EMMANUEL NWAORIE EJIMADU v. LOUIS EGWUONWU NWOKO & ANOR (2018)

EMMANUEL NWAORIE EJIMADU v. LOUIS EGWUONWU NWOKO & ANOR

(2018)LCN/12466(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of July, 2018

CA/OW/272/2014

RATIO

ARBITRATION: WHERE CUSTOMARY ARBITRATION IS ISSUED ON A LAND MATTER

“Now, customary arbitration if proved and pleaded and proved is capable of constituting an estoppel. See RAPHAEL AGU V IKEWIBE (1991) 3 NWLR (PT. 180) 385; AWOSILE V SOTUNBO (1992) NWLR PT 243, p.1 at 29. It seems to me beyond argument that by pleading customary arbitration on the same land issue and adducing evidence in respect thereof, issue of estoppel had been raised… The law is settled on when customary arbitration can apply as estoppel per rem judicatam. In EGESIMBA V ONUZURUIKE (2002) 15 NWLR (PART 791) p. 466, Ayoola J.S.C. had this to say on this point. The four ingredients usually accepted as instituting the essential characteristics of a binding customary arbitration are:
(i) voluntary submission of the dispute to the arbitration of the individual or body
(ii) agreement by the parties either expressly or by implication that the decision of the arbitrators will be accepted and binding.
(iii) That the arbitration was in accordance with the custom of the parties and
(iv) That the arbitrators reached a decision and published their award. ” PER TUNDE OYEBANJI AWOTOYE, J.C.A.

COURT AND PROCEDURE: WHERE LEAVE OF COURT IS SOUGHT

“It is true that leave of Court first sought and obtained is required to raise a new issue in this Court on appeal. See ORGAN & ORS V N.L.N. G. LTD & ANOR (2013) 16 NWLR PT 1381 p. 506, KOSILE V FOLARIN (1989) 3 NWLR PT. 107.” PER TUNDE OYEBANJI AWOTOYE, J.C.A.

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

EMMANUEL NWAORIE EJIMADU Appellant(s)

AND

1. LOUIS EGWUONWU NWOKO
2. CHIBUEZE JONATHAN NWOLU Respondent(s)

TUNDE OYEBANJI AWOTOYE, J.C.A.(Delivering the Leading Judgment):

This is the judgment in respect of the appeal filed by the defendant to challenge the decision of Abia State High Court in Suit No. HS/23/2011: LOUIS EGWUONWU NWOKO & ANOR V EMMANUEL NWAORIE EJIMADU delivered on 30/10/2013.

The plaintiffs claimed at the lower Court as follows:
1. A declaration that the claimants are entitled to the right of occupancy over the pieces of land called:-
(a) Uzo Umuma land
(b) Aba Onu Obodo land
(c) Uzo Ogwe Ama Okpaechi land
(d) Iyi Aba land; all lying and situate at Ihieagu Ndudu UTURU in Isuikwuato Local Government Area of Abia State within the jurisdiction of this Honourable Court.

2. An Order of perpetual injunction restraining the defendant either by himself his servants, agents servants (sic), privies or whomsoever from further trespassing into the above named lands.

3. The sum of N1,000,000.00 (One Million Naira) only as special and general damages for the defendant?s trespass into the above lands and the destruction of the claimants crops therein?

The defendant (now appellant) also counter claimed praying for
a. A declaration of the Honourable Court that the defendant/counter-claimant is entitled to the right of occupancy over the piece of land known as and called:
1. Uzo Umuma land
2. Aba Onu obodo land
3. Uzo Ogwe Ama Okpoechi land
4. Iyi Aba land, all situate at
Amanngwu IhieaguNdudu Uturu in Isuikwuato Local Government Area of Abia State within the jurisdiction of this Honourable Court.

b. An Order of perpetual injunction restraining the claimants by themselves, servants, agents, privies or any other person claiming through them from further trespassing into these above mentioned lands of the defendant/counter-claimant.

c. The sum of N1,000,000.00 (One Million Naira) being special and general damages against the claimant for the trespass on the defendant/counter-claimant’s lands.
Pleadings were filed and exchanged.

