ECHEONWU & ORS v. AKAH & ANOR (2022)

ECHEONWU & ORS v. AKAH & ANOR

(2022)LCN/16394(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Wednesday, March 09, 2022

CA/PH/61/2010

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

1. ELDER SUNDAY ECHEONWU 2. CHIEF WOBO TOM OGBUJI 3. CHIEF EMEKA ANYABELEM 4. ELDER WOBO OPARA 5. MR. JOEL OPARA 6. SNR. APOSTLE SIMEON CHIKE (For Themselves And As Representing Oro-Ora Worukwo Community Rebisi) APPELANT(S)

And

1. MR. ADELE AKAH (For Himself And On Behalf Of Rumu-Enyika Family Of Oro-ObazioluWorukwo) AND 2. HRH EZE CHRISTOPHER N. WONODI (FOR HIMSELF AND AS REPRESENTING THE PORT HARCOURT COUNCIL OF CHIEFS AND OWHOR HOLDERS) RESPONDENT(S)

RATIO:

WHETHER A PLAINTIFF CAN CALL A DEFENDANT AS HIS WITNESS

It is important to note and restate here and now, that parties in adversarial litigation are at liberty to call any witness they consider helpful to their case. It’s not a strange occurrence for a Plaintiff to call a Defendant as his witness provided he believes that his evidence will favourably support his case in the lower Court, and what he may not be allowed to do is to turn round and apply to treat such a witness he had voluntarily elected to field to be treated as a hostile witness as no party will be allowed in law and equity to approbate and reprobate at the same time because, he cannot be allowed to eat his cake and have it. In FAGBUARO & ORS v. ALABI & ORS (2019) LPELR 48962 (CA) this Court held that:
“It is trite that a party retains that discretion as to who and who to or not call as a witness in his case. Where a vital witness is omitted or not called, it remains the case of the party who will bear the fatal consequence of such omission.” GABRIEL OMONIYI KOLAWOLE, J.C.A.

INGREDIENTS OF A VALID AND BINDING CUSTOMARY ARBITRATION

In the case of EKE v. OKWARANYIA (2001) 12 NWLR (part 726) 181, the Supreme Court laid down the ingredients of a valid and binding customary arbitration thus: (a) That there had been a voluntary submission of the matter in dispute to an arbitration of one or more persons; (b) That it was agreed by the parties either expressly or by implication that the decision of the arbitrator(s) would be accepted as final and binding; (c) That the said arbitration was in accordance with the custom of the parties or of their trade or business; (d) That the arbitrator(s) reached a decision and published their award; (e) That the decision or award was accepted at the time it was made.” – Per UWAIFO, JSC. GABRIEL OMONIYI KOLAWOLE, J.C.A.

POSITION OF LAW ON A CUSTOMARY ARBITRATION

Again, my Lords in the case of OPARAJI v. OHANU (1999) 6 SC (PT.1) 41 AT 49-50, the Supreme Court held that:
“Where two parties to a dispute voluntarily submit the issue in controversy between them to an arbitration according to customary law and agree expressly or by implication that the decision of such arbitration would be accepted as final and binding, then once arbitrators reach a decision, it would no longer be open to either party to subsequently back out of or resile from the decision so pronounced.”
See also the decision in AGU v. IKEWIBE (1991) 3 NWLR (PT. 180) 385 AT 418. GABRIEL OMONIYI KOLAWOLE, J.C.A.

WHETHER A COUNTER-CLAIM IS A SEPARATE AND INDEPENDENT ACTION FROM THE CLAIMANT’S CLAIM IN A MATTER

It is the law, that a Counter-Claim is a separate and independent action from the Claimant’s Claim in a matter. See the decisions in JERIC NIG. LTD V. UNION BANK PLC. (2000) 12 S.C. (Pt. II) 133 and in OROJA & ORS v. ADENIYI & ORS (2017) LPELR-41985 (SC).
In its recent decision, the Supreme Court in USMAN v. GARKE (2003) LPELR-3431(SC) re-affirmed the principle of our adjectival law that:
“…where a counter-claim was filed in an action, a Plaintiff ought to file a reply in defence to the Counter-Claim. And if the Plaintiff failed to take such a step, the Court is entitled, and in fact obliged to assume that the Plaintiff has no defence to the Counter-Claim and may enter judgment for the Defendant accordingly…”

