UWAGBOE OSAGIE & ORS v. IGBINOSUN OBAZEE & ORS (2013)

UWAGBOE OSAGIE & ORS v. IGBINOSUN OBAZEE & ORS

(2013)LCN/6655(CA)

In The Court of Appeal of Nigeria

On Thursday, the 12th day of December, 2013

CA/B/309/2012

RATIO

ARBITRATION: BINDINGNESS OF ARBITRAL DECISIONS

See OJIBAH V. OJIBAH (1991) 5 NWLR (191) 296 S.C. IGWEGO V. EZEUGO (1992) 6 NWLR (249) 561. Per

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

WORDS AND PHRASES: AWARDS

WHETHER AN APPEAL COURT IS TO ALWAYS PRESUME THE JUDGMENT OF A LOWER COURT AS CORRECT

The position of law is that the presumption that the judgment of a lower court is correct is a proposition that is both elementary and fundamental to our judicial system. See: BHOJSONS PLC V. KALIO (2006) 25 NSCQLR 483. It is against this backdrop that the position of the law is also that an appellate court can only consider on appeal a matter that has been decided by the trial court or court below. See: AGBI V. OGBE (2004) 17 NSCQLR 499. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

WHETHER PARTIES CAN RESILE FROM A DECISION GIVEN BY CUSTOMARY ARBITRATORS

It is no doubt now settled law that people can resort to customary arbitration for the purpose of resolving their dispute and that the law will not allow parties to a customary arbitration to resile from the decision given by the customary arbitrators. However, before parties to a customary arbitration can be held to be bound by the decision arrived thereat, the law has also set out clearly the conditions that must be shown to exist. See in this regard the case of AGU V. IKEWIBE (1991) 4 SCNJ 56. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

1. UWAGBOE OSAGIE (Eldest man in Okaniro Village)
2. MOSES AGBONLAHOR
3. JOSEPH UWAGBOE
4. SUNDAY OSARUMWENSE (For themselves and on behalf of Okaniro Community via Benin) Appellant(s)

AND

1. IGBINOSUN OBAZEE (Odionwere of Okabere Community via Benin)
2. IYOKOWA AGBONLAHOR
3. JOHN ENOMA
4. WILFRED IYANGBE (For and on behalf of Okabere Community via Benin) Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 26/6/2012 by the High Court of Justice, Edo State holden in Benin City (hereafter simply referred to as “the lower court”) presided over by Hon. Justice C.O. Idahosa – Chief Judge (hereafter simply referred to as “the learned “C.J.”). The lower court granted the reliefs claimed in the action by the Plaintiffs before it and dismissed the counter-claim of the Defendants before it. Costs in the sum of N30,000.00 was awarded against the Defendants in respect of the counterclaim.

The instant case was commenced before the lower court by the Respondents through a Writ of Summons which issued on 27/6/1996. Parties duly filed and exchanged pleadings. The pleadings were also severally amended as considered appropriate or expedient by the parties. The last of the pleadings of the parties upon which the case was tried before the lower court are: the Further Amended Statement of Claim (No. 2) dated 19/3/2004 and deemed as properly filed on 23/3/2004; and Further Amended Defence to Counter-Claim of the Respondents on the one hand; and the Consequential Amended Statement of Defence of the Defendants on the other hand.
The Respondents in the main claim a declaration of entitlement to the customary right of occupancy in respect of the land in dispute in the light of the boundary thereof vis-a-vis the land of the Appellants’ community. In the premises of the facts pleaded in aid of their case, the Respondents sought the following reliefs against the Appellants:-

“(i) A declaration that the Plaintiffs and their Community (Okabere Community) is entitled to a customary right of Occupancy over a large piece of land measuring about half a mile by half a mile bothering or between the Plaintiffs’ Community and the Defendants’ Community stretching from the “OBO-JUNCTION” to the moat on the right hand side of the OKABERE-SAPELE ROAD AND FROM OBO JUNCTION to the boundary between Okabere village and Oka-Ogo village on the left hand side of the OKABERE-SAPELE ROAD. The said land which forms part of Okabere land. The land claimed by the Plaintiffs is verged RED in Survey Plan No. MSC/ED/2000/125 dated 1/6/2000 filed by the Plaintiffs in this case.

(ii) N1,000,000.00 (One Million Naira) damages against the Defendants jointly and severally for trespass committed on the said land.

