MR. OSOWEI MAGNUS & ANOR v. MR. IKESIYE OKPOTO & ORS
(2018)LCN/12004(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of July, 2018
CA/PH/49/2014
RATIO
COURT AND PROCEDURE: WHERE THE DECISION OF THE COURT IS PERVERSE
It is my finding on this issue that the decision of the lower Court in its judgment delivered on 21st May, 2013 was persistent in error as it ignores the facts and evidence before it which amounted to a miscarriage of justice. In NATIONAL ELECTRIC POWER AUTHORITY V J.A. OSOSANYA & ORS (2004) LPELR 1960 (SC) the Supreme Court held thus: ‘A decision of a Court is perverse when it ignores the facts or evidence before it and when considered as a whole, amounts to a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and to set it aside. See Agbomeji V Bakare (1998) 9 NWLR {Pt. 564} 1 at 8. Per IGUH JSC on page 24 paragraphs C – D.'” PER BITRUS GYARAZAMA SANGA, J.C.A.
INTERPRETATION MEANING OF ‘COUNTER-CLAIM’
“The law is trite that a counter-claim is the claim of the Defendants it must therefore be proved on the same standard with the claim. The counter-claimants therefore must succeed on the preponderance of evidence they adduced during trial and not on the weakness of the Claimants claim unless where the evidence of the defendant strengthen his claim. In EZEKIEL OYINLOYE V BABALOLA ESINKIN & ORS (1999) LPELR 2886 (SC) the Apex Court held, per EJIWUNMI JSC, on page 15 paragraphs B – D thus: – ‘It is also settled law that a plaintiff must succeed on the preponderance of evidence he led, and on the strength of his own case, not by the weakness of the defence unless of course he finds in the evidence of the defence facts which strengthen his own case. See Akinola & Anor V Oluwo & 2 Ors. (1962) 1 SCNLR 352; (1962) 1 All NLR 224 per Unsworth F.J. at 227; Woluchem & Ors V Gudi & Ors. (1981) 5 SC 291 per Idigbe J.S.C. at 294’.” PER BITRUS GYARAZAMA SANGA, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
1. MR. OSOWEI MAGNUS
2. MR. OSOWEI VICTORY
(For themselves and on behalf of Osowei Family of Agbura Town in Yenagoa Local Government Area of Bayelsa State) Appellant(s)
AND
1. MR. IKESIYE OKPOTO
2. MR. ENIEKI OKPOTO
3. MR. EGBERI OKPOTO
4. MR. ABEBE OKPOTO
5. MR. DIASUEME OKPOTO
6. CHIEF OGBOMA OZEGE
7. MR. MESSRS PONOMO AFERE
8. MR. OPULU OKUONU
9. MR. EBOBU IGWE
(For themselves and on behalf of Beneclaker & Okpoto descendants of Agbura Town in Yenagoa Local Government Area of Bayelsa State) Respondent(s)
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment):
This appeal emanates from the Judgment of BOLOU M. UGO J., (now JCA) of High Court of Justice Bayelsa State Yenagoa Judicial Division delivered on 21st May, 2013. By an endorsed Writ of Summons and Statement of Claim dated 28/2/2012 the Appellants sued the Respondents in a representative capacity as Claimants and Defendants respectively, in Suit No. YHC/25/2012 claiming for the following reliefs: –
1. A DECLARATION that the incessant harassment, embarrassment, intimidation, threatening, disturbance and/or interference with the Claimants’ OSOWEI family right of ownership and use of a portion of the Claimants OSOWEI Family Land (i.e. 13.75 plots), lying, situate, being at and known as OSOBUGAN BUSH, in Agbura Town, Yenagoa Local Government Area, a place within the jurisdiction of this honourable Court, (which said land shares common boundaries with the land of Mr. Friday Otuoku on the 1st side, Shell and Agip pipelines on the 2nd side, a carnal (sic) on the 3rd side and the land of Mr. Bomeden Ekpokiri and an Access Road on the 4th side) by the defendant, is unlawful, wrongful, illegal and same amounts to flagrant and violent violation of the Claimant?s family fundamental rights constitutionally guaranteed under Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
2: A DECLARATION that the continuous threat by the defendant to forcefully acquire 13.75 Plots of land from the Claimants OSOWEI family large expanse of land described in Relief 1 above is unlawful, wrongful, illegal and same amounts to trespass on the land of the Claimants OSOWEI family and a flagrant and violent violation of the claimant’s OSOWEI family fundamental rights constitutionally guaranteed under Section 48 & 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
3. A DECLARATION that the continuous intimidation of the Claimants by the Defendants using men of the Nigerian Police Force, Bayelsa State Police Command to arrest the Claimants over the Claimants OSOWEI family large expanse of land described in Relief 1 above is unlawful and contrary to the claimants fundamental rights constitutionally guaranteed under Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
4: AN AWARD OF N20,000,000.00 (Twenty Million Naira) only against the defendants, being exemplary damages for Defendants’ act of trespass to the land of the Claimants OSOWEI family described in Relief 1 above and for the unlawful, illegal, wrongful, flagrant and violent violation of the claimants’ and claimants OSOWEI family fundamental rights as stated of Sections 35 and 43 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
5: AN ORDER OF PERPETUAL injunction restraining the defendants jointly and severally by themselves, servants, agents, privies and cohorts or surrogates, from further trespassing on the claimants OSOWEI family land describe in Relief 1 above and/or violating the claimants lawful, legal and/or constitutional rights, in any of the ways stated in reliefs 1, 2, and 3 above, and/or in any other way whatsoever. (pages 13 – 14 of the record of appeal).