Litigation is not a game of hide and seek. It abhors ambush. Fair play and even-handed justice require that a party must consistent with his case from its inception to the appellate tier of litigation. Save leave of the Court is sought and obtained to raise and argue fresh issue(s) a party will not be allowed to depart from the case presented at the lower Court on appeal.
In other words, a party will not ordinarily be permitted to shift the goalpost of litigation arbitrarily unless with the blessing of the Court upon application by the party in question. In that wise, it is rewarding to paraphrase what the Apex Court said on the issue in the case of Admiral Murtala Nyako V Adamawa State House of Assembly and Ors (2017) 6 NWLR (Pt.1562) 394, 403-404 following the cases of Ajide V Kelani (1985) 3 NWLR (Pt.12) 248, Dakolo V Rewane-Dakolo (2011) 16 NWLR (Pt.1272) 22, Makun v. F.U.T., Minna (2011) 18 NWLR (Pt.1278) 190, Cardoso V Daniel (1986) 2 NWLR (Pt.20) 1 that a party should be consistent in stating his case and consistent in proving it; a party would not be allowed to take one stance in the trial Court then another stance on appeal; a party is to be consistent with the case he sets up and not shift ground in another Court at his whims and caprices or as it suits his fancy; because the quest for justice is an attempt to discover the truth and not a hide and seek game. JOSEPH SHAGBAOR IKYEGH, J.C.A.

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the judgment of Honourable Justice A. I. Iyayi-Laminkanra of the High Court of Rivers State, delivered on 11th December, 2008, wherein the Appellant, who was the Claimant before the High Court claimed against the Defendants, the following reliefs:
1. A Declaration that the Chieftaincy Stool occupied by Chief A. N. D. Ichemati of Rumu-Enyika Family of Nkpolu–Oroworukwo is a Chieftaincy Stool of Oro–Ora Community.
2. A Declaration that it is unfair and inequitable for Oro–Obaziolu to have four Chieftaincy Stools out of six allocated to Oroworukwo while Oro–Ora should have two.
3. Perpetual Injunction restraining the 1st set of defendants from presenting any person to the 2nd set of defendants for installation as a Chief of Rumu – Enyika Family to fill the vacancy created by death of Chief A.N.D. Ichemati.
4. Perpetual injunction restraining the 2nd set of defendants from installing any person from the family of the 1st set of Defendants as a Chief of Rumu–Enyika Family to fill the vacancy created by the death of Chief A. N. D. Ichemati.

The 1st set of Respondents upon being served with the originating processes filed a conditional memorandum of appearance and a Statement of Defence dated and filed 16th April, 2003, and 15th day of May, 2003 respectively.

The Court below, delivered its judgment and ordered as follows;
1. It is declared that the chieftaincy stool which Chief Albert N.D. Ichemati occupied in the Council of Chiefs belongs to the Enyika family, same having been allotted to the family since 1973.
2. It is declared that the 1st Defendant is the person entitled to be installed by the Council of Chiefs, having been so selected by the family.
3. An order of Injunction is hereby issued restraining the claimants, either by themselves, their agents, servants, hirelings or whoever from disturbing or interfering with the chieftaincy stools of the Enyika family in the Council of Chiefs.

It was the Appellant’s dissatisfaction with the decision of the lower Court, that spurred them to appeal to this Court in order to express their grievances. The jurisdiction of this Court to review the merit of the said judgment was activated by a Notice of Appeal dated 19th December, 2008 and filed on 23rd December 2008. It contains five grounds of appeal with copious particulars.

The grounds of appeal shorn of their particulars read thus:
Ground One:
The learned trial Judge erred in law in holding that the Claimant’s witness was barely seven years old when the events of 1973 to which he testified occurred without the corroborating evidence of other witnesses who were old enough to witness the same events.
Ground Two:
The learned trial Judge erred in law in accepting and relying on the evidence of DW2 giving on behalf of the 2nd set of Defendants who did not file any pleadings in this case.
Ground Three:
The learned trial Judge erred in law in granting the counterclaim of the Defendants against the weight of evidence before the Court.
Ground Four:
The learned trial Judge erred in law when she held that the claimants did not prove their case.
Ground Five:
The learned trial Judge erred in law in holding that the claimants cannot resile from the decisions of the two native arbitral tribunals having voluntarily submitted their dispute to them.

The judgment of the lower Court can be found at pages 217 to 234 of the record of appeal.

In line with the Rules of this Court, parties filed and exchanged their respective briefs of argument. The Appellant’s amended brief of argument filed on the 26th July, 2017 was deemed properly filed on the 6th November, 2017 and it was settled by Priye Peter-Kio, Esq, whilst the 1st set of Respondent’s amended brief of argument was filed on 27th March, 2018 and was settled by Geoffrey O.A Joseph, Esq. In the Appellant’s brief of argument, four issues were formulated for the determination of this appeal and they read thus:
1. Whether the learned trial Judge was right when he held that the Appellants did not prove their case because CW1 was barely 6 years old when the events of 1973 to which he testified occurred?
2. Whether the Court can rely on the evidence of a party who did not file a defence to the Statement of Claim?
3. Whether the Appellants are bound by the decisions of the two native arbitration tribunals without any evidence that these decisions would be final and binding on them and without any evidence of previous acceptance?
4. Whether the 1st set of Respondents proved their Counter-Claim to entitle them to judgment considering the evidence adduced by the parties before the trial Court?

