact and cannot be used to prove another fact which is not an issue in the pleadings. See OMEGA BANK NIGERIA LTD V. O.B.C, LTD [2005] All FWLR (Pt. 249) 1964.
Having regard to the Appellant’s pleading, he definitely never pleaded the report admitted as Exhibit “Q” in the proof of the fact that he owes the Respondents, only the sum the report has stated that he should refund to the 2nd Respondent. lt therefore cannot be argued that the report (whether or not it is the work of an expert or a piece of expert opinion) is in aid of such a case which the Appellant never set up in his pleading. This is particularly so as the Appellant in his evidence maintained that he does not owe the sum claimed by the Respondents and that he has not paid the Respondents the sum the report stated that he has to refund to the 2nd Respondent. If the report was pleaded in support of the assertion that there had been a submission to the arbitration of DW1 before the settlement meeting at which the dispute between the Appellant and the 2nd Respondent was settled, I cannot but say again that the Appellant not only failed to establish the fact that he and the 2nd Respondent ever submitted to the arbitration of DW1 given the failure to tender in evidence the letters pleaded by him (i.e. Appellant) in relation to such a submission, but also that both the Appellant and the 2nd Respondent glaringly, never accepted any award or decision made by DW1. The law is that admissibility of a document is one thing, while the weight or value the court will attach or ascribe to it is another thing. That the weight or value a court will attach or ascribe to a document admitted in evidence will depend on the circumstances of the case as contained or portrayed in the evidence. See ABUBAKAR V. CHUKS (2008) All FWLR (Pt. 408) 207 at221 – 222.
Suffice it to say, that having regard to all I have said immediately above, as well as all that I had earlier said in this judgment in relation to Exhibit “Q”, the lower court was eminently correct in holding that Exhibit “Q” has no evidential value.
Civil cases are decided on a balance of probability, on the preponderance of evidence. What this connotes is that the totality of evidence of both parties is bound to be taken into account and appraised so as to determine which evidence has weight and which has none. The credible evidence adduced by both parties is thereafter weighed on the imaginary judicial scale by the trial court in order to see which party’s evidence has more weight or preponderates and that is the party that succeeds in the case. In the instant case, the lower court has glaringly carried out and satisfactorily too, its function of proper and dispassionate appraisal of the evidence given in support of the respective cases of the parties and I have found its findings on the issues donated by the Respondents in respect of their claim eminently correct. In other words, I have simply not found any of the findings of the lower court to be perverse or its judgment as it relates to the Respondents’ case as a whole to be perverse. See LAGGA V. SARHUNA [2009] All FWLR (455) 1617; and OSUJI V. EKEOCHA (2009) All FWLR (Pt.490) 614. In the circumstances, I cannot properly find the judgment of the lower court as being against the weight of evidence as argued by the Appellant. Issue 3 is accordingly resolved against the Appellant.
After having reviewed and evaluated the evidence adduced in the case by the parties, the lower court in dismissing the counter-claim of the Appellant said at page 96 of the record thus:-
The court is in complete agreement with the submission of plaintiff’s (sic) counsel that the counter claim is bogus. It is the case of a man running from pillar to post. No particulars of such arrest or detention were given. The court had earlier remarked that it was the duty of the defendant to call Chief Eselu Bosah to testify for him. He did not do so because he reny (sic) well knew that his testimony will certainly be against him. The law is trite that he who asserts bears the burden of proving the truth of his assertion. This the defendant has woefully failed to do. lt is not enough to make an allegation but you have to prove the truth of the facts alleged.”
The Appellant claims two reliefs in his counter-claim. The first is for the return of the sum of N1,000,000.00 that is in the custody of the Police. Having regard to the pleading of the Appellant, I do not understand him as predicating this claim which is for special damages on his alleged wrongful arrest and false imprisonment. The N1,000,000.00 in question as shown in Exhibit “O” was paid by the Appellant in part payment of his indebtedness to the 2nd Respondent. Before now, Issue 1, which relates to Exhibit “O”, has been resolved against the Appellant in that the said Exhibit “O” has been found to be binding on the parties. Given the prior resolution of Appellant’s issue 1, against him, the Appellant clearly cannot be entitled to the N1,000,000.00 he has counter-claimed for. Accordingly the lower court too, having found that Exhibit “O” was made by the Appellant based on customary arbitration, would have clearly erred in law if it had found the Appellant entitled to the relief under consideration as this would tantamount to holding that the Appellant can renege from the decision of the arbitration of his kinsmen having earlier accepted to the effect that the same was binding on the Appellant.