Accompanying the statement of claim is a list of claimants? witnesses to be called at the trial consisting of 4 names, (Mr. Osowei Millio, Mr. Osowei Magnus, Mr. Osowei Victory and Mr. Ekpulu Izige). Written depositions of Claimants? witnesses is on pages 16 – 49 of the record of appeal. The Claimants also attached a list of documents they intend to rely upon during trial (pages 50 -51). Copies of the documents are on pages 52 to 60 of the Records. I noted the exparte application filed by the Claimants on 01/06/2012 seeking for leave to employ the services of a Surveyor to survey the land in dispute and the Survey Plan produced subsequently be filed and included in the list of documents to be relied upon by the Claimants on pages 74 – 78 of the record of appeal. The Claimants earlier filed a motion on notice seeking for an order by the lower Court entering judgment for the Claimants in terms of the reliefs they sought in the statement of claim. They deposed to the facts that despite service of all processes on the Defendants on 1/3/2012 and 12/3/2012, they failed and/or refused to enter appearance. The motion, affidavit in support attached to which are copies of affidavit of service of all the processes on the Defendants and a written address are on pages 61 to 73 of the records of appeal.
It was on 1st June, 2012 that the Defendants filed a motion on notice seeking for an order for extension of time within which the Defendant can file their memorandum of conditional appearance, statement of defence and other processes out of time. An affidavit in support to which are the memorandum of conditional appearance and a Statement of Defence accompanied the application. (pages 79 – 98 of the record of appeal). In their Statement of Defence the Defendants Counter Claimed against the Claimants as follows: –
(a) A declaration to the effects that the Defendants are the deemed customary owners of all that piece of land referred to and situate at Osobugan bush Agbura Epie in Yenagoa Local Government Area of Bayelsa State, more particularly described in paragraph 6 of Statement of Defence.
(b) An Order of perpetual injunction restraining the Claimants, their agents, heirs, assigns, servants, privies and legal representative(s) however described, from further tampering with or entering into the Defendant land as described above.
The Defendant also filed witness depositions of their witnesses (Bomedie Ayinbal (Ekpokiri), Chief Ogbalavie Isiko, Mr. Egberi Okpoto and Chief Bedford Iso Okuonu on pages 90 to 100 of the record of appeal). The Claimants filed (with leave of the lower Court) their Reply and Defence to Counter Claim on pages 110 – 115 of the Records. They also filed another list of witnesses to be called at the trial consisting of 5 names as follows (1) Mr. Osowei Millio, (2) Mr. Osowei Victory, (3) Mr. Abraham, (4) Mr. Friday Otuoku and (5) Mr. Dabiri O. Thomas together with their written depositions. (pages 116 – 135 of the record of appeal). On page 136 the Claimants filed an additional list of documents to be relied upon at the trial as follows: –
1. Litigation Survey Plan
2. Police Report
3. Legal Letter to the Police for Police Report.
Copies of the above documents also accompanied the application. (pages 136 – 140 of the record of appeal).
On pages 162 – 165 of the records the Defendants filed a motion on notice seeking for leave to amend their Statement of Defence dated 28th January, 2013. An affidavit in support and the Proposed Amended Statement of Defence accompanied the application. The main reason for the application is that the Defendants engaged the services of a Surveyor to produced a Survey Plan of the land in dispute. A copy of the Survey Plan is on page 171 of the record of appeal. The Defendant also filed another motion dated 28/01/2013 seeking for leave to call the Surveyor and one Chief Ogboma Ozege as additional witnesses. Their written depositions accompanied the application. The Claimants filed a counter affidavit against the two motions. Their main reason is that they have already closed their case on 22nd January, 2013. The Defendants did not give even a hint that they intend to file a Survey Plan even while the Claimants’ Survey Plan was admitted in evidence and marked as Exhibit ‘F’ on 15/1/2013 through C.W.2. On 5/2/2013 the learned trial Judge delivered his ruling wherein he refused the application for amendment (pages 265 – 269 of the record of appeal). The Defendants (who had open their defence and called two witnesses) then continued with their defence.
During hearing of the suit the Claimants called two witnesses, to wit; C.W. 1 – Mr. Ekpulu Izige. He is Chairman of the 3 Man Arbitration Panel or Peace Committee. He adopted his written deposition and was cross-examined by learned counsel to the Defendants (pages 235 – 240 of the record of appeal). C.W.2 is the second appellant Mr. Osowei Victory. During his testimony in chief the following documents were admitted in evidence and marked accordingly through him: –
1. Laminated 2 – page Power of Attorney dated 24/01/2002 donated by Nelson Osowei & 3 others of Agura to Mr. Marine Jacob (Nigeria) Enterprises. Estimators, in respect of enumeration/evaluation and negotiation of economic trees and crops in Osobugan Bush – Exhibit ‘A’.
2. A ‘rather pink duplicate copy’ of a receipt of N217,000.00 made on a document bearing Nigeria Agip Oil Co. Ltd and receipted for by Nelson Osowei and Gilbert Osowei on 28/10/2004 – Exhibit ‘B’.
3. A document on letter headed paper of K. O. Ogbonna & to Life etc addressed to the Commissioner of Police, Bayelsa State Police Command – Exhibit ‘C’.
4. Laminated photocopy of First Bank of Nigeria Plc cheque of N259,000.00 issued to Dressman B. Ogbara – Exhibit ‘D’.
5. A two page Copy of Petition dated 20/2/2012 titled ‘Re: Reminder with Respect to Petition to threat to life etc’ written by N. A. Wanogho Esq. to the Commissioner of Police, Bayelsa State Command – Exhibit ‘E’.
6. Survey Plan No. BY/SC/975/0467/2012 by Surveyor Dabiri Thomas as on 7/6/2012 – Exhibit ‘F’.
The Defendants called three witnesses as follows: –
1. D.W.1 is Bedford Iso Okuonu a farmer. He adopted his testimony in chief and was cross examined by learned counsel to the Claimants. (pages 259 – 262 of the record of appeal).
