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UDOFIA & ORS v. AKPAN & ANOR (2020)

UDOFIA & ORS v. AKPAN & ANOR

(2020)LCN/15662(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/C/275/2015

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

UchechukwuOnyemenam Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. CHIEF ARCHIBONG UDO UDOFIA 2. ARCHIBONG ARCHIBONG UDOFIA 3. AKAN UDO UDO IKOT IDEM 4. JOHN UMANA 5. IBANGA JACOB ETUK (For Themselves And As Representing Ikot Akpan Itam Village, Itu L.G. AAPPELANT(S)

And

1. GODWIN ESSIEN AKPAN 2. JAMES ETIM JAMES (For Themselves And As Representing AdangItam Village, Itu LGA) RESPONDENT(S)

 

RATIO:

DECISIONS HAVING BINDING EFFECT OVER ANY DISPUTE

See: ASSAMPONG V. KWEKU & ORS. (1932) 1 W.A.C.A. 192. In PHILLIP NJOKU V. FELIX EKEOCHA (1972) 2 E.C.S.L.R. 199 Ikpeazu, J., held that:
“Where a body of men, be they Chiefs or otherwise, act as arbitrators over a dispute between two parties, their decision shall have a binding effect, if it is shown firstly that both parties submitted to the arbitration. Secondly that the parties accepted the terms of the arbitration, and third, that they agreed to be bound by the decision such decision has the same authority as the judgment of a judicial body and will be binding on the parties and thus create an estoppel.In MBAGBU V. AGOCHUKWU (1973) 3 E.C.S.L.R. (PT.1) P.90 the issue was whether a dispute taken to a local non-judicial body of elders for settlement was binding on the parties. It was held that the decision was binding if accepted at the time it was made. If so accepted it could not thereafter be rejected. See: AGU V. IKEWIBE (1991) LPELR – 253 (SC).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”> UCHECHUKWU ONYEMENAM, J.C.A. 

 

THE POSITION OF TRADITIONAL HISTORY AND CUSTOMARY ARBITRATION

The position however is that traditional history is sometimes transmitted, received or construed with a slant by the person using it for a purpose. Hence it is essential before applying the decision of a customary arbitration as an estoppel for the Court to ensure that parties had voluntarily submitted to the arbitration, consciously indicated their willingness to be bound by the decision and had immediately after the pronouncement of the decision unequivocally accepted the award.” See: EKE & ORS V. OKWARANYIA & ORS (2001) LPELR – 1074 (SC); OKOYE & ANOR. V. OBIASO (2010) LPERL – 2507 (SC); OKEREKE & ANOR V. NWANKWO & ANOR. (2003) LPELR – 2445 (SC); ODONIGI & ANOR. V. OYELEKE (2001) LPELR – 2230 (SC)” UCHECHUKWU ONYEMENAM, J.C.A. 

 

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State, Uyo Judicial Division delivered by G. J. Abraham, J on 29th June, 2015 in favour of the Respondents. The judgment is at at pages 507-515 of the Record. The Respondents instituted this action at the Court below via a writ of summons claiming against the Appellants the following:
1. A declaration that the decision and or award made by the Itam Clan Council of Chiefs dated 6/8/2005 in Proceeding No. ICCOC/OPC/OOOl/A/005 touching and concerning the same parties, the same subject matter and the same issue herein, constitutes res judicata and as such the Defendants by themselves, agents, servants or privies cannot re-litigate on it before another Arbitration Panel having voluntarily and willingly submitted themselves to the earlier arbitration aforementioned.
2. A declaration that the Plaintiffs and the Defendants are joint and co-owners and are jointly entitled to occupation, use, possession and enjoyment of the piece or parcel of land known as and called Akai Ndedeng, lying and situate at the areacalled Ndedeng in AdangItam, Itu.
3. A declaration that the sale of some portions of the piece or parcel of land namely Akai Ndedeng, the subject matter of this suit, by the Defendants unilaterally without the prior consent, authority, knowledge and permission of the Plaintiffs or any other person from AdangItam is unlawful, illegal, invalid and of no effect as such sale undermines the interest and title of the Plaintiffs therefor.
4. An order of Court directing the Defendants and their privies to give effect to the arbitration award made by the Arbitration Panel in proceedings No. ICCOC/OPC/OOOI/A/005 in respect of the subject matter of this suit.
5. An order of Court directing the Defendants, their agents, servants or privies to render true and fair account of all the monies collected in respect of the sale of some portion of Akai Ndedeng the subject matter of this suit and payment of 50% of the proceeds derived therefrom to the Plaintiffs as co-owners of the said land.
6. An order nullifying and invalidating the sale of parts or portions of the said Akai Ndedeng by the Defendants, the sale having been made without the knowledge andconsent of the Plaintiffs who are co-owners of the said land.
7. An order of injunction restraining the Defendants, their servants, agents, privies, assigns, or any other person claiming or acting through or on behalf of the Defendants from parading themselves as the sole rightful or lawful owner of the said land in issue.
8. An order of perpetual injunction restraining the Defendants, by themselves, servants, agents, or privies from interfering with the Plaintiffs’ right, title, privileges, interest; occupation and or possession of the said land.
9. Damages of N10,000,000.00 (Ten Million Naira) for unlawfully interfering with the Plaintiffs’ use, occupation and enjoyment of the land in question.

