CHIEF REMIGUS IWU v. VALENTINE OBONNA OGU
(2019)LCN/13464(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/PH/30/2009
RATIO
ARBITRATION : NATIVE ARBITRATION: THE PARTIES CAN RESILE FROM THE ARBITRATION AT ANY STAGE UP TO JUDGMENT
In ODONIGI v. OYELEKE (2001) 6 NWLR (PT. 708) 12 @ 2723 L ? A, the Apex Court held inter alia, that the parties to native arbitration can resile from the arbitration at any stage of the proceedings up to the point of judgment.PER RITA NOSAKHARE PEMU, J.C.A.
ARBITRATION: NATIVE ARBITRATION: WHEN THE PARTIES ARE BOUND BY THE AWARDS IN AN A NATIVE ARBITRATION
In OJIBAH v. OJIBAH (PT. 191) 296, the Apex Court held that:- Where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to Customary Law and agreed expressly or by implication that the decision of the arbitrators would be accepted as final and binding, then once the arbitrators reach a decision, it is no longer open to either party to subsequently back out of such a decision.”PER RITA NOSAKHARE PEMU, J.C.A.
LAND LAW: WHO HAS A DUTY TO PROVE THAT POSSESSION IS ADVERSE
It is clear that the Appellant is in possession of the land in dispute. The burden lies on the Respondent to prove that the possession is adverse IDUNDUN v. OKUMAGBA (1976) 9-10 SC. 221.PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
CHIEF REMIGUS IWU
(for himself and as representing
other members of MADUWUOGU
family in Obetiti Nguru Aboh Mbaise) Appellant(s)
AND
VALENTINE OBONNA OGU
(for himself and as representing
other members of the family of late VINCENT OKORIE of NNAMOGU in Obetiti Aboh Mbaise) Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Imo State Customary Court of Appeal delivered on the 29th of November, 2007, in Appeal No. CCA/OW/A/7/2007, in which the Court below upheld the appeal of the Respondent thus dismissing the Appellant?s case.
SYNOPSIS OF FACTS
The name of the Respondent was amended by leave of Court granted on the 24th of September 2018.
The suit, the subject matter of this Appeal was instituted by NZE RAYMOND IWU of Aboh Mbaise as Plaintiff in the Court below for himself and as representing other members of MADUWUOGU family in Obetiti Nguru. Upon his death, the Appellant on reword was substituted.
The Defendant was FRANCIS OGU OKORIE (for himself and as representing other members of the family of late Vincent Okorie of Nnamogu in Obetiti Nguru Aboh Mbaise) He is now deceased.
The Appellant (as Plaintiff) had by Writ of Summons dated 9th of September, 2005, but filed on the 12th of September 2005 sued the Respondent (Defendant in the Court below) before the Customary Court Aboh Mbaise, Imo State for the following:-
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a. A declaration of the Court that the Plaintiff is entitled to the grant of Customary Right of Occupancy of that piece or parcel of land called ORU OHIA UGO situate and lying at Nnamogbu Obetiti Nguru in Aboh Mbaise Local Government Area within the jurisdiction of the Court.
b. An Order of Court commanding the Defendant to accept the sum of N5.00 being the pledge fee in respect of the aforementioned land.
c. Perpetual Injunction restraining the Defendant and or his agent and or his prices and or his workmen or any person claiming through him from further trespass in the land – Pages.
Parties led evidence respectively. The Court below visited the locus in quo, in the process of trial. The Customary Court gave judgment to the Appellant in that Appeal by granting the reliefs sought by them ? Pages 89?109 of the Record of Appeal.
The Respondent appealed the claim at the Customary Court of Appeal Imo State.
The Customary Court of Appeal on the 29th of November 2007 allowed the appeal, set aside the judgment of the trial Customary Court and dismissed the Appellant’s claim Pages 106 – 218 of the
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Record of Appeal.
It is the Appellant?s story that it was one OHIAKU who deforested the land in dispute, and thereafter farmed on it. His son NKWOKO inherited the land at his demise and also farmed on it. Nkwoko begat an only son Maduwuogu who then inherited the land at his death.
Maduwuogu begat three sons, Njoku, Eke and Oparachukwu. Njoku begat Nwaiwu, Obari Nwairu begat the Appellant and other sons.
Eke begat Ekeh and Kevin Ekeh DW2. Oparachukwu begat Edi who had no male issue. The sons of Nwairu and Ekeh therefore inherited his land. When the three sons of Maduwuogu partitioned Maduwuogu’s property, Oparachukwu got the land, the subject matter of this appeal. He farmed on it. When he died, his sons Edi inherited the land and farmed on it.
