MR. FIDELIS NWABELE & ANOR v. LONGINUS EKWEDI & ANOR
(2019)LCN/13469(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/OW/106/2015
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. MR. FIDELIS NWABELE
2. MR. VITALIS AKUNNA
(for themselves and on behalf of Umuonyem Family of Umuabagwo, Obibi Ogbaku) Appellant(s)
AND
1. LONGINUS EKWEDI
2. JOHN ONWUZURUIGBO
(for themselves and on behalf of Umuorieogbede Family of Isiokpo Obibi Ogbaku) Respondent(s)
RATIO
WHEN A DECISION OF A JUDICIAL BODY CAN CREATE ESTOPPEL
The only way that the decision of a judicial body can create estoppel is when the decision is binding on the parties ? KOLAWOLE v. OLORI (2010) ALL FWLR (PT. 514) Page 97; JOSEPH ONWU & 11 ORS v. EZEKIEL NKA & 32 ORS (1996) 7. S.C.N.J. 240 @ 255. PER PEMU, J.C.A.
WHETHER OR NOT AN ARBITRATION DECISION MUST BE ACCEPTED BY THE PARTIES FOR IT TO BE BINDING ON THE PARTIES
I should also add that an arbitration decision must be accepted by the parties at the time it was made, among other requirements for it to be binding on the parties. See the case of Duru & Ors Vs Duru & Ors (2017) LPELR – 42490 CA; Okwaranyia Vs Eke (1996)3 NWLR (Pt.436) 335; Ohiaeri Vs Akabeze (1992)2 NWLR (Pt.221)I; Onyenawuli Vs Onyenawuli (2017) LPELR – 42661 CA. PER MBABA, J.C.A.
THE ISSE OF OATH TAKING FOR PROOF OF OWNERSHIP OF LAND UNDER CUSTOMARY LAW
On the issue of oath taking for proof of ownership of land under Customary law, the recent view appears to be that, where a party refuses to submit to the taking of oath, he cannot be compelled and his refusal to take the oath cannot translate to admission of the claim of his opponent, as it rather tends to show that the arbitration decision was rejected. See Mbajiuka & Ors Vs Anyanwu (2018) LPELR – 44472 CA; Nwaokarobia & Anor Vs Uzoho & Ors(2006) LPELR 9813 CA. PER MBABA, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal, Imo State sitting at Owerri in CCA/OW/A/24/2013.
FACTS OF THE CASE
The Appellant instituted this suit against the Respondents at the Customary Court Nwaorieubi in 1993. He claimed declaratory and injunctive reliefs.
The Respondents counter claimed.
The matter had begun in a Customary Court created in 2011 which matter fell within the jurisdiction of the Law Court where the parties took fresh plead.
At the trial before the new Court, both parties gave traditional evidence of their ownership of the land in dispute.
The Court visited the locus in quo and in her judgment, the Court below rejected the parties respective traditional histories and dismissed the case on the ground that the traditional histories were confusing. As earlier stated in this judgment, both parties appealed to the Customary Court of Appeal.
This appeal is in respect of the appeal by the Plaintiff/Appellant against the judgment of the Customary Court of Appeal delivered on the 4th of November 2014.
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The judgment is at Pages 257 ? 267 of the Record of Appeal, while the dissenting judgment is at Pages 273 ? 302 of the Record of Appeal.
The Appellants filed a Notice of Appeal on the 28th of November 2014. ? Pages 303 ? 308 of the Record of Appeal.
Both parties appealed to the Customary Court of Appeal Imo State.
The Appellant contended that the trial Court was wrong when it admitted the certified true copies of the testimony of the original deceased as Exhibit ?C and D?, arguing that such testimonies should have been shown to the witness first (Appellant) before it can be received in evidence. Argued that the Court below erred when it held that those testimonies in Exhibit ?C and D? contradicted the evidence of the Appellant on record.
The Respondents contended that they proved the traditional history of the land in dispute in accordance with their native law and custom, on proof of ownership of land. That there was no material contradiction in their case to warrant a dismissal.
?