2. D.W.2 is Bomedei Ayinbala Exkpokiri a businessman/farmer. He also adopted his written deposition and was cross examined. (pages 262 – 263 of the Records).
3. D.W.3 is Chief Ozege Ogboma who said he is a civil servant. He also adopted his written deposition made on 28/01/2013 and was subsequently cross-examined. (pages 269 to 273 of the record of appeal).
On 10th April, 2013 learned counsel to parties adopted their respective written addresses. Learned trial Judge adjourned to 8/5/2013 for judgment. However it was on 21st May, 2013 that judgment was delivered. The judgment is on pages 277 to 330 of the record of appeal. The learned trial Judge after reviewing the evidence adduced by the parties and the submissions by learned counsel to the parties in their final written addresses reached the following decision: –
”In short, there are too many contradictions in the Osoweis case; they lied in all things great and small. I am of the view their claim to the disputed land is baseless. I believe they are neither owners nor ever been in possession of it. Their complaints to the police of forcible entry to the disputed land by the Okpotos land are therefore also unwarranted being that it is not their land. In consequence, I dismiss their claims in their entirety.
For the several reasons I have given above, I hold that the Beneclaker/Okpotos have proved their counter claim on the balance of probability, that the land in dispute was granted and partitioned by Odi its founder to his daughter Beneclaker, their ancestress.
I also find as fact that they and their ancestors inherited it from her and have been in exclusive possession of it over the years.
I find as a fact, too, that it is rather the Osoweis who have been in trespass of the said land as evidenced by their wrongful sale of it in 2011. Accordingly, I grant the Beneclacker/Okpoto descendants? counter claims and make the following orders in their favour
Learned trial Judge then granted all the reliefs claimed by the Defendants in their counter claim. On the 3rd claim he reduced the amount of general damages claimed from N10,000,000.00 (Ten Million Naira) to N80,000.00 (Eighty Thousand Naira).
The Claimants were dissatisfied with this decision so they filed a Notice of Appeal containing three grounds of appeal which, shorn of their particulars, reads thus: –
GROUND ONE:
The learned trial Judge erred in law in disregarding the findings of the Customary Arbitration Panel, which awarded only 4.5 plots of land to the Defendants (conceded by the Claimants and Verged ‘Purple’ in the Claimants Survey Plan No. BY/SC/975/0467/2012 admitted in evidence by the trial Court as Exhibit F), on the ground that ‘it is even doubtful whether all the ingredients of a Valid Customary arbitration were pleaded and proved in this case.’
GROUND TWO:
The learned trial Judge erred in law when he held that: –
”the Beneclaker/Okpoto descendants are the persons entitled to be granted a statutory right of occupancy over the portion of Osobugan land bounded by Shell and Agip Company pipelines, a canal and the lands of Chief Bedford Iso Okuonu, Bemedei Ayibala Ekpokisi and Friday Otuoku amongst others, which said land measures 26558.148 square metres (6.640 acres, or 2.656 hectres, or about 18 plots) and is more properly delineated and verged brown in Survey Plan No. BY/SC/975/0467/2012 of 07/06/2012 made by Survey or Dabiri Thomas.
GROUND THREE
The judgment of the trial Court is against the weight of evidence.
Learned counsel to the appellant however filed a motion on notice on 25th March, 2015 to amend their notice of appeal which was granted on 2nd April, 2015. It was on that date the appellant filed their Amended Notice of Appeal containing four grounds of appeal. The Record of Appeal was complied and transmitted to this Court on 30th January, 2014 but deemed as properly compiled and transmitted on 2nd April, 2015. The appellants’ brief of argument was filed on 16/04/2015. Learned counsel withdrew same and it was struck out. He then filed appellants’ Amended Brief of Argument on 01/12/2016 which we deemed on 08/05/2017.
It was settled by Felix T. Okorotie Esq. In it, learned counsel formulated three issues out of the four grounds of appeal as follows:
1. Whether the Respondents pleaded and led credible evidence as to how they became owners of the land in dispute? (Ground 4 of the Amended Grounds of Appeal)
2. Whether the customary arbitration award/ judgment that the portion of land in dispute in Osobugan bush is just 4.5 plots of land is binding on the Appellants and Respondents? (Ground 1).
3. Whether a Court of law has jurisdiction to grant in excess of what is claimed? (Grounds 2 and 3).
The Respondent filed a brief of argument on 4th October, 2016 which learned counsel applied to withdraw and we struck it out. A.F. Gbaranma Esq. filed the Respondents’ consequential Amended Brief of Argument on 15th May, 2017. Learned counsel adopted the three issues formulated by the appellants in their Amended Brief of Argument. Learned counsel to the appellant also filed a Reply Brief on 16th May, 2017.
ISSUE 1 is
Whether the Respondents pleaded and led credible evidence as to how they became owners of the land in dispute?
In his submission while arguing this issue, learned counsel to the Appellants answered in the negative. That the Respondent did not led credible evidence as to how they became owners of the land in dispute. That the grant of the Respondent counter claim led to filing this appeal. That the law is trite that a counter claim is a separate and independent action, therefore it must pleaded and credible evidence led in proof of the said counter claim; cited: ALHAJI HAIDO & ANOR V ALHAJI USMAN (2004) ALL FWLR {Pt. 201} 1765 at 1782. That a claimant as well as a counter claimant must succeed on the preponderance of evidence led on the strength of his case and not on the weakness of the defence. Cited OYINLOYE V ESINKIN (1999) 10 NWLR {Pt. 624} 540 at 549; and Section 131 of the Evidence Act, 2011.