After hearing the parties, the learned trial Judge entered judgment for the claimant as follows:
Judgment is hereby entered in for the claimants and it is-

1. Declared that the claimants are entitled to the right of occupancy over the pieces of land called (1) Uzo Umuma land (2) Aba Onu Obodo land (3) Uzo Ogwe Ama Okpoechi land and (A) Iyi Aba land all lying and situate at Ihieagu Ndudu Uturu in Isiukwuato Local Government Area of Abia State.
2. The defendant is hereby restrained, by himself, his servants, agents, privies or whomsoever claiming through him from further trespassing into the above named lands.
3. The defendant shall pay the sum of Two Hundred Thousand Naira (N200,000.00) being damages for his trespass into the said lands.
4. The counter-claim of the defendant is dismissed in its entirety.
5. The defendant shall pay cost of this suit to the claimants assessed at Twenty Thousand naira (N20,000.00).?

Miffed by the decision the appellant filed Notice and Grounds of Appeal, one ground initially but later with the leave of Court via Amended Notice and Grounds of Appeal challenged the said decision on three grounds to wit:

GROUND ONE
The trial Judge erred in law when he failed to consider the decision of the panel of native arbitration in his judgment thereby denying the Appellant fair hearing.

PARTICULARS OF ERROR
a. DW 4 Chief Samuel Sunday Nwobu (Secretary of Eze Cabinet) stated in his evidence that the Defendant reported the dispute to their traditional ruler.
b. That the traditional ruler referred the matter to the General Assembly.
c. That both Claimants and Defendant appeared before the arbitration panel and called their witnesses.
d. That the General Assembly looked into the matter and decided that the land in dispute belongs to the Defendants.
e. DW1 in evidence tendered the decision of the arbitration panel and it was admitted as Exhibit K.
f. That the Claimant never challenged the above evidence
g. That the trial Judge never considered Exhibit K in its judgment.

GROUND TWO
The trial judge erred in law when he failed to hold that the Claimant?s matter is caught by estoppel.

PARTICULARS OF ERROR
a. The Claimants and Defendant voluntarily appeared before the arbitration panel presided over by the traditional ruler.
b. That both the Claimant and Defendant called their witnesses before the arbitration panel.
c. That the arbitration panel after examining the case of the parties delivered its decision.
d. That none of the parties challenged the decision of the arbitration panel till date.
e. That the decision of the arbitration panel is still subsisting having not been set aside by any Court of law.
f. That the decision of the arbitration panel is still binding on the parties.
g. That the Claimant cannot re-litigate over the issue or lands the arbitration panel decided upon.

GROUND THREE
The judgment is against the weight of evidence.

After transmission of record of appeal to this Court parties filed and exchanged briefs of argument.

APPELLLANT’S BRIEF OF ARGUMENT
The Appellant’s Brief of Argument was filed on 10/3/2015. It was settled by his Counsel Emma Nwosu Esq.
Learned Counsel for the appellant formulated two (2) issues for determination, to wit:
(1) Whether the trial Court denied the appellant fair hearing by failing to consider in its judgment the decision or awards of Iheagu General Assembly in Exhibit K.

(2) Whether the Respondents Suit was caught off by estoppel.

ISSUE NO. ONE (1)
(1) Whether the trial Court denied the appellant fair hearing by failing to consider in its judgment the decision or awards of Iheagu General Assembly ? Exhibit K (distilled ground one of the Amended Notice and grounds of Appeal).

Learned Counsel to the appellant submitted that the law was that Court of law was under duty to consider and make pronouncement on material evidence before it or vital one raised in its judgment and failure to do so amounted to denying the party fair hearing as same would be seen that the Court determined the matter only on one side evidence. He relied on EKIYOR V BOMOR (1997) 9 NWLR (Part 519) P.1 at 10-11 PARAS E-B; MOHAMMED VS KANO NATIVE AUTHORITY (1988) 1 ALL NLR 424; 428-429; (1968) ANLR 411, 413; (See Section 33(1) of the 1979 CONSTITUTION WHICH WAS IN PARI MATERIA WITH SECTION 36(1) of THE 1999 CONSTITUTION OF FRN (AS AMENDED).

