NWALEM NWEKE v. ENUCH NWUZI (2011)

NWALEM NWEKE v. ENUCH NWUZI

(2011)LCN/4531(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 10th day of May, 2011

CA/PH/149/2003

RATIO

CUSTOMARY ARBITRATION: CONDITIONS THAT MUST BE SATISFIED FOR THE RECOGNITION OF A CUSTOMARY ARBITRATION UNDER THE NIGERIAN LAW

In Agu v. Ikewiba supra after citing with approval inter alia Assampong v. Kweku & Ors. (1932) 1 WACA 192, Phillip Njoku v. Felix Ekeocha ( 1972) 2 ECLR 199, Mbagbu v. Agochukwu (1973) 3 EC SLR (pt.1) 90 Iyang v. Essien (1957) 2 FSC 39 and Idika v. Erisi (1988) 2 NWLR (pt. 78) 573, the supreme court per Karibi-whyte JSC held that: “Nigerian law recognizes arbitration at Customary Law which is distinct and different from arbitrations under statute, if the following conditions are satisfied: (a) If parties voluntarily submit their disputes to a non judicial body to wit, their elders or chiefs as the case may be for determination and (b) The indication of the willingness of the parties to be bound by the decision of the non-judicial body or freedom to reject the decision where not satisfied- (c) That neither of the parties has resiled from the decisions so pronounced ohiaeri v. Akabeze (supra) is the other decision of the Supreme Couft against which background the Appellants urge that the lower court’s decision should be considered. The decision which came subsequent to Agu v. Ikewiba (supra) applied and consolidated the apex court’s earlier decisions and at page 24 of the report per Akpata JSC dwelt on further requirement a customary arbitration must meet thus: “and that is, that the decision or award was accepted at the time it was made.” PER M. DATTIJO MUHAMMAD, J.C.A

STARE DECISIS: DEFINITION OF “STARE-DECISIS”

In Clement v. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39 at 54, the Supreme Court has equally defined the second doctrine, stare-decisis, to mean abiding by a former precedent where same points come again in litigation. The doctrine presupposes that the law has been solemnly declared and determined in the former case thereby, in a hierarchical arrangement, precluding judges of subordinate courts from changing what has been determined. The use of precedent and stare-decisis, being necessarily indispensable tools, in the determination of what the law is, can hardly be over-emphasized. As the trial judge himself noted, it is no gainsay that subordinate courts are bound by decisions of the Supreme Court, His duty where such decision has been shown to exist is to loyally apply the hierarchical decision of the Apex Court. Adherence to precedent is one of the strongest principles of judicial policy which provides for an orderly and reliable development of legal rules. See Aeroflot v. UBA (1986) 3 NWLR (Pt. 27) 188 at 199; AG Ogun State v. Egenti (1986) g NWLR (Pt. 28) 265 at 272-273. Pascak & Lydwig rnc. v. Kiren (1975) 1 NWLR 74 at 78 and state v. Ilori & 2 ors. (1989) 7 SCNLR 94, 2 SC 155. Layabju v. Araoye (1967) 7 SCNLR 476; Osumanu v. Seidu (1949) 72 WACA 437. PER M. DATTIJO MUHAMMAD, J.C.A

CUSTOMARY ARBITRATION: CIRCUMSTANCE UNDER WHICH A DECISION OF CUSTOMARY ARBITRATORS BECOMES BINDING

A decision of customary arbitrators only becomes binding only after signification of its acceptance by the parties. It is implicit in such an arbitration that there is a freedom to resile from the decision so reached where unfavourable, immediately after its publication. See RAPHAEL AGU V. OZURUMBA IKEWIBE (supra) at 407 where Karibi – Whyte ISC pronounced thus:- “I venture to regard customary law arbitration as an arbitration in dispute founded on the voluntary submission of the parties to the decision of the Arbitrators who are either the chiefs or Elders of their community and the agreement to be bound by such decision or freedom to resile where unfavourable.” Dr. T. O. Elias in his Nature of African customary law (1956) at page 212 opened as follows:- “Referring a dispute to the family head or an elder of the community for a compromise solution based upon subsequent acceptance by both parties of the suggested award, which becomes binging only after signification of its acceptance from which either party is free to resile at any stage of the proceedings up to the Point.” See also IGWEGO V. EZEUGO (1992) 6 NWLR (Pt.249)561 and EGESIMBA V. ONUZUR.UIKE (2003) 13 WRN 78 at 111, 112 AND 131. PER T.O. AWOTOYE, J.C.A.

