PA MICHAEL JONGBO & ORS v. MR. TAYE AKANDE
(2019)LCN/13550(CA)
In The Court of Appeal of Nigeria
On Monday, the 24th day of June, 2019
CA/EK/62/2018
RATIO
ARBITRATION UNDER CUSTOMARY LAW: CONDITIONS FOR IT TO BE BINDING UNDER NIGERIAN LAW
Therefore, the decision is binding on all parties who willingly submitted themselves to the Customary Arbitration. See the cases of where the Supreme Court per IGUH JSC held inter alia;
The Nigerian Law recognizes and accepted the validity and binding nature of Arbitrations under Customary Law if it is established that;
i) That both parties submitted to the arbitration.
ii) That the parties accepted the terms of the arbitration.
iii) That they agreed to be bound by the decision of the arbitration. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
CUSTOMARY LAW ARBITRATION: WHEN IT LEADS TO AN ESTOPPEL
It ought to be pointed out that a Customary Law Arbitration decision has the same authority as the Judgment of a Judicial Tribunal and will be binding on the parties and thus create an estoppel. Whether, however, such a decision will operate as estoppel per rem judicatam or issue estoppel can only be decided where the terms of the decision are clearly known and ascertained and, where they so operate, both parties are entitled to invoke the plea. See IDIKA & ors Vs ERISI (1988) 1 NSCC Pg. 977, CHINWENDU VS MBAMALI (1980) 314 S.C. Pg. 31 JOSEPH LANBI VS OPAMS KWASI (1950) 13 WACA Pg. 81.
He went on to hold that-
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 Arbitration to which he had previously agreed. See LARBI VS OPANIN KWASI (Supra) AGU VS IKEWIBE (Supra).” PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
JUSTICES
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
1. PA MICHAEL JONGBO
2. ELDER YINKA ADEGBESAN
3. MR. MATHEW OJO
(Suing for and on behalf of the Oisa Alada family of Ikere-Ekiti) Appellant(s)
AND
MR. TAYE AKANDE Respondent(s)
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ekiti State delivered on 25th October, 2011 by Hon. Justice O. I. O. Ogunyemi.
By a writ of summons together with a Statement of claim filed on the 3rd August, 2016, the Claimants now Appellants claimed against the Defendant now Respondent respectively as follows: –
(a) A declaration that the Claimants are members of the Oisa Alada family of Ikere Ekiti.
(b) A declaration that the Defendant is not a member of the Claimants? Oisa Alada family of Ikere-Ekiti.
(c) A declaration that the Claimants are entitled to the right of Occupancy of the piece of land lying, being and situate at Abepe along Ijare Road, Ikere Ekiti covered by Survey Plan No: JAA/OD/011/86 drawn by J.O.D Aigbe a licensed survey dated 27th January, 1986.
(d) An order of forfeiture of the customary tenancy of the Defendant on the said land and quitting the said place.
(e) An order of perpetual injunction restraining the Defendant, his agents, servants, assigns and privies from going into the land or stepping same or
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carrying out any activity thereon now, forthwith and henceforth.
(f) The sum of N50,000,000.00 (Fifty Million Naira) as general damages against the Defendant in favour of the Claimants for Defendant challenge of Claimants? title to the said land.”
The Respondent in response filed an Amended Statement of Defence on 6th February, 2017 to which the Appellants filed a reply.
At the close of pleadings, the case proceeded to trial. The Appellants called five (5) witnesses and tendered four (4) Exhibits while a total number of two (2) witnesses testified for the Respondent and tendered four (4) Exhibits.
It is the case of the Appellants that the Oisa Alada family are the owners of the land in dispute. The Appellant tried to prove the title of the Oisa Alade through traditional history, long possession and various acts of ownership exercised by the Oisa Alada family over the years. They alleged that they are members of the Oisa Alada family and therefore are owners of the family. They contended that the Respondent is not the owner of the land in dispute but a tenant to the Appellants. They submitted that the great grandfather of the
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Respondent was only granted permission to farm on the land in dispute. They submitted that the ancestor of the Respondent had been paying ?Isakole? to the Appellants. They also noted that the Respondent are not members of Oisa Alada Family but from Asao family of Uro Ikere Ekiti and thus has no claim on the land in dispute.
The Respondent on the other hand raised the issue of estoppel. He submitted that this matter had already been decided upon by the Customary Arbitration panel and a decision was reached. He referred to Exhibit F. In further response to the Claims of the Appellants, the Respondent submitted that the land in dispute belonged to him and his family land. He traced his root of title to one Asao Ajilabiorangun (his fore-father), who was the first person to settled on the land in dispute. He submitted that Asao Ajilabiorangun while farming on the land begat Aleye (the mother of Oisa Alada (the ancestor of the Appellants); Onikasomi; Ayanla and Salotun. He submitted that Salotun begat Alonge Akande; Alonge Akande begat Samuel Akande Folorunso and Samuel Akande Folorunso begat Taye Akande (The Respondent). He submitted that Aleye
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married Ejemua of Ekuasa Okebabadudu from Odo-Ojo Quarters of Ikere-Ekiti. In the marriage Aleye begat Oisa Alada. He submitted that due to tension in Oisa Alada paternal home, he ran away from his paternal home and was welcome to his maternal home by Salotun. He submitted that while Oisa Alada was living with his uncle Salotun, Salotun gave him part of the land in dispute to farm. Thus, both Asao and Oisa families have been using the land together as one family since then. He submitted that sometime in the year 2012 the Appellants tried to survey the land but they met resistance from the Respondent. He contended that the Appellants never surveyed the land.