The Respondent’s Counsel also formulated and canvassed four issues to wit:
1. Whether from the facts and circumstance of this case is it right to say that the lower Court was wrong in treating as incredible the evidence of CW1 of events which occurred when he was barely a 6-year-old boy and of which he agreed that he was not present when it occurred?
2. Whether from the totality of the evidence before the Court have the Appellants proved their claim and if the answer is in the negative, is the 1st set of Respondent not entitled to judgment on his Counter-Claim based on the state of pleadings and evidence led by the parties?
3. Whether from the facts and circumstances of this case, did the DW1, Chief A.E. Ogbonda give evidence in this case answer is yes, is he a competent witness to the 1st Set of Respondent?
4. Can the Claimants after agreeing to participate in two different customary arbitrations resile from same? Are they not caught up by doctrine of estoppel per rem judicata?

SUBMISSIONS OF COUNSEL
On the first issue, learned Counsel for the Appellant submitted that the learned trial Judge was in error when he held that the only evidence by the Claimants herein in proof of their case was that of CW1, who stated whilst under cross-examination, that he was barely 6 years old in 1973 when the events which he narrated to the Court in his evidence-in-chief occurred.

He argued that the Appellants are not bound to produce several witnesses to prove their case, as a party is not bound to call a host of witnesses to establish his case where he can do so by a single credible witness. He cited the cases of EZEDIGWE v. NDICHIE (2001) 12 NWLR (pt. 726) 37 AT 62E-F; U.T.B. (NIG.) LTD v. ALAGBULE (2006) 2 NWLR (PT. 985) 447 r.7 AT 454, 491 A-B.

He added that the age of a witness when the facts to which he testifies occurred is also not a consideration under our law.

He further submitted that believing or disbelieving the evidence of a party is based on whether it is credible and cogent in the light of the pleadings and all other evidence before the Court.

He observed that the 1st set of Respondents admitted all the averments of the Appellants, save that there was any agreement between Oro-Ora and Oro-Obaziolu in 1973 and that the chieftaincy stools were shared between the two sons of Worukwo Nkpolu-Oroworukwo and Okporo-Oroworukwo. He further observed, that the 2nd set of Respondents did not file a defence to the claim made against it, and hence it is deemed that they have admitted such claim, as facts admitted need no further proof.

Learned Appellant’s Counsel, noted that the judgment of the 2nd set of Respondents as evidenced by DW1, gives credence and support to the case of the Appellants that the traditional mode of sharing is between the two sons of Worukwo and not between Nkpolu-Oroworukwo and Okporo-Oroworukwoas put forward by the 1st set of Respondents.

He further argued that EXHIBIT D, unequivocally states the custom of Rebisi of which Oroworukwo is a part, and its content states that chieftaincy succession in Dioubu (Rebisi) is by birth and traditional right of the sons of Rebisi, and this according to him further supports the case of the Appellants that chieftaincy stools given to Oroworukwo was shared between the two sons of Worukwo as that was and still is the traditional way of sharing chieftaincy stools in Rebisi Kingdom.

He claimed that if the trial Court had considered EXHIBIT D, it would not have had any difficulty in coming to the conclusion that the 1st set of Respondents were lying when they stated that the chieftaincy stools were shared between the two communities instead of the two sons of Worukwo. In reliance on this proposition, he cited C.D.C (Nig) Ltd v. SCOA (Nig.) Ltd (2007) 6 NWLR (Pt. 1030) 300 ratio 15 AT 314, 366 G-H.

In furtherance, the Appellants’ counsel argued that the trial Court failed to evaluate the evidence of the appellants on the ground that the appellants’ witness was barely six years old when the events to which he testified took place and therefore held that they have not proved their case.

Learned Appellants’ Counsel urged this Court to resolve issue 1 in favour of the Appellants and allow the appeal.

On issue two, the learned Counsel for the Appellants submitted that the trial Court erred in law when it held that “…Where a party has not filed pleadings, it is within the discretion of the Court to allow the said party adduce evidence.”

He submitted that the trial Court failed to state the circumstances under which a party who has not filed pleading may adduce evidence which the Court can act on.

He further submitted that from the entire evidence of DW2, it is very clear that he gave evidence for the 2nd set of Respondents, and that the learned trial Judge was remiss when he held that the DW2 gave evidence on behalf of the 1st set of Respondents.

Whilst citing the decision in CONSOLIDATED RES. LTD v. ABOFAR VEN. (NIG.) LTD (2007) 6 NWLR (PT. 1030) 221 ratio 1 AT 224, 231A, inter alia, he submitted that the trial Court failed to guide itself with established judicial authorities in admitting and acting on the evidence of DW2. He added that the trial Court was clearly in error when it held that it has a discretion to allow the evidence of DW2 who did not file any pleadings contrary to law as stated in FALOMO v. ONAKANMI (2005) 11 NWLR (PT. 935) 126 ration 12 AT 138, 154C and several other judicial decisions.