CUSTOMARY ARBITRATION: INGREDIENTS THAT MUST BE PLEADED AND ESTABLISHED BY THE PARTY RELYING ON THE DECISION OF A CUSTOMARY ARBITRATION

Niki Tobi JSC on page 131 in EGESIMBA v. ONUZURUIKE (supra) commented further on the five ingredients that must be pleaded and established for a customary arbitration to be binding thus: – “….. five ingredients must be pleaded and established by the party relying on the decision. These are:- (a) that there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons, (b) That it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding. (c) that the said arbitration was in accordance with the action of the parties or their trade or business. (d) that the arbitrators reached a decision and published their award (e) that the decision of award was accepted at the time it was mad. see CHIEF SOTUNBO (1992) 5 NWLR. (pt. 243) 514, IGWEGO EZEUGO (1992) 6 NWLR (pt. 249) 56; ONWUANUMKPE V. ONWUANUMKPE (1993) 1 NWLR (PT. 910) 186, ANYAUNSI V. UGWONZE (1995) 6 NWLR (Pt. 401) 255, OME v. OKORONKWO (1996) 10 NWLR (PT. 477) 133, OPARAJI V. OHANU (1999) 9 NWLR. (PT 618) 290. PER T.O. AWOTOYE, J.C.A.

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

NWALEM NWEKE Appellant(s)

AND

ENUCH NWUZI Respondent(s)