Learned counsel submitted further that the claims of the Respondents in the counter claim is based on traditional history. That their history is that the land in dispute passed to them through their ancestor, one Beneclaker. That the respondent did not plead the names of those who inherited the land in dispute which devolved to them without leaving any gap to the last successor, cited ELIAS V OMO-BARE (1982)5 SC 25; EZE V ATASIE (2000) 10 NWLR {Pt. 679} 470 at 482 paragraphs D – F. That the question that arose for determination is; what are the names of the children of Tomonagha that inherited the land from her? Which of them was the post senior? What was the ascending order of the devolution? How are the respondent related to those children through whom they inherited the land in dispute? Etc. That there is a big gap in the traditional history of the respondent on how the land in dispute devolved on them. That the respondent have created ‘Mysterious or embarrassing linkages which have not been and cannot be explained.’ Learned counsel urged the Court to resolve this issue in favour of the appellants.
In his submission on this issue, learned counsel to the respondents urged the Court to answer in the positive. That they, have clearly pleaded and led credible evidence as to how they became the owners of the land in dispute. Learned counsel submitted that learned counsel to the Appellants’ contention that the respondents did not plead the name of the founder of the land in dispute and those after him to misrepresentation of facts of this case. Learned counsel quoted the holding of learned trial judge on pages 368 to 369 of the record of appeal. That the Respondent pleaded in paragraph 23 of their statement of defence and counter claim how the land in dispute devolved to them through Odi who was the common ancestor of both parties.
Learned counsel to the respondent urged the Court not to disturb the findings of the learned trial Judge as it is clear that his clients traced their right to declaration of title to the land in dispute to its logical conclusion. That it is trite law that findings of a lower Court will not be disturbed except in cases where same is found to be based on a substantive or procedural misapprehension of the facts before the trial Court. Cited; OJIAKO V A-G, ANAMBRA STATE (2000) 1 NWLR {Pt. 641} 375. That learned counsel to the appellant merely drew the attention of this Court to paragraphs 24 and 25 of the respondent statement of defence and counter claim without referring to paragraph 23 (supra). Learned counsel quoted the said paragraph 23 and paragraphs 24, 25 and 26 of the written deposition of DW.3 Chief Ogboma Ozege. Learned counsel finally submitted that the respondent only have the duty to link the land in dispute to the respondents who are the actual owners of the land and that was what they did. Quoted the holding by the learned trial Judge on page 403 of the records and urged this Court to resolve this issue in favour of the respondent.
Learned counsel to the appellants debunked the submission by the respondents in their Reply Brief. That apart from pleading the founder of the land, the respondent did not plead who was the next in succession to the title of the land in dispute down to the last successor which fall short of the requirement of the law. That the learned trial judge was wrong to have found for the respondent based on the weakness of the appellants case. That it is trite law that a counter claim just like a claim must succeed on the preponderance of evidence led and on the strength of his case and not the weakness of the defence cited. OYINLOYE V ESINKIN (1999) 10 NWLR (PT. 624) 540 at 549. That the Respondents’ counter claim is declaratory in nature and it is trite law that declaratory claims cannot be granted even on admission by the adverse party. Cited; DIM V ENEMUO (2009) 10 NWLR {Pt. 1149} 353 at 380?381 paragraphs F ? D; VINCENT BELLO V MAGNUS EWEKA (1981) 1 SC 101.
FINDINGS ON ISSUE 1
I have considered the submissions by learned counsel on this issue. The main plank on which the appellants counsel attacked the respondents counter claim is that because it is based on traditional history the respondent is duty bound to plead the names of the founder of the land and those after him upon whom the land devolved to the last successor without leaving gaps or ‘Mysterious linkages’ which cannot be explained. On his part learned counsel to the respondents submitted that they met this requirement in paragraphs 23, 24 and 25 of appellants statement of defence and counterclaim wherein they pleaded thus:
23. The defendant avers that they are descendant of Odi and Odi begat Beneclaker and Owiriba Beneclaker begat Tomonagha, Tomonagha married Okpoto and begat Anearegu, Afere, Roland, Jonah and Omafeine.
Afere begat the 1st, 3rd, 4th, 5th and 9th defendants. Roland begat the 2nd defendant and Jonah begat the 8th defendants?
24. The defendants aver that Odi their great, great grandfather founded and disvirgined several lands including the land in dispute called Oso bugan bush. Odi gave portions of land to his children and the land in dispute is given to Beneclaker.?
25. The defendants aver that Beneclaker farmed on the land in dispute called Osobugan bush and after her demise same devolved on her child called Tomonagha. After Tomonagha’s demise, the land in dispute devolved to the defendants.? (page 88 of the Records).
The question to be answered is whether this pleading and the evidence of D.W.3 met the requirement of the law on the evidence required from the respondent to prove that they are entitled to their counter claim? The standard enunciated by the Supreme Court in SUNDAY UKWU EZE & ORS V GILBERT ATASIE & ORS (2000) LPELR 1190 (SC) on pages 12 – 13 paragraphs E – A per UWAIFO JSC is as follows:
”The law is that to establish the traditional history of land relied on as root of title, appellant must plead the names of the founder and those after him upon whom the land devolved to the last successor(s) and lead evidence in support without leaving gaps or creating mysterious or embarrassing linkages which have not been and cannot be explained. In other words, the pleading of the devolution and the evidence in support must be reliable, being credible or plausible, otherwise the claim for title will fail. See AKINLOYE V EYIYOLA (1969) NMLR 9; ELIAS V OMO BARE (1982) 5 SC 25; MOGAJI V CADBURY NIGERIA LTD (1985) 2 NWLR {Pt. 77} 413; UCHENDU V OGBONI (1999) 5 NWLR {Pt. 60} 337.”
I have carefully considered the narration of the history of the land by the respondents particularly in paragraph 23 above vis-a-vis the testimony of their star witness; Chief Ozege Ogboma on pages 269 to 273 of the records and it is obvious that it did not meet the requirements enunciated by the Apex Court in EZE V ATASIE (Supra) that claimants must not only plead the names of the founder of the land and those after him upon whom the land devolved to the last successor, he must lead evidence in support without leaving gaps or creating mysterious linkages which cannot be explained. The Respondent narrated who ‘begat’ who in paragraph 23 of their pleadings but they failed to proffer evidence to support their claim on who handed over the land to who, who farmed the land among those who were ‘begat’ by Tomonagha and Okpoto.