The Appellants and the Respondents are the representatives of the two neighbouring villages of Ikot Akpan Itam and AdangItam in Itu LGA of Akwa Ibom State respectively. A dispute arose in 2004 between the two villages over the ownership of a parcel of land known as Akai Ndedeng. The Respondents claimed joint ownership of the land, while the Appellants claimed sole ownership of same. Following a petition written by the Respondents in that regard,the paramount ruler of Itu constituted an arbitration panel under the aegis of Itam Clan Council of Chiefs to resolve the dispute. The panel made an award upon the conclusion of hearing the matter. At the trial Court, both parties presented different versions of the decision reached by the panel. The Respondents claimed that the decision of the panel was for the joint ownership of the land and that the Appellants have failed to abide by the decision. In proof of their case, the Respondents called witnesses and tendered exhibits, including Exhibit 4 which is shown to be an arbitration award made by the panel.

The Appellants denied the Respondents’ claim and averred that the panel granted sole ownership of the land to the Appellants, except for the palm fruits which were to be jointly harvested. To prove their case, the Appellants called witnesses and tendered their own version of the award marked as Exhibit 8. The trial Court delivered its judgment on 29th June, 2015 upholding the decision of the arbitration panel contained in Exhibit 4 as being valid and binding on both parties.

Dissatisfied with the decision, the Appellants filed their Noticeof Appeal on 14th August, 2015 and a subsequent Amended Notice of Appeal.

The appeal was heard on 28th January, 2020. Counsel for the Appellants adopted and relied on the Appellants’ brief filed on 14th May, 2018 in urging the Court to allow the appeal, while the Respondents’ brief filed on 25th February, 2019 was adopted and relied on by the Respondents’ counsel in urging the Court to dismiss the appeal.

Mr. Essien H. Andrew of counsel presented three issues for determination in the Appellants’ brief, to wit:
1. “Whether the learned trial judge was right to hold that the respondents’ version of the customary arbitration decision by the Itam Clan Council of Chiefs was valid and binding on the appellants.
2. Assuming the customary arbitration decision was valid and binding, whether this present suit by the respondents was not caught by res judicata arising from that decision.
3. Whether the learned trial judge was right to grant the respondents a declaration they did not seek in this suit.”

The Respondents’ counsel, Mr. Unyime D. Itat, adopted the issues raised by the Appellants. I shalldetermine the appeal on the issues raised by the Appellants. However, I shall resolve the three issues together.

SUBMISSIONS ON THE ISSUES
Mr. Andrew submitted for the Appellants that for a party to successfully rely on the decision of a customary arbitration as res judicata, he must plead and prove the requirements as laid down in OKOYE V. OBIASO (2010) ALL FWLR (PT. 526) 489 AT 509 PARAS D-F. He reproduced the requirements in stressing that the Respondents failed to prove that the decision of the Itam Clan Council of Chiefs as contained in Exhibit 4 is valid and capable of operating as res judicata. He referred to the pleadings and evidence adduced by both parties in arguing that the Appellants never accepted to be bound by the customary arbitration decision contained in Exhibit 4. He urged the Court to discountenance Exhibit 4. He further cited: OHIAERI V. AKABEZE (1992) LPELR- 2360(SC).