M. DATTIJO MUHAMMAD, J.C.A (Delivering the Leading Judgment): This appeal once again brings into focus the place of precedents and stare decisis in the adjudication process. The question the Appellants seem to ask is why the principles enunciated in earlier cases should govern similar facts as occur in the instant matter. In concrete terms, the Appellants seek to know what customary arbitration connotes and whether by the facts of the instant case one could be said to have occurred and binds parties herein. A subsidiary issue in the appeal pertains the role of the appellate court in the event of a trial court’s failure to evaluate, correctly, the evidence led by parties for and against the case before that court. The facts that brought about the appeal are brief and undisputed. I shall state them at once.
The Respondent as plaintiff commenced suit No. AHC/164/86 against the Appellants being the defendants at the Rivers State High Court claiming some declaratory and injunctive reliefs in respect of some parcels of land in Etche Local Government Area, The Plaintiff also sought damages for defendant’s trespass unto the said parcels of land. The defendants counter claimed seeking similar reliefs in respect of the same parcels of land.
It would appear that Respondent’s claim was eventually struck out following his failure to file his statement of claim. Issues were however joined by parties who had settled their pleadings in respect of the counter claim filed by the Appellants. Following Respondent’s formal application and the court’s leave thereon for parties to explore peaceful settlement out of court, a peace panel comprising representatives of both sides was constituted. Mr. Enoch Nwuzi, the respondent herein was a member of the panel who at the conclusion of its deliberations refused to accept the panel’s report. Sequel to this refusal, the Appellants by their motion on notice prayed the court for the following orders:
“1. An order enforcing the traditional arbitration report/settlement in this case against the parties
2. An order making the said arbitration report/settlement the judgment of this court in the counter-claim of the Appellant”
Paragraph 9, 10, 11, 15, 16, 18 and 21 of the twenty two paragraph affidavit in support of Appellants’ application for the foregoing reliefs are hereunder reproduced for ease of reference.
“9. Thereafter, and at the instance of the respondent’s a Chief Amos Nwala, the Ochimba of Edegelem Community applied to this Honourable Court for settlement out of Court. The permission was granted.
10. On various dates from 18/2/92 11/2/9, 2/3/98, 14/5/93, 24/6/95, 9/3/99 etc. this matter was adjourned for final settlement to be finally effected and reported to this Honourable Court.
11. The settlement report was finally presented by the team of arbitrators.
15. Before the arbitration panel, the two  parties agreed to  be bound  by the of the panel as final.
16. The of the panel was in accordance with the native w and custom of Etche people applicable to Edegelem in Igbo-Etche.
18. The report of the panel was reduced to writing and later submitted to this Honourable Court. The said report is herewith attached and marked Exhibit  “NWALEM NWEKE 3′:
21. That when the arbitration on report was submitted t the court, the respondent disown it and through his Solicitor Messrs C.V. Georgewill & Co. presented a different term of settlement which is quite inconsistent with the verdict of the arbitration panel as his terms of  settlement. A copy of the said terms of settlement is herewith attached and marked Exhibit “NWALEM NWEKE 4,:
The plaintiff/Respondent challenged defendants/Appellants foregoing paragraphs in his eleven paragraph counter affidavit. Paragraph 6, 7, 8, 9 and 10 of which are hereunder particularly supplied:
“6. That the said counsel also informed me and I verily believe him that the said DW1 (the Applicant’s witness) was cross-examined on the 17/6/97.
7. That I do know that after that cross examination which was not concluded,  the parties agreed to settle this matter out of court.
8. That I also know that the terms of settlement drawn up by the Arbitrators were not accepted by the parties copies of 2 sets of unaccepted Arbitration on  terms are hereby attached as EXHIBITS – ‘A’ and ‘B’.
9. That I also know that since that attempt at settling the matter out of court the parties have not continued with the trial.
10. That up till now I do know that the parties have not been able to settle the matter amicably and so there is no traditional arbitration Report/Settlement.”
The defendants/Appellants filed a further and better affidavit in reaction to Respondents counter-affidavit.
The court heard oral arguments from both counsel at the end of which it dismissed the application in its considered ruling dated 26th March, 2001, Being dissatisfied with the ruling, the defendants/Applicants by a Notice dated 17th February 2003 have appealed to this court on five grounds, parties will be referred to as Appellants and Respondent forthwith.
They have, in keeping with the rules of this court, filed and exchanged briefs of argument. Same have been adopted and relied upon as arguments at the hearing of the appeal. The three issues, formulated in the Appellants, brief of argument as calling for determination in the appeal read:
“1. Whether the court below properly applied   the principles of law in the cases of – Ohiari v. Akabueze (1992) 2 NWLR (Pt.221.) 7 and Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385 to the facts and circumstances of this case.
2. whether the Respondent could resile from the decision of the customary arbitrators after willingly, voluntarily and   out of his own volition and – freewill   submitted to the same.
3. whether the court below appreciated the quality of the affidavit evidence before it in the ruling the subject matter of this appeal.