Edi, was not survived by any male issue. The Appellant, according to native law and custom of Nguru Aboh Mbaise, inherited the land of Edi including the land, the subject matter of this appeal.
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Edi Maduwuogu while alive, pledged the land in dispute to Egekeze Emenogu from Ogbor Nguru with the sum of 2,105 now N5.00. The pledge was in the presence of Nwaiari the father of the Appellant and
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Mbater the wife of Egekeze Emenogu.
However Edi Maduwuogu did not redeem the land before he died.
In 1983, when the Appellant came from Lagos, his father Nwairu asked the Appellant to give him money to redeem the land, the subject matter of this Appeal from Egekeze Emenogu, but the Appellant told his father to wait as he would give him the money when he returns from Lagos. Before he returned however, his father, in company of the Respondent’s father VINCENT OKORIE (deceased) redeemed the land from PW2 and his mother Mbata. It was late Vincent Okorie however, who brought out the money with which the land was redeemed, and the Appellant?s father Nwairu told him to hold the land on pledge until when the Appellant would return to redeem the pledge.
When the Appellant returned from Lagos with money, his father told him what had transpired and that he should allow Vincent Okorie to farm on the land for four years as custom demands before the Appellant can redeem the land from Vincent Okorie.
In 1986, the Appellant?s father died.
In 1987, the Respondent?s father Vincent Okorie died. After his burial his sons including
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the Respondent left for the U. S. A. where they resided.
In 1990, the Appellant went to the Respondent?s mother to redeem the land, but she told them to wait and let her sons return from the USA.
In 1994, the three sons of Vincent Okorie including the Respondent returned from the USA. They went to the appellant demanding an undertaking in writing, to the affect that the Appellant would not speak about the land again. The Appellant became angry. When he tried to summon the Respondent before their Aladinma, same failed as the three sons of Vincent Okorie and their mother had left for the USA where they resided until 1998.
The Appellant summoned the Respondent before their Eze Reginald Amadi, who with members of his cabinet looked into the matter and decided in favour of the Respondent.
The Appellant rejected the verdict, and wrote through his counsel to the Eze, stating his reasons for rejecting the verdict of the Eze.
He also instituted this suit, the subject matter of this appeal.
The Court below found for the Appellant in the Customary Court.
?The Respondent (now Appellant) is dissatisfied with the decision of the
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Customary Court of Appeal and has appealed it.
Pursuant to the Practice Direction of this Honourable Court, the Appellant filed a Notice of Appeal on the 23rd of January 2008, with seven (7) Grounds of Appeal ? Pages 220 ? 226 of the Record of Appeal.
The Appellant?s brief was filed on the 22nd of January 2013, but deemed filed on the 3rd of July 2013. It is settled by CHIEF I. M. KADURUMBA, ESQ.
The Respondent filed its brief of argument on the 26th of September 2018. It is settled by D. C. DENWIGWE, SAN.
The Appellant filed a Reply brief on the 31st of October 2018.
From the Appellant?s brief of argument it seems to me that he distilled two (2) issues for determination from the grounds of Appeal which are:-
1. WHETHER THE LOWER COURT WAS CORRECT IN HOLDING THAT SINCE THERE WAS NO INDICATION IN THE JUDGMENT OF THE EZE IN COUNCIL THAT THE APPELLANT REJECTED THE ARBITRATION AWARD IMMEDIATELY IT WAS GIVEN OR MADE, APPELLANT IS BOUND BY IT IN VIEW OF THE EVIDENCE OF THE APPELLANT AND PW3 A MEMBER OF THE EZE IN COUNCIL TO THE EFFECT THAT THE APPELLANT DID NOT ACCEPT THE DECISION AT THE TIME IT WAS MADE.<br< p=”” style=”font-size: 14px;”</br<
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2. WHETHER THE LOWER COURT WAS CORRECT WHEN THEY HELD THAT THE RESPONDENT NOW APPELLANT DID NOT PROVE HIS CASE.
The Respondent formulated also two (2) issues for determination. They are:-
1. WHETHER THE APPELLANT IS BOUND BY THE JUDGMENT OF THAT NATIVE ARBITRATION BY THE EZE (TRADITIONAL RULER) WHICH WAS GIVEN AT THE INSTANCE OF THE APPELLANT IN EXHIBIT ?B
2. WHETHER THE CUSTOMARY COURT OF APPEAL BELOW WAS CORRECT WHEN IT HELD THAT THE APPELLANT DID NOT PROVE HIS CASE?
It is apparent that the issues for determination formulated by the Respondent is an adoption of that formulated by the Appellant.