He further contended that where a Court decided a case on the evidence of one of the parties alone while ignoring the evidence for the other side, the hearing in all honesty was not a fair one (see pages 33, 39, 57, 58, 64, 65, 127, 128, 172, 173, 163 – 192 of the records of appeal (see also paragraphs 47 of the statement of defence).

Learned Counsel to the appellant urged this Court to resolve this issue in favour of the appellant.

ISSUE NO. TWO (2)
Whether the Respondents’ Suit was caught off by estoppels (distilled from ground two of the amended notice and grounds of Appeal).

Learned Counsel to the appellant submitted that the law was that where a matter had been arbitrated or adjudicated upon, the parties were bound by the award or judgment thereof. Put differently, the parties could not by doctrine of estoppel per rem judicatam deny or litigate on the subject matter again and estoppel per rem judicatam arose where an issue of facts had been judicially determined in a final manner between the parties or their privies by a Court or tribunal having jurisdiction in the matter and same issue came directly in question in subsequently proceedings between the parties or their privies and that for the doctrine of estoppel per rem judicatam to apply, it must show that (a) the parties (b) the issues (c) the subject matter in the action in which the plea was raised. He relied on the cases of YAKUBU V AJAOKUTA STEEL CO. LTD, (2010), ALL FWLR PART 537, P. 802 at PP 803-804 RATIO 2-0 (PP 809 – 810 PARAS 11-E): EZERIOHA V IHEZUO (2010), ALL FNLR, PART 540, P. 1259 AT 1261 RATIO 5 (P 1272, PARAS C-D) (See pages 57-58, 127-128 of the Records of Appeal)

Learned Counsel to the appellant further submitted that the Suit of the Respondents was caught off by estoppels which ought not to be initiated at the first instance and there must be an end to a dispute and the Respondents? action was not an exception and it was expedient that the Respondents never took any step till date to set aside the decision of the Iheagu General Assembly which was an indication beyond doubt that they accepted the decision.

Learned Counsel to the appellant urged the Court to resolve this issue in favour of the appellant and allow this appeal

RESPONDENT’S BRIEF OF ARGUMENT
The Respondents’ Brief of Argument was filed on 13/9/2015. It was settled by his Counsel VICTORIA MBANASO ESQ.

Learned Counsel to the Respondent formulated two issues for determination to wit:
(1) Whether ground two of the Appellant’s grounds of Appeal is not incompetent, (distilled from ground two of the grounds of appeal).
(2) Whether the Respondents’ suit at the trial Court was caught by estoppel (distilled from ground two of the grounds of appeal)
(3) Whether the trial Court denied the Appellant fair hearing at the trial (distilled from ground one of the grounds of appeal).

ISSUE NO. ONE (1)
Whether ground two of the Appellant’s grounds of Appeal is not incompetent. (distilled from ground two of the grounds of appeal)

Learned Counsel to the respondents submitted that ground two of the appellant’s grounds of appeal was incompetent because the issue raised therein was a fresh issue which the appellant did not raise at the trial Court and it was a settled principle of law that all grounds of appeal must flow from Judgment appealed against. He relied on the case of OGBE V ASADE (2010) Vol. 180 L.R.C.N. 106.

He further submitted that the issue of Estoppel raised by the Appellants in ground two of their grounds of appeal was a fresh issue, same not having been raised or canvassed at the trial Court could only be raised before your lordships if the appellant had sought for and obtained the leave of this Honourable Court to raise such fresh issue and failure to obtain the leave of the Court rendered such issue incompetent. He relied on the cases of ONYEMAIZU V OJIAKO & ANOR (2010) VOL. 182 L.R.C.N. 85; OGBE V ASADE, (SUPRA).

