IWOWARI & ORS v. AYERITE
(2022)LCN/16920(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Friday, February 18, 2022
CA/PH/108/2009
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
1. MRS. BEATICE DUTE IWOWARI 2. MR. BENJAMIN AYERITE 3. MRS. ETHEL ONYABO AYERITE APPELANT(S)
And
SAMUEL BARAYEKERE AYERITE RESPONDENT(S)
RATIO
WHETHER OR NOT A HEARING CAN BE WRITTEN OR VERBAL
Hearing can be written or verbal or both depending on what the parties sought for before the body hearing their dispute. For it was held by the Supreme Court in the case of Hart v Military Governor, Rivers State & Ors (1976) N.S.C.C. 622 at 632 that it is well settled that natural justice does not require that the hearing should be oral relying on the earlier cases of Local Government Board v Arlidge (1915) A.C. 120, Adedeji v Police Service Commission (1968) N.M.L.R. 102. PER IKYEGH, J.C.A.
WHETHER OR NOT THE COURT IS BOUND BY A RECORD OF APPEAL
The parties and the Court are bound by the record of the Court and, in this case, the record of appeal (the record) which is from pages 1-205 vide the Supreme Court cases of Okechukwu v Obiano (2002) 8 NWLR (Pt.1726) 276, Garuba v Omokhodion (2011) 15 NWLR (Pt.1269) 145, Brittania-U (Nig.) Ltd. v Seplat Petroleum Development Co. Ltd. (2016) 4 NWLR (Pt.1503) 541, Audu v F.R.N. (2013) 5 NWLR (Pt.1348) 397 where it was emphasised that the record of appeal is binding on the Court, the parties and counsel; and that the Court is not entitled to take cognizance of any document not contained in the record before it. PER IKYEGH, J.C.A.
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from a decision of the High Court of Justice of Rivers State (the lower Court) whereby it modified the award made by peace panel or traditional/customary arbitral panel appointed by the lower Court in the course of proceedings before it.
Shortly put, a Mr. B.O. Ayerite, died intestate. He had three wives and several children from the polygamous marriage. His widows and half orphans were not in consensus on the sharing formula of his intestate estate comprising several portions of landed property within Rivers State. Their disagreement led to litigation at the lower Court initiated by one of the sons, the respondent in the appeal. The 1st appellant, one of the children of the deceased Mr. B.O. Ayarite, as well as the 2nd appellant, one of the children of the late Mr. Ayarite and the 3rd appellant one of the widows of the late Mr. B.O. Ayarite who is also the mother of the 2nd appellant were made defendants in the action by the respondent as the claimant.
The lower Court remitted the dispute of a peace panel of Nembe personages versed in Nembe Native law and custom to be appointed by the disputants to resolve the dispute and submit its report to the lower Court. The peace panel performed the assignment. The respondent then sought in a further amended statement of claim filed on 06.05.2004 the reliefs for enforcement of the award as well as for perpetual injunction restraining the appellants by themselves or through their agents, assigns, privies and successors in title from interfering with the quiet and peaceable enjoyment of the respondent’s share in the intestate estate of the deceased Mr. B.O. Ayerite.
The respondent further sought for an order that the estate of late B.O. Ayerite be partitioned among his immediate family in accordance with the formula enumerated by the respondent in paragraph 30(1), (ii) and (iv) of the statement of claim alongside an order of perpetual injunction restraining the appellants by themselves or through their agents, assigns, privies and successors in title from interfering with the quiet and peaceable enjoyment of the respondent’s allotment in the estate of late Mr. B.O. Ayerite.