He urged upon this Court to discountenance the evidence of DW2 seeing that it is strictly inadmissible and to resolve Issue 2 in favour of the Appellants.

In arguing issue 3, learned Appellants’ Counsel submitted that there was no evidence before the trial Court that the arbitration of the two native tribunals would be final and binding on the appellants neither was there, evidence of acceptance of the decision of these tribunals. He added that the Appellants in fact denied being part of the 1975 arbitration as shown in EXHIBIT F.

He further contended that there must be uncontradicted evidence of previous acceptance of a decision of a native arbitration before it can be declared to be final and binding on the parties thereto by a Court of law.

The Appellants’ counsel further submitted, that the pleadings and evidence of the Respondents fall short of the requirements of a binding customary arbitration which can be invoked as estoppel against the appellants. In support of this proposition, the learned counsel referred to the decisions in NWANNEWUIHE v. NWANNEWUIHE (2007) 16 NWLR (PT.1059) 1 ratio 11 AT 7, 16-17; OHIAERI v. AKABEZE (1992) 2 NWLR (PT. 221) 1 AT 24; AGU v. IKEWIBE (1991) 3 NWLR (PT. 180) 385 AT 418.

It was further argued that EXHIBIT F was made to mislead the 2nd set of Respondents and the Court, as it was incredible that a document (EXHIBIT F), which was purportedly made in 1975 in a Local Government Area, that was only created in 1996. He further relied on the decisions in EKE v. OKWARANYIA (2001) 12 NWLR (PT. 726) 181 ratios 1 and 2 AT 184-185, 208 C-F, 209 D-H; NWOSU v. NWOSU (1996) 2 NWLR (PT. 428) 64 ratios 3 and 4 AT 67, 75C-E, 76E-F.

He thus urged upon this Court to hold that the trial Court erred when it held that the Appellants cannot resile from the decisions of the customary arbitration after willingly participating in them and set aside the order of dismissal by allowing the appeal.

On the fourth issue, the learned Appellants’ Counsel submitted that the Counter-Claim of the 1st set of Respondents must be proved by cogent and credible evidence, adding that since the Counter-Claim is seeking what are essentially declaratory reliefs, it ought to be proved to the satisfaction of the Court notwithstanding the fact that the Appellants did not file a defense to the said counter-claim.

He noted that defence of the 1st set of Respondents relied on the same fact averred in defence of the Appellants’ claim in proof of their Counter-Claim. See the case of OLUBODUN V. LAWAL (2008) 17 NWLR (PT. 1115) 1 RATIO 18 AT 13, 41 G-H.

The Appellants’ learned Counsel further submitted that by a careful review of the evidence adduced by the parties, it would show that the learned trial Judge faired very poorly in evaluating the evidence placed before the Court as he failed to take cognizance of the totality of the evidence and its significance in relation to the issues for determination and he argued that had the trial Court made a thorough evaluation of the pleadings and evidence of the parties adduced at the trial, he would have come to a different conclusion and he submitted that the Court would have granted the Appellants’ claim and dismiss the Counter Claim.

The Appellants’ counsel further submitted that the respondents did not prove their Counter Claim as to entitle them to the declaratory reliefs sought by them.

We were urged to allow the appeal by granting the claims of the appellants and dismiss the counter-claim of the Respondents.

In response to the arguments of the Appellants’ Counsel in his brief of argument, the learned Counsel to the 1st set of Respondents formulated and canvassed four issues.

On his first issue which bordered on whether from the facts and circumstances of this case, it is right to say that the lower Court was wrong in treating as incredible the evidence of CW1 with regard to events which occurred when he was barely a 6 year old boy and of which he agreed that he was not present when they occurred, he submitted that the trial Court did not treat the evidence of CW1 as that of a six-year-old that requires collaboration, but that as at the time the events occurred, he was barely six years old and any evidence produced by him concerning these events are not credible.

He added that when under cross-examination he was asked as to his source of information, and he answered that:
“I am a chief in my community. By 1973 I was barely six (6) years old. I was not attending the council of Chief’s meeting at my age in 1973. All I stated concerning the sharing of the stools in 1973, was told to me by my elders.”

Learned Counsel to the 1st set of Respondents further argued that it was this piece of evidence, that set the stage for the learned trial Judge to review the evidence of CW1 with suspicion.

The learned trial Judge in looking at the totality of the case of the Appellants, at the lower Court, it was submitted, came to the conclusion that the evidence of CW1 is not credible.

He again submitted that issue 1 was at variance with ground 1 of the notice of appeal where the issue is raised.

Flowing from this observation, he submitted that the issue formulated by the Appellant’s counsel as issue 1 did not arise from any ground of appeal, and consequently urged upon this Court to ignore all the arguments canvassed therein and to deem the grounds mentioned as being covered by the said issue as abandoned and liable to be struck out.

In reliance on this proposition, the Respondents’ counsel cited the decision in ABACHA V. FAWEHINMI (2000) FWLR (PT.4) 533 @ 616 PARA. A.