Both the Customary Court and the Customary Court of Appeal had held that Exhibit ?C and D? were
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properly received in evidence being certified true copies of Court proceedings. The Court below however disagreed with the trial Court; dismissing both actions. That the case of the Respondents neighed more than that of the Appellant. They allowed the appeal by the Respondents and dismissed that filed by the Appellant.
Both parties had, claimed title to the land in dispute.
While the Appellant called it ?Okohia Umuonyem?, the Respondents called it ?Uhu Amakpu land?
In the course of hearing, the presiding Judge ordered counsel on both sides to address him on whether the issue of Oath taking raised by the Respondents during the trial does not create an estoppel.
The Appellant had contended that the issue of Oath taking was neither raised by the Appellant in their Notice and Grounds of Appeal nor by the Respondents in their cross appeal.
That the Panel of three Judges who presided over the matter could not agree which resulted in a dissenting judgment ? Pages 273 ? 302 of the Record of Appeal.
?
The Appellant filed a brief of argument on the 25th of April 2016, but same was deemed filed in the 2nd
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of May 2017. It is settled by K. M. ONYEAMA ESQ.
The Respondents was filed on the 10th of October 2015. Settled by I. B. B. MADUBUKO ESQ.
On the 26th day of March 2019, parties adopted their respective briefs of argument.
The Appellant, in his amended brief of argument proffered two (2) Issues for determination. They are:
1. ?Whether the Customary Court of Appeal was right under the Customary Law to hold that the purported arbitration of Obibi Ogbaku and its recommended Oath taking between the parties as it relates to the ownership of this land in dispute was binding on the parties and created estoppels in the matter.
2. Whether the Customary Court of Appeal was right under customary law to hold that the Appellant?s traditional history/proof of title has confirming and contradictory as it regards deforestation of the land in dispute thereby dismissing the Appellant?s suit.?
?
The Respondents proffered two (2) issues for determination. They are:-
1. ?Whether the Customary Court of Appeal Owerri was right to have held that the purported arbitration of Obibi Ogbaku and its recommended Oath taking
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between the parties as it relates the ownership of this land in dispute created estoppels in the matter.
2. Whether the Customary Court of Appeal Owerri was right in dismissing Appellant?s suit when it held that, their root of title was confusing, contradictory, coupled with the alleged evidence of the appellant that the land in dispute was deforested twice.?
It seems to me that the Respondent?s issues for determination is an adoption of the Appellant?s issues for determination. I shall therefore determine this appeal based on the Issues proffered for determination by the Appellant.
ISSUE NO 1.
The Appellant contends that where a body of men ? be they Chiefs or otherwise act as arbitrations over a dispute between two parties, their decision shall have binding effect when it is shown that:
a. Both parties submitted to arbitration.
b. That the parties accepted the term of the arbitration and.
c. That they agreed to be bound by the decision.
Submits that such decision carries the same authority as that of a judicial body. It is binding on the parties and will create estoppel. Cites KOLAWOLE v. OLORI
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(2010) ALL FWLR (PT.514) Page 97; JOSEPH ONWU & 11 ORS v. EZEKIEL NKA & 2 ORS (1996) 7 SC. NJ 240 @ 255.
Submits that Oath taking is one of the acceptable and customary ways the Igbo people settle dispute between two warring parties. ? NWOKE v. OKERE (1994) 5 NWLR (PT. 343) 159.
The Appellant submits that where a party is relying on the issue that there was an Oath taken by the parties in respect of a subject matter, that party to succeed must give evidence as to the following:-
1. The date oath was taken by the parties.
2. These who were present when the said oath was taken by the parties.
3. Before whom the Oath was taken by the parties.
4. The form, terms or manner of the Oath taking and its duration.
Submits that the Respondents at the trial raised the issue of customary arbitration by Obibi Community which recommended for an Oath taking between the parties in respect of the ownership of the land in dispute at Nwa Nuwe, Rivers State. But the Appellants at the trial denied that there was customary arbitration and that there was no oath taking by the parties.
?