The lower Court heard the case on the merits and resolved in its judgment, contained in pages 183-192 of the record of appeal (the record) in partial adoption of recommendation of the peace panel in Exhibit D that the family dwelling house duplex at No.1 Rex Lawson Street, Port Harcourt is distributed to the 2nd appellant; a two story building of six 3 bedroom flats, 1 bedroom flat, one garage, 1 room and the store at No. 1 Rex-Lawson Street Port Harcourt are for the 2nd appellant and her children; two story building of 4 bedrooms three flats, and office block of one big room and two other rooms and one bedroom flat, 1 store and a generator house at No. 1 Rex-Lawson Street Port Harcourt for the 1st appellant and her sister; two twin one story (duplex) of 3 bedrooms with a 4 room one toilet and a kitchen at No.116 Woji Road, GRA, Port Harcourt for the respondent. The lower Court modified recommendation 3 of the report that had given two (3) bedroom flats with boys quarters at No. 6 Daniel Igwe Street Nkpogu village to the respondent for the property to be shared equally between the disputants; while the recommendation of the panel under serial 4 of its report that the temporary building of (20) rooms at Bundu waterside be sold and the proceeds be shared among the disputants was rejected by the lower Court which awarded the property listed under Serial No. 4 of the report to the 3rd appellant and her children absolutely.
The appellants had counter-claimed at the lower Court that the property distributed to the respondent be given to them which according to the appellants, was not determined by the lower Court. Not satisfied with the judgment of the lower Court, the appellants filed a notice of appeal with five(5) grounds contained in pages 193-198 of the record.
The appellants argued in the brief of argument filed on 15.03.2021 but deemed as properly filed on 12.01.22 that, had the lower Court considered the provisions of the Administrations of Estate Law Cap. 1 Laws of Rivers State, 1999 particularly the 2nd Schedule thereof instead of Exhibit D, the recommendation of the peace panel, it would have held that the widow of the deceased takes precedence in the distribution of the property of the deceased and thereafter the rights of the children of the deceased are considered and that the issue of native law and custom no longer governed the estate of the deceased; more so, the lower Court, having in its judgment, accepted the fact that no evidence was called to prove the custom (Nembe custom) in dispute between the parties, the respondent that had asserted the Nembe custom that the eldest son of the deceased became the head of the family upon the demise of the deceased and had a right to distribute the deceased property as it pleased him failed to discharge the onus of proof of the alleged custom which should have entitled the lower Court to dismiss his case citing in support thereof the case of Archibong v Ita (2004) ALL FWLR (Pt.197) 930 at 934, Temile v Awani (2001) FWLR (Pt. 62) 1939.
The appellants argued that the lower Court was wrong to rely on the evidence on Opuanga and Kalanga marriage as it was not pleaded and since it formed the basis upon which Exhibit D was produced same should have been disregarded by the lower Court even though it was extracted under cross-examination citing in support the case of Usenfowokan v Idowu (1969) 1 ALL NLR 125 at 131-132.
The appellants argued that since their counter-claim was undefended, same should have been treated by the lower Court as deemed admitted by the respondent on the standard of minimal proof citing in support the case of Newbreed Organisation Ltd. v Erhomosele (2006) ALL FWLR (Pt.307) 1076.
The appellants reiterated in argument that the lower Court was wrong to base its judgment on Exhibit D which was founded on a tradition that was not pleaded and proved and that based on the above contention, the lower Court should not have granted part of the respondent’s claims that the estate of the late B.O. Ayerite should be distributed in line with Exhibit D, the report of the peace Panel constituted by the lower Court.
The appellants contended that quite apart from the fact that the lower Court was wrong not to consider and pronounce on whether Exhibit D was a valid document, since the arbitral panel did not invite the respective parties to give their evidence but acted on their own by resorting to a system purportedly under Nembe native law and custom which was not in issue between the parties at the arbitral proceedings, the lower Court was wrong to use Exhibit D to determine the case when it acknowledged in its judgment that both parties did not call expert evidence on Nembe native law and custom.
The appellants argued that, as they did not accept the report of the peace Panel, because it did not comply with the terms of reference whether according to Nembe Law and custom, women could inherit their late father’s property and whether by the said native law and custom the first son of the deceased was the head of the family and could so distribute the father’s property as he wished, the report of the panel in Exhibit D was not binding, especially as the appellants had through the unchallenged testimony of DW1 categorically rejected the report of the Panel, Exhibit D, therefore the lower Court should not have adopted Exhibit D to enter judgment against the appellants; so contended the appellants.