It was argued that the Appellants’ Counsel was lumping up what seems to be a mere orbiter dictum of the lower Court by elevating same to the level of ratio decidendi that is appealable.

The learned Counsel to the 1st set of Respondents, submitted that CW1, who was not there when the sharing was done, who did not participate in the sharing process, and who could not even be said that he grew up seeing Rumuenyika occupy their Chieftaincy stool, suddenly began to make assertions which the Court found are not credible on this issue.

The Respondents’ counsel submitted that the learned trial Judge was on firm ground when he treated the oral testimony of CW1 as incredible, this can be affirmed as the learned trial Judge went ahead to deal with the events that occurred and in which the CW1 participated which is EXHIBIT C, the customary arbitration proceedings.

He surmised by urging upon this Court to hold that issue 1 should be answered in the negative.

On issue 2, learned Counsel to the 1st set of Respondents submitted that under cross-examination, the evidence of CW1 was completely destroyed and rendered unbelievable.

The learned Respondents’ counsel noted that when CW1 was asked under cross-examination whether he was present when the sharing was done and when the agreement as to distribution between Albany and Opera was made, he frankly admitted that he was not present.

He further observed that when CW1 who was asked if there was any documentary evidence to prove the agreement and the method of sharing, he frankly also admitted that there was none.

He submitted further, that it became dangerous at this point for the learned trial Judge to rely on the mere viva voce of the CW1 who had pointedly admitted whilst under cross-examination that all he said concerning the events of 1973 was what was told to him by the elders.

It was further argued that the evidence of CW1 is nothing more than hearsay evidence and that hearsay evidence in this factual circumstance should not be given any evidential value.

In support of this submission, learned counsel cited the decisions in SUBRAMANIAN v. D.P.P (1956) 1 WLR 965 and UNION BANK PLC v. ISHOLA (2001) FWLR (PT. 81).

Learned Counsel to the 1st set of Respondents further argued that the Appellant did not adduce sufficient evidence in line with the custom and tradition to show the inequitable nature of this sharing and the nature of the relief by custom and tradition of Rebisi people that entitled them to such claim.

It was argued added that what the Appellants considered as not equitable was once more revalidated by the Port Harcourt City Council of Chiefs and Owhor holders in the native arbitration which involved the parties, restating once again the arbitration proceedings of 1975 at the Alakikia shrine in Mgbuitanwo, Emohua.

The learned Counsel to the 1st set of Respondents, submitted that the Appellants in order to prove their claims, asserted that the judgment of the Port Harcourt City Council of Chiefs is inequitable and that they should have found in favour of the Appellants as the 2nd set Respondent at the lower Court is a beneficiary of the same decision.

The 1st set of Respondents’ counsel added that EXHIBIT D which the Appellants pleaded in support of their case, in fact did not support the assertion of the Appellants and went further to submit that EXHIBIT D is a memorandum sent to the Secretary, Chieftaincy Committee Governor’s office, Port Harcourt. EXHIBIT D, the learned counsel also observed is not a government white paper accepting or rejecting the memorandum sent to it, it is also not a reply to any memorandum accepting the stand of the parties, and that by a careful and thorough reading of EXHIBIT D, it did not show any anomaly that was corrected or an intention to correct it.

Learned counsel further argued that EXHIBIT D falls short of what the Appellants intends to elevate it to, as it is a mere memorandum and nothing more.

He urged upon this Court to discountenance it, adding that the headship of the Paramount ruler of Port Harcourt is not the cause of action in this case and no evidential value should be attached to EXHIBIT D.

On the issue of EXHIBIT F as a fake document, learned Counsel to the 1st set of Respondents submitted that the Appellant’s Counsel should have pleaded such a grave issue of fact by way of reply or such other means and lead credible and cogent proof on the allegation being criminal in nature, beyond reasonable doubt to support such an assertion.

In support of this proposition, the learned counsel cited the decisions in MOBIL PRODUCING NIG. UNLIMITED v. ASUAH (2002) FWLR (PT. 107) 1196 AT 1216 PARA. E; BUHARI v. OBASANJO (2005) ALL FWLR (273) 1 AT 199 PARAS. E-F.

It was argued that the issue of EXHIBIT D alleged to be a fake document was a mere assertion of Counsel and submitted that the submission of Counsel, no matter how eloquent cannot replace hard evidence.

He further submitted that the Appellants having failed to prove their claims will automatically see all their reliefs collapse as they cannot stand on their own.

It was further argued that the 1st set of Respondents in proof of his Counter-Claim provided cogent and compelling evidence to warrant judgment in his favour and further argued that there was no defence to the said counter-claim.

Learned Counsel to the 1st set of Respondents submitted that Paragraphs 5, 7, 10, 11, 13 of DW1’s depositions were never challenged by way of cross-examination. He further submitted that as for the evidence of DW2, it was not shaken in any way by way of cross-examination.