The respondent’s brief contains two issues for the determination of the appeal thus:
“1. Whether the learned Trial Judge rightly applied the principle enunciated by the Supreme Court in AGU v. Ikewibe and Ohiaeri v. Akabeze in determining the validity of customary arbitration when it dismissed the Appellants application for the enforcement of the traditional arbitration in this case.
2. Whether the learned trial judge was wrong in refusing to enforce as binding against the parties the traditional arbitration in this case based on a finding that same was not accepted by the Respondent when it was made. It seems to me that Appellant’s 1st issue which is the same as Respondents 1st issue subsumes his two other issues in the same way as does Respondent’s in relation to his 2nd issue. The appeal will be determined, therefore, on the basis of Appellants first issue alone.
Arguing the appeal under their first issue, learned Appellants, counsel submits that the arbitration voluntarily entered into by parties herein must bind them. That is the principle dwelt upon by the Supreme Court in, among others, counsel further submits, Anyabunsi v, Uawunze (1995) 6 NWLR (PT. 401) 225; AGU v. Ikewibe (1991) 3 NWLR (pt. 180) 385 and Oparaji v. Ogedireji (1999) 70 LRCN 1822 at 1842.
Appellants case, learned counsel contends/ is as contained in paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the affidavit in support of their application while Respondents case is as contained in paragraphs 4, 5, 6, 7, 8, 9 and 10 of the counter-affidavit in opposition. From the affidavits of both sides, learned counsel argues, it is manifest that an agreement to settle out of court had been reached by parties thus the domestic arbitration to which they both voluntarily submitted. Exhibit “Nwalem Nweke 3” is the report of the arbitration panel. The ruling of the lower court particularly at page 27 lines 24-30 of the record, given the averments of parties, submits learned Appellant counsel, is manifestly perverse: the report of the arbitration panel at page 8 of the record completely belies the court’s position since it clearly shows that both sides having been satisfied with the outcome of the arbitral proceedings, have together with their witnesses signed the report. Relying on Ahmad v. The State (1999) 7 NWLR (Pt.612) 641 and Fatoyinbo v. Williams (1956) SC NLR 274 learned Appellant counsel urges that this court intervenes to draw the correct inferences from the undisputed facts the lower court turned its blind eyes on.
In further argument, learned counsel contends that the circumstances in Ohiaeri v. Akabeze (supra) and Agu v. Ikewibe (supra) are very dissimilar to the facts of the present case and it is therefore wrong for the lower court to have relied on the decisions. It is urged that the issue be resolved against the Respondent, and the appeal allowed.
Responding, learned Respondent counsel argues that the determination of the appeal hinges on the definition the supreme court gave to customary law arbitration and examination of the arbitration in the instant case through parties affidavits to conclude whether it satisfies the criteria the courts set for such arbitrations. Exhibit “NWALEM NWEKE 3”, the arbitration report the Appellant seek to enforce’ submits learned counsel, does not meet the criteria enunciated in Agu v. Ikewibe supra, Ojibah v. Ojibah (1991) 5 NWLR (part 191) 314, and Ohiaeri v. Akabeze (supra). Most importantly, learned Respondent counsel submits, the Respondent neither signed the arbitration report nor accepted same. The refusal to sign the report when presented to them indicated their rejection of same. And acceptance of the report is, from the-decisions correctly relied upon by the court, one of the most’ important criteria customary law arbitration must satisfy. The combined effect of paragraph 21 of the Appellants’ affidavit in support and paragraphs 8 and 10 of the Respondent’s counter-affidavit forces the conclusion the trial court made that the terms of settlement drawn by the arbitrators here in were not accepted by the parties and no amicable traditional settlement had thus been achieved.
Further relying on the decision in Eke v. Okwarayi (2001) FWLR (part 51) 1974, and Idonigi v. oyeleke (2001) FWLR (Pt.42) 189- 190 learned counsel persists that the lower court lacks the jurisdiction of enforcing such an arbitration document that has not been accepted by all the parties to it. In the alternative, learned Respondent counsel submits, the respondent, even on the authority of Anyabunsi v. Ugwunze, has the right to resile from a decision he finds unfavorable. That freedom to resile, counsel contends, also remains intrinsic to customary arbitration. It is urged that Respondent’s two issues be resolved against the Appellants and the appeal dismissed.
This appeal in my considered view raises a very narrow issue. It is whether the disputing parties herein have the freedom to settle their differences in the manner acceptable to them particularly by a customary arbitration. The parties had obtained leave of the lower court to submit to a customary arbitral panel and be bound by its decision. The question to answer here would be whether Exhibit “Nwalem Nweke 3,” qualifies as a binding arbitration to be enforced as the judgment in the instant suit. This indeed explains the Appellant’s complaint that the lower court in its ruling the subject matter of the present appeal had failed to correctly apply the principles in Ohiaei v. Akavuze supra and Agu v. Ikewiba (supra).
In Agu v. Ikewiba supra after citing with approval inter alia Assampong v. Kweku & Ors. (1932) 1 WACA 192, Phillip Njoku v. Felix Ekeocha ( 1972) 2 ECLR 199, Mbagbu v. Agochukwu (1973) 3 EC SLR (pt.1) 90 Iyang v. Essien (1957) 2 FSC 39 and Idika v. Erisi (1988) 2 NWLR (pt. 78) 573, the supreme court per Karibi-whyte JSC held that:
“Nigerian law recognizes arbitration at Customary Law which is distinct and different from arbitrations under statute, if the following conditions are satisfied:
(a) If parties voluntarily submit their disputes to a non judicial body to wit, their elders or chiefs as the case may be for determination and
(b) The indication of the willingness of the parties to be bound by the decision of the non-judicial body or freedom to reject the decision where not satisfied-
(c) That neither of the parties has resiled from the decisions so pronounced ohiaeri v. Akabeze (supra) is the other decision of the Supreme Couft against which background the Appellants urge that the lower court’s decision should be considered. The decision which came subsequent to Agu v. Ikewiba (supra) applied and consolidated the apex court’s earlier decisions and at page 24 of the report per Akpata JSC dwelt on further  requirement a customary arbitration must meet thus: “and that is, that the decision or award was accepted at the time it was made”
The apex court at page 25 of the law report concluded by emphasizing what procedure a party who wishes to rely on customary arbitration as estoppel must employ thus:
“The party will have to adduce credible evidence of the relevant ingredients or incidents necessary to sustain the material plea of estoppel by customary arbitration” counsel has dwelt on these entire requirements at the lower court and here as well. on exhibit “Nwali Nweke 3”, the purported arbitral report, the lower court held at page 29 of the record as follows:
“The Applicants have not in this application, shown that the decision or award of the arbitration was accepted at the time it was made.
….in order for the applicants to remove or deprive the Respondent of the right to have his case resolved in a court of law, there must be strict proof that he had voluntarily and willingly given up his right. There is no such Proof”
It is the foregoing conclusion of the lower court the Appellants contend constitute a wrong application of the principle emaciated in Ohiaeri v. Akabuze (supra) and Agu v. Ikewibe (supra) wherein as demonstrated above, it was similarly held that for an arbitral award to be binding it must be shown to have been accepted by the parties at the time it was made.
The lower court’s finding that proof of such acceptance on respondent’s part is nonexistent remains beyond reproach. And it is a finding that draws from the affidavits of parties and the annextures to the affidavits. Most certainly, from the principles enunciated in the relevant decisions of the Supreme Court, the Respondent retains the liberty to resile from an arbitration that had not satisfied any of the requirements such arbitrations must meet. See Okereke v. Nwankuro (2003) 9 NWLR (Pt. 826) 592 Egesimba v. Onuzubike (2002) 15 NWLR (PT. 791 466 SC and Awosile v. Sotunbo (1992) 5 NWLR (pt. 243) 514.
The lower court, it must be emphasized, is bound by all these decisions on the point and it would have amounted to impertinence for it to refuse submitting to them. That is what the doctrine of stare decisis connote. I said it all in Nwangwu v. Ukachukwu (2000) 6 NWLR (Pt. 662) 674 at 689-690 and find it apposite to repeat same here now!
“This appeal has again brought to the fore the important role which the twin doctrines of precedent and stare-decisis play in our legal system. By the first doctrine where facts in a subsequent case are same, similar or close as facts in an earlier case that has been decided upon, judicial pronouncements in the earlier case subsequently utilized to govern and determine the decision in the subsequent case.
In Clement v. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39 at 54, the Supreme Court has equally defined the second doctrine, stare-decisis, to mean abiding by a former precedent where same points come again in litigation. The doctrine presupposes that the law has been solemnly declared and determined in the former case thereby, in a hierarchical arrangement, precluding judges of subordinate courts from changing what has been determined.
The use of precedent and stare-decisis, being necessarily indispensable tools, in the determination of what the law is, can hardly be over-emphasized. As the trial judge himself noted, it is no gainsay that subordinate courts are bound by decisions of the Supreme Court, His duty where such decision has been shown to exist is to loyally apply the hierarchical decision of the Apex Court. Adherence to precedent is one of the strongest principles of judicial policy which provides for an orderly and reliable development of legal rules. See Aeroflot v. UBA (1986) 3 NWLR (Pt. 27) 188 at 199; AG Ogun State v. Egenti (1986) g NWLR (Pt. 28) 265 at 272-273. Pascak & Lydwig rnc. v. Kiren (1975) 1 NWLR 74 at 78 and state v. Ilori & 2 ors. (1989) 7 SCNLR 94, 2 SC 155. Layabju v. Araoye (1967) 7 SCNLR 476; Osumanu v. Seidu (1949) 72 WACA 437.
It must unhesitatingly be stated that the decision in Sadikwu v. Dalori will avail the appellant if answers to all questions posed by this appeal are provided by the Apex court in the case relied upon.”
In the case at hand, the decisions in Ohiari v. Akabuze (supra) and Agu v. Ikewibe (supra) must determine the fortunes of parties and the lower court has risen to the occasion and correctly applied the principles in the two cases to the facts and circumstances of their case. It is for all these that I resolve the core issue for the determination of the appeal distilled in the appellants brief against them. Resultantly, the appeal lacks merit and is accordingly dismissed. The lower court’s ruling appealed against is affirmed. Appellants shall pay to the Respondent the cost of the appeal hereby put at N50,000.00k