The appellants relied on the case of Ohaeri v. Akabeze (1992) 2 NWLR (Pt.221) 1 at 7 for the proposition that, for a customary arbitration to be valid and binding, there must co-exist the facts that there had been a voluntary submission of the matter in dispute to an arbitration of one or more person; 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; that the said arbitration was in accordance with the custom of the parties or of their trade on business; that the arbitrators reached a decision and published their award; and that the decision or award was accepted at the time it was made, to argue that though the appellants consented to the arbitration, the peace panel went outside the terms of reference to determine the issue of Opuanga and Kalanga types of dowry marriages conducted on each wife of the late B.O. Ayerite when the issue it was referred to for settlement was the disagreement over the sharing of the property in line with Nembe native law and custom claimed to be in existence as pleaded in the statement of claim.
The appellants then argued that since they rejected the arbitration award or panel report immediately it was read to them by the members of the panel, the lower Court was wrong to rely on it as the peace panel also decided what was not submitted by the parties for determination citing in support the cases of Ehoche v Ijegwa (2003) FWLR (Pt.154) 587 at 601, N.N.P.C. v Lutin Investments Limited (2006) FWLR (Pt.361) 1760 at 1763.
The appellants argued that having regard to the facts that the respondent did not file a defence to the counter-claim contained in pages 79-80 of the record the respondent was deemed to have admitted the counterclaim and also as the respondent did not cross-examine the appellant’s witness on the counter-claim and the lower Court failed to consider the counter-claim, judgment should have been entered for the appellants on the counterclaim citing in support the cases of Crown Flower Mills Ltd v Olokun (2007) ALL FWLR (Pt. 393) 24, Dabup v Kolo (1993) 9 NWLR (Pt.317) 254, Newbreed Organisation Ltd. v Erhomosele (2006) ALL FWLR (Pt.307) 1076, at 1080, Ogbonna v A.-G., Imo State (1992) 1 NWLR (Pt.220) 647 at 658.
The appellants argued that as the respondent had pleaded in paragraphs 11 and 12 of the amended statement of claim contained in page 72 of the record and gave evidence in support thereof in page 134 of the record that by Nembe custom the first son is head of the family of his deceased father and in that capacity attempted in vain due to lack of cooperation from the appellants to distributes the estate of his late father when, by the said custom, he was the only one entitled to inherit the property, without proof of the alleged custom and in stiff opposition by the appellants through the unshaken evidence of DW2 contained in page 148 of the record, the respondent failed to prove his case and the lower Court was wrong to hold that the first son is normally the head of the family in most parts of Nigeria and went on to rely on Exhibit D to distribute the property, thereby granting the respondent what he did not ask for citing in support the cases of Temile v Awani (2001) FWLR (Pt.62) 1939, Yusuf v Toluhi (2002) FWLR (Pt.119) 1730 at 1434(?), Standard (Nig.) Engr. Co. Ltd. v N.B.C. (2006) ALL FWLR (Pt.316) 255 at 257.
The appellants argued that assuming without conceding, the custom pleaded by the respondent exists and had been proved, the said custom is barbaric and discriminatory and should be discarded and disregarded and dismissed as amounting to nothing and repugnant to natural justice, equity and good conscience when it excludes women from the distribution of the estate more so the lower Court speculated on the issue citing in support Section 42 (1) (a) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) and the case of Uke v Iro (2002) FWLR (Pt. 29) 1453 at 1454, Federal Mortgage Finance Limited v Ekpo (2005) ALL FWLR (Pt. 248) 1667 at 1674, Oraetoka v Ajia (2006) ALL FWLR (Pt.321) 1321 at 315 (for the proposition that where a trial judge has not properly evaluated the evidence, the appellate Court can safely and properly set the finding made aside.