Relying on the case of DUROSARO V. AYORINDE (2005) ALL FWLR (Pt.260)167 AT 182 paras D-E, learned Counsel to the 1st set of Respondents urged the Court to take the facts stated therein as proved facts.

On issue three, Counsel to the 1st set of Respondents submitted that the Appellants were laboring under a wrong notion of the status of the evidence of DW2. He submitted that from the papers filed in Court and the list of witnesses, it is apparent and very clear that DW2 testified as witness to the 1st set of Defendant.

He submitted that the 2nd set of Respondents did not file any pleadings and that it is this grave error in understanding the position of the evidence of DW2 that has made the Appellants to dissipate much of their energy on a non-issue.

The learned Counsel to the 1st of Respondent submitted that there is no law that precludes a defendant from testifying on behalf of a co-defendant, and cited the provision of SECTION 155 (1) of the EVIDENCE ACT and the decision in OBOLO V. ALUKO (1976) 3 S.C. 113 AT 104.

The learned Counsel to the 1st Respondent further argued that the Appellants at the lower Court did not give any credible evidence in proof of their case and that it is immaterial whether the 2nd set of Respondents led evidence or not.

Learned Counsel to the 1st Respondents urged the Court to come to the conclusion that this issue was academic at best, and should be answered in the affirmative.

In his amended reply brief, learned Counsel to the Appellants submitted that contrary to the 1st Respondents’ arguments, that issue 1 raised by the Appellants is at variance with Ground 1 of the Notice of Appeal, that it is merely the difference in numbers 6 and 7 as stated in the grounds of appeal and that the said issue does not affect the substance of the ground of appeal or the issue formulated from it.

He urged the Court to rather look at the substance of the grounds of appeal, and not minor variations in their numbering.

He further noted in this wise, that issue one not only covered ground one, but also ground four in the Notice of Appeal.

He urged this Court to discountenance the Respondents’ contention on this point, and to hold Ground one in the Notice of Appeal as competent because, it relates to the judgment which is subject of this appeal. He cited the case of AKPAN v. BOB (2010) 17 NWLR (PT. 1223) 421 RATIO 31 AT 443-444, 468 C-D; RATIO 29 AT 442, 464C.

The Appellants’ counsel again submitted as incorrect, the argument of the 1st set of Respondents’ counsel, that the evidence given by CW1 is hearsay evidence and submitted that evidence of traditional history or custom is an exception to the hearsay rule. It was further submitted that the Appellant’s CW1 is a person in a position and knowledgeable enough on the said traditional history as there is no evidence before the Court which disqualifies him of giving such evidence. In support, the Appellants’ counsel cited the provision of SECTION 73 (1) of the EVIDENCE, 2011; and the decision in AROWOLO v. OLOWOOKERE (2011) 18 NWLR (PT. 1278) 280 RATIO 7 AT 288, 305 A-C.

It was further argued that the question of whether the evidence of CW1 is hearsay was never raised at the trial Court and the Court did not make any finding or pronouncement on it, and that it is also not covered by any of the grounds of appeal.

He argued that the 1st Respondent is therefore out of order in raising the issue and therefore urged this Court to so hold and disregard all the arguments on the point.

The Appellants’ counsel again argued that the decisions in BUHARI v. OBASANJO (2005) 13 NWLR (PT. 941) 1 RATIO 52 at 73-74 and U.B.N. PLC v. SHOLA (2001) FWLR (PT. 81) 1868 AT 1889 B are both inapplicable, as the former is an election case, and the latter a case dealing with stay of execution involving a Judgement debt.

Learned Counsel to the Appellants, in response to the argument of 1st set of Respondents, submitted that this Court should disregard the arguments of the Appellants on EXHIBIT F as being fake and irrelevant because the parties did not join issues at trial, he submitted that the submissions by 1st set of Respondents’ Counsel is misconceived and should be ignored as once a document is admitted by the Court, it becomes evidence before the Court and parties are at liberty to comment on the probative value to be attached to such documentary evidence. In reliance on this proposition, he cited the apex Court’s decision in ODOFIN v. MOGAJI (1977-1988) 2 S.C.J.E 48 at 51-52 J-C.

He again submitted that the list of witnesses to be called by a party is not the evidence of any particular witness, but rather what the witness gives orally in open Court or adopts as his evidence at the trial.

In his final arguments, he urged upon this Court to allow the appeal and grant all the reliefs of the appellants in their statement of claim.

RESOLUTION OF THE ISSUES
My noble Lords, having carefully examined the five grounds contained in the Appellant’s notice of appeal, the issues therein formulated for determination of the appeal by Counsel to both parties, as well as the submissions put forward by the respective parties in their briefs and the decisions reached by the lower Court as contained in the judgment being reviewed, I am of the considered opinion that the four issues raised by the Appellants’ counsel in his brief of argument are comprehensive, perhaps apt enough and I have decided to adopt them for consideration and determination of this appeal.