(iii) Perpetual Injunction restraining the Defendants and their Community from further trespassing on the Plaintiffs’ Communal land aforesaid.”

The Appellants not only responded to the case of the Respondents, but also claimed the land in dispute as theirs, and for this purpose counter-claimed against the Respondents in their Consequential Amended Statement of Defence for the following reliefs:-

“(a) Declaration that the Defendants are the owner by virtue of Bini custom and tradition and under the Land Use Act of 1978 of all that piece or parcel of land as being falsely claimed by the Plaintiffs and which said piece of land is more appropriately shown, demarcated, described and delineated in the Defendants’ litigation/survey plan No. AA/ED/DOS/2000 dated 5/5/2000 and whose boundary southwards lies midway between the Defendants’ Odighi Shrine and the Plaintiffs’ Erhue Shine (sic) coursing Eastwards and Westwards.

(b) A declaration that the Plaintiffs are mere licensees in relation to the Okabere-Okaniro Road only, and Trespassers on the said land in respect of all other acts of entry carried out by themselves, their agents, servants, employers and or privies on the rest of said land.

(d) PERPETUAL INJUNCTION restraining the Plaintiffs, their generations, agents, servants, employees and or privies from trespassing, continuing the trespass, and or doing anything whatsoever with the Defendants’ entire land (including the land subject matter of this Suit as defined in Defendants’ litigation plan).” (Underlining supplied by me for emphasis).

Parties duly adduced evidence in the proof of their respective cases and tendered pieces of documentary evidence they considered relevant. Having had the benefit of the addresses of the parties and after evaluating the totality of evidence before it, the lower court entered judgment in the manner hereinbefore stated.
Being dissatisfied with the judgment of the lower court, the Appellants lodged an appeal against the same. Two Notices of Appeal were lodged at the Registry of the lower court against the judgment. The Appellants however founded the instant appeal on the Notice of Appeal dated 20/9/2012 and filed on the same date. The Notice of Appeal contains nine (9) grounds of appeal with the Appellants seeking therein that this Court should set aside the decision of the lower court appealed against; dismiss the case of the Respondents as Plaintiffs before the lower court; and grant the reliefs claimed by the Appellants in their counter-claim.

In accordance with the current Rules of this Court, parties filed and exchanged Briefs of Argument. Appellants’ Brief of Argument dated 26/11/2012 and filed on 27/11/2012, was settled by Harold Erhabor, Esq. Respondents’ Brief of Argument dated 28/3/2013 and filed on 3/4/2013 but deemed as having been properly filed and served on 6/5/2013, was settled by Chief A.B. Thomas. The appeal was entertained on 21/11/2013 and both learned lead counsel for the parties adopted and relied on the Briefs of Argument of their clients as hereinbefore identified, in aid of their respective positions in the appeal.

In their Brief of Argument, the Appellants formulated an Issue from each of the nine grounds of appeal in the Notice of Appeal, for determination of the appeal. In other words, the Appellant formulated nine (9) Issues for determination in the appeal. The Issues read thus: –

“ISSUE 1
Whether the Respondents sufficiently pleaded and proved the ingredients of a binding customary arbitration?
This issue is distilled from Ground 1 of the Appellant’s (sic) Grounds of Appeal.

ISSUE 2

Whether the matters on which fresh evidence were allowed were relevant to the Counter-Claim.
This issue is distilled from Grounds (sic) 2 of the Appellant’s (sic) Grounds of Appeal.

ISSUE 3

Whether the Respondents proved the identity of the land in dispute. This issue is distilled from Ground 3 of the Appellants (sic) Grounds of Appeal.

ISSUE 4

Whether the learned trial judge misdirected himself in law and in fact when he said the evidence of 1st Defendant who died before cross examination had no probative value.
This issue is distilled from Ground 4 of the Appellants (sic) Grounds of Appeal.

ISSUE 5
Whether the pleadings and evidence of the Respondents in respect of their defence to the Counter-Claim of the Appellants can be used to determine the substantive claim of the Respondents.

This issue is distilled from Ground 5 of the Appellants (sic) Grounds of Appeal.

ISSUE 6

Was the lower court right to have excused the proof of root of title by the Respondents for the reasons which it gave in the judgment.
This issue is distilled from Ground 6 of the Appellants (sic) Grounds of Appeal

ISSUE 7

Whether the learned trial judge adequately and sufficiently considered the Appellants (sic) Counter-Claim.
This issue is distilled from Ground 8 of the Appellants (sic) Grounds of Appeal.