The appellants argued that as they had furnished the lower Court enough materials to determine the counter-claim, the failure of the lower Court to do so amounted to wrongful exercise of discretion which the Court should interfere citing in support the cases of Echaka Cattle Ranch Ltd. v NACB Ltd. (1998) 4 NWLR (Pt. 547) 526 at 537, Kassab v Ulasi (1991) 2 NWLR (Pt.174) 448, Ozioko v Ugwu (1994) 4 NWLR (Pt.337) 242 at 253, See I.I. G. (Nig.) Ltd. v Alao (1990) 3 NWLR (Pt.141) 773 at 780 upon which the appellants urged that the appeal be allowed and the decision of the lower Court be set aside and judgment be entered on the counter-claim or that in the alternative, the case be sent back to the lower Court for retrial before another judge.
The respondent filed a brief on 24.11.2015. It was deemed as properly filed and served on 12.01.22. the respondent argued in the brief that the customary arbitration contained in Exhibit D was conducted by arbitrators nominated or chosen by the parties at the instance of the lower Court and were versed in Nembe native law and custom on inheritance of intestate estate and that the parties had accepted the arbitration and cannot resile from it, therefore the lower Court should have based its decision in the case on Exhibit D which, according to the respondent, the lower Court erroneously treated as recommendation when Exhibit D had binding force placing reliance on the cases of Essie Gyesiwa v Kobin Mensah (1947) WACA 45, Opanin Kwasi & Ors V Joseph O. Larbi 13 WACA 7 (Privy Council), Ojibah v Ojibah (1991) 5 NWLR (Pt.191) 296, Awosile v Sotunbo (1992) 5 NWLR (Pt. 243) 514 at 517, Anyabunsi v Ugwunze (1995) 6 NWLR (Pt.401) 255 at 261, Oparaji v Ohanu (1999) 9 NWLR (Pt.618) 290, Egesimba v Onuzuruike (2002) FWLR (Pt.128) 1386 at 1397, Agala and Ors. V Egwere & Ors (2010) ALL FWLR (Pt.532) 1609 at 1616, Alibo & Ors V Okusin & Ors. (2010) ALL FWLR (Pt.529) 1059 at 1066-1067, Onwusike v Onwusike (1962) 6 ENLR 10, Njoku v Ekeocha (1972) ECSLR 199, Kolawole v Ilori (2010) ALL FWLR (Pt.514) 35 at 47, Osuigwe & Ors V Nwihim & Ors. (1995) 3 NWLR (Pt.386) 752, Awonusi & Anor V Awonusi (2007) ALL FWLR (Pt.391) 1642 at 1646, Comptoir Commercial & Ind. SPR Ltd v Ogun State Water Corporation & Anor (2002) FWLR (Pt.105) 839 at 844 Nwaokorobia & Anor V Uzoho & Ors. (2007) ALL FWLR (Pt.376) 729 at 731, Uzoewulu & Anor V Ezeaka & Ors (2001) FWLR (Pt.46) 932, Aye-Fenus Ent. Ltd. v Saipem Nig. Ltd. (2009) ALL FWLR (Pt.460) 767 at 774 Akwueke v Okwaranya (2001) 4 SC 271 read with Andrew Chukwuemerie’s ‘The Recent Odyssey of Customary Law and Conciliation in Nigeria’s Apex Courts’ (1998) 5 Abia State University L.J.I or Chapter 9 of his studies and Materials in International Commercial Arbitration, Lawhouse Books, 2002, and Order 19 Rule 10, 13 and 14 of the Rules of the High Court 2006 then applicable to the dispute.
The respondent contended that by the wide terms of reference, the lower Court gave to the customary arbitrators it could not be right for the appellants to argue that the customary arbitrators went outside or beyond the terms of reference when all that they considered was the relevant Nembe customary law in resolving the dispute upon fair and equitable grounds to the satisfaction of the parties.