Learned Counsel to the Respondents finally submitted on this issue that when a ground of appeal was incompetent any issue for determination based on such incompetent ground went into no issue because an issue for determination derives its support from the grounds of appeal and it automatically collapsed when the ground of appeal ceased to exist. He relied on the cases of AGBAKA V AMADI (1998) 61 L.R.C.N. 4493; ONYEMAIZU V. OJIAKO & ANOR (SUPRA); OGBE V ASADE (SUPRA).

Learned Counsel to the respondents urged this Court to resolve this issue in favour of the respondents.

ISSUE NO TWO (2)
Whether the respondents’ Suit at the trial Court was caught off by Estoppel.

Learned counsel to the respondent submitted that the doctrine of Estoppel per rem judicatam could only be applied to the judgment of a superior Court of record which posited that where a superior Court of record had adjudicated over a particular subject matter between two parties, the same parties or their privies could not re-litigate the same subject matter and that doctrine of Estoppel per rem judicatam was not applicable to the judgment of a customary Arbitration panel.

He further submitted that there was a difference between estoppel created by the judgment of a customary arbitration panel and estoppel per rem judicatam crated by the judgment of a superior Court of record in the former, the Court would adjudicate on the case and give judgment in line with the judgment of the customary arbitration panel of the conditions for it are met not but in the later, the doctrine applied to the effect that the Court should not adjudicate on the matter at all or give a judgment, the Court would send the parties away to be bound by the previous judgment.

Learned Counsel to the respondent contended that what the appellant tendered before the trial Court (Exhibit K) was a purported judgment of a customary arbitration panel which did not raise the doctrine of estoppel per rem judicatam and that the appellant was bound in the circumstances to prove the essential ingredients which would make the trial Court adopt and uphold the judgment of that arbitration panel and these essential ingredients included:
(a) That both parties voluntarily submitted to the arbitration.
(b) That the parties accepted the terms of the arbitration, and
(c) That the parties agreed to be bound by the decision of the customary arbitrators. He relied on the case of AGU V IKEWIBE (1991) 3 NWLR (PT. 180) PAGE 305.

He further submitted that in addition to the above ingredients, the Court usually took evidence on whether the arbitration panel properly applied the customary law binding on the parties and whether they were constituted in such a way as to ensure their impartiality and where any of these ingredients were lacking, the Court was empowered to refuse to apply the decision of the customary arbitration panel.

Learned Counsel to the respondent submitted that considering the pleadings, the appellant had the duty of proving by evidence all the circumstances surrounding the arbitration to show that it was a bona fide arbitration, but as was to be expected, all the Appellant’s witnesses at the trial Court contradicted themselves on the circumstances sounding the arbitration and all these contradictions were canvassed by the respondents’ counsel in his written address in urging the Court not only to discountenance the arbitration judgment as a forgery, but also to infer from the fact of that forgery that the appellant herein and his witnesses were not witnesses of truth and that the trial Court duly empowered by law to come to a decision from the evidence led before him whether or not the arbitration judgment was worthy to be applied.

Learned Counsel to the respondent finally submitted on this issue that the trial Court was right when he refused to apply the customary arbitration judgment for not having evidential value in that the essential ingredients which must be present before a Court could uphold and apply a customary arbitration judgment were found by the Court not to have been proved.

Learned counsel to the respondent urged this Court to resolve this issue in favour of the respondent.

ISSUE THREE (3)
Whether the trial Court denied the appellant fair hearing in its judgment.

Learned Counsel to the respondent submitted that what amounted to fair hearing in a trial was when the authority of the Court had been fairly exercised in line with the fundamental principles of justice embraced within the conception of the process of law and this contemplated that where the parties were allowed to present evidence, to cross examine witnesses and the trial Court made findings which were supported by evidence the principle of fair hearing had been applied in such a trial. He relied on the case of WOMILOJU & ORS V ANIBIRE & ORS (2010) VOL 189 L.R.C.N. 30; OMONIYI V. CENTRAL SCHOOLS BOARD AKURE & ORS (1988) 4 NWLR (PT. 89) AT PAGE 463 (see page 191 Lines 3-6. 7-9 of the record of appeal).

