LONGINUS NWOSU & ORS v. NJERE EKEIGWE ANOR (2014)

LONGINUS NWOSU & ORS v. NJERE EKEIGWE ANOR

(2014)LCN/7177(CA)

In The Court of Appeal of Nigeria

On Friday, the 9th day of May, 2014

CA/OW/60/2010

RATIO

THE AIM OF A NOTICE OF PRELIMINARY OBJECTION

The law is firmly settled that the design or aim of a Notice of Preliminary Objection is to terminate in limine an action or an appeal so that same could be brought to an abrupt end either due to obvious defect, incompetence or any jurisdictional impediment or intervening event militating against the hearing of a suit or appeal, see CHIEF U. M. EFET v. INEC & ORS (2011) 3 SCM 63 at 76 (1) – 77A per I. T. MUHAMMED, JSC and YARO v. AREWA CONSTRUCTION LTD & ORS 6 SCNJ 418.

Thus when an appellate court is faced with a Notice of Preliminary Objection bordering on the incompetence of an appeal and consequently on its appellate jurisdiction it is always neater and better to determine the merit or demerit of the objection before delving into the merit of the appeal. See OWELLE ROCHAS OKOROCHA v. PEOPLES DEMOCRATIC PARTY & ORS (2014) 1 SCM 163 at 785 per OGUNBIYI, JSC and B.A.S.F. NIGERIA LTD & ANOR v. FAITH ENTERPRISES LTD (2010) 1 SCM 41 at 52 D-E per COOMASSIE, JSC. Per PETER OLABISI IGE, J.C.A.

WHETHER A GROUND OF APPEAL CAN BE AMENDED

It must be stressed that an amendment to a court process is either to add or subtract from the existing process sought to be amended. In this case the Appellant only added additional grounds of appeal with the leave of this court. The case of NWAIGWE OKERE (2009) 13 NWLR (Pt. 1105) 445 at 414 C-F per Onnoghen, JSC can only avail the Respondent on issue one on the Notice of preliminary Objection if they had been able to show that all the existing seven grounds of appeal originally filed by the Appellants are invalid grounds of appeal. A valid ground is sufficient and capable of sustaining an appeal. It can also be amended and new or additional grounds can be added to it. See the case of CHIEF AMEKE CHRISCATO IKECHUKWU v. HON. TONY NWOYE & ANOR (2014) 4 NWLR (Pt. 1397) 227 at 241 B-C, per AGUNBIYI, JSC and 244 A-B where M. D. HUHAMMAD, JSC who said;

“It is not Respondent’s case that the appellant/applicant’s notice of appeal is incompetent such that adding to the entirely invalid grounds in the said Notice is impossible. It is only asserted that with the contradictions inherent in the materials applicant relied upon he cannot be allowed the indulgence he seeks.

It is beyond dispute that the notice of appeal the applicant seeks leave to amend by adding thereto more grounds contains valid grounds and therefore remains valid and extant.” Per PETER OLABISI IGE, J.C.A.

CONDITIONS OR INGREDIENTS OF PLEA OF RES JUDICATA

There is no doubt that the Law is settled as to conditions or ingredients of plea of res judicata. It is my view that in action where pleadings are filed the party relying on the plea must plead and prove all the essential ingredients of res judicata. Application of res judicata in cases adjudicated upon at Customary or Native Court have similar and significant ingredients to be established.

It must however be borne in mind that trials conducted in Customary Court Area Court or Native Court or Tribunal and even in Customary Arbitration pleadings are not filed as in the High Court hence the appellate Courts hearing appeals from Customary Courts have been enjoined not to interfere with their findings except where grave miscarriage of justice had occurred on the face of the record of proceedings and the finding of the Customary Court is perverse. See CYPRIAN ONWUAMA v. LOIUS EZEKOLI (2002) (Pt. 760) 353 AT 365 D – F where UWAIFO, J.S.C had this to say:

“It must be remembered that this case was tried in a Customary Court where pleadings are unknown. The proceedings in such court are to be considered upon a broad view as to whether they were conducted in pursuit of the justice of the case presented by both parties. In other words, appellate courts are to consider the substance of the proceedings of Native, Customary or Area Courts liberally and this is done by reading the record to understand what the proceedings were all about so as to determine whether substantial justice has been done to the parties within the procedure permitted by such Coutts: See Dinsey v. Ossey (1939) 5 WACA 177; Jumai Alhaji Taria v. Yar Maituwa (1966) NMLR 59; Ikpang v. Edoho (1978) 6-7 SC 221; Ibero v. Ume-Ohana (1993) 2 NWLR (Pt. 277) 510; Chukwueke v. Okoronkwo (1999) 1 NWLR (Pt. 587) 410; Duru v. Onwumelu (2001) 18 NWLR (Pt. 746) 672. The case of Lawal v. Olufonwobi (supra) originated in the High Court and was tried on the pleadings of the parties. By such procedure any party who relies on traditional history to prove title to land must plead the particulars which support that history.” Per PETER OLABISI IGE, J.C.A.

JUSTICES

UWANI MUSA AJI Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

1. LONGINUS NWOSU
2. MICHAEL EMERENWA
3. OGUCHALU IKERE Appellant(s)

AND

1. NJERE EKEIGWE
2. TAX OGBONNA Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal of Imo state of Nigeria delivered on 14th day of May, 2009.
The facts leading to this appeal are legion. The Appellant had in 1984 in Suit No. HOW/17/84 sued the Respondents at the Imo State High Court claiming for declaration to certificate of Right of Occupancy over the parcel of land in dispute between the parties.
While the case was pending a panel of Native Arbitrators headed by one NZE A. A. EKE applied to the High Court before which the case was pending and sought for permission to settle the dispute for the parties by conducting customary arbitration. The parties to the said action at the High Court who are also the parties in this appeal consented and submitted themselves to the jurisdiction of the Native Arbitration and agreed to be bound, The Panel recommended Customary arbitration by way of Oath taking. The Oath was administered by the Panel on the Appellants representative SIMEON NWOSU. It was part of the condition of the Oath that within a period of one year the said SIMEON NWOSU must not cut his beard, finger nails and toes. Later there was allegation by the Respondents that the said SIMEON NWOSU breached the oath he took by shaving his beard his head and cutting of his toe nails and fingers. The Respondent reported the matter to NZE A. A. Eke, Chairman of the Native Arbitration and Elders in the Community whom Respondents stated told them that the customary law affect of SIMEON NWOSU’S act was that he (SIMEON NWOSU) was deemed not to have survived the Oath. They relied on pages 106 – 107 of the Record for the verdict of the Community elders. However the Appellant took the development as a back out from the Customary Arbitration by the Respondents when a report on the situation was made to the High Court. The Appellants reported to the High Court. The High Court per Metu, J, noted that the parties have not settled and fixed the case for continuation. Meanwhile, consequent upon a decision of the Supreme Court in the case of OYENIRAN v. EGBETOLA (1997) 50 LRCN 1396, the High Court of Imo State presided over by HON. JUSTICE E. O. METU as aforesaid on 27th day of October, 1998 ruled thus:-
“I intend to write a Ruling in this matter but having gone through the submission of Counsel on the matter it seems to me that this Court will be involved in a futile academic exercise having regard to the judgment of the Supreme Court in the celebrated case of OYENIRAN v. EGBETOLA. That case has set a land-mark in matters affecting land. This Court is not competent not to be bound by it. In view of this suit No. HOW/17/84 is hereby struck out.
The parties are however at liberty to take the matter to the Customary Court.
SGD
E. O. METU
JUDGE – 27/10/89”
Perhaps taking up the gauntlet the present respondents approached the Customary Court of OWERRI URBAN sitting at Owerri, Imo State suing and claiming against the present Appellants thus:-
“IN THE CUSTOMARY COURT OF IMO STATE OF NIGERIA IN THE CUSTOMARY COURT OF OWERRI URBAN HOLDEN AT OWERRI
Suit No. CC/OU/154/98
BETWEEN:
1. SUNDAY UGWUEGBULAM PLAINTIFFS
2. NJERE EKEIGWE PLAINTIFFS
3. TAX OGBONNA
(For themselves and as representing The members of Umuogbuehiebi Umueke Oforola Owerri West L.G.A.)
AND
1. LONGINUS NWOSU
2. MICHAEL ENERENWA DEFENDENTS
3. OGUCHIALU IKERI
(For themselves and as representing Umunanka Umugide Oforola Owerri West L.G.A.)
The plaintiffs’ claim against the defendants: and severally as follows:-
1. Declaration that the plaintiffs are entitled to the grant of a Customary Right of Occupancy to the piece or parcel of land known as and called “Uhie Oringbada” lying the situate at Umueke Oforola, Owerri West Local Government Area within the jurisdiction of the Honourable Court.
2. Perpetual injunction restraining the Defendants by themselves, their privies, agents, servants or workmen from any further acts of trespass into the said aforesaid land.
3. N60,000.00 general damages for trespass.
Dated at Owerri this 11th day of August, 1998.
……….
SUNDAY UGWUEGBULAM
………..