The respondent contended that the terms of reference given to the customary arbitrators, covered more than the pleaded materials in line with what obtains in alternative dispute resolution and that since the customary arbitrators had good and expert knowledge of the Nembe native law and custom on inheritance which was the only or major qualification for their appointment as the evidence of DW2 showed under cross-examination, the arbitration in Exhibit D was not in breach of the native law and custom of Nembe; and that having pleaded the arbitration report, Exhibit D, none of the parties was required to plead the custom of Nembe on inheritance as it was covered by Exhibit D citing in support the case of UBA Ltd. v Ademuyiwa (1999) 11 NWLR (Pt.628) 570.
The respondent further contended that written representations were made by the parties to the customary arbitrators and none of the parties requested for oral presentation, so it would be wrong to argue that there was denial of fair hearing and that to achieve equitable results the customary arbitrators who were knowledgeable in the native law and custom of Nembe included females in the distribution of the estate which by strict texture of Nembe native law and custom on inheritance, females would not have been included, showing the customary arbitrators did not follow any barbaric custom in the scheme of distribution of the estate.
The respondent also contended that as the PW1 and the DW1 gave clear evidence of Nembe custom, therefore, corroboration of the evidence was unnecessary and sufficed to prove the custom citing in support the cases of Ojemen & Ors v Momodu & Ors (2001) FWLR (Pt.37) 1138 at 1143, Usiobaifo & Anor. V Usiobaifo and Anor (2005) ALL FWLR (Pt.250) 131.
The respondent contended that since the deceased did not contract a monogamous marriage but was a polygamist by marrying his first wife under the big dowry (Opuanga marriage) while he married the subsequent two under the lessor dowry or flesh marriage (the Kalanga marriage) the provisions of the Administration of Estate Law, cap 1, Laws of Rivers State, 1999 did not apply to the distribution 1 (2) thereof; and that a grant of Letters of Administrations is not inconsistent with rights of inheritance subject to customary law citing in support the cases of George v Sonekan (1997) 3 NWLR (Pt.495) 618, Danmole v Dawodu (1958) SCNLR 6, Obusez v Obusez (2001) 15 NWLR (Pt.736) 377, Salubi v Nwariaku (2003) 7 NWLR (Pt.819) 426, Anowo v Anowo (1991) 7 NWLR (Pt.201) 58 at 75 and that the lower Court should have given the clear and unambiguous words of the Administration of Estate Law (supra), its literal meaning to the effect that it does not abrogate customary law of inheritance for the deceased who had married under Nembe native law and custom vide Lekwauwa v Ukaegbu (2009) ALL FWLR (Pt.469) 539.
The respondent relied on the cases of Lawal-Osula v Lawal-Osula (1995) 9 NWLR (Pt.419) 259, Abudu v Eguakun (2003) FWLR (Pt. 173) 1, Usiobaifo and Anor v Usiobaifo & Anor (2005) ALL FWLR (Pt.250) 131, Idehen v Idehen (1991) 6 NWLR (Pt.198) 382, Ogbahon v Registered Trustees, CCCG (2001) FWLR (Pt.80) 1496 to contend that customary law that forbids inheritance of estate by females is not barbaric or repugnant to natural justice, Equity and good conscience; adding that in this case the validity of the custom was not on the front-burner of the dispute to call in aid the repugnance doctrine.
The respondent contended that the lower Court was right to find that the eldest son of the deceased is head of the family vide the evidence of PW1 in page 31 of the record and the cases of Paye v Gaji (1996) 5 NWLR (Pt. 450) 589, Folami v Cole (1990) ALL NLR 310, Samuel v Adedeji (1997) 8 NWLR (Pt.517) 447.
The respondent contended that as the appellants did not plead and prove any Nembe customary law on the basis of which they could share the estate of their late father on the unilateral sharing formula pleaded in the reliefs of the counterclaim, the counterclaim was not established and the lower Court was right to ignore the counterclaim as the main part of it also formed the appellants’ defence to the respondent’s main action determined by the lower Court. Which accorded with substantial justice vide the cases of Oloruntoba-Oju v Abdul-Raheem (2009) ALL FWLR (Pt.497) 1, Mobil Producing Nig. Unlimited v Udo (2009) ALL FWLR (Pt. 482) 1117, upon which the respondent urged that the appeal be dismissed with an order that the arbitral award in Exhibit D should stand as the judgment of the lower Court.