At the conclusion of the trial and address of counsel the learned trial judge while dismissing all the claims of the Appellants held as follows:
it is in evidence that both parties in the instant case submitted to the Arbitration by the Palace Court of Ikere-Ekiti in Suit Number PC/KER/640/01/2013. Both parties called witnesses, gave evidence and followed the panel members to the locus in quo. To my mind, the decision arrived at by the Palace Arbitration panel is binding on both
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parties
Consequently, the Claimants? suit is hereby dismissed, both parties are advised to adhere to the decision of the palace Court in PC/KER/640/01/2013.?
The Appellants being dissatisfied with the stance of the Court below filed a Notice of Appeal on 24th January, 2018, containing five (5) grounds of appeal.
In accordance with the Rules of Court, parties have filed their respective brief of arguments.
The Appellants? brief was filed on the 26th November, 2018. The Appellants, in their brief formulated three issues for determination viz:
1. Whether the heavy reliance placed on the Palace Arbitration as bar to Appellants? suit which Palace Arbitration i.e. Exhibit ?F? is inadmissible did not occasion a miscarriage of justice. Ground 1, 2 and 4
2. Whether the failure to consider and or appraise the evidence of the Appellants did not occasion a miscarriage of justice. Ground 3
3. Whether the judgment of the lower Court is not against the weight of evidence. Ground 5
The Respondent on the other hand filed their brief on the 11th April, 2019 but deemed properly filed on the 15th
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April, 2019 wherein he also formulated three issues for determination viz: –
i) Whether the admission of Exhibit F and reliance placed on it by the lower Court has occasioned any miscarriage of justice in this case. (Ground 1, 2 and 4)
ii) Whether, from the pleadings and evidence on record, the trial Court has not appraised and or considered the Appellants? evidence to warrant a miscarriage of justice whether the Appellants have proved their case to be entitled to the reliefs they sought. (Ground 3)
iii) Whether the judgment of the lower Court is against the weight of evidence. (Ground 5)
Filed along with the Respondent?s brief was a Notice of Preliminary objection which was also raised and argued at pages 5 – 8 of his brief. The Preliminary objection was based on the following grounds: –
i. The lower Court dismissed the case of the Appellants on the ground that this matter had been settled by a Customary Arbitration Panel and that the judgment of the Customary Arbitration was binding on the parties in this suit and that same created estoppel between the parties.(See Page 228 of the records)
ii. Grounds 1 and 4 of the
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Appellants ground of appeal did not arise from the judgment of the lower Court appealed against and therefore incompetent since the grounds are challenging the admissibility of Exhibit F which is not part of the judgment of the lower Court.
iii. Appellants issue one was formulated from grounds 1, 2 and 4 of the grounds of appeal.
iv. Issue one of the appellants is therefore incompetent same having been formulated from a combination of competent ad incompetent grounds.
v. The lower Court did not decide the issue of admissibility Exhibit F in its final judgment.
vi. The admissibility of Exhibit F was not one of the issue raised and decided in the judgment of the lower Court appealed against.
vii. Issue two of the Appellants is incompetent because the ground 3 from which it was formulated is incompetent in that ground three from which it was formulated did not arise from the judgment of the lower Court as it does not relate to or has any relevance to the Customary Arbitration decision upon which the judgment of the lower Court was based.
viii. Issue three of the Appellants is equally incompetent, even though it was
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formulated from the omnibus ground, the arguments and submissions on the issue shows that it does not attack the judgment of the lower Court and has no relevance to the Customary Arbitration decision upon which the Judgment of the lower Court was based.
ix. All the issues raised by the Appellants are incompetent, the grounds upon which they are based having not arisen from the judgment of the lower Court appealed against or are formulated from an admixture or competent and incompetent grounds.
In response to the Respondent?s brief, the Appellants also filed a Reply brief on 29th April, 2019.
ARGUMENT ON THE PRELIMINARY OBJECTION
It is the contention of counsel for the Respondent that the instant appeal is incompetent. It is the contention of counsel that the grounds of appeal do not flow from the judgment of the lower Court appealed against. Counsel went further to relate each of the issues formulated by the Appellants with the grounds of appeal. He submitted that issue one was formulated from grounds 1, 2 and 4 of the grounds of appeal. He submitted that grounds 1 and 4 which deals with the admissibility of Exhibit F do not arise
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from the judgment of the lower Court and thus incompetent. He thus urged this Court to strike out the incompetent grounds and issue 1 along with it for being incompetent. He cited that cases of OKOYE V OBIASO (2010) 8 NWLR (Pt 1195) 145; GWANDU V GWANDU & ORS (2004) ALL FWLR (Pt 229) 841.
On issue 2, counsel submitted that issue 2 was formulated from ground 3. He submitted that ground 3 which deals on the issue of bindingness of the decision of customary arbitration on the parties and estoppel do not flow from the judgment of the lower Court and is thus incompetent. He thus urged this Court to strike out grounds 3 and issue 2 along with it for being incompetent.
On issue 3, counsel submitted that although issue 3 was derived from ground 5 (the omnibus ground), it is incompetent as all the argument and submission made on the issue does not arise from the judgment of the lower Court.
He thus urged this Court to strike out the appeal for being incompetent and for want of jurisdiction on the part of the Court.
