NATHANIEL E. OBIKA v. ISRAEL OBIKA
(2018)LCN/10671(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of January, 2018
CA/OW/289/2012
RATIO
THE EFFECT OF AN ACTION THAT IS STATUTE BARRED
Generally, an action is said to have been statute barred, if the plaintiff fails to bring the action to enforce his right and/or seek redress for a wrong done to him, within the period of time provided by the law to file such an action and seeking redress therewith. Thus, any action taken out after or outside the specified time limit or period as provided in the statute regulating the subject matter which forms the basis of the case or cause of action, is of no avail and has no valid effect in law. That is, the action is deemed dead on arrival. In some circumstances, the bar can be lifted or the time limit extended, but this can only be done if the statute makes provision for it or allow it to be done. Therefore, where no such provision or allowance has been provided, the action filed will be invalid, and unenforceable. Thus, the Court will have no choice but to treat the action as such. See the cases of Araka v. Ejeagwu (2000) 12 S. C. (Pt. 1) 99; Daewoo Nigeria Ltd. v. Project Master (Nig.) Ltd. (2010) LPELR ? 4010 and Egbe v. Adefarasin (1987) 1 SC 1; (1987) 1 NWLR (Pt. 47) 1. It is pertinent to emphasise herein the effect of an action which is statute barred. When an action is held to be statute barred, the plaintiff?s right of action is held to have abated and no relief can validly be sought or given in order to enforce the stale claim, notwithstanding the injustice that may have been done to the plaintiff and/or how credible the plaintiff?s claim may appear. See Nwadiaro v. Shell Petroleum Dev. Co. Ltd. (1990) 5 NWLR (Pt. 150) 322 and Unity Bank Plc. V. Nwadike (2008) LPELR ? 5067. Also, the law is settled beyond controversy, that in order to determine whether or not an action is statute barred, the proper Court process to be examined is the plaintiff?s statement of claim together with other accompanying processes or documents. See the following cases: Egbe v. Adefarasin & Anor. (1985) 1 NWLR (Pt. 3) 549; Williams v. Williams (2008) 10 NWLR (Pt. 1095) 364 and Adekoya v. Federal Housing Authority (2008) 11 NWLR (Pt. 1099) 539… PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
THE DEFINITION OF A CAUSE OF ACTION
A cause of action generally refers to every fact which is necessary for the plaintiff to prove in order to support his right or entitlement to judgment. Put differently, it is constituted by the bundle of aggregate of facts which the law recognizes as giving the plaintiff a substantive and recognized right to make the claim against the relief or remedy being sought. Thus, the verifiable factual situation on which the plaintiff relies to support his claim must be recognised by the law as giving rise to a substantive right, capable of being claimed or enforced against the defendant. In other words, the eventual factual situation relied upon by the plaintiff must engender the essential factors or ingredients of an enforceable right or claim. Thus, concisely stated, an act on the part of the defendant that gives to the plaintiff his cause of complaints is a cause of action. See Bello v. Att-General Oyo State (1986) 5 NWLR (Pt. 45) 828; Akilu v. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122; Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) 257; Savage & Ors. V. Uwechia & Ors. (1972) ALL NLR, 255; (1972) 3 S. C. 206; Chevron Nig. Ltd. v. Lonestar Drilling Nig. Ltd. (2007) 16 NWLR (Pt. 1059) 168 and Adekoya v. Federal Housing Authority (2008) 11 NWLR (Pt. 1099) 539. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
WHETHER A CAUSE OF ACTION CAN BE HELD TO BE STATUTE BARRED WHEN THERE IS A CONTINUOUS TRESPASS
From pleadings of the respondent highlighted above, it is clear that the appellant?s father and the respondent submitted themselves to the arbitration panels and none of them rejected the arbitral decisions. The respondent pleaded in paragraph 32 of his statement of claim that he made several attempts to implement the arbitral decisions, but the appellant and his father on each of such occasions stoutly resisted his efforts and continually treated the property as their personal property. (See page 7 of the record of appeal.) The respondent in this regard alleged that the appellant and his late father continually committed trespass on the property after ownership thereof has been awarded to him by the arbitral decisions. In this circumstance, the respondent?s cause of action cannot be held to have been statute barred because the appellant?s trespass was continuous. And until there is a formal demand for the relinquishment of possession by the respondent to the appellant, the respondent?s cause of action will be deemed to arise every day the appellant or his father unlawfully held on to the possession of the property. See the case of Dosumu & Ors. v. Nigerian National Petroleum Corporation & Anor. (2013) LPELR ? 20655, where His Lordship, Saulawa, JCA, in a case with similar circumstances as those of the instant case, enunciated as follows:
the term continuing trespass connotes a permanent invasion or encroachment on another?s land. Invariably, the principle of continuing trespass refers to cases where the alleged wrongful act remains unabated to the detriment of the complainant. It is the law, that in continuing trespass, successive action can be filed in Court from time to time regarding the continuance thereof. See also the case of Obueke & Ors. v. Nnamchi & Ors. (2012) LPELR ? 7810. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
WHERE THE DEFENCE OF STATUTORY LIMITATION IS NOT SPECIFICALLY PLEADED
Also, it is the law, that the defence that an action is statute barred like other specialized defence, is required to be specifically pleaded, and failure to so plead will deny the defendant the opportunity to rely on the said defence. See Omotosho v. Bank of the North Ltd. & Anor. (2006) 9 NWLR (Pt. 986) 573 Bamigbade & Anor. v. Adeyeri & Ors. (2012) LPELR ? 9852 and Oyebamiji v. Lawanson (2008) 15 NWLR (Pt. 1109) 122. Additionally, the plea that an action is statute barred is considered as an indirect admission to the plaintiff?s claim. In the instant case, the appellant merely averred in his statement of defence that the respondent?s action is statute-barred. There was no fact pleaded in support of this averment throughout the gamut of the appellant?s pleadings or any law specifically referred to in order to establish the said defence. Thus, the appellant left the Court to merely speculate as to the basis of the appellant?s contention, that the respondent?s action is statute-barred. This procedure is not permitted under the law, as the appellant was more or less playing the game of hide and seek with the aim of beclouding the issue or springing a surprise which he eventually did. See the case of Oyebamiji v. Lawanson, (supra, page 14), where the Supreme Court, per Niki Tobi (of blessed memory) held as follows:
?The correct way of pleading the defence (statute of limitation) is to raise distinctly the particular statutory provision relied upon.?