Submits that the onus of proving the
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fact whether there was a customary arbitration between the parties which recommended for oath taking rests solely on the Respondents/Defendants at the trial Customary Court. It was the Respondents who raised the issue of Customary arbitration and oath taking.
Submits that the evidence elicited from DW1 did not mention the form and manner of the oath taking, where it was taken, and with what it was administered.
That from the evidence of the Respondents and their witnesses, they did not mention the type of animal that was used for the oath taking which animal allegedly died. They did not disclose who were present during the oath taking. The date of the purported oath was not declared. Who administered the oath was not disclosed. The from, manner or item used for the alleged oath was not disclosed.
That evidence of DW3, Hygrans Ejiogu contradicted that of DW1.
That the Defendants (Respondents) witnesses contradicted each other as to the makeup of the purported arbitral body of Obibi Ogbaku that allegedly looked into the matter and recommended the alleged oath taking.
?
That while DW1 testified that it was Augustine Obele that represented
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the Umuonyem family of the Appellant?s at the arbitration, DW4, Chief Innocent Arinze alleged that he was all through the proceeding of the arbitral panel, testified that it was Urianeju Madunatu that represented the Appellant?s family in the purported Obibi arbitration.
That the Respondents and their witness failed to reconcile the obvious inconsistencies and contradiction as to the makeup of the purported arbitral panel.
None of the Respondents witness testified as to the date the purported Oath was taken by the parties, who witnessed it, or was present during the purported oath taking; before whom the oath was taken. What was the mode, terms, the knid of animal used for the purported oath, and its duration.
Submits that none of the parties either as Appellant or cross Appellant raised the issue of Customary Arbitration/Oath taking in their various Notice and Grounds of Appeal.
Submits that the Court below was wrong to raise the issue of Customary Arbitration/Oath taking suo muto, when such was not raised by either parties in their respective Notice and Grounds of Appeal.
ISSUE NO 2.
Submits that the Court below was
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wrong to have held that the trial Court was entitled to make issue of Exhibit ?C and D? as it did.
That in the present case the Appellant proved his case through evidence of traditional history.
In proof of his root of title the Appellant testified that the land in dispute is known as OKOHIA UMUONYEM. He came to own the land in dispute through his forefather ABAGWO, who deforested the land, and was the first person to farm on it. That Abagwo had five male children before his death and he shared his estate among his male children. That the Onyems got the share of the disputed land and farmed on it. Onyems elder brother Ogbandu who was the Chief Priest of Iyiafor shrine asked him to allow him use a portion of the land in dispute as a shrine of Iyiafor. He granted his request and used a portion of the disputed land for his shrine.
?
That the remaining portion was farmed by Onyem until his death and his succeeding children Okwara Obisicike Okoruenkwo, Akuna, Okuaba and Nwankwo inherited the remaining portion of the disputed land and farmed jointly on it as UMUONYEM. He traced the claim of inheritance and possession of the portion of the
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disputed land until it reached him as the head of the family.
Submits that there is nothing confusing in the traditional history of the Plaintiffs. That after the Iyiafor shrine was destroyed during the Civil War, the Plaintiff and some members of his family ? Oliver Ogbonna, Jacob Akunna and Godwin Akunna entered cleared or re-deforested the land in dispute, which have grown into a thick forest and has been farming on it till date.
Submits that there is evidence from both parties which shows facts of possession exercised by the Ogbandu Awazieama families of the Appellant, Umuabagwo lineage over the land in dispute, extending over a long period of time. That it is the Appellant Umuobagwo family that have been in long possession of the land in dispute.
?
Submits that on the issue of Exhibit ?C and D? the Respondents did not deny that the Appellant was never confronted with the contents of Exhibits ?C and D? before they were tendered and admitted in evidence. Moreso that EXHIBITS ?C and D? were neither produced nor tendered in evidence by the time the Appellant was still in the witness box, but rather after
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he had closed his case, and the Defence had commenced when the Respondents decided to tender same through one of their own as witness.
That learned council had every opportunity to confront the Appellant with Exhibits ?C and D? containing the testimony of the deceased former Plaintiff, but he shied away from doing so.