Learned counsel for the Appellants in his reply submitted that all the grounds (1 ? 5) all arose from the judgment of the
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lower Court and are therefore competent. On ground 1 and 2 counsel referred to the judgment of the lower Court at page 228 of the record; ground 3 the judgment of the Court at page 226 of the record and ground 4 at page 152 and 153 of the record.
He thus urged this Court to dismiss the objection raised by the Respondent.
ISSUE 1
Learned counsel for the Appellant submitted that the trial Court in dismissing the Appellant?s suit relied heavily on Exhibit F. It is the contention of counsel the trial Court was wrong to have placed heavy reliance on Exhibit F in delivering its judgment as Exhibit F is inadmissible, which ought to have been rejected. It is the contention of counsel that Exhibit F which represents the CTC of the Customary Arbitration was not properly tendered in evidence and thus ought to have been rejected. It is the contention of Counsel that Exhibit F is not a Public document and thus a CTC was not necessary. According to counsel the Respondent ought to have tendered the original of Exhibit F and not a photocopy. He also submitted that DW1 having given evidence that the original was at the palace, the original of Exhibit F
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ought to have been tendered and not the photocopy. He referred to the cases of OKOYE V OBIASO (2010) B8 NWLR (Pt. 1195) 145; ITA V EKPENYONG (2001) 1 NWLR (Pt. 695) 587; THOMPSON V AROWOLO (2003) 7 NWLR (Pt. 818) 163; MBATA V AMANZE (2018) 15 NWLR (Pt. 1343) 570.
In the alternative, counsel submitted that assuming but not conceding that Exhibit F is admissible, it is the contention of counsel that the said Exhibit do not constitute a bar to the Appellant?s suit as the subject matter and parties in Suit No: PC/KER/640/01/2013 are different from Exhibit F.
Learned counsel for the Respondent on the other hand submitted that Exhibit F is admissible and was properly admitted by the trial Court. He submitted that Exhibit F which was tendered by Dw1 (a traditional chief and registrar/secretary of the Palace) after laying the proper foundation as to why the original could not be produced, is admissible under Section 83(2) of the Evidence Act, 2011.
He also submitted that the Appellants never raised this instant objection to the admissibility of Exhibit F at the lower Court. Counsel contended that the only objection that was raised by the
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Appellants at the lower Court to the admissibility of Exhibit F was that the frontloaded copy is different with the one sought to be tendered in that while the later was certified the former had no certification. He submitted that the Appellants having failed to raise the instant objection (i.e. the Respondent ought to have tendered the original copy and not the photocopy of Exhibit F) at the lower Court, the said objection is incompetent. He cited the case of GWANDU V GWANDU & ORS (2004) ALL FWLR (Pt 229) 841. He further submitted that assuming the instant objection was raised by the Appellants at the lower Court, the said objection is misconceived as Dw1 laid the foundation as to why the original could not be produced.
On the issue that Exhibit F is not a public document, counsel agrees with the submission of counsel for the Appellants that Exhibit F is not a public document and thus required no certification. However, he submitted that the fact that it is not a public document and was certified did not affect its admissibility. He submitted that the case of OKOYE V OBIASO (SUPRA) cited by the Appellants supported the Respondent?s case and not
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the Appellants.
He also submitted that Exhibit F was rightly admitted as it was pleaded, relevant and was frontloaded.
He also submitted that assuming that Exhibit F is inadmissible, it would not have affected the judgment of the lower Court because:
1. This matter was referred to a Customary Arbitration Panel
2. Parties submitted themselves voluntarily to the Customary Arbitration Panel.
3. The parties are ad idem that a Customary Arbitration had adjudicated on this matter and reached a decision.
4. The content of the proceeding and decision of the Arbitration panel was pleaded and admitted by the Appellants.
Based on the above facts, counsel submitted that even if Exhibit F is expunged, the admission of the decision of the customary Arbitration Panel by the Appellants will sustain the decision of the trial Court. He cited NANNA V NANNA (2006) 3 NWLR (Pt. 966) 1.
He submitted that the contention of counsel of the Appellants that the parties, subject matter and issues before the Customary Arbitration Panel is different from the instant suit is misconceived. According to counsel, the claim, subject matter and parties in
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the customary arbitration panel and the instant suit are the same.
He thus urged this Court to resolve this issue in favour of the Respondent.
Learned counsel for the Appellants in his reply submitted that Section 83(2) of the Evidence Act will not apply in this case in view of the specific provisions of Sections 85, 86, 87 and 89 of the Evidence Act which provides that it is the original document that is admissible in cases of private document whereas in cases of public documents it is the certified true copy. He cited the case of DAGGASH V BULAMA (2004) 14 NWLR (Pt 892) 144.
He also submitted that the Respondent having not provided any evidence pointing to undue delay, Section 83(2) of the Evidence Act does not apply.
Counsel also submitted that contrary to the contention of the Respondent, the Appellants in paragraph 1(e) of the Appellants reply to amended statement of defence at page 125 of the record challenged the uncustomary procedure in Exhibit F. He submitted that the fact that the Appellants challenged the customary arbitration makes this instant case different from the case of OKOYE V OBIASO (SUPRA).
On the issue that the
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admissibility of Exhibit F does not arise from the judgment of the lower Court, counsel submitted that the argument is misplaced as it did. He also submitted that even if it doesn?t, counsel submitted that the issue of admissibility of a document being an issue of law it can be raised at any time and even by the Court suo motu. He cited the case of ODU V JARIGBE (2017) 4 NWLR (Pt 1556) 445.