EJEMBI EKO, J.C.A.: I read before now the judgment just delivered by my learned brother, M.D. Muhammad (OFR), JCA. I am in complete agreement with his analyses of the issues and conclusions on them.
I will only chip in a few words of mine.
At the instance of one Chief Amos Nwala, the Ochimba of Edegelem, the trial court allowed the parties to pursue settlement out of court. A peace committee headed by the ochimba himself was constituted. The parties, inspite of all efforts of the Peace Committee, were unable to reach any consensus. Notwithstanding their inability to get the parties to reach any consensus the Peace committee drew up terms of settlement, which the Respondent rejected out rightly, Inspite of the Respondent’s rejection of the terms of settlement, the Appellant on 28tth March, 2000 filed an application at the trial court to enforce the Report of the Traditional Arbitration and to make the same the judgment of the trial court. Upon the resistance of the Respondent the said application was dismissed; hence this appeal.
The fundamental features of customary arbitration, as illustrated in the cases considered by the learned trial judge and several others, including OHIAERI v. AKABUEZE (1992) 2 NWLR (Pt.221) 1, are
1. The willingness of the parties to submit their dispute to arbitration and the fact of their voluntary submission to arbitration;
2. The intention of the parties themselves to be bound by the arbitration award or decision supported by their mutual agreement to accept the said arbitration award or decision and be bound by it and
3. The acceptance of the decision/award at the time of its pronouncement or publication.
The bottom-line is the expression or exercise of each party’s individual liberty to elect or opt for arbitration and avoid the tedium and expenses of litigation. The best authority for this is the individual litigant himself.
At each stage of customary arbitration a party, in exercise of his liberty, can opt out. He can not be compelled to accept arbitration, which is a product of an exercise of free volition. His door to opt out and renounce arbitration will, however, be shut at him only upon his accepting the decision/award at the time of its pronouncement or publication. That is when the equity of estoppel by conduct will be or can be invoked against him.
Section 151 of the Evidence Act puts the principle of estoppel by conduct thus:-
When one Person has, by his declaration, act or omission, intentionally-caused permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or person’s representative in interest, to deny the truth of that thing,Neither the arbitrator(s) nor the party’s adversary can prevent him from his expressing his desire and intention not to be bound by arbitration or his rejecting the decision or award in arbitration at the time of pronouncement. Arbitration being an exercise or expression of a party’s freedom or liberty can not be imposed. A party can therefore, not be forced to submit to arbitration, as issue two in this appeal suggests. The fact that a party has initially submitted to arbitration does not curtail his exercise of his personal liberty to refuse to be bound by the outcome of the arbitration and/or reject the decision or award. The only time estoppel by conduct will catch up with him and fix him to his “bargain” is after he has voluntarily accepted the award or decision after publication. Thereafter equity steps in, and on principle of estoppel by conduct, makes it unconscionable for him to renege. Before then the party’s freedom to resile from the unfavourable is inalienable. See OHIAERI v. AIGBUEZE (supra).
The learned trial Judge, in my considered view, expressed the law correctly when she held at page 21 of the Record, in her judgment, that –
In the light of the decisions in OHIAERI v. AIGBUEZE (supra) and AGU v. IKEWIBE (1991) 3
NWLR (Pt.180) 385 by the apex court, it is therefore a misconception to say that once parties have voluntarily submitted to a local traditional arbitration, they can not resile from it. It is quite clear that they have freedom to reject it where not satisfied.
In this case, from the affidavit evidence and the Exhibits attached, it is very clear that the parties i.e. the Respondent in particular, did not agree with the report in all the Exhibits that the parties agreed that the decision of the arbitration panel will be accepted as final and binding.
I need only add that the learned trial judge did proper evaluation of the totality of the evidence available to her, particularly Exhibit NWALEM NWEKE 3 (also Exhibit A) and Exhibit NWALEM NWEKE 4 (also Exhibit B) before coming to conclusion that the Respondent “did not accept the report of the panel” and that the Respondent disowned the report of the Panel”. The findings of facts are unassailable.
There is no substance in this appeal. Accordingly, it is hereby dismissed in its entirety. The ruling dated 26th March, 2001 in the suit No. AHC/164/86, the subject of this appeal, is hereby affirmed.
The Respondent is entitled to costs and I order that costs assessed at N50, 000.00 be paid to him by the Appellant.