NJERE EKEIGWE
TAX OGBONNA
ADDRESSES FOR SERVICE:
PLAINTIFFS: – Umuogbuehiebi Umueke Oforola, Owerri West LGA.
DEFENDANTS: – Umuunanka Umugida Oforola Owerri West LGA.
This was on 11th August 1998. The Appellants followed Suit by instituting their own on action against the present Respondent at the same Customary Court as follows:
“IN THE CUSTOMARY COURT OF IMO STATE OF NIGERIA IN THE CUSTOMARY COURT OF OWERRI URBAN HOLDEN AT OWERRI
SUIT No. CC/OU/19/99
BETWEEN:
1. LONGINUS NWOSU
2. MICHAEL EMERENWA ……..PLAINTIFFS
3. OGUCHIALU IKERI
For themselves and as representing Umu-Unanka Umugide Oforola, Owerri
AND
1. SUNDAY UGWUEGBULAM
2. ONUEGBU UGWUEGBULAM…DEFENDANTS
3. TAX OGBONNA
4. NJERE EKEIGWE
For themselves and as representing the members of Umuogbuehiebi Umueke Ofor Ola, Owerri
CLAIM
1. The Plaintiffs are members of the kindred family of Umu-Unanka Umugide Oforola in Owerri West Local Government area of Imo State within the jurisdiction. They all reside at Umu-UNANKA
Umugide Oforola.
2. The Defendants reside at Umueke village of Oforola in Owerri West L.G.A. of Imo State within jurisdiction.
3. The named plaintiffs have the authority of the kindred family to bring this suit and represent the kindred family in the suit against the defendants. The authority is filed along with this suit.
4. From time immemorial the plaintiffs’ family have been owners in possession of the parcel of land called Ohia Nwegbelegbe situate in Umugide Oforola.
5. In the 2nd week of January, 1984 the 1st 2nd and 3rd Defendants by themselves and their relations wrongfully broke and entered plaintiffs’ 1 and called “Ohia Nwegbelegbe” without the consent of the Plaintiffs, fell and carried away economic trees on the said land namely Mahogany tree, Achie tree and Oke Ugba trees. The estimated value of the trees was N2,000. The Plaintiffs sued the Defendants in the High Court Owerri in Suit No. HOW/17/84 SIMEON NWOSU & 2 ORS v. ONYEGBULE EGBE & 3 ORS. This suit was recently struck out by the High Court for want of jurisdiction in 1998.
6. It is the tradition of the plaintiffs to allow their parcels of land to grow fallow for 5 years before cultivating the land again.
7. Since 1984 the Ohia ‘Nwegbelegbe’ has not been cultivated by the Plaintiffs because of the pendency of the suit No. HOW/17/84 added to the fact that on 22/5/96 the High Court placed an order of in junction restraining both parties from entering upon the land, By reason of the above mentioned facts the Defendants have deprived the plaintiffs of their right to enter upon and make use of the ‘Ohia Nwaegblegbe’ land and the Defendants will continue to so deprive the Plaintiffs of their right to enter upon the land unless by the order of a competent Court of law.
8. Wherefore the Plaintiffs claim against the Defendants jointly and severally as follows: (i) A declaration that the plaintiffs are entitled to the customary right of occupancy to a piece or parcel of land known and called Ohia Nwegbelegbe situate in Umu-unanka umugide in Oforola within Oweri-West Local Government Area.
(ii) N2,000 general damages for trespass.
(iii) Perpetual injunction restraining the Defendants, their servants, agents, assigns or workmen from committing further acts of trespass on the said land or dealing with the land in any manner inconsistent with the Plaintiffs’ right of ownership over the said land.
Dated in Owerri this 26th day of Jan., 1999.
CERTIFIED TRUE, COPY
Dr. S. I. Mbachu

Solicitor for Plaintiffs
14 Orlu road,
Owerri.

ADDRESSES FOR SERVICE
DEFENDANTS
(i) Sunday Ugwuegbulam
(ii) ONUEGBU Ugwuegbulam
(iii) Tax Ogbonna
(iv) Njere Ekeigwe
PLAINTIFFS
C/o Their Solicitor
Dr. S. I. Mbchu
14, Orlu road,
Owerri
As could be gathered on page 68 of the record the two suits were consolidated by the Customary Court Owerri Urban on 27/10/99 and the consolidated matter was given suit No. CC/OU/154/19/1999.
At the end of trial at the Customary Court Owerri Urban,the said Court delivered its judgment on 1st day of August, 2008 and held:-
“Placing the totality of the evidence adduced in this trial on an imaginary scale, the weight undoubtedly tilts in favour of the defendants, Longinus Nwosu and his people who have unequivocally proved their case the Court therefore finds in favour of the defendants and thereby makes the following orders.
1. A declaration that the defendants are entitled to customary right of occupancy to the piece or parcel of land known as and called Ohia Nwaegbelebe situated in Umu-Unanka Unoigale in Oforola within Owerri West Local Government Area.
2. The Plaintiff to pay the defendants the sum of 2000.00 being general damages for trespass.
3. Perpetual Injunction restraining the plaintiffs, their servants, Agents, Assigns or Workmen from committing Acts of trespass on the said ordering with the land in any manners inconsistent with the defendant right of ownership over the said land. (sic) This is the judgment of this Court this 1st day of August 2008″
Pages 99-100 of the record.
The present Respondents felt aggrieved by the judgment of Customary Court Owerri Urban and filed Notice of Appeal dated 15th day of August, 2008 consisting of one ground which reads as follows:
GROUNDS OF APPEAL:
GROUND ONE: FRROR OF LAW
The Hon. Court erred in customary law when it held that the Oath taken by Simeon Nwosu did not decisively determine the dispute.