He further submitted that the reason given by DW1 for not tendering the original of Exhibit F is not sufficient. He also submitted that the reason given by Dw1 does not meet the conditions for the tendering of a photocopy. He referred to Section 85, 86, 87 and 89 of the Evidence Act.
He further submitted that contrary to the assertion of the Respondent, the trial Court relied heavily on Exhibit F in arriving at its decision. He thus urged this Court to discountenance Exhibit F and allow this appeal.
ISSUE 2
Learned counsel for the Appellants submitted that the trial Court did not properly evaluate the evidence before it, before delivering its decision.
First, counsel submitted that the trial Court failed to consider the unchallenged evidence
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of the Appellants to the effect that the Appellants are members of Oisa Alada family while the Respondents are not members of the Appellants? family but belongs to Asao Family of Uro. He referred to Paragraphs 5 and 19 of the Statement of Claim and Witness Statement on Oath of CW5, paragraphs 2(b), 7(g) and 11 of the Respondents? Amended Statement of Defence at pages 105, and 106 of the record and the Respondents? evidence at pages 111 and 112 of the record.
He also submitted that the above fact was admitted by DW2 under cross-examination. He referred to DW2 evidence at page 158 of the record.
He submitted that had the trial Court properly evaluated the evidence before it, reliefs (a) and (b) of the Appellants? Claim ought to have been granted.
Secondly, Counsel submitted that the trial Court did not consider the contradictory evidence of the Respondent?s witness with respect to the ownership of the land. He submitted that while Dw1 gave evidence that the land in dispute is a joint property, Dw2 stated that the land in dispute belonged to him and his family. He referred to paragraphs 6(b) and paragraphs 12 (g) iv,
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xii and xiii of the Respondents? additional Statement on Oath at page 137, 139, 158 – 160 of the record, Evidence of Dw1 at page 155 of the record and the inadmissible Exhibit F.
He contended that the failure of the trial Court to properly evaluate the evidence before it occasioned a miscarriage of justice.
Learned counsel for the Appellant submitted that the trial Court in delivering its judgment did not consider the evidence of the Appellant. Counsel refer to paragraph 21 of the Appellant?s Statement of Claim and submitted that it is the case of the Appellants that they (and not the Respondents) are the legitimate members of the Oisa Alada family and are therefore entitled to the right of occupancy of the piece of land covered by survey plan No: JAA/OD/011/86. He referred to Paragraphs 5 and 19 of the Statement of Claim and paragraphs 5 and 19 of the Statement on Oath of CW5. He submitted that the above evidence was never challenged by the Respondent and therefore deemed admitted.
Learned counsel for the Respondent submitted that contrary to the contention of counsel for the Appellant the evidence of the Appellants was properly
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considering by the trial Court.
He further submitted that assuming the Appellants? evidence was not properly considered, it is the contention of counsel that looking that the arguments of the Appellants? counsel in their brief and the pleading and evidence of the Appellants at the trial Court the trial Court was right in dismissing the case of the Appellants.
He submitted that the Appellants having relied on Traditional evidence to prove their title to the land in disputes failed to prove the ingredients of traditional history. According to counsel the Appellants failed to establish who founded the land and the names and particulars of successive ancestors through whom they claim without leaving any missing links in a genealogical tree. He submitted that only Cw5 (2nd Appellant) gave evidence as to the traditional history of the Appellants. He submitted that the traditional history of CW5 left gaps in the traditional history of the Appellants. He submitted that there was no ADEGBESAN in the family tree described by Cw5 even though the 2nd Appellant?s father name was ADEGBESAN.
?
He also submitted that the traditional history
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pleaded by the 2nd Appellant contradicts his evidence. Thus, the traditional history pleaded is without evidence and therefore deemed abandoned. He cited the case ofBUHARI V OBASANJO (2005) 2 NWLR (Pt.910) 241.
On the issue of admission, learned counsel submitted that the issue of admission is incompetent as it was never raised before the trial Court and thus did not form part of the judgment of the trial Court. He cited the case of SARAKI V KOTOYE (1992) 3 NSCC 331. He thus urged this Court to strike out issue 2 of the Appellants? brief for being incompetent.
In the alternative, counsel submitted where the issue of admission is said to have been properly raised, it is the contention that the paragraph 11 of the Respondents? Amended Statement of Defence cannot be deemed as an admission in law. Counsel reproduced the said paragraph 11 and submitted that the Respondents having put the Appellants to the strictest of proof, the said paragraph is not an admission but a denial. He referred to the case of ADEGBOYEGA V AWE (1993) 3 NWLR (Pt 280) 224. He submitted that the case cited by the Appellant differs from the instant case as the cases
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referred to the averment that say ?I cannot admit or deny? and does not refer to where a party puts the other party to the strictest of proof of a fact alleged.
He also submitted that it is trite law that to determine admission in a case, the whole pleading must be considered. He cited the case of BUHARI V OBASANJO (SUPRA); OLOWO V KWARA STATE INVESTMENT & DEVT CO (2013) 6 WRN 153. It is the contention of counsel that from the Respondents? pleading and evidence before the trial Court, the Respondent never admitted to the traditional history of the Appellants. He referred to paragraphs 12g (i & ii), iv, xii and xiii of the Amended Statement of Defence at page 106 and 107 of the record. It is the contention of counsel that it has been the case of the Respondents that the land in dispute was founded by their forefather Asao Ajilabiorangun. The mother of Oisa Alada, the ancestor of the Appellants was one of the children of Asao Ajilabiorangun and because the Oisa Alada had problem in his father?s house at Odo-Oja, Ikere-Ekiti, he relocated to his maternal grandfather?s home and was given the land in dispute to farm. He
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submitted that the Appellants? family were allowed on the land to continue farming because their ancestor is maternally related to the Respondents? family.