He submitted further that the appellant who is entitled to appeal against the pronouncement of the trial Court on the native arbitration which amounted to the judgment of the Court on that point, if the appellant viewed the said judgment to be wrong on appeal on that finding of the trial Court would have given this Honourable Court the jurisdiction to review the said judgment and decide whether it was right or wrong but the appellant failed to do so but chose only to assert that there was no pronouncement on that evidence when indeed there was.

Learned Counsel to the respondents finally submitted that even if the trial Court made a mistake by not fully considering the said arbitration judgment Exhibit K; it was well established. That it was not every mistake or error of a trial judge that would vitiate the entire judgment as such mistake or error in a judgment must be show to be capable of affecting or influencing the decision of the trial Court. He relied on the case of ONYEMAIZU V OJIAKO & ANOR (2010) Vol. 182 L.R.C.M. 86, DIAMOND BANK LTD V PARTNERSHIP INV, CO. LTD (2010) Vol. 179 L.R.C.N 84.

Learned Counsel to the respondent urged this Court to resolve this issue in favour of the respondent and dismiss this instant appeal for lacking in merit.

APPELLANTS REPLY BRIEF OF ARGUMENT
The Appellant’s Reply Brief of Argument was filed on 11/4/2016. It was settled by his counsel EMMA NWOSU ESQ.

CONTRARY TO THE SUBMISSION OF THE Respondent that the said ground two was incompetent since the issue of estoppel raised therein was a fresh issue that was not raised at the trial Court and leave of the Honourable Court was not obtained for it to be raised for the first time. He relied on the case of OGBE v. ASADE (2010) VOL. L.R.C.N. 106, counsel to the Appellant submitted that in the instant appeal, the Appellant raised and pleaded facts and particulars of estoppel and led evidence to establish same, it was in the pleading not in the written address that facts and particulars of estoppel were raised and evidence establishing same were not led in the written address rather through the testimony of the witness and that the law was that there was no accepted manner of pleading estoppel, but all that was required was for the party to plead sufficient facts and particulars to that effect. He relied on the case of DANIEL TAYAR TRANS ENTERPRISES (NIG) CO. LTD v. ALHAJI LIADI BUSARI & ANOR (2011), ALL FWLR PART 563, P. 1818 AT 1822 RATIO 4. (See paragraphs 47 and 48 of statement of defence) (See also pages 48, 49, 57, 118, 127 and 128 of the records)

Learned counsel to the Appellant urged this Court to resolve this issue in favour of the Appellant.

Learned counsel to the Appellant submitted that contrary to the submission of the Respondent that customary arbitration could not constitute estoppel, rather it was only judgment of superior Courts that could constitute as estoppel, the law is trite that customary arbitration could constitute estoppel and that all that was required was for the party to prove essential elements of valid estoppels. He relied on the case of EZERIOHA v. IHEZUO (2010, ALL FWLR, PART 540, P. 1259 AT 1261 RATIO 5 (P. 1272 PARA C.D)

Learned counsel to the Appellant.
Contrary to the submission of the Respondent that the trial Court made pronouncement on Exhibit K (customary arbitration) thereby gave the Appellant fair hearing, the Appellant submitted that this Respondent submission did not in any way amount to consideration and pronouncement of issue of customary arbitration raised in the pleading and proved in evidence, thus the conclusion of the trial Court as regards the customary arbitration was not supported by any evidence bearing in mind that judgment of the Honourable Court must be based on evidence before the Court otherwise it would be perverse.

He further submitted that a sweeping statement without any evidence to back it up amounted to denial of fair hearing and this was a costly mistake that went to the root of the action.

Learned counsel to the Appellant urged this court to resolve all the issues formulated for determination in this instant appeal in favour of the Appellant and allow this appeal.
I have deeply considered the arguments canvassed by learned counsel on both sides. I have also pondered over the issues donated by learned counsel. I prefer the issues as formulated by Respondents? counsel as more apt and wider for the just determination of this appeal.