PARTICULARS OF ERROR
i. Sufficient evidence was adduced to the effect that the arbitration panel to which the parties submitted the dispute recommended oath taking as a final means of determining the dispute.
ii. Unchallenged evidence was led to show that the parties not only accepted the recommendation of oath taking but voluntarily submitted themselves to same.
iii. Evidence was also led to the effect that the said Simeon Nwosu took oath in accordance with the recommendation of the panel.
iv. Uncontradicted evidence was led to show that Simeon Nwosu died within one year of taking the oath.
iv. In spite of these unchallenged and uncontradicted evidence, the court still went ahead to hold that the taking of oath did not finally and conclusively determine the matter.
RELIEFS SOUGHT FROM THE CUSTOMARY, COURT OF APPEAL
i. An order allowing this appeal and setting aside the judgment of the trial court.
ii.An order granting the appellants the reliefs in suit No: CC/OU/154/98.
iii. An order dismissing the Respondents counter-claim in Suit No: CC/OU/19/99.”
Pursuant to the leave of Customary Court of Appeal Imo State the Original Notice of Appeal was amended and the said Amended Notice of appeal reads:
GROUNDS OF APPEAL
A. GROUND ONE: ERROR OF LAW:
The Hon. Court erred in customary law when it held that the oath taken by Simeon Nwosu did not decisively determine the dispute.

PARTICULAR OF ERROR
i. Sufficient evidence was adduced to the effect that the arbitration panel to which the parties submitted the dispute recommended oath taking as a final means of determining the dispute.
ii. Unchallenged evidence was led to show that the parties not only accepted the recommendation of oath taking, but also voluntarily submitted themselves to same.
iii. Evidence was also led to show that the said Simeon Nwosu took oath in accordance with the recommendation of the panel.
iv. Uncontradicted evidence was led to show that Simeon Nwosu died within one year of taking the oath.
v. In spite of these unchallenged and uncontradicted evidence, the court still went ahead to hold that the taking of oath did not finally and conclusively determine the matter.

B GROUND TWO: ERROR OF LAW
The members of the trial Customary Court, Owerri Urban, erred in customary law when they held as follows:
“Having resumed hearing of this case in his court in (sic) a clear evidence that the arbitration, by Nze A. A. Eke committee and all it… had broken down. Whether Simeon, Nwosu cut his finger nails, shaved his beard and cut his hair is no longer in issue.”

PARTICULARS OF ERROR
i. By the time Simeon Nwosu did the above acts, the oath had been taken in final settlement of the dispute and bringing the arbitration of Nze A. A. Eke to an end.
ii. It was no longer open to any of the parties to resile from that customary arbitration settlement/award.
iii. There can be no breakdown of an arbitration that has already been concluded and its award executed.
iv. In fact upon the pronouncement of the decision of Nze Eke’s panel that the dispute would be resolved by oath taking, none of the parties could have resiled from that arbitration.
v. That arbitration award and the oath that was taken constituted valid res judicata, estopping either party from seeking to reopen the issue on ownership of the land in dispute.

C. GROUND THREE: ERROR OF LAW
The trial Customary Court exceeded its jurisdiction when it entertained the suit – Suit No.: CC/OU//19/99 filed by the Respondents and it decision on same in its judgment of 1/8/08 is null and void having been made without jurisdiction.

PARTICULARS OE ERROR
i. A valid customary arbitration can be the subject of estoppel by res judicata.
ii. Where a matter is res judicata, none of the parties is competent to relitigate same and no court would possess the jurisdiction to entertain such relitigation.

iii. Unless challenged on the well established grounds, the only power a court can, exercise in respect of a valid arbitration awards is to enforce same and in that respect entertain only a suit brought for such enforcement.

iv. While therefore the trial court had the jurisdiction to entertain suit No. CC/OU/154/98 filed by the Appellants, the intendment of which was to enforce the arbitration decision which had Awarded them the land in dispute, it had no jurisdiction to entertain Suit No. CC/OU/19/99 filed by the Respondents which sought to reopen a matter that was already res judicata.

D GROUND FOUR
The judgment of the trial Customary Court is against the weight of evidence of customary communal land ownership led.

PARTICULARS OF ERROR
i. The evidence of PW1 as to the founding and devolution of the land in dispute communally owned by his family was not at all challenged during cross examination.

ii. The trial court totally misunderstood the concept of communal ownership of a land and the effect on same of the customary practice of giving out land to neighbours or friends for farming purposes.

iii. The trial court ignored Exhibit 4-the statement of defence in the High Court suit – tendered by the Respondent themselves which clearly supported the unchallenged evidence of PW1 that the land was given to Respondents for farming purposes only, but rather placed reliance on a summary of evidence alleged to have been given by Appellants’ representatives at the Nze Eke arbitration to invent a contradiction that does not exist in the evidence of PW1.

iv. The trial court also placed reliance on a void proceedings to disbelieve the clear and unambiguous evidence led by the Appellants.

4. RELIEFS SOUGHT FROM THE CUSTOMARY COURT OF APPEAL
i. An order allowing this appeal and setting aside the judgment of the trial court.
ii. An order granting the appellants the reliefs sought in Suit No: CC/OU/154/98.
iii. An order dismissing the Respondents counter claim in suit No: CC/OU/19/99.”
It was filed on 18th day of November, 2008. See pages 188-192 of the record.
In the judgment delivered on 14th day of May, 2009 the Customary Court of Appeal of Imo state of Imo state held as follows:-
“Therefore the wise counsel of the supreme Court that a Court of Appeal must in the absence of compelling evidence indicating erroneous appraisal of acts and erroneous conclusions, show that utmost restraint and reject any temptation to interfere with the well considered findings made by the trial judge must be applied in this case.
This accords with common sense since the appellate court cannot substitute its order for that of the trial court especially where the order of the trial court turns on credibility of witnesses which such a court saw, heard and either believed or disbelieved.
Before I conclude on this issue, I shall however, consider the argument of failure on the part of the respondents to challenge the said traditional history of the appellants not even by a single question.
I have perused the cross-examination of the evidence of PW1 at pages 19-24. There is no where the traditional history as adduced was challenged under cross-examination.
The legal inference that can be drawn from this is that the respondents accepted or admitted all the facts as being correct, even though same may be contradictory as rightly pointed out by the trial Court.
The essence of Cross-examination is to impinge on the credibility of the evidence of the other party.
In the case of Sommner v. F.H.A. (1992) 1 SCNJ 73 at 83. It was held that failure to cross examine on an issue raised and testified to by a witness amounts to admission of that issue.”
In view of the above analysis, I am in total agreement with the second arm of the argument of the Appellants’ Counsel submission that failure to challenge the traditional history meant full acceptance of the facts as true
In the light of the above, this issue succeeds, and it is found in favour of the Appellants.
In sum, I make the following orders:-
1. This appeal is allowed, as it has merits.
2. The Judgment of the customary Court, Owerri Urban, in Suit No. CC/OU/154/98/19/99 is hereby set aside.
3. Judgment is found in favour of the Appellants as Plaintiffs in Suit No. CC/OU/154/99 (Consolidated) as CC/OU//154/98/19/99.
4. The Appellants are entitled to N5000.00 cost.”
The Appellants were dissatisfied with the Judgment of the Customary Court of Appeal, Imo State and they filed Notice of appeal against the said Judgment. The said Notice of Appeal was dated and filed on 10th day of August, 2009. It consists of seven (7) grounds of appeal. The grounds of Appeal and without their particulars are as follows:-
“3 GROUNDS OF APPEAL:
ERROR OF LAW
3.1 The lower Court wrongly entertained appeal on jurisdiction from the plaintiffs, when the plaintiffs as defendants in cross-action never raised the issue of jurisdiction before the trial customary court and never obtained leave of the lower court before raising the issue of jurisdiction before the lower court.
3.2 The lower court misdirected itself in law in that it failed to apply the rule of law that where there appears a conflict in two previous decision of the Supreme Court on the same point or issue, the court of Appeal is bound by the latter decision and must follow and apply it. See; Yusuf v. Fred Egbe (1987) 2 NWLR (Pt. 56) 341 Okpoazo v. Bendel Newspaper Corp. (1990) 5 NWLR (Pt. 153) 652

3.3 ERROR OF LAW
The lower court erred in law in failing to pay regard to conditions laid down by the Supreme Court for applicability of customary arbitration tribunals decision as res judicata. The following conditions were not considered by the lower Court.
i. That the party raising the plea has to specifically plead the res judicata at the trial and at the trial lender the previous judgment relied upon to show that there has been a previous litigation over the same land by the same parties or their privies – Okposim v. Assam (2005) vol. 131 LRCN 2561.
ii. That the particular judicial decision relied upon was in fact pronounced.
iii. That the judicial tribunal pronouncing the decision had competent jurisdiction in that behalf.
iv. That the judicial tribunal was final.
See Obasi Brothers Merchant Co. Ltd v. Merchant Bank of Africa Securities Ltd (205) All FWLR 216 at p.231.