The first issue bothers on whether the learned trial Judge was right when he held that the Appellants did not prove their case because CW1 was barely 6 years old when the events of 1973 to which he testified occurred.

It is important to observe, that contrary to how the Appellants read and may have probably interpreted and understood the intention of the Court by its pronouncement on this issue, that the lower Court’s major rationale for discrediting the evidence of CW1, was not because the Court treated or received the evidence of CW1 as the evidence of a 6 year old child that needed further corroboration, however, it was based on the fact that CW1 narrated the events that occurred in 1973 as though he was physically present and aware of the happenings and their significance at the time when they occurred.

Furthermore, the lower Court advisedly was given extra reasons to be wary of the evidence of CW1, who whilst under cross-examination, as he was asked the source of the information as contained in his evidence which he had given with such certainty, he answered by admitting that he was 6 years old at the time, and he was not present at the council of chief’s meeting in 1973, and that all he stated was told to him by his elders.

The lower Court had every reason to be curious as to why the Appellants decided on using Chief Emeka Anyabelem as CW1, who was narrating the events based on what he heard from some unnamed elders.

The lower Court, in my view, acted wisely as it approached cautiously while considering and examining the veracity or otherwise of the evidence of CW1.

Hence the Appellants’ arguments on the issue are at best misguided and misconceived as the Court reserved for itself the discretion to examine what probative value or weight of credibility to be attached to the oral testimony of CW1 and it was definitely in order when it ultimately decided to treat the oral testimony of CW1 with contempt and utter levity. See the decisions in BUHARI v. OBASANJO (2005) ALL FWLR 273 1 AT PP. 164-165, PARS. F-B; RABIU v. THE STATE (1980) 8/11 SC 130 and the provision of SECTION 77 of the EVIDENCE ACT (2011).

The Appellants’ Counsel’s argument in his reply brief on the law of admissibility of traditional history, being an exception to the hearsay rule as enshrined in SECTION 73 (1) of the Evidence Act, 2011, will also not apply to this very case, as the evidence of CW1 was not a general fact finding on traditional history, but was rather a narration of specific events which were in contention, to wit; the purported agreement surrounding the sharing/allotment of the 6 Chieftaincy stools to Oroworukwo Community.

These specific facts are part of what have been in contention by both parties, and the lower Court was more inclined to disbelieve the oral testimony of CW1, and rightly so, in my opinion.

In sum, I hold that issue 1 ought to be answered in the negative, against the Appellants and in favour of the Respondents.

The second issue bothers on whether the Court can rely on the evidence of a party who did not file a defence to the Statement of Claim.

In this issue, the Appellants have vehemently challenged the admissibility of the evidence of DW1, Chief A. E. Ogbonda, contending that he gave evidence for the 2nd set of Respondents who did not file any pleadings in the matter at the lower Court.

From the records, it is obvious that DW2 was called as a witness by the 1st set of Respondents in aid of their defence, and accordingly testified as a witness to the 1st set of Respondents at the proceedings in lower Court.

In the 1st set of Respondents’ list of witnesses, which formed part of their processes filed in the lower Court, the DW2 was named therein as the 2nd witness for the 1st set of Respondents.

In addition, the witness’ deposition of CHIEF A.E. OGBONDA is headed rather conspicuously as “1ST SET OF DEFENDANT’S WITNESS DEPOSITION.” The question then becomes apposite as to how can the Appellants now on appeal attempt to argue that DW2 gave evidence for the 2nd set of Respondents, knowing fully well the aforementioned facts and also that the 2nd set of Respondents did not file any defence at the lower Court.

The fact that DW2 was named Defendant does not prevent or inhibit him from giving evidence in a favour of a co-defendant in a case. I had assumed that these are elementary issues of our adjectival rules and principles of civil litigations which should never give rise to any contestation by the parties on appeal.

The Appellants’ Counsel’s submission on this issue, in my view, cannot hold water, and the evidence of DW2 by virtue of this reason cannot be expunged from the records as the Appellants’ Counsel has prayed. The evidence was neither illegal by the application of the provisions of the Evidence Act, supra nor illegitimate having regard to the status of the two sets of Respondents.

I hereby resolve issue 2 in favour of the 1st set of Respondents.

The third issue bothers on whether the Appellants are bound by the decisions of the two native arbitration tribunals without any evidence that these decisions would be final and binding on them and without any evidence of previous acceptance?

On this issue, both parties have agreed that there was indeed a customary arbitration in 1975 involving the Appellants and the 1st set of Respondents, which was presided over by the 2nd set of Respondents, the Port Harcourt City Council of Chiefs and Owhor Holders. The outcome of these proceedings are evidenced by the contents of EXHIBIT “C”.

EXHIBIT “F” also shows that there was an earlier arbitration in 1975 conducted by the Chief Priest of the Alakikia shrine of Mgbuitanwo in Emohua Town.