Submits that the evidence of the deceased former Plaintiff as contained in Exhibits ?C and D?, is no legal evidence before the Court, and it ought not to have evidential value on it, in coming to the conclusion that the Plaintiff?s root of title is contradicted by the exhibits.
Submits that since the former Appellant as the Plaintiff was not confronted with the contents of Exhibit ?C and D? which is the evidence of another person, it was wrong for the Court below to hold that it had evidential value.
RESOLUTION OF ISSUES
ISSUE NO 1
In order to appreciate whether the issue of Customary arbitration/oath was introduced by the Court below suo muto, or that the parties brought up the issue, it is pertinent that one gleans through the evidence of the respective parties.
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From the evidence of PW1, Flavin Ikoku ? a farmer, who is the Appellant in the present appeal but substituted in the , he did say that the Defendants in 1993, entered into the land, and he reported the matter to Eze, who summoned them. But they refused to go. The Eze then advised them to go sue ? Pages 12 ? 13 of the Record of Appeal.
Answering questions put to him in cross ? examination, he did state that he only knew Eze Durueke when asked whether before Eze Durueke arbitrated on the land in dispute between his people and Umuorie Ogbede, whether there had been earlier arbitration on it.
?
DW1 ? Joseph Duru also testified that on the 18th of August 2011. When asked whether before this matter went to Court, he knew whether the matter had gone to any arbitration body (native), he said YES. When asked if any decision was reached he said yes. That they said the land belonged to Amakpu, and Umuonyem refused and they placed it on oath. The land was given to them. Later Umuonyem went to Eze Durueke of Ogbaku and when they were summoned there they refused to go, since they had gotten victory earlier ? Page 31 of the Record of Appeal.
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It is apparent, and indeed evident, that the parties raised the issue of Customary Arbitration.
It is therefore a misconception to say that the Court below raised the issue of customary arbitration suo motu.
Ground No 1 of the Notice and Grounds of Appeal can be amply reproduced. It states thus:-
GROUND ONE: ?the Customary Court of Appeal Imo State erred in customary law when it held that the respondents who failed to prove their root of title to the land in dispute proved that there was oath taking between the parties in respect of ownership of the land in dispute, when there were inconsistent and contradictory evidence by the Respondents witnesses on the constitution of the purported panel that recommended for the parties and the oath itself.?
This ground clearly alludes to the issue of Customary Law/Oath taking. To say therefore that none of the Grounds of Appeal smacks of Customary Law/Oath taking is misconceived, and I so hold.
There is no gainsaying that the parties were not ad idem, regarding the issue of Oath taking, and referring the matter to customary arbitration. The parties did not
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submit to arbitration and even if they did, one of them did not accept the terms. They did not agree to be bound.
The only way that the decision of a judicial body can create estoppel is when the decision is binding on the parties ? KOLAWOLE v. OLORI (2010) ALL FWLR (PT. 514) Page 97; JOSEPH ONWU & 11 ORS v. EZEKIEL NKA & 32 ORS (1996) 7. S.C.N.J. 240 @ 255.
There is no doubt that oath taking is one of the acceptable and customary ways the Igbo people settle disputes between two adverse parties, but where a party is relying on oath taking and arbitration, he has to prove that these factors have been conclusively determined. In the present situation.
a. The date oath was taken by the parties.
b. Those who were present when the said oath was taken by the parties.
c. Before whom the Oath was taken by the parties.
d. The form, terms or manner of the oath taking, and its duration.
These elements seem to be abysmally absent from the case of the Respondents
This issue is resolved in favour of the Appellant and against the Respondents.
ISSUE NO 2
In course of proceedings at the Court below, the
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Certified True Copies of former evidence of one OLIVER OGBONNA from 27th of October 1993 to 27th of April 1994, and from 25th of April 1995 and 22nd of June 1995, wherein he testified and was fully cross ? examined were tendered as exhibits ?C and D? respectively.
DW1 testifying did say that he was the 1st plaintiff in the suit. While alive, he and others were farming on the Uhu Amakpu. After his death, his children continued farming on the land in dispute. He testified at the former Court Nwaoruubi.