3.4 MISDIRECTION IN LAW
The lower Court misdirected itself in law when it imported the interpretation placed on provisions of Evidence act in Oforlete v. The State (2002) 7 S.C. NJ 162 at p. 179 a criminal case to evaluate evidence in this case governed by Order X Rule 3 (1) and Rule 6 (1) Customary Court Rules, 1989 Imo State.

3.5 ERROR IN LAW
The lower court erred in law in accepting the following argument of the respondent where he contended at the lower court.
“Counsel contended that the binding or efficacy of the oath taken was not whittled down by the High Court purporting to resume hearing of the matter after wards. This was so as the arbitration was not made conditional upon acceptance by the High Court.”
3.6 The lower court misdirected itself on facts before jumping into evaluation of facts already made by the trial court when he said;
“At page 26 of Judgment the lower court stated” I have perused the cross-examination of the evidence of PW1 at pages 19-24, There is no where traditional history as adduced was challenged under cross-examination.”
3.7 The lower court erred in law when he held on P.17
“I am of the candid opinion that the arbitration conclusively settled the issue of which party owns the land in dispute according to the custom of Oforola people. I strongly, agree with the customary arbitration by way, of oath taking which is widely recognized by Igbo customs and the customs of Oforola people in particular conclusively settled the land dispute between the parties in this appeal.”
The Notice of Appeal was amended pursuant to the leave of this court granted to the Appellants on 16th February, 2011 upon their motion filed on 24th day of June, 2010. Appellants filed three additional grounds of appeal numbered as 3.8, 3.9 and 3.10 in their Amended Notice of Appeal dated and filed on 23rd day of February, 2011. The additional grounds of appeal without their particulars read thus:
3.8 The lower court erred in law in refusing to follow the rule of law laid down by the supreme court in the case of Akibu v. Opaleye & Anor (1974) 1 SC. 189 at p. 202 in the favour of evidence of long possession found by the trial court in favour of defendants and accepted by the lower court.”
3.9 The lower court erred in law in refusing to follow the rule of law laid down by the Supreme Court in Magaji & Ors v. Cadbury Ltd. (1985) 2 NWLR (Pt. 7) 393 AT 430 in the face of evidence of competing histories of the land given by the plaintiffs in respect of the same land which evidence of competing histories were found by the trial court and accepted by the lower court.
3.10 The lower court erred in law when he acted on the uncorroborated hearsay evidence of Njere Ekeigwe on his traditional history to give judgment to the Plaintiffs.
The Appellants filed their Briefs of Argument on 9th day of March, 2012 pursuant to the order of this court granted on 2nd March, 2012.
The Respondents filed their Brief of Argument dated 22nd day of March, 2012 on 23rd day of March 2012. The Respondent however incorporated argument on Preliminary Objection into their Respondent’s Brief of Argument tagged Argument on Preliminary Objection Number one and Number two. The Respondents however took steps on 26th day of March, 2012 by filing Notice of Preliminary Objection which is as follows:
“NOTICE OF PRELIMINARY OBJECTION PURSUANT TO ORDER 10 RULE 1 COURT OF APPEAL RULES, 2011; SECTION 245(1) 1999 CONSTITUTION OF NIGERIA
TAKE NOTICE that at the hearing of this appeal the Respondents shall by way of preliminary objection urge the Court of Appeal to strike out:
1, The Amended Notice of Appeal incepting this appeal
2. Grounds 1, 2, 4, 6, 8, 9 and 10 of the Grounds of Appeal
3. Appellants’ Brief of Argument.
AND FURTHER TAKE NOTICE that this application is brought on the grounds that:
A. The Amended Notice of Appeal filed by the Appellants herein is fundamentally defective as it is bereft of the essential particulars of a valid Notice of Appeal.
B. The stated Grounds of Appeal offend against Section 245(1) of the 1999 Constitution as they do not raise any issue of customary law.
C. Appellants’ Brief of Argument is defective in that the issues for determination framed therein and argument presented on same are derived from the incompetent grounds of appeal, while no issue is from the remaining grounds of appeal.
AND FURTHER TAKE NOTICE that Respondents having incorporated the submission on these preliminary objections in their Respondents’ Brief of Argument as contained in Paragraphs 4 and 5 thereof, shall rely on same at the hearing of this appeal.”
The Appellants filed Appellants Reply Brief on 23rd day of May, 2012 dated same day. The appeal was heard on 12th day of February, 2014 when the parties adopted their Briefs of Argument in the appeal.