As an aside, I am astounded as to what the appellant was counter-claiming for in this case, when he had already raised the defence of statute bar. Could it be that he is merely taking a shot in the dark with the hope or in order to see how far he can exploit the situation of this case and thereby gaining undue advantage? This in law is more or less an act of approbating and reprobating. It cannot be and should not be allowed. Thus, on the strength of all that have been said above, this issue is hereby resolved against the appellant. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
NATHANIEL E. OBIKA Appellant(s)
AND
ISRAEL OBIKA Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Abia State sitting at Aba (hereinafter referred to as the lower Court), delivered on the 30th day of June, 2011 by Hon. Justice I. Offonry, J.
The suit which gave rise to this appeal was commenced by the plaintiff/respondent (hereinafter referred to as the respondent) vide a writ of summons and statement of claim filed on the 13th day of October, 2005, wherein the respondent by his action sought for the following reliefs:
?1. A Declaration that the plaintiff is the person entitled to the right of occupancy in and over the building and premises known as and called No. 33 Mbieri Street, Aba.
2. Possession of the said building and premises known as and called No. 33 Mbieri Street, Aba.
3. An order of Court compelling the defendant to account for all financial proceeds he has collected from the building known as and called No. 33 Mbieri Street, Aba.
4. An order of Injunction restraining the defendant, his agents, servants, assigns or anybody or group claiming through him from
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interfering with the plaintiff?s legal rights to the said building and premises.?
In defence and/or response, the defendant/appellant (hereinafter referred to as the appellant) filed his statement of defence and counter-claimed as follows:
?A. A Declaration that the plaintiff is not entitled to any right of occupancy in and over the property known as and called No. 33, Mbieri Street, Aba.
B. An Order of Perpetual Injunction restraining the Plaintiff, his servants, agents or privies from further interference with the defendant?s possession of the property aforesaid.?
Briefly put, the respondent?s case was that his father and appellant?s father were brothers of full blood. He claimed that his father died when he was four months old and he is the only child begotten by his father. The respondent also claimed that his father while he was alive, was wealthy and had lots of business investments. On the death of his father, the appellant?s father who was then a fourth year student of Dennis Memorial Grammar School, Onitsha, was asked to stop his education, come back home and manage the
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respondent father?s businesses and investments. The respondent contended that out of the proceeds of his late father?s estate, the appellant?s father bought the property known as and called No. 33 Mbieri Street, Aba, Abia State (hereinafter referred to as the property). The respondent further claimed that when he came of age he made several attempts to convince the appellant?s father to render account of his stewardship without success. Due to the refusal of the appellant?s father to render account and/or hand over his father?s property, the respondent claimed that he sued the appellant?s father before two arbitration panels. The first arbitration was conducted in 1981 and the arbitral award was tendered and admitted as Exhibit A. The second arbitration was done by Igwe-in-Council and the arbitration according to the respondent, was also resolved in his favour. The arbitral award/decision was tendered and admitted as Exhibit B.
?The appellant on his part counter- claimed and stated that the property was not bought from the proceeds of the respondent father?s estate but from his father?s book business. He asserted
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that the respondent father?s business, was not flourishing as the respondent claimed, and that the remnant of the business was used to settle the respondent father?s apprentices who were left unsettled by the respondent?s father before his death. Thus, he claimed that the property was purchased by his father through his own independent earnings. After the giving of due consideration to all the pieces of evidence adduced by the parties, the learned trial judge held that the respondent has successfully proved his claim and thereby entered judgment in his favour. Thus, the learned trial judge granted all the reliefs sought by the respondent as per his statement of claim.