The law is trite that a counter-claim is the claim of the Defendants it must therefore be proved on the same standard with the claim. The counter-claimants therefore must succeed on the preponderance of evidence they adduced during trial and not on the weakness of the Claimants claim unless where the evidence of the defendant strengthen his claim. In EZEKIEL OYINLOYE V BABALOLA ESINKIN & ORS (1999) LPELR 2886 (SC) the Apex Court held, per EJIWUNMI JSC, on page 15 paragraphs B – D thus: –
‘It is also settled law that a plaintiff must succeed on the preponderance of evidence he led, and on the strength of his own case, not by the weakness of the defence unless of course he finds in the evidence of the defence facts which strengthen his own case. See Akinola & Anor V Oluwo & 2 Ors. (1962) 1 SCNLR 352; (1962) 1 All NLR 224 per Unsworth F.J. at 227; Woluchem & Ors V Gudi & Ors. (1981) 5 SC 291 per Idigbe J.S.C. at 294’.
It is my holding on this issue that the Respondents failed to adduce enough evidence in support of their pleadings in paragraphs 23, 24 and 25 of their Statement of Defence and Counter-Claim, neither did they produced any documentary evidence in support of their pleadings. In CAMEROON AIRLINES V MR. MIKE E. OTUTUIZU (2011) LPELR 827 (SC) the Supreme Court per RHODES-VIVOUR, JSC held on page 36 paragraphs C – D thus: –
‘Averments in pleadings are facts as perceived by the party relying on them. There must be oral or/and documentary evidence to show that the facts pleaded are true. Consequently, pleadings without evidence to support it are worthless’.
I resolve this issue in favour of the appellants.
Issue 2 is:
Whether the customary arbitration award/ judgment that the portion of land in dispute in Osobugan bush is just 4.5 plots of land is binding on the Appellants and Respondents?
While arguing issue 2 learned counsel to the Appellants submitted that prior to filing this suit there was a customary arbitration over the plots of land in dispute. The said customary arbitration consists of 3 members headed by C.W.1 Mr. Ekpulu Izigie. That the committee made an award to the effect that the Respondents’ portion of land in the land in dispute is just 4.5 plots and not 18 plots as claimed by the Respondents. That the fact that there was Customary Arbitration over the land in dispute is captured in paragraphs 21, 22, 23, 24, 25 and 26 of the Appellants’ pleadings. Learned counsel quoted the said paragraphs verbatim. That the Respondent admitted that that there was a Customary Arbitration over the land in dispute as shown in paragraph 15 of the Amended Statement of Defence. That the Respondents’ witnesses also confirmed that there was a customary arbitration over the land in dispute. Learned counsel gave an example of the testimony of D.W.2 under cross-examination on page 262 of the record of appeal. He also cited the Supreme Court’s decision in EMMANUEL OKPALA IGWEGO & ORS V FIDELIS EZEUGO & ORS (1992) 6 NWLR {Pt. 249} 561 at 576. He also cited: EHOCHE V IJEGWA (2003) 7 NWLR {Pt. 818} 139 at 151 – 153 paragraphs H – C.
Learned counsel further argued that for customary arbitration to constitute estoppel, the following ingredients must exist: –
1. That there had been a voluntary submission of the matter in dispute to an arbitration of one or more persons.
2. That it was agreed by the parties either expressly or by implication that the decision of the arbitrator(s) would be accepted as final and binding.
3. That the said arbitration was in accordance with the custom of the parties or of their trade or business.
4. That the arbitrator(s) reached a decision.
5. That the decision or award was accepted at the time it was made.
Cited:DURUAKU EKE & ORS V UDEOZOR OKWARANYIA & ORS (2001) 12 NWLR {Pt. 726} 181 AT 208; OKOYE & ANOR V OBIASO & 3 ORS (2010) 3 SC {Pt. 11} 69 at 103 – 104.
Learned counsel then analysed the five ingredients as it relates to this Suit seriatim and submitted that the implication is that the 3 man Arbitration Committee recommended that the respondents own only 4.25 plots of land and not 18 plots. That this decision was accepted by the Respondents and it is binding and subsisting on both the Appellants and Respondents. That it follows that the lower Court was patently wrong when it held that it is doubtful whether all the ingredients of a valid customary arbitration were pleaded and proved in this case. He urged the Court to set aside the judgment of lower Court on this note and resolve this issue in favour of the Appellants.
In his submission while arguing this issue, learned counsel to the respondents submitted that once again learned counsel to the appellants is under a misconception of the facts and circumstances of this case. That this is because the issue the trial Court dealt with was whether the alleged customary arbitration award was for four and behalf plots, as alleged by the appellant or 18 plots or more as alleged by the respondents. That after taking evidence the lower Court came to the conclusion that it was for 18 plots or more as described by the respondents. Learned counsel also, underlined for emphasis, the fact that the alleged customary arbitration was not published that is why while the appellants are contending that there was demarcation of 4 plots the respondents were insisting that there was no demarcation at all as the area the Panel deliberated upon was 18 plots or more.
Learned counsel also submitted that the submission by learned counsel to the appellants in paragraph 5.5 of their brief where the learned trial Judge stated that it is doubtful if the ingredients of a valid customary arbitration were pleaded was an obiter dicta and did not form the reason for the judgment. That the learned trial Judge merely stated in passing that he wondered if all the conditions for a valid customary arbitration were even present in that case.