On the Appellants? argument that the trial Court did not evaluate the Appellants? evidence. It is the contention of counsel that the Appellants? counsel cannot approbate and reprobate at the same time. He submitted that the Appellants having earlier stated that the lower Court singled out the evidence of Dw1 as the most credible cannot now claimed that the evidence of the Appellant was not considered. He cited the case of YUSUF V OBASANJO (2006) ALL FWLR (Pt 294) 387.
On the arguments of the Appellants that the evidence of Cw1 ? Cw5 were unchallenged, counsel submitted that not only was their evidence challenged but they were also discredited under cross-examination. He further submitted that Cw1 ? Cw5 at some point gave contradictory evidence on issues such as whether the Respondents was a tenant on the land or not, on whether they know or have seen the Respondents on the land or not. He submitted that where the evidence of a party is contradictory, the
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Court will reject the evidence. He cited YUSUF V OBASANJO (SUPRA). He further submitted that if the evidence of the Appellants are rejected, the pleadings of the Appellants will be deemed abandoned as there is no evidence to support same. He cited the case of ARABAMBI V ADVANCE BEVERAGE IND. LTD (2005) 19 NWLR (Pt 959) 1.
He also contended that the evidence of Cw1 ? Cw4 are chorus and therefore unreliable. He cited the case of AJADI V AJIBOLA (2004) 16 NWLR (Pt 898) 91.
Based from the above counsel submitted that the trial Court properly evaluated the evidence and thus urged this Court not to interfere with the findings of the trial Court. However, he submitted that assuming that the trial Court did not properly evaluate the evidence, it did not occasion a miscarriage of justice. Thus, there is no need to disturb the finding of the trial Court.
He further submitted that contrary to the assertion of counsel of the Appellants the evidence of Dw1 and Dw2 were not contradictory.
He thus urged this Court to resolve this issue in favour of the Respondent.
?
Learned counsel for the Appellants submitted that the Respondent having not
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challenged the genealogical tree of the Appellants, the Respondent is deemed to have admitted that there is a link between the 2nd Appellant and the Oisa Alada family. He also submitted that the Respondent did admit that the 2nd Appellant has link with the Oisa Alada family. He referred to paragraph 9(h) of the Appellants? Statement of Claim which was admitted by the Respondent and page 14 of the Respondent?s brief of argument.
He also submitted that the Respondent having not appealed against the dismissal of his preliminary objection on whether the 2nd Appellant has locus standi, the said decision is binding. He cited ANAZODO V PIT (NIG) LTD (2008) 6 NWLR (Pt 1084) 529.
On the issue of admission, counsel submitted that the Respondent is confused on the arguments of Appellants? issue 2. It is the contention of counsel that issue 2 was based on appraisal of evidence and failure of the trial Court to consider the pleading along with the evidence adduced. He submitted that had the trial Court considered the pleadings of the Respondent wherein the Respondent admitted that the Appellants are members of the Oisa Alada family, the Court
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would have granted reliefs 1 and 2 of the Appellants? claim.
On the issue of approbate and reprobate, counsel submitted that the Respondent having failed to show where the trial Court evaluated the evidence of the Appellants, the Respondent?s argument is a non-issue.
On the issue that the evidence of Cw1 ? Cw4 were chorus, counsel submitted that Cw1 ? Cw4 gave evidence in different capacity and therefore their evidence could not have been chorus. He also submitted that the case of AJADI V AJIBOLA (SUPRA) cited by the Respondent is irrelevant.
ISSUE 3
Learned counsel for the Appellants submitted that having regards to the unchallenged evidence of the Appellants to the effect that they are member of Oisa Alada family and owners of the land in dispute and the admission of the Respondent that the Appellants are entitled to the land in dispute, it is the contention of counsel that the judgment of the trial Court is against the weight of evidence as same is not supported by the evidence on record.
On the other hand, learned counsel for the Respondent submitted that the judgment of the trial Court is not against the
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weight of evidence. He submitted that the trial Court did properly evaluated the evidence of the Appellants before reaching the conclusion that the Appellants? witnesses are not witness of truth. He went further to show instances where the Appellants? witnesses were not witness of truth:
1. The fact that Cw5 gave evidence that Oisa Alada family is senior in rank to Asao family. This piece of evidence was discredited by the evidence of Dw1 (a member of the traditional council and Registrar of the Palace Court) when he said that Asao is the head of the family where Oisa Alada came from.
2. The fact that CW5 could not explain what led to Oisa Alada leaving his father?s house at Odo-Oja.
3. The fact that CW5 could tell whether his ancestor?s father had land at Odo-Oja where he claimed they first settled; etc.
He submitted that issue 3 is incompetent having not arisen from the judgment of the lower Court which bordered on the bindingness of the judgment of the Customary arbitration and the estoppel it created.
?
On the issue of admission, counsel reiterated his earlier argument that the said issue is incompetent having
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not arisen from the judgment of the lower Court. He also submitted that assuming the said issue was properly raised, counsel submitted that there was no admission on the part of the Respondent that the Appellants are the owners or co-owners of the land in dispute.