As expected, the appellant was dissatisfied with the decision and he appealed against the same before this Court. In prosecution of this appeal, the parties duly filed and exchanged their respective briefs of argument. The appellant?s brief of argument dated the 18th day of June, 2015 was filed on the 19th day of June, 2015. The said appellant?s brief was prepared by Chief Emeka Okeke, KSJ. Also, in response to the respondent?s brief of argument, the
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appellant filed his reply brief on the 22nd day of July, 2015. On the other side of the divide, the respondent?s brief of argument was dated and filed on the 16th day of July, 2015. The said respondent?s brief of argument was prepared by C. Ike Inegbu, Esq.
The appellant?s counsel donated three issues for the determination of this appeal. The issues are reproduced below as follows:
?1) Whether the Respondent?s case at the Lower Court is statute barred, and by which position the Lower Court lacked the jurisdiction to entertain the suit.
2) Whether the Respondent proved his case before the Lower Court as to be entitled to Judgment.
3) Whether the oral evidence of PW2 & PW3, which is contrary to Exhibit F is admissible .?
On his own part, the learned counsel for the respondent formulated two issues. The issues are as follows:
?1) Whether the suit of the Respondent is statute barred.
2) Whether the Respondent proved his case as to be entitled to judgment.?
I have carefully considered the two set of issues vis–vis the judgment being appealed against and I am of the
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firm opinion that the set of issues formulated by the respondent is more apt and has sufficiently encompassed the three issues formulated by the appellant. Thus, the said respondent?s issues are hereby adopted by me.
ISSUE NO. 1.
The learned counsel for the appellant submitted, that the respondent?s suit is statute barred. He contended that the respondent?s cause of action arose in 1971 when the respondent claimed that the appellant?s father laid claim to the property in dispute. The learned counsel argued, that the fact that the parties arbitrated over the property in 1981 does not derogate from the fact that the respondent?s cause of action arose and became stale and or statute barred in 1981. The learned counsel therefore submitted, that the respondent?s cause of action is statute barred, the same having been instituted in 2005. He referred to and relied on Section 1(4) and 3 of the Limitation Law, Abia State Laws and the cases of Nwadiaro v. Shell Dev. Co. Ltd (1990) 5 NWLR (Pt. 150) 322 and Sanda v. Kukawa Local Government (1991) 2 NWLR (Pt. 174) 349, among others.
?In response and with regard to this issue, the
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learned counsel for the respondent submitted that the appellant did not properly plead the defence of statute of limitation and can therefore not rely on the same. The learned counsel contended, that the appellant is by law and the rules of Court of the lower Court, required to specifically plead the defence of statute of limitation with sufficient particulars. He referred us to the cases of Oyebamiji v. Lawanson (2008) 15 NWLR (Pt. 1109) 122; Iheanacho v. Ejiogu (1995) 4 NWLR (Pt. 389) 324; Order 25 Rule 6 (1) & (2) and Order 25 Rule 7 (2) of the Abia State High Court (Civil Procedure) Rules, 2011 and 2014 respectively. But the appellant defaulted in that regard.
Also, the learned counsel for the respondent submitted that the respondent?s case is founded on customary inheritance to which statute of limitation does not apply. He referred us to the following cases: Majekodunmi v. Abina (2002) 3 NWLR (Pt. 755) 720; Ogunlana v. Dada (2010) 1 NWLR (Pt. 1176) 534; Agboola v. Abimbola (1969) 1 ALL NLR 287 and Oyebamiji v. Lawanson (2008) 15 NWLR (Pt. 1109) 122. Furthermore, the learned counsel opined, that the appellant?s father having unlawfully and
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forcefully wrestled possession of the property in dispute from the respondent and has continued to be in the said unlawful possession till when this action was brought, the appellant?s possession is a continuous trespass, which cannot be said to have been statute barred. He referred us to the case of Oriorio v. Osain (2012) 16 NWLR (Pt. 1329) 560. Finally on this point, the learned counsel for the respondent contended, that the respondent?s cause of action arose in 2005, when the appellant was served with the statutory notices (Exhibit C & D) for recovery of premises. He referred us to the case of Amede v. UBA (2008) 8 NWLR (Pt. 1090) 623. He thereby urged this Court to resolve this issue in favour of the respondent.
The learned counsel for the appellant in the appellant?s reply brief canvassed the argument, that the respondent?s contention that the appellant did not provide or plead the necessary particulars as required by the rules of the lower Court in order to properly raise the defence of statute bar; is misconceived as the same rules equally made provision in Order 25 Rule 7 of the Abia State High Court (Civil Procedure)
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Rules 2001, for the respondent to request for further particulars, if the respondent deemed the appellant?s averments in his statement of defence as scanty, and thus, did not provide sufficient particulars required by the rules to properly raise the defence of statute bar. He also refered us to the case of A.B.U. Zaria & Anor. v. Dr. (Mrs.) Moloku (2004) ALL FWLR (Pt. 238) 664. Finally, the learned appellant?s counsel submitted, that the argument marshalled by the respondent?s counsel, that statute of limitation does not apply to customary law was not canvassed at the lower Court, thus, it cannot be raised at this stage. He supported his submission with the case of First Bank of Nigeria Plc v. Abba (1998) 10 NWLR (Pt. 569) 227.