Learned counsel quoted the holding by the learned trial Judge on pages 390 to 392 of the records. That moreover, the issue of whether there was valid arbitration was not raised by any of the parties as it was not pleaded to form the basis of an estoppel in the instant appeal.
That it was after the finding by the learned trial Judge that the evidence of C.W.1 who was the chairman of the panel was false and unbelievable on whether or not it was 4 plots as contended by the appellants or 18 plots as contended by the respondents that the pendulum swung in favour of the said respondents.
That the issue of whether or not there was a valid arbitration was said in passing. Learned counsel submitted further that the appellants did not plead anywhere in their pleadings that they are relying on estoppel per rem judcicata in prosecuting their claim or in defence of their counter claim. So it is wrong for learned counsel to the appellants to urge the Court to enter judgment in their favour on basis of estoppel per rem judicata. Cited: EBBA V OGODO (2002) FWLR {Pt. 27} 2094, (1984) 4 SC 84; UKAEGBU V UGORJI (1991) NSE (Vol. 22) 298; CHINWENDU V MBAMALI (1980) 3 ? 4 SC 31 at 128 paragraphs D?E; IKOTUN V OYEKANMI (2008) All FWLR {Pt. 433} 1281. That appellants cannot rely on estoppel per rem judicatam because such principle can only be used as a shield and not a sword. Cited LAMIDI LADIMEJI & ANOR V SUARA SALAMI & ORS (1998) 5 NWLR {Pt. 548} 1 SC; YOYE V OLUBODE (1974) 1 All NLR {Pt. 2} 118.
Learned counsel submitted further that learned counsel for the Appellants is under the mistaken belief that he can rely, plead and lead evidence on previous judgment in support of his case as opposed to relying on same as estoppel per rem judicata. That the law is trite that evidence not pleaded goes to no issue. The Appellants? having not pleaded that they will be relying on estoppel per rem judicata in the defence of the Counter Claim of the Respondent cannot now make issue out of it on appeal. Cited: FERDINARD GEORGE V UBA (1972) 889 SC. 264 at 274 – 276; ALHAJI SANNI SHUAIBU V J.O. BAKARE (1984) 12 SC 187 at 194 – 196; CIVIL DESIGN LTD V. SCOA (NIG) LIMITED (2007) 29 NSCQR 1298 at 1339.
Learned counsel submitted further that there is no indication on the Appellants’ Survey Plan (Exhibit ‘F’) of any banana tree or plantain or small hill between the purple verged portion on the said document. That CW1 told the Court while testifying under cross-examination that they used a banana tree/plantain and a small hill to demarcate the land in dispute. That CW1 also testified that the boundary mark was far from the 4.25 plots they allocated to the respondents, which means that the respondents’ portion of land is bigger than 4.25 plots as he alleged in his statement on oath. That the respondents called credible witnesses who testified on boundaries of the land in dispute.
That CW1 also testified that the boundary mark was far from the 4.25 plots they allocated to the respondents, which means that the respondents’ portion of land is bigger than 4.25 plots as he alleged in his statement on oath. That the respondents called credible witnesses who testified on boundaries of the land in dispute.
That even assuming, though not conceding, that the Court wants to consider whether or not all the conditions of a customary arbitration are met in the instant suit, that only 3 of the conditions of customary arbitration as listed in OHIAERI V AKABEZE (Supra) are still lacking in the instant suit. They are: –
3. That the arbitration was in accordance with the custom of the parties or their trade or business.
4. That the arbitrator(s) reached a decision and published their award.
5. That the decision or award was accepted at the time it was made.
Learned counsel analysed the three ingredients seriatim and urged the Court to resolve this issue in favour of the respondents.
I have noted the submission by learned counsel to the appellants in their Reply Brief and I will refer to it in deciding this issue.
FINDINGS ON ISSUE 2:
Issue 2 is:
Whether the customary arbitration award/ judgment that the portion of land in dispute in Osobugan bush is just 4.5 plots of land is binding on the Appellants and Respondents?
Customary arbitration is one of the many ways of settling disputes among African Societies. It refers the dispute to either the family head, or elders or chiefs of the community concerned for settlement, and upon subsequent acceptance of the arbitration grant or award, it becomes binding on them. The parties are at liberty to resile at any stage of the proceedings up to that point. The conditions required for customary arbitration in Nigeria are: –
1. The parties voluntarily submit their dispute to a non-judicial body to wit, their elders or chiefs as the case may be for determination.
2. The indication of willingness of the parties to be bound by the decisions of the non-judicial body or freedom to reject the decision where not satisfied.
3. Neither of the parties has resiled from the decision so pronounced.
Once these conditions are satisfied the arbitration would be liberally treated as a judicial proceeding and could be taken to operate as or created estoppel per rem judicatam. See ODONIGI V OYELEKE (2001) 2 S.C.N.J. 198 at 213 – 214. Also, in DURUAKU EKE & ORS V UDEOZOR OKWARANYIA & ORS (2001) LPELR 1074 (SC) the Supreme Court while pronouncing on the conditions for a decision of a customary arbitration to apply as estoppel per rem judicatam; ingredients for a valid and binding customary arbitration held per UWAIFO JSC on page 29 paragraphs B – F thus: –
. it has been firmly held by this Court in at least two cases, namely, Agu V Ikewibe (1991) 3 NWLR {Pt. 180} 385 and Ohiaeri V Akabeze (1992) 2 NWLR {Pt. 221} 1 that for there to be a valid customary arbitration, five ingredients must be pleaded and proved, namely: –
(a) That there had been a voluntary submission of the matter in dispute to an arbitration of one or more persons.
(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitrator(s) would be accepted as final and binding.
(c) That the said arbitration was in accordance with the custom of the parties or of their trade or business.
(d) That the arbitrator(s) reached a decision and published their award.
(e) That the decision or award was accepted at the time it was made.