He thus urged this Court to resolve all issues in favour of the Respondent and dismiss this appeal with substantial cost against the Appellants.
RESOLUTION
The Respondent had filed a Preliminary Objection on 11th day of April, 2019 which he argued in his Respondents brief. However, the Appellants raised a question on jurisdiction which is embodied in his issue one. I would treat that issue on jurisdiction first before attempting to treat that on preliminary objection. Respondents counsel raised or invoked a plea of Estoppel which I would determine first before treating the Preliminary Objection.
ISSUE 1
Exhibit F is the decision of the palace Arbitration Panel which both parties submitted to willingly. The decision of the Arbitration Panel is therefore binding on all the parties. The parties cannot renege on that decision.?
The Appellant in his argument
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stated that Exhibit F was inadmissible as it was wrongly admitted in evidence. Exhibit F as argued by the Appellants is not a public document and as such a Certified True Copy of the Photocopy is unacceptable since Exhibit F is not a Public document.
Generally, Photocopies of documents are inadmissible, without a proper foundation being laid to enable them admission. Thus, unless there is some credible evidence or explanation as to the existence or non-existence of the originals or as to why it was impracticable to tender the originals, the Photocopies are inadmissible. Admitting Photocopies of documents without explanation being given as to what happened to the originals of the documents offends Section 97 of the Evidence Act. FASINA VS OGUNKAYODE (2005) 12 NWLR Pt. 938 Pg. 147.
In this appeal, the Secretary/Palace Registrar DW1 stated that the original copy of Exhibit F was in the Palace and it was the practice to Certified True Copy the Photocopy as the original is always kept in the Palace. I believe this foundation laid by the Secretary/Palace Registry suffices.
The proper time to object to the admissibility of a document where
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necessary, is when it is tendered in evidence LAWSON-JACK VS S.P.D.C. (NIG) LTD (2002) 13 NWLR PT. 783 PG. 180, AVONG VS KRPC LTD (2002) 14 NWLR PT. 788 PG. 508.
Exhibit F was brought from proper custody of the Secretary/Palace Registrar who keeps such documents.
At the trial, the Appellants objected to its inadmissibility because, the document frontloaded was not Certified whereas the one sought to be tendered was Certified. The one that was Certified True Copy to my mind was a more authentic document. The Appellants in their objection did not say that the document did not embody the decision of the Palace Arbitration Panel.
The Courts in the case of OJIBAH V OJIBAH (Supra) AWONUSI VS AWONUSI (Supra) UME VS OKORONKWO (1996) LPELR 3361, IGWEGO VS EZEUGO (1992) LPELR 1458 where the Supreme Court per Ogundare JSC held inter alia:
Objection by the losing party to the decision of the Arbitration will not prevent the Court giving effect to a proper and valid Arbitration. The trial High Court find that the parties voluntarily submitted their dispute to Arbitration by the Peace Committee, they participated in the Committee?s
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proceedings, the Committee reached a decision embodied in Exhibit B. These findings were affirmed by the Court of Appeal. In my view, the trial High Court and the Court of Appeal were right in giving effect to the decision if the Peace Committee. See OJIBAH V OJIBAH (SUPRA).?
Exhibit F was the judgment of the Palace Arbitration which the Appellants argued that it was not binding on them. Okoro JCA as he then was in the case of AWONUSI VS AWONUSI (2006) LPELR 11611 held as follows-
My view is that the Respondent established and proved a valid and binding Customary Arbitration which is binding on the Appellants. The laws of this Country recognize arbitration at Customary Law and where the essential ingredients already set out in the case of EGESIMBA VS ONUZURUIKE (2002) 15 NWLR Pt. 791 Pg. 666 are present in any Customary Arbitration, it is held to be valid, it is binding on the parties and creates an estoppel.
In OJIBAH V. OJIBAH (1991) LPELR 2374, the Supreme Court per NNAEMEKA-AGU JSC held;
In my view, the law is pretty settled that where two parties to a dispute voluntarily submit that matter in controversy to
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arbitration according to Customary Law and agreed expressly or by implication that the decision of arbitration would be accepted as final and binding, then once the arbitration reach a decision, it is no longer open to either party to subsequently back out of such a decision. See also the case of OZO EZEJIOFOR OUNE VS. JACOB OBODO (1958) 3 F.S.C. Pg. 84; (1958) SCNLR (Pg. 298); OPANIN ASONG KWASI VS LARBE 13 WACA Pg. 7, NJOKU VS EKEOCHA (1972) 2 ECSLR Pg. 199, OMANHENE KOBINA VS AKESE IWACT Pg. 1. See also, ONYENGE VS EBERE (2004) LPELR 2741,OPARAJI VS OHANU (1999) 9 NWLR Pt. 618 Pg. 290.”
It would be recalled that it was the Appellant as Claimant in the Court below who filed this suit for Customary Arbitration in the Palace. The Respondent as defendant in the Court below and in the Palace submitted to the jurisdiction of the Palace Court. As held in the cases cited above, both parties are bound by the decision of the Customary Arbitration in the Palace. The Appellants argued that they protested the decision of the Arbitration. The protest came almost 3 years after. This is neither here nor there. Once you submit to the Customary Arbitration, any
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decision emanating therefrom is binding on you.
The Appellants in discrediting Exhibit F stated that the claim in the Palace did not state the boundaries of the land in dispute. However, in the Appellants statement of claim in the lower Court in para 11 stated that;
The land and boundaries are well known to the parties in this Suit.”