The learned counsel further submitted that the trial Court lacked the jurisdiction to entertain this suit having conceded in its judgment that the Respondents proved the ingredients of res judicata. That the proper order the Court should have made in thecircumstance was to dismiss the suit. He referred to pages 514 – 515 of the Record; BALOGUN V. AFOLAYAN (2002) FWLR (PT. 85) 331 AT 352- 353 PARAS H-B; JIMOH V. AKANDE (2009) ALL FWLR (PT. 468) 209 AT 229-230 PARAS H-C.

On the issue of relief granted, Mr. Andrew contended that the Court is bound by the reliefs sought by the parties. Citing NWAOGU V. ATUMA (2013) ALL FWLR (PT. 693) 1893 AT 1910-1911, PARAS. H – A, he submitted that the trial Court erred in law by granting the Respondents a relief they did not seek after dismissing the other reliefs.

Arguing for the Respondents, Mr. Itat of counsel submitted that the Appellants’ counsel deviated from the crux of the matter which was regarding the validity of Exhibits 4 and 8 tendered by the parties at the lower Court. He stressed that Exhibit 4 which was signed and endorsed by the members of the arbitration is no doubt the valid arbitration proceedings of the Itam Clan Council of Chiefs decision delivered on 5th July, 2005 as opposed to Exhibit 8 tendered by the Appellants signed by only one member of the panel. He referred to the evidence of the Respondents’ witnesses, including thesecretary of the panel, confirming Exhibit 4 as the true record and decision of the panel. He added that the Respondents fulfilled the conditions precedent to the validity and bindingness of Exhibit 4 on the parties and urged the Court to discountenance Exhibit 8 as being fake and unauthentic. He cited cases in support of his submissions.

The learned counsel noted that contrary to the Appellants’ submissions, the trial Court had jurisdiction to entertain the matter. That the appellate Court is bound to interfere only where a miscarriage of justice has been occasioned to the Appellants through a substantial error in the trial Court’s judgment, such not being the case in the instant case. He referred to: ONAMADE & ANOR. V. AFRICAN CONTINENTAL BANK LTD. (1997) 1 NWLR (PT. 480) 123, in urging the Court to dismiss the appeal.