Again, having regard to the case of the Appellant on the pleading, it would appear that the alleged arrest and detention for five days must have occurred sometime after the initial arrest of the Appellant on 22/2/2003 and his release on bail on the same day to Eselu Bosah as evidenced by Exhibit “H”. Indeed, the picture painted by the Appellant in his pleading is that it was sequel to his subsequent arrest and detention for five days that he signed Exhibit “O”. From the pleading of the Appellant and the statement tendered as Exhibit “P” as well as the evidence-in-chief of the Appellant, it simply cannot be said that it was any arrest and detention prior to the one to which Exhibit “N” relates that the Appellant is alleging to be his arrest and detention for five days because the statement admitted as Exhibit “O” is alleged to have been induced by the said detention for five days. Exhibit “O” was made on 20/5/2003. The period from 22/2/2003 to 20/5/2003 when Exhibit “O” was made, is clearly much more than five days. Exhibit “P” is the statement made by the Appellant sequel to his arrest on 22/2/2003. lt is in this statement that he denied liability to the 2nd Respondent. Exhibits “N” and “P” on their respective faces do not show that the Appellant was detained in any cell for any period of time at all. What Exhibit “N” discloses is that the Appellant having been arrested on 22/2/2003 for stealing was released to the suretyship of Eselu Bosah on the same date because enquiry into the offence could not be completed forthwith and required to report back at the Police Station on 24/2/2003.
The Appellant submitted in his Brief of Argument that “it is elementary that it is only a person in custody that is granted bail”. While it might be correct to say that a person arrested is in custody in that he is at that time under some restraint and cannot go and come as he pleases, it must however be appreciated that it is not in every situation that one is in custody by virtue of his having been arrested that he is also in detention in the sense of his having been imprisoned or confined to a cell as the Appellant portrayed the custody in which he was for five days to be. The Appellant having initially submitted in his Brief of Argument that the pertinent question in relation to his counter-claim is whether there was any cogent reason for bringing the Police into the matter by the Respondents, further submitted that where a party to a suit claims to have been unlawfully arrested by another, the burden of proving the legality or constitutionality of the arrest and imprisonment is on the party who effected the arrest by adducing evidence that the arrested person was arrested on a reasonable suspicion of his having committed a criminal offence, or that the arrest was reasonably necessary to prevent his committing a criminal offence and the case of C.O.P. v Obolo (supra) was cited in aid.
The arrest and false imprisonment in respect of which the Appellant is claiming damages to the extent his case on his pleading reveals, is one during which he was detained in a cell for five days with hardened criminals and during which period he was made to clean the cell every morning being a new inmate. Even if the Respondents are to justify the arrest and detention of the Appellant as submitted by him, surely the Appellant needed to have pleaded the date from which he was arrested and detained to the date the imprisonment ceased and to have given evidence in aid of averments in that regard. After all the settled position of law is that facts averred in pleadings and in respect of which evidence is not adduced are deemed abandoned. I do not think the law can expect the Respondents who are to explain or justify the alleged wrongful arrest and false imprisonment of the Appellant to do so when the Appellant has totally failed to furnish the particulars of the alleged wrongful arrest and false imprisonment, which they are to explain and also adduce evidence in respect of the same. lt is in appreciation of the need for this disclosure to enable the Respondents against whom the Appellant has alleged wrongful arrest and false imprisonment that the lower court said in the portion of its judgment quoted above, that “no particulars of such arrest or detention were given”. I have perused the pleadings of the Appellant a couple of times, and I must say that I do not see therein any pleading concerning the particulars of the period of wrongful arrest and false imprisonment. It is when the Appellants have duly pleaded the particulars of the wrongful arrest and false imprisonment he has alleged, and has given evidence in support of the same that the burden to justify the same shifts to the Respondents so that they would not be found liable and a consideration of the damages the Appellant is entitled to. Given the clear failure of the Appellant to have pleaded the particulars of his wrongful arrest and false imprisonment, the lower court was eminently right to have dismissed the counter-claim of the Appellant. Issue 3 is accordingly resolved against the Appellant.
Given the resolution of all the three issues formulated for the determination of the appeal against the Appellant, the appeal in the circumstances lacks merit. It is accordingly dismissed. The judgment of the lower court delivered on 28/2/2007 is hereby affirmed.
Costs in the sum of N20,000.00 is awarded in favour of the Respondents and against the Appellant.
MOHAMMED L. TSAMIYA, J.C.A: I agree.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A: I agree.
Appearances
Chief Ikenna Egbuna;
C.N. Osakwe;
Chikodi Okwuonu; and
Augustine OkwulehieFor Appellant
AND
Onyechi Araka;For Respondent