The Appellants was the claimant in both the Arbitration and in the Court below. He had the onus of establishing the identity and boundaries of the land he is claiming. Where a land in dispute is well known to both parties as averred by the Appellants the issue of proof of it does not arise. See OSHO VS APE (1998) 8 NWLR Pt. 562 Pg. 492, DADA VS. DOSUNMU (2006) 18 NWLR Pt. 1010 Pg. 134; OGUN VS AKINYELU (2004) 18 NWLR Pt. 905 Pg. 362; OTANMA VS YOUDUBAGHA (2006) 2 NWLR Pt. 964 Pg. 337.
The Appellants argued that Exhibit F cannot act as estoppel to further litigation. The Appellants contended that the parties and subject matter in the Arbitration are different to those in the Court below. For the Customary Arbitration Yinka Adegbesan was the sole complainant and the 2nd Claimant/Appellant in the High
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Court and in this Court. Yinka Adegbesan claimed in the Court below and the Arbitration in a representative capacity on behalf of the Oisa Alada family. Taye Akande remained the Defendant/Respondent in both cases. Both parties were representing their families.
The Appellant and Respondent both acknowledge that the land in dispute is still the same. The Appellants said that they were not satisfied with the decision of the Customary Arbitration hence this Court case. The disputed land is still the same. The Arbitration Panel visited the locus in quo. DW1 who was the Palace secretary testified that the land is the same land being litigated at all levels. The Appellants also in para 11 of their statement of claim acknowledged that the disputed land is known to both parties. It would therefore be safe to say that the parties at the Customary Arbitration were representatives of their families. The subject matter the land is the same at all levels of the case. This decision by the Arbitration in the Palace is binding and will act as estoppel for further litigation. The Arbitration Panel held that-
the two families are closely related and
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interwoven. They own this land together. The Court dismisses the complainant?s case and declares that the land is the joint property of both Oisa Alada and Asao.?
This is the decision of the Arbitration Panel both parties submitted themselves to willingly. Therefore, the decision is binding on all parties who willingly submitted themselves to the Customary Arbitration. See the cases of where the Supreme Court per IGUH JSC held inter alia;
The Nigerian Law recognizes and accepted the validity and binding nature of Arbitrations under Customary Law if it is established that;
i) That both parties submitted to the arbitration.
ii) That the parties accepted the terms of the arbitration.
iii) That they agreed to be bound by the decision of the arbitration.?
It ought to be pointed out that a Customary Law Arbitration decision has the same authority as the Judgment of a Judicial Tribunal and will be binding on the parties and thus create an estoppel. Whether, however, such a decision will operate as estoppel per rem judicatam or issue estoppel can only be decided where the terms of the
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decision are clearly known and ascertained and, where they so operate, both parties are entitled to invoke the plea. See IDIKA & ors Vs ERISI (1988) 1 NSCC Pg. 977, CHINWENDU VS MBAMALI (1980) 314 S.C. Pg. 31 JOSEPH LANBI VS OPAMS KWASI (1950) 13 WACA Pg. 81.?
He went on to hold that-
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 Arbitration to which he had previously agreed. See LARBI VS OPANIN KWASI (Supra) AGU VS IKEWIBE (Supra).”
The Appellants argued that the Panel of Arbitration was supposed to be 5. However, DW1 in his evidence stated that there were 5 Arbitrators but the quorum was 3 and in this Arbitration there were 4 of them who also appended their signatures. If the quorum was 3 it therefore means that they formed a quorum, making their Arbitration properly formed to hear the case between the parties.
Quorum as explained by the Oxford Advanced Learners Dictionary 6th Edition means
the smallest number of people who must be at a meeting before it can
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begin or decision can be made.
From the above, it means that the Arbitration Panel was properly constituted to take the decision they took. The decision they took is legal and binding on the parties.
Therefore, the decision by the Arbitral Palace Constituted Estoppel against subsequent Suit on litigation as the parties voluntarily submitted to the jurisdiction of the Palace Arbitration.
I therefore, hold that the decision by the Palace Arbitration Panel constituted Estoppel against this Suit in the trial Court and hence this Appeal.
The trial Court was right in holding that the decision by the Arbitral Panel constituted an Estoppel to the Suit in the High Court and therefore this appeal.
Having held that the decision by the Arbitration Panel constitutes an Estoppel, I would not therefore go into the remaining issues and the Preliminary Objection as it would be an exercise in futility.
This appeal is unmeritorious, it is dismissed. I uphold and affirm the decision of the High Court and that of the Arbitral Panel.
Cost to the Respondent is assessed of N100,000.00 only.
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FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, UZO I. NDUKWE-ANYANWU, JCA .
The appeal is against the judgment of the High Court of Ekiti State delivered on 25th October, 2011 by Hon. Justice O.I O. Ogunyemi.
The Appellants by a Writ of Summons together with a Statement of Claim filed on 3rd August, 2016 claimed against the Respondent as follows :-
(A) A declaration that the Claimants are members of Oisa Alada family of lkere-Ekiti.
(B) A declaration that the Defendant is not a member of the Claimants? Oisa Alada family of lkere-Ekiti.
(C) A declaration that the Claimants are entitled to the right of Occupancy of the piece of land lying, being and situate at Abepe along ljare Road, lkere-Ekiti covered by Survey Plan No: JAA/OD/O11/86 drawn by J.O.D Aigbe a licensed surveyor dated 27th January, 1986.