The Appellants formulated six issues for determination of this appeal viz:
“1. Did the Respondents plead at the trial as required under order 4 Rule 2 of the Customary Courts Rule, 1989 so as to bring into trial the issue of jurisdiction into trial in this case.
2. Did the lower court pay regard to the fact that the case of the Respondents did not satisfy the conditions laid down by the Supreme Court for applicability of customary arbitration tribunal’s decision as res judicata in this case.
3. Did the lower court not misdirect itself on law when it imported and relied on the case of Ofolete v. The State (2002) 7 SCNJ 162 at Pg, 179 a criminal case tried on Evidence Act to evaluate evidence in a case of civil law in Imo State Customary Court, disregarding the requirement of corroboration in land maters in civil causes.
4. Is evidence of long possession not one of the ways of proving title to land in the customary law of Igbo land nay Nigeria.
5. Whether the rule of law established by the Supreme Court of Nigeria in the case of Mogaji v. Cadbury Nigeria Ltd (1985) 2 NWLR 393 at 43 (sic) namely. Where a party adduces two competing histories of his ownership in support of his claim, he has failed to make out the case he set out to make and his claim must be dismissed remains the law.
6. Whether in law the single recorded evidence of Njere Ekeigwe and the cross examination was sufficient in law to prove ownership of land in dispute.
On their part the Respondent distilled one issue for the resolution of the appeal herein name viz:
“WHETHER THE APPELLANTS HAVE SHOWN ANY REASON THAT WOULD WARRANT THE DISTURBANCE OF THE DECISION OF THE CUSTOMARY COURT OF APPEAL, OWERRI IMO STATE, IN APPEAL NO: CCA/OW/A/77/2008.
This court must in line with the settled principles of law that the Notice of Preliminary Objection filed by the Respondents first.
The law is firmly settled that the design or aim of a Notice of Preliminary Objection is to terminate in limine an action or an appeal so that same could be brought to an abrupt end either due to obvious defect, incompetence or any jurisdictional impediment or intervening event militating against the hearing of a suit or appeal, see CHIEF U. M. EFET v. INEC & ORS (2011) 3 SCM 63 at 76 (1) – 77A per I. T. MUHAMMED, JSC and YARO v. AREWA CONSTRUCTION LTD & ORS 6 SCNJ 418.
Thus when an appellate court is faced with a Notice of Preliminary Objection bordering on the incompetence of an appeal and consequently on its appellate jurisdiction it is always neater and better to determine the merit or demerit of the objection before delving into the merit of the appeal. See OWELLE ROCHAS OKOROCHA v. PEOPLES DEMOCRATIC PARTY & ORS (2014) 1 SCM 163 at 785 per OGUNBIYI, JSC and B.A.S.F. NIGERIA LTD & ANOR v. FAITH ENTERPRISES LTD (2010) 1 SCM 41 at 52 D-E per COOMASSIE, JSC.
I have earlier reproduced the said objection in this judgment. The first question posed on the Preliminary Objection by the Respondent is:
WHETHER THIS APPEAL IS COMPETENT IN VIEW OF THE DEFECT IN THE AMENDED NOTICE OF APPEAL FILED BY THE APPELLANTS.
The learned counsel to the Respondents posited that there is no valid or competent appeal before this court. Chidi B. Nworka Esq. for the Respondents drew attention to the fact that this appeal was commenced by Notice of Appeal filed by the Appellant on 10th August, 2009 but was amended by leave of this court vide a motion dated 24/6/2010 on 16/2/2011. That Appellants were given 7 days to reflect the amendment. That Appellants compiled on 23/2/12. He submitted that once a process is amended, the process ceases to be material and no longer define issues to be dealt with by a court. He relied on the cases of OSHO v. APE (1998) 6 SCNJ 139 at 151 and VULCAN GASES v. GESSELLCHAFT (2001) 55 at 76. That the essence of obtaining an order to amend an existing notice of appeal is to vacate the notice of appeal and render it non-existent. He relied on AFRI BANK v. AKIWARA (2006) SCNJ 223 (a) 235.
To learned counsel to the Respondent the Amendment to the Notice of Appeal of 10th August 2009 vacated the Original Notice of Appeal and that reference can no longer be made to the said original Notice of Appeal. That the document upon which the appeal rests is now the Amended Notice of Appeal and that essential particulars of a Notice of Appeal are totally missing therefrom. That it does not state the court from which the appeal came from and that details of the judgment decision was not given, that there is no suit number and date upon which the decision appealed against was not stated. That these are fundamental defects and that the Notice of Appeal in this matter is deemed to be non-existent. He relied on the case of NWAIGWE v. OKERE (2008) ALL FWLR (Pt. 431) 843 at 864 to contend that it means there is no valid Notice of Appeal filed and as such this court has no jurisdiction to deal with the purported appeal. He relied on the case of IKWEKI v. EBELE (2005) 2 SCNJ 242 at 2578 and ODUNZE v. NWOSU (2007) FWLR (Pt. 379) 1295 at 1315.
The learned counsel to the Appellants in reply relied on the case of ENITAN v. THE STATE (1986) 3 NWLR (Pt. 30) 604 at 609 to submit that the Amendment to the notice of appeal was valid because it was done with the permission of this Court and that the Respondents never objected to it. That an appeal will not be struck out merely because the Notice of Appeal was wrongly headed. That the format for filing Additional Grounds of Appeal or Amended Notice of Appeal is as stated in the case of AKPASUBI OMONFOMAN v. C. K. OKOEGUALE (1986) NWLR (Pt. 40) 179 at 186, per AJOSE-ADEOGUN, JCA. He also sought support in the apex court in the case of TSOKWA OIL MARKETING CO. NIG LTD v. BANK OF THE NORTH (2002) 98 LRCN 1235 at 1248 – 1249 per ONU, JSC.
It must be stressed that an amendment to a court process is either to add or subtract from the existing process sought to be amended. In this case the Appellant only added additional grounds of appeal with the leave of this court. The case of NWAIGWE OKERE (2009) 13 NWLR (Pt. 1105) 445 at 414 C-F per Onnoghen, JSC can only avail the Respondent on issue one on the Notice of preliminary Objection if they had been able to show that all the existing seven grounds of appeal originally filed by the Appellants are invalid grounds of appeal. A valid ground is sufficient and capable of sustaining an appeal. It can also be amended and new or additional grounds can be added to it. See the case of CHIEF AMEKE CHRISCATO IKECHUKWU v. HON. TONY NWOYE & ANOR (2014) 4 NWLR (Pt. 1397) 227 at 241 B-C, per AGUNBIYI, JSC and 244 A-B where M. D. HUHAMMAD, JSC who said;
“It is not Respondent’s case that the appellant/applicant’s notice of appeal is incompetent such that adding to the entirely invalid grounds in the said Notice is impossible. It is only asserted that with the contradictions inherent in the materials applicant relied upon he cannot be allowed the indulgence he seeks.
It is beyond dispute that the notice of appeal the applicant seeks leave to amend by adding thereto more grounds contains valid grounds and therefore remains valid and extant.”
The Respondent did not object to the amendment and grounds of appeal added to the original Notice of Appeal and the Respondents have not shown that they are deceived or misled by the said amendment.
The Respondents missed the point when they argued that an amendment or additional to Original Notice of Appeal wiped off the existing Notice of Appeal and its format. The Appellants sequentially numbered the added grounds as 3.8, 3.9 and 3.10 respectively. Issue one on the Notice of preliminary Objection is therefore resolved against the Respondents.
ISSUE 2 ON PRELIMINARY OBJECTION WHETHER GROUNDS 1, 2, 4, 6, 8, 9 and 10 OF THE GROUNDS OF APPEAL CONTAINED IN THE AMENDED NOTICE OF APPEAL ARE VALID.
The Respondents argued here that by the provisions of SECTION 245(1) OF THE 1999 CONSITUTION OF NIGERIA an appeal from the Customary Court of Appeal of a state lies to the Court of Appeal as of right in respect of questions of Customary Court Law only. The Respondents’ learned counsel Chidi B. Nworka Esq. stated that there is no right of appeal from a decision of a Customary Court of Appeal to the Court of Appeal on any issue that does not involve customary law. He relied on the case of HIRENOR v. YOUNG (2003) 4 SCNJ 308 at 319 & 324 & 327. That any ground of appeal which does not raise an issue of customary law is invalid. That a close look at grounds 1, 2, 4, 6, 8, 9 and 10 of the Amended Notice of Appeal filed by the Appellant on 23-2-2011 will show very clearly that those grounds do not raise any questions of Customary Law. The learned counsel then examined each of the impugned grounds of appeal identified and submitted that the Supreme has provided a guide as to when a decision can be said to raise an issue or questions of Customary Law that such a situation is in respect of Customary Law when the controversy involves a determination of what the relevant Customary Law is but that where the decision of Customary Court of Appeal turns purely on facts or procedure such a decision is not a question of Customary Law notwithstanding that the applicable law is Customary Law. He cited the case of PAM v. GWOM (2000) SCNJ 36 AT 48.