I think anything short of these conditions will make any customary arbitration award risky to enforce. In fact it is better to say that unless the conditions are fulfilled, the arbitration award is unenforceable?.
Learned counsel to the appellants argued the five ingredients seriatim on pages 8 to 11, paragraph 5.4 of their brief and I will consider same.
1. Voluntary submission of the matter in dispute to arbitration of one or more persons:
Both parties averred in their pleadings that there was indeed a customary arbitration consisting of a Three Man Peace Committee and both appellants and respondents voluntarily submitted arbitration. The Appellants pleaded in paragraphs 21 to 26 of their pleadings page 9 of records accordingly. Paragraphs 22 and 23 reads: –
22: The Claimants avers that pursuant to paragraph 21 above, a three Man Peace Committee (which had Mr. Ekpulu Izige as Chairman, Mr. Osei Otumbere and Mr. Oyonviemo Ovoh as Members) was set up to resolve the dispute.
23: The Claimant avers that the three Man Peace Committee averred in paragraph 22 above, came to a decision that the 4.25 plots of land the claimants sold (not the subject matter of this suit) belonged to the defendants family and as such the Claimants should allocate another 4.25 plots of land to the defendants family, from the Claimants family.
The Defendants averred in paragraph 15 of their pleadings that: –
15: The Defendants specifically aver that the portion of land in dispute in this suit is the same with the portion of land which led to the setting up of the arbitration panel and not a different portion of land. It is the same Osobugan Bush and same is within the portion of land as described in paragraph 6 above, thus paragraphs 25 and 26 are false and are also denied?.
It is obvious from the pleadings above that parties willingly and voluntarily submitted to arbitration.
2. Agreement by the parties either expressly or by implication that they will accept the decision of the arbitrators as final and binding: As can be deduced from the evidence of the parties and their testimonies they intended to abide by the decision of the parties. D.W.3 the star witness of the Respondents agreed that the three man peace committee gave decision although he was not present on the spot.
He was asked:
Question: Did the three man committee not give a decision
Answer: They did. They decided that the land in dispute belonged to us, the defendants?.
Question: You will therefore agree with me that it was 4 plots of land the 3-man peace committee award to your people the defendants
Answer: That is true?. (pages 270 ? 271 of the records).
3: The arbitration was in accordance with the custom of the parties or of their trade or business.
As I stated above customary arbitration is one of the many ways of settling disputes among African Societies. The Claimants pleaded that it is customary for disputants in Agbura Community to submit their dispute to one or two persons to act as arbitrators and to settle such dispute. C.W.1 (who chaired the 3-Man Panel) explained during cross-examination on page 239 of the Records when asked:
Who established that your committee
A: In our place when two people are in disagreement they usually choose people to settle their dispute. It is in that way we were chosen by both sides to settle their dispute?.
The Defendants did not dispute this method of settling dispute in their pleadings.
4. That the arbitrators reached a decision: It is obvious that the 3 ? Man Peace Committee reached a decision. Even DW3 agreed that a decision was reached as I quoted above. It is also obvious that the said decision was published by the 3 ? Man Panel as their findings were made known. There is no requirement that a customary arbitration award must be put down in writing. It suffices if the customary arbitrators reached a decision which they pronounced to the hearing of parties.
5: That the decision or award was accepted at the time it was made.
I also find in favour of the appellants on this ingredient since CW1 testified under cross-examination as follows: –
Question: On your committee’s findings, you said the Claimants here should look for another 4.25 plots of land for the defendants in replacement for their (defendants) land used by the claimants
Answer: Yes?.
Question: Did the Defendants objected to that directive
Answer: They did not?.
Question: Did the Claimants actually relocate the defendants as direct by your committee
Answer: Yes they did.?
Question: Did your Committee in the course of your visit to the bush mark out the boundaries of the land between the parties
Answer: Yes we demarcated it between them.?
Question: Did you also mark the 4.25 plots allocated to the defendants
Answer: Yes we did?.
Question: What did you use as a boundary mark
Answer: A banana/plantain and a small hill?.
Question: I put it to you that the defendants did not agree to leave their land for the Claimants
Answer: No, they all agreed to our agreement. If they did not, they would have told us so there?. (pages 238 to 239 of the Records)
As submitted by learned counsel to the appellants the decision by the 3 – Man Peace Committee was never challenged or set aside by a Court of competent jurisdiction. DW3 confirmed this when he was asked: –
Question: Did you challenged the decision of the 3 man peace committee in any Court
Answer: We did not, if we would have done so it would have been at the Customary Court because know everything about this matter?. (page 272 of the record of appeal).
It is obvious that the respondents were fully aware of the decision of the arbitration committee and accepted same at the time the decision was reached. If they were dissatisfied they would have taken a legal action since they even know the Court that had jurisdiction over such matters. The implication above is that the decision of the 3 man arbitration committee that the respondents own only 4.25 plots of land and not 18 plots was accepted by the respondents that decision is subsisting and binding on both the Appellants and Respondents. The trial Court was therefore in error when after reviewing the evidence it held that it is doubtful whether all the ingredients of a valid customary arbitration were pleaded and proved in this case.
The 3 – man customary arbitration committee awarded only 4.25 plots of land in the Osobugan Bush to the Respondents as shown in the Survey Plan No. BY/SC/975/0467/2012 verged ‘purple’ and admitted in evidence during trial and marked as Exhibit ‘F’ D.W.3 confirmed this during cross-examination when he was asked: –
Question: You will therefore agree with me that it was 4 plots of land the 3 – man peace committee awarded to your people the defendants
Answer: That is true?.
The lower Court was therefore wrong to award 18 plots of land in Osobugan bush to the respondents in view of the finding of the 3 Man Peace Committee which awarded 4 plots of land to the said respondents.