The appellants filed a reply brief on 22.11.2017 but it was deemed as properly filed on 12.10.22 in which it was argued that the fact that the parties chose the customary arbitrators did not estop any of them from raising objection to the entire process and/or rejecting the panel’s recommendation vide Ohiaeri v Akabeze (supra) and that there being evidence that the appellants rejected the peace panel’s recommendation the moment same was disclosed to them, the appellants were not bound by the panel’s report.
The appellants argued in the reply brief that the customary arbitrators misconducted themselves so the report, Exhibit D, made by them should have been rejected vide the case of Triana Hold v UTB PLC (2009) LPELR 8922, Taylor Woodrow (Nig.) Ltd. v S.E. Gmbh Ltd. (1993) 4 NWLR (Pt. 286) 127, UBN PLC v Ayodare & Sons (Nig.) Ltd. (2007) 13 NWLR (Pt.1052) 567 at 595-596 read with Section 48 (a) (iv) & (v) of Arbitration and Conciliation Act, CAP A18, LFN 2004.
The appellants argued that since the respondent did not cross-appeal, he could only support the judgment of the lower Court therefore his arguments against the holding of the lower Court that the relevant Nembe custom was not proved by the respondent and the other attacks on part of the judgment go to no issue and should be disregarded vide the cases of Ifegwu v UBN (2011) 16 NWLR (Pt. 1274) 555, Lagos City Council v Ajayi (1970) 1 ALL NLR 29, Eliochin (Nig.) Ltd. v Mbadiwe (1986) 5 NWLR (Pt. 850) 587.
The appellants also argued in the reply brief that a counter-claim being a separate and distinct action from the main suit, the only way a counter-claim can be defended is by filing a defence to the counter-claim and that not having so challenged the counter-claim, it remained unchallenged and undefended, upon which the appellants urged that their reliefs be granted as per the notice of appeal.
The lower Court held in part of its judgment contained in pages 183-192 of the record that the relevant Nembe native law and custom on inheritance was not proved by an expert witness on the custom. The respondent argued in extenso in the brief that the relevant native law and custom was proved and that, at any rate, his evidence on it as a native of Nembe sufficed and did not require corroboration. The above holding is fundamental. It can only be attacked by a cross-appeal, as the traditional role of a respondent is to defend the decision of the Court.
The parties and the Court are bound by the record of the Court and, in this case, the record of appeal (the record) which is from pages 1-205 vide the Supreme Court cases of Okechukwu v Obiano (2002) 8 NWLR (Pt.1726) 276, Garuba v Omokhodion (2011) 15 NWLR (Pt.1269) 145, Brittania-U (Nig.) Ltd. v Seplat Petroleum Development Co. Ltd. (2016) 4 NWLR (Pt.1503) 541, Audu v F.R.N. (2013) 5 NWLR (Pt.1348) 397 where it was emphasised that the record of appeal is binding on the Court, the parties and counsel; and that the Court is not entitled to take cognizance of any document not contained in the record before it.
The record does not contain any notice of cross-appeal and/or respondent notice to vary the judgment of the lower Court on other ground(s). The Supreme Court observed, commented and explained in the case of Sani v State (2021) 5 NWLR (Pt.1770) 502 at 532 that all appeals are “a rehearing”, in which an aggrieved party files a notice of appeal (or cross-appeal as the case may be in respect of a respondent) with valid ground(s) of appeal stating clearly the complaint from the decision of the lower Court and the exact nature of the relief sought which was not the case here where the respondent without cross-appealing complained in his brief of certain findings or holding on the modification of the report of the customary arbitrators in Exhibit D adverse to the case presented on his behalf at the lower Court. See also the string of cases (supra) cited by the appellants on the issue.