RESOLUTION OF ISSUES
A well entrenched mode of settling disputes in most of our Nigerian indigenous customary system is to refer the dispute to the family head or an elder or elders of the community for a compromise resolution based on the voluntary acceptance of the suggested award by both parties, whichthereafter becomes binding, else either party will be free to resile at any stage of the proceedings up to that point. This is customary arbitration in its simplest terms. See: ASSAMPONG V. KWEKU & ORS. (1932) 1 W.A.C.A. 192. In PHILLIP NJOKU V. FELIX EKEOCHA (1972) 2 E.C.S.L.R. 199 Ikpeazu, J., held that:
“Where a body of men, be they Chiefs or otherwise, act as arbitrators over a dispute between two parties, their decision shall have a binding effect, if it is shown firstly that both parties submitted to the arbitration. Secondly that the parties accepted the terms of the arbitration, and third, that they agreed to be bound by the decision such decision has the same authority as the judgment of a judicial body and will be binding on the parties and thus create an estoppel.”
In MBAGBU V. AGOCHUKWU (1973) 3 E.C.S.L.R. (PT.1) P.90 the issue was whether a dispute taken to a local non-judicial body of elders for settlement was binding on the parties. It was held that the decision was binding if accepted at the time it was made. If so accepted it could not thereafter be rejected. See: AGU V. IKEWIBE (1991) LPELR – 253 (SC).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In DURUAKU EKE & ORS V UDEOZOR OKWARANYIA & ORS (2001) LPELR 1074 (SC) the Supreme Court while pronouncing on the conditions for a decision of a customary arbitration to apply as estoppel per rem judicatam; ingredients for a valid and binding customary arbitration held per UWAIFO JSC on page 29 paragraphs B-F thus:
“It has been firmly held by this Court in at least two cases, namely, Agu V. Ikewibe (1991) 3 NWLR {Pt. 180} 385 and Ohiaeri V. Akabeze (1992) 2 NWLR {Pt. 221} 1; that for there to be a valid customary arbitration, five ingredients must be pleaded and proved, namely:
(a) That there had been a voluntary submission of the matter in dispute to an arbitration of one or more persons.
(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitrator(s) would be accepted as final and binding.
(c) That the said arbitration was in accordance with the custom of the parties or of their trade or business.
(d) That the arbitrator(s) reached a decision and published their award.
(e) That the decision or award was accepted at the time it was made. I think anythingshort of these conditions will make any customary arbitration award risky to enforce. In fact it is better to say that unless the conditions are fulfilled, the arbitration award is unenforceable.” MAGNUS & ANOR V. OKPOTO & ORS (2018) LPELR – 45618 (SC); ODONIGI V OYELEKE (2001) 2 S.C.N.J. 198.
In OHIAERI V. AKABEZE (supra), Akpata J.S.C. who read the leading judgment proffered a rationalisation for the need to be circumspect about customary arbitration. He observed at page 24 thus:-
“It is a common feature of customary arbitration in a closely knit community that some of the arbitrators if not all, not only have prior knowledge of the facts of the dispute, but also have their prejudices and varying interests in the matter, and are therefore sometimes judges in their own cause and are likely to pre-judge the issue. Prior knowledge and pre-judging issues are more pronounced in land disputes having bearing with the founding of the village and how families migrated to the village and come to occupy parcels of land. The arbitrators are well informed on these matters. The position however is that traditional history is sometimestransmitted, received or construed with a slant by the person using it for a purpose. Hence it is essential before applying the decision of a customary arbitration as an estoppel for the Court to ensure that parties had voluntarily submitted to the arbitration, consciously indicated their willingness to be bound by the decision and had immediately after the pronouncement of the decision unequivocally accepted the award.” See: EKE & ORS V. OKWARANYIA & ORS (2001) LPELR – 1074 (SC); OKOYE & ANOR. V. OBIASO (2010) LPERL – 2507 (SC); OKEREKE & ANOR V. NWANKWO & ANOR. (2003) LPELR – 2445 (SC); ODONIGI & ANOR. V. OYELEKE (2001) LPELR – 2230 (SC)”
The question here is whether the Respondents’ version of the customary arbitration award (Exhibit 4), by the Itam Clan Council of Chiefs was valid and binding on the Appellants. From the decisions of the Apex Court referred to above, it is apparent that the genuineness of an arbitration decision is quite different from its validity and binding nature. Both the parties and the Court seem to have mixed them up. The trial Court simply considered the genuineness ofExhibits 4 and Exhibit 8, that is as to which of the two records was the true record and decision of the panel; and thereafter arrived at the conclusion that Exhibit 4 was the valid amongst the two Itam Clan Council of Chiefs arbitration decisions tendered in Court. He went further to hold that the said Exhibit 4 was valid and binding on the parties. To the extent that Exhibit 4 was the genuine, that is, the true record and decision of the Itam Clan Council of Chiefs arbitration panel, I uphold the trial Court’s finding on the issue. The learned trial Judge however erred when he took the genuineness of Exhibit 4 as tantamount to its validity and bindingness in law.
Let me state categorically that, the germane fact that a customary arbitration decision is genuine in that it represents the true record of the proceedings and the decision of the arbitrators does not make it valid and binding on the parties. The well settled position of the law is that for a customary arbitration decision to be held valid and binding on the parties, the party alleging its validity and bindingness must plead and establish that the decision meets the followingconditions:
(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 arbitration will be accepted as final and binding.
c) That the said arbitration was in accordance with the custom of the parties or of their trade or business.
d) That the arbitrators reached a decision and published their award; and
e) That the decision or award was accepted in the time it was made.
OKOYE & ANOR V. OBIASO & ORS (supra); IGWEGO V. EZEUGO (1992) 6 NWLR (PT. 249) 561; ANYABUNSI V. UGWUNZE (1995) 6 NWLR (PT. 401) 255;EGESIMBA V. ONUZURUIKE (2003) 15 NWLR (PT. 791) 666.
Once the conditions set out above are satisfied in a customary arbitration, the arbitration will be rightly elevated to a judicial proceedings which its decision would operate or create estoppels per rem judicatam. See: ODONIGI & ANOR. V. OYELEKE (2001) LPELR – 2230 (SC). The Court must however ensure that parties overtly accepted the terms of arbitration whether directly or indirectly; and unequivocallyagree to be bound by the decision of the arbitrators before holding and or applying the decision of a customary arbitration as an estoppel. See: EKE & ORS V. OKWARANYIA & ORS (2001) LPELR – 1074 (SC).
The issue that arises therefore is whether Exhibit 4 is valid and binding on the parties to operate as estoppel per rem judicatam. I will now put Exhibit 4 to the litmus test of the five pre conditions set out above. To establish that the parties submitted to the arbitration of Itam Clan Council of Chiefs, the Respondents pleaded thus at paragraph 20 of their Statement of Claim dated 30th April, 2007 as reproduced below:
“20. The Plaintiffs and the Defendants voluntarily submitted themselves to the Arbitration Panel on 5/7/2005 and the panel at the conclusion of work made awards inter alia, that the land in dispute should remain joint property of the Plaintiffs and Defendants. The Plaintiffs and the Defendants were furnished with copies of the Arbitration Proceedings. The said Arbitration Proceedings is hereby pleaded and shall be relied upon at the hearing of this case.”
​Evidence was given to this effect, but let me statequickly, that the fact that the Appellants voluntarily submitted to the arbitration panel is not in dispute. Therein at paragraph 20 which is the only paragraph where the Respondents “pleaded the conditions for the validity and bindingness of Exhibit 4”, they pleaded that an award was made which was served on the Appellants. From the evidence before the Court based on the pleadings, the award which is contained in Exhibit 4 though made 5th July, 2005 was published on 6th August, 2005 when it was dated and signed by the members, secretary and the representative of His Royal Majesty, EdidemEkpeobongAtakpa. There is no pleading nor evidence to the effect that the parties particularly the Appellants accepted the award and agreed to be bound by it contrary to the position of the law. It does appear that the Respondents did not advert their mind to the requirements of the law regarding the validity and bindingness of customary arbitration award let alone the duty imposed on them by the law, as they did not make the slightest effort to prove the allimportantconditions that would have made the genuine Exhibit 4 valid and binding on the parties.