I have noted that learned counsel to the respondents insinuated in his submission that the holding by the learned trial Judge on pages 390 to 392 that: –
”Besides the foregoing. I must also observe that it is even doubtful whether all the ingredients of a Valid Customary arbitration were pleaded and proved in this case. In EKE V OKWARANYIA (2001) 12 NWLR {Pt. 726} 181 the Supreme Court in its lead judgment by Samson Odemwingie Uwaifo JSC, confirming its earlier decisions in OHIAERI V AKABEZE (1992) 2 NWLR {Pt. 221} 1 stated ‘for there to be valid customary arbitration, five ingredients must be pleaded and proved namely…is an obita dicta as opposed to a ratio decidendi. With respect to learned counsel that holding by the learned trial Judge wherein he cited decisions of the Apex Court and copiously quoted its holdings cannot be and is not an obita dicta. As can be gleaned from the judgment it is a specific and weighty findings of the trial Court as to the applicability of the customary arbitration award. The law is trite that grounds of appeal must be couched from a ratio decidendi of the judgment and not an obita dicta. See MOHAMMED V LAWAL (2005) 9 NWLR {Pt. 985} 400 AT 405. It therefore follows that ground 1 of the Appellants Amended Notice of Appeal and issue 2 formulated from it is an attack on the specific holding of the lower Court and I so hold.
Upon stating my finding above on customary arbitration I will conclude with the pronouncement of the Apex Court in EMMANUEL OKPALA IGWEGO & ORS V FIDELIS OJUKWU EZEUGO & ORS (1992) LPELR 1458 (SC) where OGUNDARE JSC while quoting NNAEMEKA-AGU JSC in his lead judgment in OJIBAH V OJIBAH (1991) 5 NWLR {Pt. 191} 296 at 314 held thus:
”In my view, the law is pretty well 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”
It is my finding on this issue that the decision of the lower Court in its judgment delivered on 21st May, 2013 was persistent in error as it ignores the facts and evidence before it which amounted to a miscarriage of justice. In NATIONAL ELECTRIC POWER AUTHORITY V J.A. OSOSANYA & ORS (2004) LPELR 1960 (SC) the Supreme Court held thus:
”A decision of a Court is perverse when it ignores the facts or evidence before it and when considered as a whole, amounts to a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and to set it aside. See Agbomeji V Bakare (1998) 9 NWLR {Pt. 564} 1 at 8. Per IGUH JSC on page 24 paragraphs C – D.”
Upon considering the holding of the Supreme Court above, it is my finding that the decision by the lower Court in its judgment on 21st May, 2013 is hereby set aside. This issue is resolve in favour of the appellants.
Issue 3 is:
Whether a Court of law has jurisdiction to grant in excess of what is claimed?
I have considered the submissions by learned counsel on this issue. But in view of my holding in issue 2 above this issue is now no longer live it has been overtaken by events and it is hereby discountenanced.
It is the judgment of this Court that this appeal has merit and it is hereby allowed. The judgment by the lower Court delivered on 21/5/2013 in Suit No. YHC/25/2012 is hereby set aside. In its place, I make the following orders: –
1. It is hereby declared that the incessant harassment, embarrassment, intimidation, threatening, disturbance and/or interference with the Claimants’ OSOWEI family right of ownership and use of a portion of the Claimants’ OSOWEI Family Land (i.e. 13.75 plots), lying, situate, being at and known as OSOBUGAN BUSH, in Agbura Town, Yenagoa Local Government Area, a place within the jurisdiction of this honourable Court, (which said land shares common boundaries with the land of Mr. Friday Otuoku on the 1st side, Shell and Agip pipelines on the 2nd side, a canal on the 3rd side and the land of Mr. Bomeden Ekpokiri and an Access Road on the 4th side) by the defendant, is unlawful, wrongful, illegal and same amounts to flagrant and violent violation of the Claimant?s family fundamental rights constitutionally guaranteed under Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
2. It is hereby declared that the continuous threat by the defendant to forcefully acquire 13.75 Plots of land from the Claimants OSOWEI family large expanse of land described in Relief 1 above is unlawful, wrongful, illegal and same amounts to trespass on the land of the Claimants OSOWEI family and a flagrant and violent violation of the claimant’s OSOWEI family fundamental rights constitutionally guaranteed under Sections 48 & 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
3. It is hereby declared that the continuous intimidation of the Claimants by the Defendants using men of the Nigerian Police Force, Bayelsa State Police Command to arrest the Claimants over the Claimants OSOWEI family large expanse of land described in Relief 1 above is unlawful and contrary to the claimants fundamental rights constitutionally guaranteed under Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
4. AN ORDER OF PERPETUAL injunction is issued restraining the defendants jointly and severally by themselves, servants, agents, privies and cohorts surrogates, from further trespassing on the claimants OSOWEI family land describe in Relief 1 above and/or violating the claimants lawful, legal and/or constitutional rights, in any of the ways stated in reliefs 1, 2, and 3 above, and/or in any other way whatsoever.
The Respondents claims in the counter claim are hereby dismissed for lacking in merit. The appellants are entitled to cost which I assessed at N100,000.00.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother,. BITRUS GYARAZAMA SANGA JCA gave me the opportunity of reading before now the judgment just delivered. I agree with the reasoning and conclusion of my learned brother and I allow the appeal.
I abide by the consequential Orders.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I have the benefit of reading in draft the judgment just delivered by my learned brother Bitrus Gyarazama Sanga, JCA.
I am in agreement with the reasoning and conclusion reached by the learned Justice that this appeal has merit and should be allowed and it is so allowed by me. The judgment of the lower Court in suit No. YHC/25/2012 is thus set aside.
On the other part the respondents? counter claim is dismissed for lacking merit.
I abide by the consequential orders regarding costs as made in the lead judgment.
Appearances:
Felix T. Okorotie, Esq.For Appellant(s)
A. F. Gbaranma, Esq.For Respondent(s)