The case of Tanko v Abubakar (2019) 1 NWLR (Pt.1653) 279 also decides it that right of cross-appeal is not dependent on the main appeal and should be filed within its own time. The arguments with respect to these issues coming from the respondent are therefore impotent and futile having no foundation in a notice of cross-appeal and/or respondent notice and are hereby not countenanced.
The Linchpin of the appeal is whether Exhibit D is final, conclusive and binding as a piece of customary arbitration under the aegis of the lower Court. The appellants argued that they rejected the report of the customary arbitrators. The report of the customary arbitrators was admitted in evidence without objection as Exhibit D. It is generally the practice and procedure that when a party or his counsel stands by and allows documents to be tendered in evidence, he cannot turn round to complain against the documents, especially on appeal vide the cases of Shurumo v State (2010) 19 NWLR (Pt. 1226) 73, John v State (2011) 18 NWLR (Pt.1278) 353 at 380.
The respondent and the appellants made written presentations at the customary arbitration. None of the parties sought for permission of the arbitrators to present oral evidence. There is no whimper of evidence that any of the parties wanted to put in additional evidence or other evidence verbally or orally and was denied the opportunity to do so by the arbitrators. Hearing can be written or verbal or both depending on what the parties sought for before the body hearing their dispute. For it was held by the Supreme Court in the case of Hart v Military Governor, Rivers State & Ors (1976) N.S.C.C. 622 at 632 that it is well settled that natural justice does not require that the hearing should be oral relying on the earlier cases of Local Government Board v Arlidge (1915) A.C. 120, Adedeji v Police Service Commission (1968) N.M.L.R. 102.
Consequently, I fail to see the woods from the trees in the contention of the appellants that they were not heard by the arbitrators before the arbitrators made the recommendation or report in Exhibit D, when the appellants presented their proposals at the arbitration for consideration by the customary arbitrators.
The lower Court saw, heard and observed the demeanour of the witnesses in the witness-box. To that extent, the appeal turns on the facts believed by the lower Court. The recurring decimal question in such circumstances is not whether an appeal Court if it had been in the position of the lower Court might have come to a different conclusion on the facts derived from the viva voce evidence of the witnesses. Not having seen and heard the witnesses, an appeal Court cannot express itself as being absolutely or mathematically 100% positive on a question of fact as in this case, to depart from and/or reverse the findings of fact based on the credibility of the witnesses pointing irresistibly to voluntary submission of the parties to customary arbitration and acceptance of the result or report of the customary arbitration upon its announcement to the parties by the arbitrators in this case.
It was, for example, held by the Supreme Court in the case of Frederick v Ibekwe (2019) 17 NWLR (Pt.1702) 467, in reiteration that the primary duty resides with the lower Court as the trial Court to receive all the relevant and admissible evidence which it weighs in the imaginary scale of justice in a civil case to decide which side of the divide the scale tilts or favours. And that it is not the duty of an appellate Court to evaluate evidence on the credibility of the witnesses where the trial Court discharged the primary responsibility of evaluation of the evidence, save if the trial Court failed to do so, in which case an appellate Court may intervene to re-evaluate the evidence to rectify the findings and remove the perverse stain or miscarriage of justice that had afflicted the handling of the evidence by the trial Court, which exception was absent in this case.
The lower Court held in part of its judgment in page 188 of the record that it is the tradition well established in most parts of “this country” that when a person dies, the eldest surviving son becomes the head of the family, but the lower Court went further to qualify and water or mellow down the above holding by stating in these follow-up words-
“Be that as it may, the parties on record, that is, the claimant and the defendants are the administrators and administratrixs of the estate of their late father by the Letters of Administration issued on 16/7/99, which has thus vested in them the power to deal with the estate. The parties to this suit, have agreed to distribute the estate among the beneficiaries. The crux of this matter is how the estate is to be distributed.” (My emphasis).
It can be seen dispassionately from the above excerpt, especially the underlined portion thereof, that the lower Court did not veer off course in the resolution of the central controversy in the case.