I shall however determine this appeal based on the issues formulated by the Appellant.
ISSUE NO. 1
Submits that an award by a Customary Arbitration creates an estoppel per rem judicatam in the following instances:
a. Where there is voluntary submission of the matter in dispute to an arbitration of one or more persons.
b. That it was agreed by the parties that the decision of the arbitration would be accepted as final and binding either expressly or by implication.
c. That the arbitration was in
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accordance with the custom of the parties or of their trade or business.
d. That the arbitrators reached a decision and published their award and
e. That the decision or award was accepted at the time it was made.
citing OKEREKE v. NWANKWO (2003) FWLR (PART 158) 1288; OHIAERI v. AKABEZE (1992) 2. NWLR (PART 221) 1; ODONIGI v. OYELEKE (2001) 6 NWLR (PART 708) 12.
Submits that after various attempts made by the Appellant to redeem the land, the subject matter of this appeal failed, the Appellant then summoned the Respondent before their Eze in council who waded into the matter, and gave verdict against the Appellant. The Appellant rejected the verdict immediately.
That the Appellant did not accept the verdict of the Eze in Council and that this fact was corroborated by PW3 ? Nze Marcus Onyeuba.
Submits that one of the vital ingredients of customary law arbitration (which is acceptance by the parties) is absent.
Submits that native arbitration does not create estoppels per judicatam, if the party rejects the verdict at the time it was given, and thereafter appeals to a higher tribunal ? citing
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ALIBO v. OKUSIN (2010) ALL FWLR (PT. 529) 1059 @ 1090.
ISSUE NO 2.
Submits that a party who seeks a declaration of title must succeed on the strength of his own case and not on the weakness of the Defendant?s case, CitingIDUNDUN v. OKUMAGBA (1976) 9 -10 S. C. 227, he submits that the law is trite, that there are five ways of proving ownership of land. That in the present case the Appellant relied on traditional evidence to prove his title to, or ownership of the land in dispute. Submits that conclusion and cogent traditional evidence requires no further evidence to support it. ? MOSES OKOYE DIKE & ORS v. FRANCIS OKOLOEDO & ORS (1999) 7. S. C. (PT. 111) 55 at 41.
He submits that the Appellant’s evidence on traditional history demonstrates clearly, who founded the land, how he founded it, and the particulars of intervening owners through whom he claims. His traditional evidence is cogent, consistent and conclusive.
Submits that the suit, the subject matter of this Appeal was brought in a representative capacity, because after the death of Edi who had no male issue to inherit him, all his lands including the land in
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dispute, reverted to the family members of Maduwuogu ? the Appellant in this suit.
That PW2 Alphonus Ezekeze Emenogu corroborated. His testimony that Edi Maduwuogu pledged the land in dispute to his father, and the said pledge was later redeemed by the Appellant?s father accompanied by the Respondent’s father. Pages 22 – 23 of the Record of Appeal.
Submits that the Respondent in his evidence in Chief, admitted that the land in dispute belonged to Edi Maduwuogu. Under cross examination he admitted that the Appellant is a member of Maduwuogu family. That DW2, Kevin Eke testified that Edi Maduwuogu was the original owner of the land in dispute. He testified further I knew Edi Maduwuogu. He was the younger brother of my father and the father of the Plaintiff? ? Page 38 of the Record of Appeal.
Submits that the Customary Court of Appeal erred when the Court held at Page 217 of the Record of Appeal, that the trial Court was in error, when it held that the Appellant proved his case. That the evidence of the Respondent supports that of the Appellant.
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RESOLUTION OF ISSUES
ISSUE NO 1.
In ODONIGI v. OYELEKE (2001) 6 NWLR (PT. 708) 12 @ 2723 L A, the Apex Court held inter alia, that the parties to native arbitration can resile from the arbitration at any stage of the proceedings up to the point of judgment.
In OJIBAH v. OJIBAH (PT. 191) 296, the Apex Court held that:- Where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to Customary Law and agreed expressly or by implication that the decision of the arbitrators would be accepted as final and binding, then once the arbitrators reach a decision, it is no longer open to either party to subsequently back out of such a decision.”
It is apparent that the elements that feature in the above case are firstly, the parties must voluntarily submit their matter to arbitration; secondly they must have according to the custom of the land, agreed expressly or by implication that the decision of the arbitration would be accepted as final and binding; Thirdly, once the arbitration decides, no one shall resile from that decision.