Unfortunately, I cannot infer the Appellants’ acceptance of the award and agreement to be bound by it from the records and for the obvious alleged position of the Appellants from the date the arbitration decision was reached even before it was published. The Respondents at paragraph 21 of their statement of claim averred that:
21. “Rather than comply with the decision/award of the said Arbitration Panel the Defendants thereafter ran amok in the Plaintiffs’ village. On or about 5/7/2005 the Defendants mobilized and invaded the Plaintiffs’ village armed with offensive weapons with which they threatened the lives of the Plaintiffs and destroyed economic trees and farm crops. Those who led the dangerous and murderous team of the Defendants were IbangaOkon Akpan Udo, Isaac Umo Udo, Ibanga Jacob Etuk, Daniel Effiong, Joshua Udo Akpan among others.”
​The above averment coming from the Respondents is a blazing fact that the Appellants did not accept nor agreed to be bound by the Itam Clan Council of Chiefs arbitration decisions and I so hold. This therefore means that Itam Clan Council of Chiefs arbitration decisions (Exhibit 4)though adjudged genuine was not valid and binding on the Appellants. The learned trial Judge was therefore wrong when he held that Exhibit 4 was valid and binding on the parties. He did not in any way relate the conditions for the validity and bindingness of Exhibit 4 with the pleadings and evidence adduced by the Respondents except to list the conditions and to say:
“In the case at hand, all the above ingredients have been satisfied with regard to the arbitration by Itam clan council between the plaintiffs and defendants.”
The above finding of the trial Court did not arise from the evaluation of the evidence before the Court, as none existed. Flowing from this, since I have held that Exhibit 4 was not valid and binding on the parties, the said Exhibit 4 cannot create an estoppel rem judicata between the parties or their privies. I hold that the trial Court had jurisdiction to hear and determine the suit.
Consequent upon all I have said above, the issue of the grant of reliefs not sought becomes academic.

The live issues having substantially been resolved in favour of the Appellants, the appeal has merit and accordinglysucceeds. Appeal No. CA/C/275/2015 is hereby allowed. I therefore set aside the decision of the High Court of Akwa Ibom State delivered on 29th June, 2015; in SUIT NO. HIT/24/2006.
I make no order as to cost.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree

MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the opportunity of reading advance the judgment of my learned brother. UchechukwuOnyemenam, JCA. I am at one with her reasoning and conclusion she arrived at that this appeal is meritorious.

I too allow the appeal and abide by the consequential orders.

Appearances:

CHRISTOPHER UTU-BAKU
For Appellant(s)

U. D. ITAT For Respondent(s)