He submitted that the identified grounds 1, 2, 6, 8, 9 and 10 of the Amended Notice of Appeal are invalid.
That if the said grounds are found to be invalid then the issues formulated on page 4 of the Appellants Brief of Argument are all issues formulated from incompetent grounds of appeal. That where an issue is formulated from an incompetent ground of appeal or several grounds that are incompetent the issues tied to them will also be incompetent and will also be struck out. He relied on the case of AGBAMU v. OFILI (2004) ALL FWLR (PT 197) 1060 AT 1080.
Respondents also submitted that the law is settled that any ground of appeal from which no issue is formulated for determination is deemed abandoned as no argument can be advanced in respect of any ground of appeal that has no issue raised or distilled from it. He relied on the case of OSAFILE v. OBI (1994) 2 S.C.N.J 1 AT 9. That not a single issue for determination was raised by the Appellants in their Briefs concerning grounds 3, 5 and 7 of the Appellants’ Grounds of Appeal. That those grounds of appeal are deemed abandoned. They urged this Court to dismiss the appeal on that ground.
Curiously, the learned counsel to the Appellants said nothing on all the arguments on issue two relating to the Notice of Preliminary Objection raised by the Respondents. Nonetheless, I will examine the grounds of appeal impugned and the complaints relating to abandonment of grounds of appeal or failure to formulate issue in respect of grounds 3, 5 and 7 of the Appellants’ Grounds of Appeal.
Now the provisions of Section 245(1) & (2) of the 1999 Constitution of the Federal Republic of Nigeria as amended are as follows:
“245(1) An appeal shall be from the decisions of the Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary Law and such other matters as may be prescribed by an Act of the National Assembly.
2. Any right of Appeal to the Court of Appeal from decisions of a Customary Court of Appeal conferred by this section shall be:
(a) exercisable at the instance of a party thereto or with the leave of the Customary Court of Appeal or of the Court of Appeal at the instance of any other person having an interest in the matter.
(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal”
It is thus clear as the day that Constitutional right of appeal given to a party aggrieved by the decision of the Customary Court of Appeal is restricted to any question with respect to Customary Law and such other matters as may be prescribed by an Act of the National Assembly only.
I have closely scrutinized the grounds of appeal identified as incompetent by the Respondents namely grounds 1, 2, 4, 6, 8, 9 and 10 of the Appellants grounds of appeal and I am in agreement with the Respondents that Grounds 2, 4, 8, 9 and 10 are outside the right of appeal donated under Section 245 (1) of the 1999 Constitution as amended and are consequently incompetent. They do not confer jurisdiction on this court to entertain the said grounds of appeal. See RALPH UWAZURUIKE & ORS v. ATTORNEY-GENERAL OF THE FEDERATION (2007) 8 NWLR (Pt. 1035) 1 AT 13 where OGBUAGU, JSC held:
“It is not in doubt that appeals are creatures of statutes. So, the jurisdiction of the Court of Appeal to adjudicate on any matter brought before it is statutory and also guided by the Rules of the Court. The failure by any Appellant or Appellants to comply with statutory provision or requirement prescribed by the relevant law/laws or Rules – (which are in the nature of a subsidiary legislation and perforce, must be obeyed under which such appeals may be competent and properly before the Court, will certainty deprive the Appellate Court jurisdiction to entertain and or adjudicate on the appeal.”
No right of appeal is given to the Appellant to include grounds such as grounds 1, 2, 4, 8, 9 and 10 contained in the Appellants Notice and Grounds of Appeal. They are hereby struck out as being incompetent and all the issues for determination formulated or distilled from the said moribund grounds of appeal are hereby discountenanced.
What now remains of the Notice of Appeal of the Appellants are grounds 3, 5, 6 and 7 of the Grounds of Appeal.
The Respondents had also argued that no single issue for determination in the Appellants Brief derives from or even relates to grounds 3, 5 and 7.
The Appellant’s learned counsel admitted in the Appellants Reply Brief NEW POINTS ARISING FROM RESPONDENT’S BRIEF as called which they filed on 23-5-12. That he did not formulate issue with respect to grounds 7 of the Appellant’s Notice of Appeal. The learned Counsel to the Appellant said:
“When Appellants’ Counsel was raising issues for determination in this appeal he forgets to consider grounds 3.7 (sic) of the Appeal. Accordingly, all the facts and issue giving rise to Grounds 3.7 of this appeal was not considered. With respect the result is that Ground 3.7 was not made part of the issues argued in this appeal. With leave of court, Appellant Counsel asks for permission to argue Grounds 3.7 of the original grounds of the Appeal along with Original Grounds 3.1 of the Appeal as an issue. Ground 3.7 has been laid out above with particulars.”
I must say that the Appellant’s learned counsel did not at any time seek for the leave or permission of this Court to argue ground 3.7 with ground 3.1 of the Appeal and in any event by the Rules of this Court a ground of appeal is argued under issue formulated or distilled from a ground of appeal or a combination of grounds of appeal. See Order 18 Rule 3(1) of the Court of Appeal Rules 2011 which provides:
“3(1) the brief which may be settled by counsel shall contain an address or addressed for service and shall contain what are in the Appellant’s view, the issue arising in the appeal as well as amended or additional grounds of appeal.”
The Appellants cannot orally in an Appellant Reply Brief now argued an issue that was never raised in the Appellants Brief of Argument. The purported argument on ground 3.7 along with ground 3.1 is hereby discountenanced. More importantly ground 3.1 had already been struck out along with grounds 2, 4, 8, 9 and 10 for their being incompetent ground of appeal. Ground 3.7 of the Appellants Amended Notice of Appeal is deemed abandoned by the Appellant since no issue was formulated in respect of the said ground 3.7 of Amended Notice of Appeal of the Appellants. See PURIFICATION TECHNIQUE NIG. LTD & ORS v. RUFAI JUBRIL & ORS (2012) 10 SCM 107 AT 117 where NGWUTA, JSC had this to say:
“Learned Counsel to the Appellant maintained a studied silence on the argument that he raised no issue or issues from grounds 8, 12 and L4 of the grounds of Appeal.
Impliedly, learned counsel conceded the point but he should have the concession directly in his reply brief. His silence was meant to, and did convey the false impression that the learned counsel forgot to reply to that part of preliminary objection. Grounds 8, 12 and 14 of the Appellants’ grounds of appeal from which no issue was distilled are deemed abandoned and are hereby struck out. See Onifade v. Olaymoola (1988) 2 NWLR 263 at 270. See also Egbe v. Yusuf (1992) 6 NWLR (Pt. 245) 1, Ogbuinyinye v. Okudo (No. 2) (1990) 4 NWLR (Pt. 146).”
Ground 3.7 of the Appellants Amended Notice of Appeal is also struck out. As no issue was also distilled from grounds 5 of the amended Notice and grounds of Appeal filed by Appellants it has to suffer the same fate. It is deemed abandoned and same is hereby struck out.
Now, to the merit of the appeal on the remaining issues formulated by the Appellants. I believe the appeal can be determined on the said remaining issues 2 and 3 formulated by the Appellants. They are again reproduced as follows:
“2. Did the lower Court pay regard to the fact that the case of the Respondents did not satisfy the conditions laid down by the Supreme Court for the applicability of Customary arbitration Tribunal’s decision as res judicata in this case.