T.O. AWOTOYE, J.C.A.: I have had the preview of the draft of the lead judgment just delivered this morning by my learned brother M. D. MUHAMMAD (OFR) JCA. I am in full agreement that this appeal lacks merit. The lower court’s ruling which is appealed against is unassailable.
I wish to make the following additional comment.
The appellants in their brief of argument formulated three issues for determination to wit:-
“(i) Whether the court below properly applied the principles of law in the cases of OHIAERI V AKABUEZE (1992) 2 NWLR (PT. 2210) page 1 and AGU V. IKEWIBE (1991) 3 NWLR (Pt.180) 385 to the facts and circumstances of this case.
(ii) Whether the respondent could resile from the decision of the customary arbitrators after willingly, voluntarily and out of his own volition and freewill submitted to the same.
(iii) Whether the court below appreciated the quality of the affidavit evidence before it in the ruling subject matter of this appeal.”
With respect to issue (No.ii) as formulated by the appellants, the cases of OHIAERI v. AKAHUEZE (supra) at page 25 and AGU v. IKEINIBE (supra) page 385 at 401 cited by learned senior counsel for the appellants himself provide a full answer. Yes. The respondent could resile from the decision soon after it is published to him.
A decision of customary arbitrators only becomes binding only after signification of its acceptance by the parties. It is implicit in such an arbitration that there is a freedom to resile from the decision so reached where unfavourable, immediately after its publication. See RAPHAEL AGU V. OZURUMBA IKEWIBE (supra) at 407 where Karibi – Whyte ISC pronounced thus:-
“I venture to regard customary law arbitration as an arbitration in dispute founded on the voluntary submission of the parties to the decision of the Arbitrators who are either the chiefs or Elders of their community and the agreement to be bound by such decision or freedom to resile where unfavourable.”
Dr. T. O. Elias in his Nature of African customary law (1956) at page 212 opened as follows:-
“Referring a dispute to the family head or an elder of the community for a compromise solution based upon subsequent acceptance by both parties of the suggested award, which becomes binging only after signification of its acceptance from which either party is free to resile at any stage of the proceedings up to the Point.”
See also IGWEGO V. EZEUGO (1992) 6 NWLR (Pt.249)561 and EGESIMBA V. ONUZUR.UIKE (2003) 13 WRN 78 at 111, 112 AND 131.
On issues (i) and (iii), the simple question which if answered solves the issues raised is this: Is there evidence to the effect that the respondent resiled from the decision of the arbitrators soon after bringing it to their notice?
On their own showing in paragraphs 18 and 21 of their supporting affidavit, the appellants, at the lower court deposed as follows:-
“18. The report of the panel was reduced to writing and later submitted to this Honourable court. The said report is herewith attached and marked Exhibit “NWALEM NWEKE 3.”
21. That when the arbitration on report was submitted to the court, the respondent disown it and through his solicitor Messrs C.V. Georgewill & Co. presented a different term of settlement which is quite inconsistent with the verdict of the arbitration panel as his terms of settlement.”
The above was buttressed by the Respondent who was the plaintiff at the lower court in paragraph 8 of his counter affidavit which reads as follows:
“8. That I also know that the terms of settlement drawn up by the Arbitrators of 2 sets of unaccepted Arbitration terms are hereby attached as EXHIBIT ‘A’ and ‘B’.”
Even from the affidavit filed by the parties it is clear that the respondent did not accept the decision of the arbitrators when made known to him. This does not make the decision binding. See EGESTMBA v. ONUZURUTKE (supra) and other cases.
Niki Tobi JSC on page 131 in EGESIMBA v. ONUZURUIKE (supra) commented further on the five ingredients that must be pleaded and established for a customary arbitration to be binding thus: –
“….. five ingredients must be pleaded and established by the party relying on the decision.
These are:-
(a) that there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons,
(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding.
(c) that the said arbitration was in accordance with the action of the parties or their trade or business.
(d) that the arbitrators reached a decision and published their award
(e) that the decision of award was accepted at the time it was mad. see CHIEF SOTUNBO (1992) 5 NWLR. (pt. 243) 514, IGWEGO EZEUGO (1992) 6 NWLR (pt. 249) 56; ONWUANUMKPE V. ONWUANUMKPE (1993) 1 NWLR (PT. 910) 186, ANYAUNSI V. UGWONZE (1995) 6
NWLR (Pt. 401) 255, OME v. OKORONKWO (1996) 10 NWLR (PT. 477) 133, OPARAJI V. OHANU (1999) 9 NWLR. (PT 618) 290.
It is clear in the fight of the above that the ruling of the trial court is unimpeachable as I resolve all the issues formulated by the appellants in favour of the Respondent.
For the above reasons and the fuller reasons exquisitely stated in the lead judgment, I hold that this appeal lacks merit. It is hereby dismissed. I abide by the order as to costs as assessed in the read judgment.