?Generally, an action is said to have been statute barred, if the plaintiff fails to bring the action to enforce his right and/or seek redress for a wrong done to him, within the period of time provided by the law to file such an action and seeking redress therewith. Thus, any action taken out after or outside the specified time limit or period as provided in the statute regulating the subject matter which
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forms the basis of the case or cause of action, is of no avail and has no valid effect in law. That is, the action is deemed dead on arrival. In some circumstances, the bar can be lifted or the time limit extended, but this can only be done if the statute makes provision for it or allow it to be done. Therefore, where no such provision or allowance has been provided, the action filed will be invalid, and unenforceable. Thus, the Court will have no choice but to treat the action as such. See the cases of Araka v. Ejeagwu (2000) 12 S. C. (Pt. 1) 99; Daewoo Nigeria Ltd. v. Project Master (Nig.) Ltd. (2010) LPELR ? 4010 and Egbe v. Adefarasin (1987) 1 SC 1; (1987) 1 NWLR (Pt. 47) 1.
It is pertinent to emphasise herein the effect of an action which is statute barred. When an action is held to be statute barred, the plaintiff?s right of action is held to have abated and no relief can validly be sought or given in order to enforce the stale claim, notwithstanding the injustice that may have been done to the plaintiff and/or how credible the plaintiff?s claim may appear. See Nwadiaro v. Shell Petroleum Dev. Co. Ltd. (1990) 5 NWLR (Pt. 150) 322 and Unity
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Bank Plc. V. Nwadike (2008) LPELR ? 5067.
Also, the law is settled beyond controversy, that in order to determine whether or not an action is statute barred, the proper Court process to be examined is the plaintiff?s statement of claim together with other accompanying processes or documents. See the following cases: Egbe v. Adefarasin & Anor. (1985) 1 NWLR (Pt. 3) 549; Williams v. Williams (2008) 10 NWLR (Pt. 1095) 364 and Adekoya v. Federal Housing Authority (2008) 11 NWLR (Pt. 1099) 539, to mention but a few.
?In line with the above stated requirements of the law, I have undertaken to properly examine the respondent?s statement of claim in order to determine when his cause of action arose. The respondent pleaded in paragraphs 23 ? 29 of his statement of claim that the appellant?s father sometimes in 1981 summoned him before the Unubi arbitration panel to settle their dispute over the ownership and management of the property, and the arbitration found in his favour. According to the respondent, the arbitration panel advised that he should not take immediate possession of the property, rather he should go for rehabilitation
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and return back in ten years time to re-enter possession of the property. The said arbitral decision was tendered and admitted as Exhibit A.
Also, the respondent pleaded in paragraphs 31 ? 34 of his statement of claim, that after serving out the 10 years rehabilitation period imposed on him by the Unubiarbitral panel, he made efforts to re-enter possession of the property, yet appellant?s father once again resisted him. This prompted him to summon the appellant?s father before the Igwe-in-Council. He averred that both himself and the appellant?s father submitted themselves to the Igwe-in-Council?s arbitration and at the end of the arbitral proceeding, the Igwe-in-Council found in his favour. Again, the respondent tendered the arbitral decision in evidence and it was admitted as Exhibit B.
?A cause of action generally refers to every fact which is necessary for the plaintiff to prove in order to support his right or entitlement to judgment. Put differently, it is constituted by the bundle of aggregate of facts which the law recognizes as giving the plaintiff a substantive and recognized right to make the claim against the
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relief or remedy being sought. Thus, the verifiable factual situation on which the plaintiff relies to support his claim must be recognised by the law as giving rise to a substantive right, capable of being claimed or enforced against the defendant. In other words, the eventual factual situation relied upon by the plaintiff must engender the essential factors or ingredients of an enforceable right or claim. Thus, concisely stated, an act on the part of the defendant that gives to the plaintiff his cause of complaints is a cause of action. See Bello v. Att-General Oyo State (1986) 5 NWLR (Pt. 45) 828; Akilu v. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122; Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) 257; Savage & Ors. V. Uwechia & Ors. (1972) ALL NLR, 255; (1972) 3 S. C. 206; Chevron Nig. Ltd. v. Lonestar Drilling Nig. Ltd. (2007) 16 NWLR (Pt. 1059) 168 and Adekoya v. Federal Housing Authority (2008) 11 NWLR (Pt. 1099) 539.
From pleadings of the respondent highlighted above, it is clear that the appellant?s father and the respondent submitted themselves to the arbitration panels and none of them rejected the arbitral decisions. The respondent pleaded
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in paragraph 32 of his statement of claim that he made several attempts to implement the arbitral decisions, but the appellant and his father on each of such occasions stoutly resisted his efforts and continually treated the property as their personal property. (See page 7 of the record of appeal.) The respondent in this regard alleged that the appellant and his late father continually committed trespass on the property after ownership thereof has been awarded to him by the arbitral decisions. In this circumstance, the respondent?s cause of action cannot be held to have been statute barred because the appellant?s trespass was continuous. And until there is a formal demand for the relinquishment of possession by the respondent to the appellant, the respondent?s cause of action will be deemed to arise every day the appellant or his father unlawfully held on to the possession of the property. See the case of Dosumu & Ors. v. Nigerian National Petroleum Corporation & Anor. (2013) LPELR ? 20655, where His Lordship, Saulawa, JCA, in a case with similar circumstances as those of the instant case, enunciated as follows:
the
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term continuing trespass connotes a permanent invasion or encroachment on another?s land. Invariably, the principle of continuing trespass refers to cases where the alleged wrongful act remains unabated to the detriment of the complainant. It is the law, that in continuing trespass, successive action can be filed in Court from time to time regarding the continuance thereof.?