3. Did the lower court not misdirect itself on law when imported and relied on the case of Oforlete v. The State (2007) 7 SCNJ 162 at p. 179 a criminal case tried on Evidence Act to evaluate evidence in a case of civil law in Imo State Customary Court, disregarding the requirement of corroboration in land matters in civil cases.”
The said grounds will be treated in sequence.
ISSUE 2
DID THE LOWER COURT PAY REGARDS TO THE FACT THAT THE CASE OF THE RESPONDENTS DID NOT SATISFY THE CONDITIONS LAID DOWN BY THE SUPREME COURT FOR APPLICABILITY OF CUSTOMARY ARBITRATION TRIBUNAL’S DECISION AS RES JUDICATA IN THIS CASE.
The Learned Counsel to the Appellants referred the Court to ORDER IX Rule 2 of the Customary Courts Rules 1989 to contend that the Respondent did not serve any plea of res judicata in Suit CC/OU/19/99 in which the Respondents were sued as Defendants. That they cannot rely on plea of res judicata and that this failure to enter the plea of res judicata robbed the Court the competence to consider their further evidence relating to the trial by Native Tribunal by Nze A. A. Eke as Chairman. That the ingredients of jurisdiction has been laid down in MADUKOLU v. NKEMDILIM (1962) ALL NLR (Pt. 2) 581 AT 589 per Bairamin F. J.
That under the Rules of Customary Court cited the Customary Court would consider whether a plea made under Rule 2 of the Order is made out and shall give its decision which he said must be recorded before proceeding into further hearing of the case. He relied on the cases of ALAO v. ALAO (1986) 5 NWLR (Pt. 45) 802 and SUSAN v. ADEMU YUWA (1986) 3 NWLR (Pt. 27) 241. That estoppels must be clearly pleaded. As to res judicata relating to Customary Arbitration Tribunal’s decision he relied on the cases of OKPOSIM v. ASSAM (2005) VOL. 131 LRCN 2561 and OBASI BROTHERS MERCHANT CO. LTD OF AFRICA SECURITIES (2005) FWLR 216. That conditions 3 and 4 for application of res judicata as laid down in Okposim v. Assam Supra were not satisfied.
That the Customary Arbitration panel headed by Nze A. A. Eke was terminated by Owerri High Court Judge presided over by Hon. Justice Metu on the ground that Oha na Ogba usurped the function of the Arbitration panel. That the High Court recalled the case acting under Order XIV Rule 6 of the High court cap 61 Laws of Eastern Nigeria 1963.
That at the death of SIMEON NWOSU, the customary Arbitration panel lacked jurisdiction and life to conclude its proceedings and make pronouncement on the outstanding issues.
That the Arbitration Panel’s decision Exhibit 5 was not final. He quoted portion of the panel’s decision. The Appellants relied on the case of Joseph Agwuocha v. Edward Ubiji (1975) 5 ECSLR 221 at 228.
That the Panel of Nze A. A. Eke were by custom expected to meet again, fix what the pledge fee should be, recover the money from Umuogbuehibi before restoring the ownership of the land to Umuogbuehibi. The Appellants’ learned counsel also quoted in extension the conditions precedent for sustaining a plea of res judicata in Okposim v. Assam supra. The Appellants further relied on GEORGE SPENCER BOWER on doctrine of Res Judicata 1924 Edition at paragraph 13 page 8 and Attah v. Attah VI ERNLRI.
In response to the Appellants submissions, the Respondents reiterated that the parties resorted to native arbitration to resolve their long standing land dispute. That it was decided in the arbitration that same be resolved by oath taking a decision which the Respondents stated that the parties accepted. The Appellants representative took the oath that he attempted to escape from the wrath of the spirit by breaching the customary oath taking in Igbo land. That the parties council of elders gave interpretation to his act, that by trying to breach the oath, the Appellants representative had failed the oath and that confirmed that he did not own the land in dispute. That the Appellant’s representative later died within the one year period of the efficacy of the oath thereby, according to Respondents, putting the issue of who owned the land beyond any shadow of doubt and that is the crux of the decision of the Customary Court of Appeal Owerri in Appeal No. CCA/OW/A/77/2008.
That oath taking is a customary method of resolving disputes in Igbo land and of long antiquity. That it is very well recognized and accepted in all levels and hierarchy of Courts. He relied on the cases of:
1. AGU v. IKEWUIBE (1991) 3 NWLR (Pt. 180) 385.
2. OPARAJI v. OHANU (1999) 6 SCNJ 27.
3. ONYENGE v. EBERE (2004) ALL FWLR (Pt. 219) 981 AT 998 per NIKI TOBI, JSC.
4. NWOKOROBIA v. UZOHO (2007) ALL FWLR (Pt. 376) 729 AT 741.
5. OBAJI v. OKPO (1978) 1 MSLR 258.
That the parties to a dispute who have taken oath to resolve land dispute in Igbo land would be inescapably bound by the oath taken and the result of same. The Respondents relied on the cases of ANYABUNSI v. UGWUEZE (1995) 7 S.C.N.J. 55 AT 70 AND ONWU v. NKA (1996) 7 SCNJ 240 AT 255. That in legal parlance it creates a binding estoppels which the courts enforce just like estoppel created by a decision of a court of law relying on the case of AWONUSI v. AWONUSI (2001) ALL FWLR (Pt. 391) 1642 AT 1656.
Another major submission of the Respondent is that once oath is taken over a disputed land it displaces the ordinary methods of proving title to land by long possession, traditional history etc. That a new root of title is set irrespective of what mighty have existed before the oath taking. He relied on the case of ONYENGE v. EBERE (2004) ALL FWLR (Pt. 219) 981 AT 998-999. Respondents’ learned counsel stated that the oath taken by Appellants’ Simeon Nwosu settled the land dispute between the parties and that whatever transpired later at the High Court could not and did not derogate from the finality of that oath and of course did not dislodge same. That by the oath the Respondents were relieved of the burden of proving by any other method that they owned the land in dispute. That any alleged discrepancy in the evidence, they led as to traditional history goes to no issue and irrelevant. That the death of Simeon Nwosu during the oath period finally resolved every question and dispute arising between the parties to the effect that Respondents owned the disputed. Respondents urged this Court to uphold the judgment of lower court and dismiss the appeal as frivolous and lacking in merit.
Now a close perusal of ground 3 of the Appellants’ appeal reveals that the main plank of that ground is that the lower Court erred in failing to pay regard to the conditions laid down by the Supreme Court for applicability of Customary arbitration tribunal’s decision as res judicata Reliance was placed on two decisions of the Supreme Court in Okposim v. Assam Supra and Obasi Brothers Merchant Co. Ltd v. Merchant Bank of Africa Securities Ltd (2005) ALL FWLR 216 at 231.
There is no doubt that the Law is settled as to conditions or ingredients of plea of res judicata. It is my view that in action where pleadings are filed the party relying on the plea must plead and prove all the essential ingredients of res judicata. Application of res judicata in cases adjudicated upon at Customary or Native Court have similar and significant ingredients to be established.
It must however be borne in mind that trials conducted in Customary Court Area Court or Native Court or Tribunal and even in Customary Arbitration pleadings are not filed as in the High Court hence the appellate Courts hearing appeals from Customary Courts have been enjoined not to interfere with their findings except where grave miscarriage of justice had occurred on the face of the record of proceedings and the finding of the Customary Court is perverse. See CYPRIAN ONWUAMA v. LOIUS EZEKOLI (2002) (Pt. 760) 353 AT 365 D – F where UWAIFO, J.S.C had this to say:
“It must be remembered that this case was tried in a Customary Court where pleadings are unknown. The proceedings in such court are to be considered upon a broad view as to whether they were conducted in pursuit of the justice of the case presented by both parties. In other words, appellate courts are to consider the substance of the proceedings of Native, Customary or Area Courts liberally and this is done by reading the record to understand what the proceedings were all about so as to determine whether substantial justice has been done to the parties within the procedure permitted by such Coutts: See Dinsey v. Ossey (1939) 5 WACA 177; Jumai Alhaji Taria v. Yar Maituwa (1966) NMLR 59; Ikpang v. Edoho (1978) 6-7 SC 221; Ibero v. Ume-Ohana (1993) 2 NWLR (Pt. 277) 510; Chukwueke v. Okoronkwo (1999) 1 NWLR (Pt. 587) 410; Duru v. Onwumelu (2001) 18 NWLR (Pt. 746) 672. The case of Lawal v. Olufonwobi (supra) originated in the High Court and was tried on the pleadings of the parties. By such procedure any party who relies on traditional history to prove title to land must plead the particulars which support that history.”