ISSUE 8

Whether the court below can rightly substitute a new cause of action for the parties as opposed to the claim before the trial court.
This issue is distilled from Ground 8 of the Appellants (sic) grounds of Appeal.

ISSUE 9

Whether the trial court erred in law, by failing to make specific findings on the conflicting traditional history upon which the parties predicated their respective claims.

This issue is distilled from Ground 9 of the Appellants (sic) Grounds of Appeal.”

The stance of the Respondents in their Brief of Argument is that the sole Issue for determination in the appeal should and ought to be “whether the main issue in the entire case is the location of the boundary between the appellants and the respondents, and, what is the effects of the customary arbitration both parties submitted themselves to in respect of the Boundary dispute”. Having dwelled on the said sole Issue as conceived by them (i.e. Respondents) they however went on to respond to the Issues for determination in the appeal as formulated by the Appellants (and which Issues the Respondents observed to be proliferated and not relevant in the appeal).

The judgment of the lower court spans pages 182 – 217 of the record. On pages 182 – 184, of the record the lower court set out the claims of the Respondents as well as the reliefs sought by the Appellants in their Counter-Claim. From pages 184 – 211 of the record, the lower court also embarked upon the review and evaluation of the evidence adduced by the parties and their respective witnesses. Having done these, the lower court stated on pages 212 – 217 of the record thus:-

“I have read and considered the addresses filed and adopted by learned Counsel as well as the reply on points of law by learned Counsel for the Defendants. After due consideration of the claims and counter claims, the pleadings as severally amended and the testimony of all the parties and the witnesses, and the submissions of learned Counsel, it is my view that the issue for determination is whether the customary arbitration done by the Oba of Benin has any effect on the dispute between the parties. If the answer to the above issue is YES, what then is the nature of the effect?

There is clear and unambiguous evidence from the Oba of Benin, as PW1 in this case that he determined (sic) dispute on 23/9/93. He said he listened to the two sides to the dispute. He said he sent his chiefs to the affected communities and ruled on the matter.
The PW1 was cross-examined but he was not shaken. He maintained his stand that both parties were given a hearing.
Learned counsel for the Defendants in his address was quite uncharitable in his choice of language to describe the judgment of the Oba. See pages 9 and 10 of the said address, wherein he described the exercise at the palace as a “circus show”. He went on to describe the judgment as “the Oba’s so called judgment”.

These submissions, if they can be so referred to, are not supported by the evidence before the court. If as Defendants claim, they rejected the judgment and promptly went to court, no evidence of such court action was brought before the court.

The Oba’s judgment was handed down on 23/9/93. Plaintiffs filed this action on 17/6/96, and defendants made a counter claim only in 2004. They did not even file this action. They only made a counter claim after the case had been in court from 1996 to 2006.
The ascertainable evidence about the reaction of the Defendants to the judgment of the Oba of Benin is that they did not reject it as they have claimed through 4th Defendant and DW1.

There is evidence from 4th plaintiff that the judgment was published in a newspaper. In spite of that publication, i.e. Exhibit G, the Defendants did nothing. Exhibit G was published in October 1993.
It is strange therefore for the 4th Defendant to say that they protested promptly. Exhibit P, their letter of protest is dated 17/4/96, while their counsel’s letter Exhibit Q is dated 20/05/96, both of them written more than two and a half years after the Oba’s ruling or judgment.

Where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to customary law and agreed expressly or by implication that the decision of the arbitrators would be accepted as binding, then once the arbitrators have reached a decision, none of the parties can subsequently back out of such a decision.
See OJIBAH V. OJIBAH (1991) 5 NWLR (191) 296 S.C. IGWEGO V. EZEUGO (1992) 6 NWLR (249) 561.
In this case, there is evidence that the matter in controversy i.e. the matter of boundary was submitted to the Oba of Benin for adjudication by the parties voluntarily. There is no evidence that the Defendants refused to appear before the chiefs sent by the Oba to inspect the area. By going before the Oba with their dispute parties have to be taken as intending to be bound by the decision of the Oba. Clearly none of the parties went there to play.
Indeed the evidence is that they were before Oba Akenzua II, who in spite of his efforts could not readily deliver a judgment. From available evidence, upon the ascension of Oba Erediauwa i.e. PW1, the matter was resubmitted. Both sides appeared. There is no more evidence of voluntariness, than the attendance of the parties at the palace.
On the whole, and after due consideration, I am satisfied and I find and hold as follows:-

(a) That the two parties to the dispute voluntarily submitted their dispute to the Oba of Benin for adjudication or arbitration in accordance with Benin customary law.