See also the case of Obueke & Ors. v. Nnamchi & Ors. (2012) LPELR ? 7810.
Also, it is the law, that the defence that an action is statute barred like other specialized defence, is required to be specifically pleaded, and failure to so plead will deny the defendant the opportunity to rely on the said defence. See Omotosho v. Bank of the North Ltd. & Anor. (2006) 9 NWLR (Pt. 986) 573 Bamigbade & Anor. v. Adeyeri & Ors. (2012) LPELR ? 9852 and Oyebamiji v. Lawanson (2008) 15 NWLR (Pt. 1109) 122. Additionally, the plea that an action is statute barred is considered as an indirect admission to the plaintiff?s claim. In the instant case, the appellant merely averred in his statement of defence that the respondent?s action is statute-barred.
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There was no fact pleaded in support of this averment throughout the gamut of the appellant?s pleadings or any law specifically referred to in order to establish the said defence. Thus, the appellant left the Court to merely speculate as to the basis of the appellant?s contention, that the respondent?s action is statute-barred. This procedure is not permitted under the law, as the appellant was more or less playing the game of hide and seek with the aim of beclouding the issue or springing a surprise which he eventually did. See the case of Oyebamiji v. Lawanson, (supra, page 14), where the Supreme Court, per Niki Tobi (of blessed memory) held as follows:
?The correct way of pleading the defence (statute of limitation) is to raise distinctly the particular statutory provision relied upon.?
As an aside, I am astounded as to what the appellant was counter-claiming for in this case, when he had already raised the defence of statute bar. Could it be that he is merely taking a shot in the dark with the hope or in order to see how far he can exploit the situation of this case and thereby gaining undue advantage? This in law is
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more or less an act of approbating and reprobating. It cannot be and should not be allowed. Thus, on the strength of all that have been said above, this issue is hereby resolved against the appellant.
ISSUE NO. 2.
The learned counsel to the appellant set out by submitting that the respondent has failed to establish his title to the land in dispute by any of the five recognized methods of establishing title to land, which are:
(i) By traditional evidence;
(ii) Production of document of title duly authenticated and executed;
(iii) By acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference of true ownership;
(iv) Acts of being in possession and enjoyment of the land;
(v) Proof of ownership/possession of adjoining lands in circumstances rendering it probable that the owner of connected or adjoining land should in addition be the owner of the land in dispute.
He referred us to the case of Abraham v. Olorunfunmi (1991) 1 NWLR (Pt. 165) 53 and UMTHMB v. Engr. Musa (1997) 4 NWLR (Pt. 499) 201.
?The learned counsel further contended that the evidence adduced by the
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respondent in proof of his claim were self-contradictory and full of hearsay. Thus, he submitted that the respondent did not prove his claim as required by the law and the lower Court was wrong to have entered judgment in favour of the respondent.
The learned counsel for the respondent in reply, submitted that the respondent has adduced cogent and credible evidence to establish his claim and has discharged the onus of proof placed on him by the law. He maintained, that the respondent has successfully established in evidence, that the property which is the subject matter of this case was bought from the proceeds of his father?s estate and the property is deemed in law as the respondent?s property. Thus, the learned counsel submitted, that the appellant?s father was holding the property in trust for the respondent. He relied on the following cases to back up his submissions: Madu v. Madu (2008) 6 NWLR (Pt. 1083) 296 and Atta v. Ezeanah (2000) 11 NWLR (Pt. 678) 363.
In addition, the learned counsel for the respondent contended that the dispute over the property has previously been arbitrated upon and the arbitral decisions were in
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respondent?s favour. Thus, he submitted that both the appellant and his father were wrong to have continuously held on to the property. He referred us to the cases of Leka v. Tyo (2007) 11 NWLR (Pt. 1045) 385 andNjoku v. Ekeocha (1972) ECSLR 199 among others.
Also, the learned counsel for the respondent contended that the evidence adduced by the respondent with regard to his father?s estate are in the same class as traditional evidence, which is one of the exception to non-admisibility of hearsay evidence. He referred us to the cases of Oduwole v. Aina (2001) 17 NWLR (Pt. 741) 1 and Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416. The learned counsel maintained, that the respondent?s testimony was corroborated by the evidence of PW3 (Mr. Zacheus Eze), who witnessed the whole event when he served as an apprentice to both the respondent?s and appellant?s father. Thus, the learned counsel for the respondent argued that, the respondent being the only surviving son of his father, he is entitled to bring this suit to recover his father?s property and claim possession thereto from the appellant. Finally, he submitted that the learned
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trial judge was right when he held that the respondent has successfully established his claim and thus, entitled to judgment. Therefore, he urged this Court to resolve the issue and determine this appeal in respondent?s favour.