Kalgo JSC in the same Judgment said on page 369 H – 370 A-C thus:-
“On issue 1, I entirely agree with the consideration of this issue by my learned brother Uwaifo, JSC. I only wish to emphasize the position and the principle involved in trials before the Customary or “Native” Courts in this Country. The trial of this case commenced are to a great extent relaxed. This is covered in most cases by law of the area concerned because what is of paramount importance in the conduct of such cases, is evidence of substantial justice and the absence of any miscarriage of justice in general.
Strict adherence to the rules of practice and procedure in trials in all Customary or Native Courts in this country is practically unknown. The main reason for this is that the rationale for creating them is for the need to make the administration of justice available to the common man in a simple, cheap and uncomplicated form. See Ekpa v. Utong (1991) 6 NWLR (Pt. 97) 258; Akpan v. Utin (1996) 7 NWLR (Pt. 463) 634; Mba v. Agu (1999) 12 NWLR (Pt. 629) 1. So that in this case when Obianika Ezeobi was called by the trial Customary Court as an independent witness to clear the air on the actual decision of the Council of Elders (Omenani) on the land dispute, there was nothing constituting any miscarriage of justice in the circumstances of this case.”
That is not to say that the party relying on customary arbitration decision will not lead evidence to prove the existence of a binding arbitration decision on the parties and the established fact that parties cannot back out or resile from the decision.
Like a case fought on the pleadings the following must be established namely:
(a) That there has 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 arbitrations will be accepted as final and binding.
(c) That the said arbitration was in accordance with the custom of the parties or of their trade or business.
(d) That the arbitrators reached a decision and published their award and
(e) That the decision or award was accepted at the time it was made.
See DR. DAVID C. O. OKOYE & ANOR v. CHRISTOPHER N. OBIASO & ORS (2010) 4 SCM 143 AT 163 per ONNOGHEN, JSC.
There is evidence on record that the parties complied with all the above conditions in submitting to the Arbitration Panel and the parties agreed to oath taking in line with the decision of the Arbitration panel to resolve the land dispute between them. Both sides gave evidence at the court of first instance. The Respondents relied on Exhibit 5 pages 137-139 of the record showing voluntary submission to Customary Arbitration Panel and administration of Oath on SIMEON NWOSU from Appellants side. Exhibit 1 was also tendered to show that breach of the oath taking by SIMEON NWOSU means that the land belong to Respondents. The Respondents also testified to that effect on pages 115-126 of the record. The oath taking was also confirmed by the Appellants.
The Appellants are contending also that the Customary Arbitration was terminated by Hon. Justice Metu of Owerri High Court on ground that Arbitration decision Exhibit 5 was not final.
What the said Judge said was not clear cut. Metu J. said:
“The issue here is that the said Custodians of the Custom of the people have usurped the function of Nze A. A. Eke and his group. But if they are one and the same people their views will be taken seriously but if not it seems to me that parties have not settled.”
I am of the view that the statement of the said Judge did not render the decision of the Customary Arbitration headed by Nze Ekeh invalid.
The facts remained that the oath taken in compliance with the decision of Nze Ekeh Arbitration Panel had already taken place and contrary to the submission of Appellants’ Learned Counsel that the
Arbitration panel’s decision was not final, I am of the view that the lower court was perfectly right in holding that the Arbitration panel’s decision was conclusive. See page 3 of Exhibit 5 which is also contained on page 139 of the record where it was stated:
“….However, on the 22-1-86, both parties complied, the Defendants brought the juju shrine to the land in dispute, while Mr. Simeon Nwosu one of the leading parties in the Plaintiffs Suit and the eldest man in the Plaintiff’s family swore accordingly.
In respect of the native Law and Customs they should be given one year for the oath to determine the true owner, which will lapse on the 22-1-97. Sir, I am pleading that you should use your good office to overrule this case, hence both parties have unanimously agreed to my decision. I have the honour to be Sir.”
The clear inference here is that latest by 22-1-97 the owner of the land would be known. The oath taken in this case meant that if the person who swore on it (in this case Simeon Nwosu) died within a year the land belongs to the Respondents but if he had survived the land would be taken to belong to the Appellants. There is nothing inconclusive in the Arbitration Panel’s decision. All the cases cited by the Respondents learned counsel particularly:
1. AGU v. IKEWUBIKE (1991) 3 NWLR (Pt. 180) 385.
2. OPARAJI v. OHANU (1999) 6 SCNJ 27.
3. ONYENGE v. EBERE (2004) ALL FWLR (Pt. 219) 981 AT 998.
4. NWOKOROBIA v. UZOHO (2007) ALL FWLR (Pt. 376) 729 AT 141
AND
5. ANYABUNSI v. UGWUEZE (1995) 7 SCNJ 55 AT 70 are all relevant to the facts of the appeal herein and fully support the lower court findings.
The decision of the Arbitration Panel has effectively created estoppels as between the parties herein and their privies See further the case of MICHAEL IFENYI OJIBAH v. UBAKA OJIBAH (1991) 6 SCNJ 156 AT 169 where NNAEMEKA-AGU, JSC said:
“In my view, the law is pretty settled that where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to Customary Law and agreed expressly or by implication that the decision of the arbitrators would be accepted as final and binding then once the arbitrators reach a decision, it is no longer open to either party to subsequently back out of such a decision.”
The decision of the arbitrators would thus become res judicata within the con of the relevant native law and custom as in this case.
The Lower Court did not breach any rule of Customary Court and that the Respondents satisfied the conditions laid by the Supreme Court for the applicability of arbitration tribunal’s decision as res judicata.
Issue 2 is resolved against the Appellants.
ISSUE 3
WHETHER THE LOWER COURT DID NOT MISDIRECT ITSELF IN LAW WHEN IT IMPORTED AND RELIED ON THE CASE OF OFORLETE v. THE STATE (2002) 7 SCNJ AT p. 129, a criminal case tried with Evidence Act to evaluate evidence in a Civil case in Imo State Customary Court disregarding the requirement of corroboration in Law (sic) matters in civil causes.
This issue will be treated based solely on ground six of the appeal ground 4 of the Appellants having been struck out.
The Appellant argued from page 17 of the Appellants’ Brief of Argument that the finding of the Lower Court that the Appellants did not challenge the Plaintiff’s PW evidence under cross examination nor asked a single question to (sic) Ngere Ekeigwe in challenge of his traditional history set up by him as misconceived. The Appellants Learned Counsel then reproduced the evidence of PW1 from pages 16-17 of the record and the questions that was put to PW1. That the findings of the trial Court was that Plaintiffs did not know how the land came to the Appellants possession.
I have examined the evidence of PW1 and the cross examination and I am of the solemn view that the lower Court’s finding that there is no where the traditional history as adduced was challenged under cross examination of PW1 on pages 19 – 24 of the record as perfectly in Order.
The Appellants cannot in the circumstance argued that the lower Court wrongly upturned the decision of the trial Court (Court of first instance). The record of appeal clearly reveal that the lower Court deployed its knowledge of the law to the evidence before the trial Court. The inevitable conclusion is that the Appellant have failed to identify any credible reason to this Court to enable this Court interfere or set aside the decision of Imo State Customary Court of appeal. There is no compelling reason or reasons for it. The Judgment of lower Court cannot be faulted.
In the result the appeal of the Appellants lacks merit and same is hereby dismissed in its entirety. The judgment of the Customary Court of Appeal Owerri, Imo State delivered on 14th day of May, 2009 in favour of the Respondents herein is hereby confirmed. The Appellants shall pay to the Respondents costs assessed a N50,000 (Fifty Thousand Naira).