At the point of tendering the evidence, Plaintiff?s counsel objected on the ground that he was not fully cross ? examined before he died and therefore cannot be admitted. The Defence Counsel told the Court that Oliver testified on the 27th of October 1993, and 31st of January 1994, and was fully cross ? examined on the 29th of April 1994. He gave evidence again on the 29th of April 1994, and cross ? examined on the 27th of June 1995. These documents were marked Exhibit ?C and D? respectively.
Section 73 (1) of the Evidence Act 2011 is instructive. It says:-
?When the Court has to form
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an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right of persons who would be likely to know of its existence if it existed are admissible.?
In sub Section (2) it says:-
?The expression ?general custom or right? includes customs or right common to any considerable class of persons.?
The Courts are quick to admit documents which are relevant, as relevancy is paramount.
Exhibits ?C and D? were evidence which had been elicited from the witnesses. He had even been cross ? examined on it. They were documents which would in the circumstances not occasion no miscarriage to the Appellant.
Howbeit, I am of the view that the Court below was wrong to have held that the Appellant?s traditional history root of title, was confusing and contradictory.
I think not. It was the Appellant, who adduced evidence in support of his traditional history. The Respondents did not do this.
The Cross/Appellants were unable to prove the existence of any oath taking/customary arbitration which the Court below could enforce.
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At the visit to the locus in quo, it was the Appellant?s witness PW1 who testified, and in doing so called Jude Ukonu a boundary witness ? PW2.
PW1 showed the Court the land in dispute which he calls OKOHIA UMUONYEM. He showed Court the boundary neighbours. That there were no boundary marks between Jude Ukonu?s land and the land in dispute except a path way.
The Cross/Appellant on the other hand, using DW1 ? Joseph Duru was at the locus. His evidence was evenly balanced with that of the Appellant regarding the issue of possession and ownership of adjoining parcels of land sharing boundaries with the disputed land.
But on a preponderance of evidence, it seems to me that the Appellant?s case outweighs that of the cross Appellant.
The dissenting judgment of M. E. NJOKU JCCA of 4th November 2014 is affirmed, while the main judgment is hereby set aside.
The answer to issue No 2 is in the negative.
The Appeal succeeds, and is hereby allowed.
The judgment of the Customary Court of Appeal Imo State sitting at Owerri in CCA/OW/A/24/2013 is hereby set aside.
N100,000 costs in favour of the Appellant.
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ITA GEORGE MBABA, J.C.A.: I am in complete agreement with the lead judgment just delivered by my lord Pemu JCA, allowing the appeal, and I abide by the consequent orders in the lead judgment.
I should also add that an arbitration decision must be accepted by the parties at the time it was made, among other requirements for it to be binding on the parties. See the case of Duru & Ors Vs Duru & Ors (2017) LPELR – 42490 CA; Okwaranyia Vs Eke (1996)3 NWLR (Pt.436) 335; Ohiaeri Vs Akabeze (1992)2 NWLR (Pt.221)I; Onyenawuli Vs Onyenawuli (2017) LPELR – 42661 CA.
On the issue of oath taking for proof of ownership of land under Customary law, the recent view appears to be that, where a party refuses to submit to the taking of oath, he cannot be compelled and his refusal to take the oath cannot translate to admission of the claim of his opponent, as it rather tends to show that the arbitration decision was rejected. See Mbajiuka & Ors Vs Anyanwu (2018) LPELR – 44472 CA; Nwaokarobia & Anor Vs Uzoho & Ors(2006) LPELR 9813 CA.
I too allow the Appeal
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I
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have been privileged to have read in advance, the lead judgment just delivered by my learned brother, HON. JUSTICE RITA NOSAKHARE PEMU, JCA. I completely agree with his reasoning and conclusion I too allow the appeal.
I abide by the consequential order made as to costs.
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Appearances:
K.M Onyeama, Esq.For Appellant(s)
I.B.B. Madubuko, Esq.For Respondent(s)
Appearances
K.M Onyeama, Esq.For Appellant
AND
I.B.B. Madubuko, Esq.For Respondent