The issues are:

ISSUE 1
Whether ground two of the appellants’ grounds of appeal is not incompetent (from ground two of the grounds of appeal)

ISSUE 2
Whether the Respondents suit at the trial Court was caught by Estoppel.

ISSUE 3
Whether the trial Court denied the Appellant fair hearing at the trial (from ground one of the grounds of appeal)

RESOLUTION OF ISSUES
Whether ground two of the appellants grounds of appeal is not incompetent.

For clarity’s sake, I shall reproduce the said ground two hereunder:

GROUND TWO
The trial judge erred in law when he failed to hold that the Claimant’s matter is caught by estoppel.

It is true that leave of Court first sought and obtained is required to raise a new issue in this Court on appeal. See ORGAN & ORS V N.L.N. G. LTD & ANOR (2013) 16 NWLR PT 1381 p. 506, KOSILE V FOLARIN (1989) 3 NWLR PT. 107.

According to Muhammad J.S.C. in ORGAN & ORS N.L.N.G. LTD & ANOR (Supra),
‘It must also be stated that generally leave of Court is required to raise a new issue on appeal. Where a party seeks to file and argue any fresh issue, being an issue that was not raised and determined by the trial Court and is being raised for the first time in the appellate Court he must first seek and obtain leave of Court before filing such issue except the point or issue being raised by the appellant touches on jurisdiction which can be raised at any time he would not be allowed to, without leave sought and obtained raise and argue a point not raised or argued at the trial Court.’

I have gone through the proceedings at the lower Court, the argument of learned counsel for the appellant on this issue is very difficult for me to fathom. It is clear that it was the case of the defendant at the lower Court that Ihieagu Assembly which included the elders of Iheagu arbitrated on the matter before the Court and concluded that the defendant owned the land in dispute. The judgment of HRH EZE Marius Chukwuma Okoroji with the Ihieagu Assembly was even pleaded.

See paragraph 47 of the Statement of Defence.

In his adopted statement on oath the defendant further stated in paragraph 46-48 thus:
46. That the claimants had continued to disturb the peace and the inheritance of the defendant sometime in 2011, this land matter was complained to HRH EZE Marius Chukwuma Okoroji by the defendants. HRH EZE Marius Chukwuma Okoroji directed the Ihieagu General Assembly which includes the elders in Ihieagu to look into the matter. The Ihieagu Assembly after arbitrating over the matter, came to a conclusion that these lands belong to Mr Nworie Ejimadu- the defendant. The judgment of HRH EZE Marius Chukwuma Okoroji with the Ihieagu Assembly was in writing and is pleaded in evidence.

47. That the lands I complained for and arbitrated over by the Ihieagu General Assembly are all these lands now in dispute in this Court. They are the Uzo Umuma land, Uzo Iyi Abo land, the one at Ehiagwu also known as Uzo Ogwe Ama Okpoehi land and the one behind Mrs Elizabeth Ejimadu?s house also known as Abo Onu Obodo land.

48. That despite the said judgment of the Ihieagu General Assembly, the claimants have continued to threaten, victimize and suppress the defendant because of his poor state and have vowed to deal with the defendant.

The said judgment was admitted as exhibit K on 10/5/2013 by the lower Court.
The learned trial Judge in his judgment on page 191 of record of appeal commented on the said Exhibit K thus:

Judgment is hereby entered in for the claimants and it is-
1. Declared that the claimants are entitled to the right of occupancy over the pieces of land called (1) Uzo Umuma land (2) Aba Onu Obodo land (3) Uzo Ogwe Ama Okpoechi land and (A) Iyi Aba land all lying and situate at Ihieagu Ndudu Uturu in Isiukwuato Local Government Area of Abia State.

2. The defendant is hereby restrained, by himself, his servants, agents, privies or whomsoever claiming through him from further trespassing into the above named lands.