The parties consented to the customary arbitration. It was a mode of dispute resolution voluntarily agreed upon by the parties. Arbitration is indisputably acknowledged as an alternative dispute resolution. The customary arbitrators in this case were nominated by the parties based on their well versed knowledge of Nembe native law and custom. Their expertise in Nembe native law and custom was the paramount qualification the lower Court imposed on the appointees to function in the capacity of customary arbitrators in the dispute. The strong and compelling presumption which was not rebutted in the case was that the customary arbitrators at all material times knew Nembe native law and custom with respect to the distribution of the estate of the deceased which required no further proof.
None of the parties was ex facie excluded from the distribution of the estate on ground of the type of marriage the deceased contracted during his lifetime. Had the type of marriage been followed members of the flesh marriage would have got nothing.
The respondent’s case, particularly through his witness, with respect to the acceptance of the arbitration without protest by the appellants at the time it was announced was unshaken under cross-examination and was on that basis unchallenged evidence which established the acceptance of the arbitration by the appellants without ado.
The distribution formula in Exhibit D showed all the parties were taken care of in the distribution of the estate of the deceased which indicated that there was no discrimination in the distribution of the estate in Exhibit D. The complaint of discrimination is, with respect, hollow and is hereby not countenanced.
The notion of the repugnancy doctrine and constitutional injunction against discrimination brought into the case do not therefore tally with the practical result arrived at by the customary arbitrators in Exhibit D. There was also nothing barbaric or uncivilized in the result achieved by the customary arbitrators in Exhibit D. I think, with maximum respects, that it is uncharitable to dub the exercise in Exhibit D as repugnant to natural justice, equity and good conscience and contrary to public policy as well as against the constitutional prohibition of discrimination on ground of sex, circumstances of birth etc as it was the ratio of, not utter exclusion from, the distribution of the estate that was the cynosure of the customary arbitration in Exhibit D.
The lower Court proceeded to hold in part of the judgment in page 189 of the record that it was left with Exhibit D as a guide on the distribution of the estate which it had perused and found weighty and/or of credible value on account of the fact that it was the report of persons jointly nominated by the claimant and the defendants at the lower Court. However, the lower Court modified the recommendation or report in serial Nos. 3 and 4, earlier captured in the discourse. The above approach was by plain implication the rejection of the counter-claim. It is trite that the failure of a plaintiff to file a defence to a counter-claim may not be fatal if the plaintiff succeeds in his claim as his success may render the counter-claim useless as in this case where the appellants sought for a different formula for the distribution of the estate of the deceased from the parameter contained in Exhibit D upon which the respondent’s case was anchored; therefore no judgment could have been given for the appellants on the counter-claim without considering the evidence led in respect of the facts pleaded by the respondent vide Dabup v Kolo (supra).
I respectfully conclude that the exercise in Exhibit D was all inclusive and bore the commendable trappings of peaceful and tranquil quest for domestic synergy and cohesion to hold the family of the deceased together and prevent it from falling apart. Had the respondent cross-appealed on the modification of the customary arbitration award in Exhibit D, much might have been held in favour of leaving the distribution of the estate as contained in Exhibit D intact; and it is on this note that I close the discussion on the coda that the appeal lacks substance and would dismiss it and affirm the decision of the lower Court (Iyayi, J.). Parties are to bear their costs. I commend both learned counsel for the industry put in the respective briefs.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead judgment delivered by my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA.
I am in full agreement with the reasoning and conclusion arrived at in the lead judgment which I adopt same as mine.
The appeal is bereft of merit and dismissed by me as done by noble brother. The decision of the lower Court is therefore affirmed. I abide by the consequential order as made in the lead judgment.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: I read the draft of the judgment prepared by my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA.
I agree with the reasoning and order stated in the judgment, which I hereby adopt as mine.
Appearances:
Mr. R.O. Ifebhor For Appellant(s)
Prof. A.I. Chukwuemerie, SAN with him, Mr. P. Ezeogwu For Respondent(s)