The contention now being made by the Appellants is that there was no evidence of their acceptance of the judgment of the Port Harcourt City Council of Chiefs and Owhor Holders and that they in fact did not participate in the arbitration proceedings by the Chief Priest of the Alakikia shrine of Mgbuitanwo in Emohua Town, and contended that EXHIBIT “F” is a fake document.

When these judicial guidelines are applied to the facts of this case, they in my view satisfy all the guidelines aforementioned, and hence the decisions of the two customary arbitrations reached in 1975, ought to stand valid and binding on both parties.

As a side remark, it is worthy of note that since the decision of the Chief Priest of Alikikia shrine, Mgbuitanwo-Emohua, Chief Albert N.D. Ichemati has remained in quiet occupation of the Enyika stool in the council of chiefs without any disturbance or interference by the Appellants or anyone else. If this does not spell acceptance or acquiescence, I do not know what then will.

The Appellants cannot be allowed to initiate and actively participate in different customary arbitrations and because the outcomes were not in their favour, now seek to resile from the decisions reached therein.

In furtherance of their avowed intention to distant themselves from the decisions reached in the customary arbitration proceedings, the Appellants’ desperate and concerted efforts to label EXHIBIT “F” as a fake document against this background facts will by no means be allowed to stand.

The Appellants at the lower Court, never raised any objection or attempted to query the authenticity of EXHIBIT “F” when they had the opportunity to do so, neither was this assertion pleaded in their statement of claim and none of the parties were seen to join issues on the authenticity, genuineness or otherwise of EXHIBIT “F”.
The Appellants had the opportunity to raise this issue in their reply to the statement of defence which they were entitled to file and provide cogent and compelling evidence in support of their claim. Sadly, and shockingly, they were silent on such a fundamental and significant issue at the trial Court, and now seek to raise it for the first time on appeal. This Court will not allow it because it’s an elementary proposition of law, based on the provision of Order 7 Rule 2 (1) of the Court of Appeal Rules, 2016 that the proceedings on appeal are a continuation of the case of the parties in the lower Court as “all appeals shall be by way of rehearing” and it really was not an occasion to bring up issues of facts on which neither parties have had the opportunity to contest in adversarial manner before the lower Court. See MOBIL PRODUCING NIG UNLIMITED v. ASUAH (2002) FWLR (PT.107) 1196 AT 1216 PARA. E; ABDULKADIR & 2 ORS v. SAADU & ANOR (2012) ALL FWLR (PT.654) 89 AT 116 PARAS. B-C.

Based on the foregoing, I hereby answer issue 3 in the affirmative and in favour of the 1st set of Respondents.

On issue 4, it will be recalled that the 1st set of Respondents filed a Counter-claim of which the Appellants failed to provide a defence to.

The lower Court was indeed right to hold that the case of the 1st set of Respondents in their counter-claim was supported by both oral and documentary evidence.

The 1st set of Respondents in my view, have put forward a fairly watertight and more believable version of the narration of events, and the evidence they adduced in support of it all added up, which invariably in my view, boost the credibility of their Counter-Claim as a legitimate cause of action that stood the chance of success on the balance of probability (in the context of Section 134 of the Evidence Act, 2011) and preponderance of evidence. I must say that the lower Court was on a solid ground when it entered judgment in favour of the 1st set of Respondents as prayed, and my position based on the facts and evidence on the record is not different.

I hereby also resolve issue 4 in favour of the 1st set of Respondents.

Having resolved the four issues raised and canvassed by the Appellants against the Appellants, and in favour of the 1st set of Respondents, I find that this appeal totally lacks merit and I so hold.

Accordingly, the only verdict that I can return on the instant appeal is to affirm the decision of the lower Court, i.e of the Rivers State High Court, Port Harcourt in Suit NO: PHC/112/2003, delivered on the 11th day of December, 2008 by HON. JUSTICE A. I. IYAYI-LAMIKANRA.

The appeal fails and it is hereby dismissed. I make an order of N150,000.00 (One Hundred and Fifty Thousand Naira) Only as costs against the Appellants in favour of the Respondents.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I have had the honour of reading in print, the thorough judgment prepared by my learned brother, Kolawole, J.C.A., with which I agree with the addition of these few words by way of emphasis.

For these reasons and the more elaborate reasons contained in the lead judgment, I too find the appeal unmeritorious and hereby dismiss it and abide by the consequential order(s) contained in the lead judgment.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I have the privilege of reading in its draft form, the lead judgment just delivered by my learned brother, Gabriel O. Kolawole where he dismissed the instant appeal for lacking in merit and affirmed the decision of the lower. I agreed with him and have nothing to add.

Appearances:

PRIYE PETER-KIO, ESQ, WITH HIM, ARE MRS. I. BOB-MANUEL, AND N. OKPILE, For Appellant(s)

GEOFFREY O.A JOSEPH, ESQ, WITH HIM, MS. MERCY ELUOZO, FOR THE 1ST SET OF RESPONDENTS. For Respondent(s)