3. The defendant shall pay the sum of Two Hundred Thousand Naira (N200,000.00) being damages for his trespass into the said lands.

4. The counter-claim of the defendant is dismissed in its entirety.

5. The defendant shall pay cost of this suit to the claimants assessed at Twenty Thousand naira (N20,000.00).

Now, customary arbitration if proved and pleaded and proved is capable of constituting an estoppel. See RAPHAEL AGU V IKEWIBE (1991) 3 NWLR (PT. 180) 385; AWOSILE V SOTUNBO (1992) NWLR PT 243, p.1 at 29.

It seems to me beyond argument that by pleading customary arbitration on the same land issue and adducing evidence in respect thereof, issue of estoppel had been raised. It therefore follow that Ground two of the Amended Grounds of Appeal does not bring up a fresh issues in this Court. I hold that the Ground is competent. I resolve this issue against the Respondent.

Issue No. Two
Whether the Respondents’ suit at the trial Court was caught off by Estoppel.
If the customary arbitration as contained in Exhibit K was held to be binding on the parties that this would have created an issue of estoppel against the Respondent. See AGU V IKEWIBE (Supra)
The law is settled on when customary arbitration can apply as estoppel per rem judicatam. In EGESIMBA V ONUZURUIKE (2002) 15 NWLR (PART 791) p. 466, Ayoola J.S.C. had this to say on this point.

The four ingredients usually accepted as instituting the essential characteristics of a binding customary arbitration are:
(i) voluntary submission of the dispute to the arbitration of the individual or body
(ii) agreement by the parties either expressly or by implication that the decision of the arbitrators will be accepted and binding.
(iii) That the arbitration was in accordance with the custom of the parties and
(iv) That the arbitrators reached a decision and published their award.

In OKEREKE & ANOR V NWANKWO & ANOR (2003) 9 NWLR (PART 826) p. 592, the apex Court added the fifth ingredient that should constitute on essential characteristic of a binding customary arbitration thus:
‘From the principles enunciated——–the ingredients or preconditions for a valid customary arbitration may be stated to be as follows:
(1) That there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons.
(2) That it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding.

(3) That the arbitration was in accordance with the custom of the parties or of their trade or business.
(4) That the arbitrators reached a decision and published their award and
(5) That the decision or award was accepted at the time it was made.’

In view of the conditions laid down by the open court on when a customary arbitration can be binding, I find it difficult to hold that Exhibit K in the circumstances of this case was binding on the parties for the following reasons.
(1) This action (now on appeal) was instituted at the lower Court on 23/11/2011 Exhibit K was made on 16/7/2011 barely 4 months after the arbitration.
(2) Exhibit K was in respect of pieces of land at
(1) Uzoumuna
(2) Uzo iyi abo Iheagu
(3) Ejihagwu
(4) Land behind Mrs. Elizabeth Ejimmadu’s house leading to village square.
This action however is in respect of pieces of land.
(1) Uzo Umuma land
(2) Abo Onu Obodo land
(3) Uzo Ogwe Ama Okpoehi land
(4) Iyi Abo land all situate at Amangwu Iheagu Ndundu Uturu in Isuikwuato Local Government.
(3) Earlier before the arbitration, the claimants had caused their solicitors on 23/12/2010 to write to HRH EZE Morius Okoroji who presided over the arbitration accusing him to have conspired with the elders of Amangwu Iheagwu to levy criminal allegation against their matter.
(4) None of the claimants and their witnesses accepted that there was any arbitration.
(5) Exhibit K itself does not show that it was published and no evidence was given to show that the decision was accepted by the claimants.

It is not for a party relying on customary arbitration to just dump the evidence of the arbitration on the Court. He must show that the parties willingly submitted to the arbitration and accepted the verdict of the arbitrator after its publication. He must also relate the arbitration to the subject – matter of the claim before the Court. This has not been done in this case. The fact that barely four months after the arbitration the claimant instituted this action shows that they did not accept the verdict as binding.

In my respectful view Exhibit K could not have constituted on estoppel. I resolve this issue against the appellant.