It is well settled and indeed elementary law, that the Court with the primary duty to admit and ascribe probative value to evidence duly admitted is the trial Court. Where a trial Court has duly performed its duty and reached a decision after a thorough and proper evaluation of all the pieces of evidence adduced before it, an appellate Court has no business to interfere with the finding and/or decision of the trial Court in such a circumstance, except where it can be vividly shown that the decision of the trial Court is perverse and/or based on wrong principles of law. See Okoye v. Obiaso (2010) 8 NWLR (Pt. 1195) 145; Melifonwu & Ors. V. Egbuji & Ors. (1982) 9 S. C. 73; Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282 and Mafimisebi v. Ehuwa (2007) 2 NWLR (Pt. 1018) 385.
In the instant case, the respondent pleaded and led admissible and credible evidence to establish that the property in dispute was purchased and
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developed with funds/proceeds from his father?s estate, thus, he claimed ownership over the said property. I have carefully examined all the pieces of evidence on record and I agree with the learned trial judge that the appellant?s father purchased the property in dispute from the funds obtained or sourced from the estate of the respondent?s father. Thus, the respondent can conveniently lay claim to the ownership of the property as he did, notwithstanding the fact that the property was bought in the name of appellant?s father. Indeed appellant?s father is deemed in law to have purchased the property and held the same in trust for the respondent. The relationship and transaction between appellant?s father and the respondent can be regarded as one of the classic examples of Resulting or Implied Trust. See the case of Adekeye v. Akin-Olugbade (1987) NWLR (Pt. 60) 214; (1987) LPELR ? 104 (SC) where His Lordship Oputa, JSC (of blessed memory) enunciated as follows:
?An implied trust is thus a trust founded upon the unexpressed but presumed intention of the settlor. One common example of implied trust is where
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on a purchase, property is conveyed into the name of someone other than the purchaser. The consensus of legal and judicial opinion is that the trust of a legal estate whether taken in the name of the purchasers and others jointly or in the names of others without that of the purchaser, whether in one name or several, whether jointly or successive, results to the man who advances the purchase money: See Re Scottish Equitable Life Assurance Society (1992) 1 Ch. 282: The Venture (1908) P. 218.?
See also the case of Madu v. Madu (2008) 6 NWLR (Pt. 1083) 296.
In the instant case, the funds utilized towards the purchase of the property was reaslised from the respondent?s father estate, thus, the respondent was right and to an extent as would be seen anon, to lay claim to the property. Indeed, that assumption to a certain or great extent is correct.
Nevertheless, it was established in evidence that the dispute between the parties herein over the same subject matter of this case, has earlier been arbitrated upon twice and the arbitral decisions admitted in evidence as Exhibits A and B. From the evidence on record, the arbitrations were properly
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conducted and the decisions reached were in accordance with laid down procedures. Thus, the arbitral decisions are binding on the parties. See the cases of Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385 and Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296. In essence, the decisions of the two arbitral proceedings were, that the property ?belongs to the Obika family of which the said Israel Obika (respondent) is a part.? Additionally, ?that the said Felix Obika?s property would be shared whenever they so decide among members of the Obika family.? (See Clauses 2 and 3 of Exhibit A). Thus, in the interest of justice and fairness, the property should be mutually enjoyed by both the family of appellant?s father and the respondent. The decisions of the arbitration panels are binding on all the parties to this case. The appellant?s contention that he was not a party to the arbitration proceedings and thus, the arbitral decisions cannot be enforced against him is highly misconceived. The appellant pleaded and led evidence to show that he inherited the property from his father under the customary law which governs the parties. In fact,
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this was the foundation of his claim and his root of title over the property. It was established in evidence that his father was a party to the arbitration proceedings and fully participated therein by calling witnesses. What is more, appellant?s father endorsed and signed Exhibit A. The said arbitral decision was thereby binding and enforceable against both the appellant?s father and his successors-in-title which includes the respondent herein.
From the evidence on record as contained in the printed record placed before this Court and the date on the arbitral decisions, there is no confusion whatsoever, that the Igwe-in-Council arbitral decision (that is, Exhibit B), was more definite in its award and the latest between the parties. Therefore, that arbitral decision which the parties voluntarily submitted to and its decision accepted by the parties is binding on all the parties, and I so hold. It is instructively significant and noteworthy, that going by the pleadings and admissible evidence adduced before the lower Court, with particular reference to Exhibits A and B, it is glaring that a holistic grant of the reliefs sought by the respondent
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herein, was nigh improbable and thus ungrantable. The respondent claimed all when he was entitled to only a part thereof. Definitely, a part or portion must be less than the whole. This is more so, because in Exhibit B, the respondent was apportioned 40% (forty percent) of the said property, while the same 40% (forty percent) was given to appellant?s father, with the remaining 20% (twenty percent) having been given to one Chinyelugo Obika. It will thus amount to an affront, unconscionable and a subtle surreptitiously undeclared war carried out from an ambush on both Exhibits A and B, if the respondent is allowed to jettison the arbitral awards contained in both Exhibits A and B. Very well! Where as in the instant case, an issue before a Court has a bearing in one way or the other on any of the parties or all the parties before it or even an interested party who is not before it, such a Court of law is duty bound to give adequate consideration and resolution to such a live issue. Issue No. 2 herein is thus resolved in the negative, but partly in favour of the appellant and partly in favour of the respondent.