The Appellant submits that after many attempts made by him to redeem the land, the subject matter
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of this appeal failed, he summoned the Respondent before their Eze in Council, who looked into the matter and gave their verdict against the Appellant. The Appellant rejected the verdict immediately.
The Appellant in his evidence unequivocally stated that he did not accept the Eze in Council?s decision, and he made this known immediately.
PW3, Nze Marcus Onyenba who is a member of the Eze’s Council who heard the matter, and who was part when the verdict was delivered had this to say at Page 27 of the Record of Appeal ?The case was decided against the Plaintiff but he did not accept the decision.”
Pertinent to note that after the Appellant rejected the verdict, by the arbitrators he proceeded to institute an action in Court, but before that, he made his rejection known to the Eze in Council through a letter by counsel.
Pertinent to note that it was the Appellant that summoned the Respondents before the Eze in Council. The Respondent submitted to the arbitration process and testified.
?The verdict of the Arbitrators was delivered on the 13th of August, 2005. Appellant wrote a letter Exhibit ?A? dated 19th
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of August 2005. The action, the subject matter of this appeal was instituted in a civil summons dated 12th September 2005 ? Pages 1 ? 2 of the Record of Appeal.
I must say that willingness of the parties to be bound by the decision of the Chiefs and Elders can be distinguished from the parties? consent to be bound. ? AGU v. IKEWIBE (1991) 3 NWLR (PT. 180) 385 @ 414.
It is apparent that one of the two parties had no willingness to be bound by the decision of the Eze, Filing by the Appellant of a Writ of Summons is an indication that he never believed that there was a binding arbitration.
It is my view that the Appellant did not accept the mode of settlement of dispute under Igbo customary law. Where there is rejection of the arbitration decision the Appellant cannot be bound by its decision.
A cursory look at the judgment of the Arbitration, of 13th August, 2005 shows that there is nowhere in the judgment which indicates that the Appellant rejected the judgment. It is however apparent that the Appellant did not consent to the judgment. See Page 99 ? 102 of the Record of Appeal. The Court below was therefore wrong
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to have stated that because there was no indication in the judgment of the Eze in Council, that the Appellant rejected the Arbitration award immediately it was given; the Appellant is bound by it.
This issue is resolved in favour of the Appellant and against the Respondent.
ISSUE NO 2.
It was contended that the Appellant should first and foremost prove his title to the land in dispute before the issue of pledge.
PW1 in his testimony on the 9th of November, 2005, said that at a meeting, the Defendant said that the land belonged to him, as he brought it off some persons, who were deed.
He further testifies that the land Oru Ohia Ugo belongs to him and members of his family and it was first deforested by Ohiaku. He had only one son Nwoko who took over and continued farming on it. Nwoko who died begat one son called Maduwuozil who took over and started farming on the land. He was survived by three sons Njoku, Eke and Opara. Njoku begat Nwairu and both are dead. It is Nwairu that begat Nze Raymond U. Iwu (PW1), Raymond, Paulinus, Anthony and Callstus Paulinus and Eke are dead, but Eke is survived by one son Eke, who had three sons Kelvin,
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Ugoji and Boyi, and only Kelvin is alive.
Oparachukwu died and his son Eddy took over the land and farmed on it. One Egekeze from Ogbor Nguru was survived by one son Alphonsus. When Eddy was alive, he pledge the land in dispute to Ezekeze Emenogu for E2.10 shillings. Ekekeje?s wife and Nwairu Mwata were present at the time of the pledge.
However Eddy did not redeem the land before he died. He had no son. He was however buried by Nwaiwu. That according to their custom, only Nwaiwu and Eke could inherit.
When he came back from Lagos in 1983, his father asked him for money to redeem the pledge. He told him that he will get the money when he comes back from Lagos. When he got back from Lagos, he was told that the land had been redeemed and that Vincent Ogu Okorie gave him money with which he redeemed the land. As he wanted to pass money to Vincent Ogu Okorie, his father told him that the custom requires that Vincent should farm on the land for four years before they could take the land back from him. Before the four years could elapse, his father died, in 1986. Vincent Okorie also died in 1987. After his death, the three sons of Okorie went
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back to America after his burial. He went to the mother of the Defendant to redeem the land who told him to wait for her sons arrival from overseas. When they came back in 1994, the three sons came to his home to tell him that he should say nothing about the land again.
After his wife’s death, he went back to the Defendant and told him that he wanted to redeem the land.