ISSUE NO. 3
Whether the trial Court denied the Appellant fair hearing by failing to consider in its judgment the decision or awards of Iheagu General Assembly – Exhibit K.

Did the trial Court fail to consider the decision of Iheagu General Assembly in its judgment, my view is it did. The learned trial judge in his judgment had this to say on the arbitration:
‘Even though the claimants counsel dwelt much on the native arbitration tendered in evidence by the defendant, the defence counsel did not rely on the arbitration in his written address. That is understandable as there is so much contradictions on the evidence surrounding the arbitration to make it of any evidential value. I completely agree with his lordship. The award was not connected with the subject matter of the claim. There is divergent evidence on circumstances surrounding the award. The learned trial judge rightly in my respectful view chose to rely on the evidence adduced by witnesses who appeared before him. I disagree that the right of fair hearing of the appellant was infringed upon at all. Both parties had the opportunity to present their respective cases before the lower Court arrived at its decision. I also resolve this issue against the appellant.’

This appeal succeeds in part. But the judgment and consequential order of the lower Court in Suit No. 45/23/2011. LOUIS EGWUONWU NWOKO & ANOR V EMMANUEL NWAORIE ETIMADU decided on 30/10/2013 are hereby affirmed.
Parties are to bear their respective costs.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I was privileged and read while in draft, the lead judgment just delivered by my learned brother, Hon. Justice Tunde Oyebamiji Awotoye, JCA. Therein, my noble Lord dealt concisely and incisively with the three issues donated and adopted for resolution in the determination of the instant appeal matter. I agree entirely with the resolution of Issue No. 1 in favour of the appellant while Issue No. 2 and Issue No. 3 were resolved against the appellant. Hence, the veritable conclusion that the appeal deserves to succeed in part on the ineffectual Issue No. 1 while it fails woefully on the decisive Issue No. 2 and Issue No. 3. Thus, the inevitable conclusion, that the judgment and consequential orders made by the learned trial judge of the lower Court should be affirmed. I am also of the same viewpoint. I also subscribe to the consequential orders renewed and made in the said lead judgment of my learned brother, Awotoye, JCA, inclusive of the one made with regard to costs.

ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother, T.O. AWOTOYE JCA, in the lead judgment, that the judgment of the trial Court be affirmed.

In the case of Eke & Ors Vs Okwaranyia & Ors (2001) LPELR – 1074 (SC); (2001)12 NWLR (Pt. 726)1, 81, the Supreme Court added a fifth condition necessary for a valid and binding customary arbitration, namely ?that the decision or award was accepted at the time it made. See also Ohiaeri Vs Akabeze (1992)2 NWLR (Pt.221)1 at 24; and Duru & Ors Vs Duru & Ors (2017) LPELR 42490 (CA), where it was restated the law as follows:
‘Any party relying on a decision of Customary arbitration must, plead and establish by evidence the following:
(1) A voluntary submission of the matter in dispute to an arbitration of one or more persons;
(2) An agreement of the parties either expressly or by implication that the decision of the arbitration will be accepted as final and binding.
(3) That the said arbitration was in accordance with the custom of the parties of their trade or business;
(4) That the arbitrators reached a decision and published their award;
and
(5) That the decision or award was accepted at the time it was made.’

My learned brother, AWOTOYE JCA, has already analysed the arbitration report in Exhibit 1K to show that it was not accepted by the claimants, as this suit was filed in Court, soon after the decision of the arbitrators. The defendants had even deposed in paragraph 48 of their pleading that:
‘… despite the said judgment of the lhieagwu General Assembly (Exhibit K) the claimants have continued to threaten, victimize and suppress the defendant and have vowed to deal with the defendant.’

The said arbitration report was, therefore, not binding on the parties to constitute an estoppel in the case.

I too affirm the decision of the lower Court and abide by the consequential orders in the lead judgment.

Appearances:

Emma Nwosu, Esq.For Appellant(s)

Victor A. Mbanaso, Esq.For Respondent(s)