?Thus, in essence, this appeal on the whole
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is dismissed by me. But in the overwhelming interest of justice, fairness and on the strength of the finding in respect of the second issue distilled for the determination of this appeal, the judgment of the lower Court wherein the learned trial judge found and held as follows: ?I accept that the property could not have been bought from any other fund but from the proceeds and estate of the plaintiff?s father. PW 1, PW 2 and PW 3?s evidence are to be believed. I am satisfied that defendant?s father got the money to buy land and build No. 33 Mbieri Street Aba from the proceeds of the business and estate of Claimant?s father. I am satisfied that plaintiff has proved his case and is entitled to judgment as per his claim. I so hold?; is hereby varied by me. In doing this, reliance is placed on the powers conferred on this Court by Section 15 of the Court of Appeal Act, 2004. It is hereby ordered consequentially, that the arbitral decision of the Igwe-in-Council Arbitration as contained in Exhibit B should be held binding and enforceable on the parties herein as directed or ruled therein.
?For ease of reference, the relevant
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and concluding parts of the said arbitral decision of Igwe – in – Council, Exhibit B which contained the arbitral award are reproduced below as follows:
?RULING: The Igwe in Council based their ruling on the evidences of the plaintiff, the defendant, and their witnesses, the exhibits and Unubi custom and tradition.
The Cabinet believed that Mr. Moses Obika was appointed caretaker to Late Felix Obika?s property because all the servants of Mr. Felix Obika, and close associates of Felix Obika testified to that effect coupled with the fact that Moses Obika settled all the servants of Late Felix Obika when they were due for settlement. The cabinet disbelieved Mr. Moses Obika?s evidence that he was never appointed caretaker to Felix Obika?s property. The cabinet found it difficult to believe that Mr. Moses Obika could have raised enough money while he was a student at Onitsha nor could he have made such money in less than one year after his brother Felix death, to buy the land at 33 Mbieri Street Aba, hence believed the evidence of most of the witnesses including those who took part in negotiations and buying of the land at 33
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Mbieri Street Aba who stated that the money used for buying the land was from part of Late Felix Obika?s asset.
The cabinet believed Mr. Moses Obika?s testimony that Master Israel Obika?s characters used to be bad but felt this could be due to his not being properly looked after or trained. The cabinet believed that by right Felix Obika?s property should belong to Mr. Israel Obika but felt that it would not be proper to remove everything from Mr. Moses Obika partly because he had been taking care of the property since 1950 to date and had no other source of income to depend on coupled with the fact that if he had refused to look after the property he could have established another source of income to maintain his wives and children. Chief Chinyelugo Obika was asked to go to Aba to help Mr. Moses Obika in managing Mr. Felix Obika?s property and incidentally he was the servant who was not settled even though he contributed greatly to the growth of the trade.
The cabinet ruled that the land and buildings at No. 33 Mbieri Street should be evaluated. The value should be shared into five parts, Mr. Israel Obika should take two
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parts while Moses Obika should take two parts and use it to maintain his two wives and his children and Chief Chinyelugo Obika will take one share. Since Mr. Moses Obika is living in the said plot he should balance Mr. Israel Obika the value of two shares and balance Chinyelugo Obika the value of one share. If Moses is unable to balance Israel and Chinyelugo. Israel should be given the chance to balance Mr. Moses and Chief Chinyelugo failing which Chief Chinyelugo will balance Moses and Israel because the cabinet will not like the land at 33 Mbieri Street Aba to be sold out from Obika?s family. Anybody who balances the other two persons the value of their shares should then own the property at 33 Mbieri Street Aba.
After Igwe in Council?s order has been carried out, Obika family and Umu-Umearu (Umunna) should report to the cabinet before the documents for 33 Mbieri Street is handed over to the rightful owner.?
In essence and or in the premise, it is hereby ordered that the property known and referred as No. 33 Mbieri Street, Aba, Abia State, which is the subject matter of this case be evaluated by a certified valuer to be mutually
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appointed by the parties and where they fail to agree, by the Chief Registrar of the lower Court; the value of the property should be divided into the following proportions: 40% for the appellant, 40% for the respondent and the remaining 20% to Chief Chinyelugo Obika. The first choice of acceptance or refusal shall be in the sequence expressed in Exhibit B.
Also, the appellant is hereby ordered to render an account with regard to all financial proceeds he has collected as rents from the 13th day of October, 2005 when this action was commenced till the judgment in this case is duly executed. The proceeds upon due account and verification as rendered by the appellant shall be disbursed/shared in the manner stipulated in the arbitral award made by the Igwe-in-Council Arbitration, Exhibit B.