(D) An order of forfeiture of the customary tenancy of the Defendant on the said land and quitting the said place.
(E) An order of perpetual injunction restraining the Defendant, his agents, servants, assigns and privies from going into the land
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or stepping same or carrying out any activity there on now forthwith and henceforth.
(F) The sum of N50,000,000 (Fifty Million Naira) as general damages against the Defendant in favour of the Claimants, for Defendant?s challenge of Claimants? title to the said land.
The Respondent on his part filed an Amended Statement of Defence on 6th February, 2017. The Appellants filed a Reply.
At the trial the Appellants called five (5) witnesses and tendered four (4) Exhibits. Two witnesses testified for the Respondent and four (4) Exhibits were tendered.
At the conclusion of the trial and address of learned counsel the trial judge dismissed all the claims of the Appellants.
In the instant case, both parties had earlier submitted to Customary Arbitration by the Palace Court at lkere- Ekiti. The learned trial judge rightly found that the Palace Arbitration panel decision was binding on both parties.
The main issue for determination in this appeal is whether the decision of the Customary Palace Arbitration lkere-Ekiti settled this matter, thereby creating estoppel between the parties.
Where parties voluntarily submit
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themselves to customary arbitration and agreed to be bound by the decision of the arbitration, none of them will be allowed to resile from that agreement particularly where the conduct of the parties subsequent to that decision clearly indicate an acceptance of that decision as in this case. See Oparaji v. Ohanu (1999) 9 NWLR (Pt. 618) page 290 at where Iguh, JSC considered the binding nature of customary arbitration and held as follows:
“I think I ought to start by restating the well settled principle of law that where two parties to a dispute voluntarily submit the issue in controversy between them to an arbitration according to Customary law and agree expressly or by implication that the decision of such arbitration would be accepted as final and binding, then once arbitrators reach a decision, it would no longer be open to either party to subsequently back out of or resile from the decision so pronounced. See Opanin Kwasi & Ors v. Joseph Larbi (1950) 13 W.A.C.A 76 (P.C.), Ozo Ezejiofor Oline and Others v. Jacob Obodo and Ors (1958) S.C.N.L.R. 298, Philip Njoku v. Felix Ekeoha (1972) 12 E.C.S.L.R. 199, Equere Inyang v. Simeon Essien (1957) 2
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F.S.C. 39; (1957) SCNLR 112, etc. Arbitration under Customary Law must, however, be distinguished from arbitrations under the Act. The Nigeria law recognizes and accepts the validity and binding nature of arbitrations under Customary Law if it is established:-
I. That both parties submitted to the arbitration;
II. That the parties accepted the terms of the arbitration and
III. That they agreed to be bound by the decision of the arbitrators.
It ought to be pointed out that a Customary law arbitration decision has the same authority as the judgment of a judicial Tribunal and will be binding on the parties and thus create an estoppel. Whether, however, such a decision will operate as estoppels per rem judicatam or issue estoppel can only be decided where the terms of the decision are clearly known and ascertained and, where they so operate, both parties are entitled to invoke the plea. See Idika & Ors v. Erisi & Ors (1988) 1 N.S.C.C. 977 at 986 (1983) 2 NWLR (Pt. 78) 563. Mogo Chinwendu v. Mbamadi & Anor (1950) 13 W.A.C.A. 81, Opanin Kwasi & Anor v. Opanin Kwasi & Anor (supra) Ahive Okere & Ors v. Marcus V. Ano Joseph Larbi & Anor
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(supra) Ahive Okere & Or v. Marcus Nwoke & Ors (1991) 8 NWLR (Pt. 2009) 317. I should also observe that 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 had previously agreed. See Joseph Larbi & Anor v. Openin Kwasi & Anor (supra) and Agu v. Ikewibe (1991) 3 NWLR (Pt. 180)385.”
See also Nwankpa v. Nwogu (2006) 2 NWLR (Pt. 964) page 251, Ndah v. Chianuokwu (2006) 17 NWLR (Pt. 1007) page 74.
My learned brother dealt extensively with all the issues for determination in this appeal. I agree with his reasoning and conclusions reached thereat, that the decision by the Arbitration Panel constituted an Estoppel to the Suit in the High Court as well as this appeal.
I also agree that this appeal is unmeritorious, consequently l dismiss same. I affirm the decision of the High Court and the Arbitral Panel.
I abide by all consequential orders including order on costs.
PAUL OBI ELECHI, J.C.A.: I had a preview of the judgment of
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my learned brother Hon. Justice Uzo I. Ndukwe-Anyanw, JCA dismissing the appeal.
I agree with his resolution of all the issues in the appeal. I also adopt his reasoning and conclusion reached as mine. The appeal lacks merit and it is hereby dismissed by me also
I abide by the consequential order as to cost.
Appeal Dismissed.
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Appearances:
Taiwo Ogunmoroti with him, Temitope Kolawole, Esq., Ayantunde Adeleke, Esq., Oluwaseun Oyebanji, Esq. and Oluwasayo FagbohunFor Appellant(s)
Oluwayomi Ojo, Esq.For Respondent(s)
Appearances
Taiwo Ogunmoroti with him, Temitope Kolawole, Esq., Ayantunde Adeleke, Esq., Oluwaseun Oyebanji, Esq. and Oluwasayo FagbohunFor Appellant
AND
Oluwayomi Ojo, Esq.For Respondent