DW1 Francis Ogu Okorie is a relation to the Claimant. He took possession of the land in dispute in October 1956. That his father bought the land from one Nwagwu Ogudinna in 1956 from Unneahia Obetiti Ngwu. His father was not challenged and so he bought the land and he farmed on it. He says he does not know the father of the Plaintiff in his life. The Plaintiff’s father never came to his father to redeem the land. That his father never redeemed this land for the Defendant?s father. That under the custom of Oboetiti, no one can redeem land that does not belong to him. He denied any pledge. When he built the fence, the Plaintiff never challenged him in 1991. That the land in dispute is among the land disposed off by Eddy Maduwuogu. It was alleged that Nwairu
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wanted to take Eddy?s land because he had no male child.
It seems to me that the Appellant is relying predominantly on the alleged pledge. In fact that is the bane of his case. But has he proved the basis of his claim to redemption? PW1 had said that customarily, no person can redeem land which did not belong to him. DW2 cousin to the Appellant testified that the land in dispute did not belong to PW1. That PW1 did not bury Eddi to whom PW1 traced the exclusive ownership of the land.
Pertinent to note, as rightly pointed out by the Respondent in his brief of argument at Page 10 that this appeal having arisen from the decision of a Customary Court of Appeal, the Appellant?s Grounds of Appeal; and his brief must of necessity distil and demonstrate the questions and issues of customary law and the errors or error committed by the Court below on these points or issues. But the Appellant has failed woefully to establish this.
Be that as it may, DW2 Kelvin Eke did state that one Edi Maduwuogu was the original owner of the land in dispute and that he and the Appellant (Plaintiff in the Court below are entitled to the land in dispute.
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The Defendant (Respondent in this appeal) and his witness DW2 admitted the fact that the land in dispute originally belonged to Edi Maduwuogu who is a relation to the Appellant and DW2. The onus is now on the Respondent to prove how he came to own the land. The Respondent who stated that his father bought the land from Nwagwu Obadinma, and that the sale was reduced to writing, failed to tender any receipt or any document evidencing same.
Notably is that the Respondent did not counter claim at the Court below. His duty is to defend the action. It is not his place to prove or disprove pledge or title. The Respondent never said that he got his information on the pledge through oral traditions.
There was nothing to show the land to which the alleged pledge was connected with or relates to. There is nothing to show the portions of land the alleged pledge related to. There was discrepancy in respect of the date for the redemption of the pledge, 1953, but 1980 was what PW2 testified on.
It is clear that the Appellant is in possession of the land in dispute. The burden lies on the Respondent to prove that the possession is adverse IDUNDUN v. OKUMAGBA
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(1976) 9-10 SC. 221.
When the Court below observed that from the evidence on record, the Respondent failed to prove his link with his alleged original owner of the land in dispute, he was right.
The Respondent did state that the land in dispute ceased to be family land at the death of Madunuogu, when his land was shared. One may then ask, how come the suit, was instituted in a representation capacity?
From all above, I find it difficult to dismiss the Appeal. This is because the Appellant has on a preponderance of evidence, established his title to the land in dispute.
This issue is resolved in favour of the Appellant.
The Appeal succeeds and same is hereby allowed.
The judgment of the Imo State Customary Court of Appeal dated 29th of November, 2007 in appeal No. CCA/OW/A/7/2007 is hereby set aside.
N100,000.00 costs in favour of the Appellant.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the lead judgment just delivered by my Lord, Pemu JCA, and I agree with the reasoning and conclusion that the appeal is meritorious
The law is now well-defined as to what
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makes a native arbitration decision binding on the parties, and it includes, the facts that the Arbitration Panel reached a decision and published it and the parties accepted the decision at the time it was made. See the case ofDuru and Ors Vs Duru & Ors (2017) LPELR – 42490 CA; Okwaranyia Vs Eke (1996)3 NWLR (P1.436) 335; Ohiaeri Vs Akabeze (1992)2 NWLR (P(.221) 1; Iwuala Vs Chima (2016) LPELR – 40970 CA.
There is evidence that Appellant rejected the decision of the Arbitration when it was made, and I think this Suit he took out at the Customary Court was only in pursuit of that rejection.
I too allow the appeal and abide by the consequential orders in the lead judgment.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have been privileged to have read in advance, the lead judgment just delivered by my learned brother, HON. JUSTICE RITA NOSAKHARE PEMU, JCA.
I too allow the appeal and I abide by the consequential order made as to costs.
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Appearances:
Chief I. M. Kadurumba, Esq.For Appellant(s)
D.C. Denwigwe, SANFor Respondent(s)
Appearances
Chief I. M. Kadurumba, Esq.For Appellant
AND
D.C. Denwigwe, SANFor Respondent