For clarity, convenience and the avoidance of doubt, coupled with the invocation of Section 15 of the Court of Appeal Act, 2004 as stated above, the judgment of the lower Court delivered on the 30th day of June, 2011 by Hon. Justice I. Offonry, J. in Suit No. A/484/2005 between the parties herein is hereby varied and in its place, It is thus hereby ordered as
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follows:
1. A declaration that the arbitral award by Igwe-in-Council Arbitration is binding and enforceable on the parties herein and all concerned.
2. An order directing that the property known as and called No. 33 Mbieri Street, Aba, Abia State, the subject matter of this case be valued by a qualified Estate Valuer to be jointly appointed by the parties, but where the parties fail to agree on an Estate Valuer within a reasonable time but not exceeding three months from the date this judgment is delivered, the Estate Valuer shall be appointed by the Chief Registrar of the lower Court.
3. An order directing that the property as valued and certified by the appointed Estate Valuer shall be divided and/or shared in the following proportions: 40% (forty percent) for the appellant; 40% (forty percent) for the respondent and the remaining 20% (twenty percent) to Chief Chinyelugo Obika.
4. The appellant shall have the first option of acceptance or refusal to pay other parties their allotted value as indicated in Order 3 above, but where he fails to do so within a reasonable time not exceeding six months, the right shall be passed on to the
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respondent. Where the respondent also fails to pay off the other parties, the right shall be passed on to Chief Chinyelugo Obika. However, where each of the parties fail and or are unable to settle and pay each other, the property shall be sold and the proceeds realized therefrom shall be shared proportionately and in accordance with the sharing formula indicated above.
5. The appellant is ordered to render an account for all the sums of money which he has collected as rents from tenants from the 13th day of October, 2005 when this action was commenced till the judgment in this case is duly executed.
6. The financial proceeds upon due account and verification of the said sums of money collected as rents as rendered by the appellant, shall also be disbursed and/or shared in the same manner in which the value of the property is to be shared.
Appeal is dismissed except with regard to the consequential orders made herein/above. Parties shall bear their respective costs.
ITA GEORGE MBABA, J.C.A.: I agree, completely, with the ennabling reasoning and conclusion of my learned brother, M.A. OREDOLA JCA, in the lead judgment
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just delivered, which I had the privilege of reading its draft. I adopt my lord?s excellent treatment of all issues relating to the pretentious defence of statute bar and the inescapable effect of the customary arbitration on the parties, as mine
Appellant cannot wish away the binding hold on him and his father of the wise decisions of their traditional fathers/leaders, as shown in the Exhibits A and B, which vindicated the Respondent?s claims and the role of Appellant?s father in the management of the estate of the Respondent?s father. And the arbitration decisions considered the need to protect and keep the family bonds, while also upholding the truth of Appellant?s estate. I believe Appellant cannot, in good conscience, assert proprietary right over such property and invoke or allege the statute of limitation to rob the Respondent of his right to his father?s property. Appellant had no statutory right in the circumstance to plead and invoke limitation law, if he was always a trustee in the estate, as the arbitration decision suggested.
?It was therefore necessary to invoke the arbitration decisions in this case.
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See the case of Oparaji v. Ohanu (1999) 9 NWLR (Pt. 618) 209 where the Supreme Court said
?…where an arbitration under customary law is pronounced valid and binding, it would be repugnant to good sense and equity to allow the losing party to reject or resile from the decision of the arbitrators to which he previously agreed. See Larbi & Anor vs Kwasi & Anor (supra): Agu vs. Ikewibe (1991) 1 NWLR (Pt. 180) 385.”
See also the recent case of Duru & Ors v. Duru & Ors (2017) LPELR-42490 CA, where this Court held:
?Any party relying on a decision of Customary Arbitration must, as the Respondents stated, plead and establish by evidence the following:
(1) A voluntary submission of the matter in dispute to an arbitration of one or more persons;
(2) An agreement of the parties either expressly or by implication that the decision of the arbitration will be accepted as final and binding:
(3) That the said arbitration was in accordance with the custom of the parties of their trade or business:
(4) That the arbitrators reached a decision and published their award; and
(5) That the decision or award was
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accepted at the time it was made. See the case of Okwaranyia vs. Eke (1996) 3 NWLR (Pt. 436) 335; Ohiaeri vs. Akabeze (1992) 2 NWLR (Pt. 221) 1 at 24; Iwuala vs. Chima (2016) LPELR-40970(CA).?
I also agree, that the Arbitration decision in Exhibit B, was not fully represented on the judgment of the trial Court, and so Section 15 of the Court of Appeal, 2004, has to be invoked to also protect the interest of the Appellant, in the said arbitration award, which was binding on the parties.
I also dismiss the appeal, except the aspect of Appellant?s interest in Exhibit B. I abide by the consequential orders in the lead judgment.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree.
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Appearances:
Emeka Okeke Esq.For Appellant(s)
C.I. Inegbu Esq. with him, C.O. Achi Esq.For Respondent(s)
Appearances
Emeka Okeke Esq.For Appellant
AND
C.I. Inegbu Esq. with him, C.O. Achi Esq.For Respondent