(b) That by their persistent pursuit of the said arbitration or adjudication during the reign of Oba Erediauwa they are taken to have accepted that the decision shall be final and binding.

The above findings are buttressed by the clear unambiguous testimony of PW1, who in his testimony stated that

(i) He listened to both sides

(ii) Anyone dissatisfied with his Judgment could go to court.

In this instance Defendants did not go to court. Instead they wrote Exhibits P and Q which in a way are tantamount to an appeal. But they received no reply and yet chose to do nothing, until the Plaintiffs sued.
I have considered the evidence concerning the historical or oral traditions about the early history of Okabere and Okaniro. I do not think they are of much importance in a situation such as this when there is a subsisting customary decision by an authority recognised by both sides.
This is more so as the essence of all the historical/oral tradition stories is to establish the boundary which PW1 in his Judgment has settled.
On the whole therefore, I am satisfied that the Plaintiffs have proved their case and are entitled to Judgment.
In the light of all the findings above, I am also satisfied that the Defendants’ counter claim is an afterthought. If they genuinely believed in their cause, soon after judgment was handed down by PW1 they should have filed an action to assert their right, even if such an action would have had slim chances of success.
Having participated voluntarily in the customary arbitration in the palace of the Benin monarch i.e. PW1, the Defendants cannot resile from the decision on the ground that it was against them.
I acknowledge the fact that the Defendants said that they were not given a hearing at the Palace before PW1, but when PW1 testified, the question was put to him. He was asked whether it was true that Defendants were not allowed to present their case. He answered clearly and unequivocally that they were allowed to present their case. That he determined the case after hearing both sides.
In the circumstances the counter-claim fails and it is dismissed in its entirety.
In the light of the above, judgment is entered in favour of the Plaintiffs in the following terms: –
(i) It is hereby declared that the Plaintiffs and their community i.e. Okabere community are entitled to a customary right of occupancy over a large piece of land measuring about half a mile by half a mile lying and situate between Plaintiffs’ community and Defendants’ community and Defendants’ Community (sic) stretching from “Obo junction to the moat on the right hand side of the Okabere/Sapele Road and from Obo junction to the boundary between Okabere and Oka-Ogo village on the left hand side of the Okabere/Sapele road which parcel of land is verged RED in survey plan No. MSC/ED/2000/125 dated 1/6/2000 filed by the Plaintiffs and marked Exhibit A in this action.

(ii) The claim for N1,000,000.00 as damages has not been proved and this claim is dismissed.

(iii) The Defendants and their community are hereby restrained from entering the area verged Red in Exhibit A.

(vi) The Defendants shall pay costs for this action fixed at N50,000.00.

(v) The counter claim is hereby dismissed in its entirety.

(vi) Defendants shall pay N30,000.00 as costs in respect of the counter claim.” (Underlining provided by me).

An appeal is basically a rehearing of the matter entertained by the lower court, for the purpose of determining the correctness of the decision of the lower court in the said matter. It is by the grounds of appeal that an appellant gives the respondent in the appeal notice of the precise nature of his grouses/complaints against the judgment appealed against. See: LAGGA V. SARHUNA (2008) 36 NSCQLR 85. Hence the settled principle of law (from which there can hardly be a departure) that grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. Thus like pleadings of parties in a case tried on pleadings, parties to an appeal are bound by the grounds of appeal and are not at liberty to argued grounds not related to the judgment appealed against. See: NWANKWO V. ECUMENICAL DEVELOPMENT CO-OPERATIVE SOCIETY (EDCS) U.A. (2007) 29 NSCQLR 73; IKWEKI V. EBELE (2005) 21 NSCQLR 450; and NDIC V. OKEM ENTERPRISES LTD (2004) 18 NSCQLR 42.
I have hereinbefore re-produced in extenso portions of the judgment of the lower court. It is in my considered view, most clear from what has been re-produced, that the only issue which the lower court identified as arising for determination in the instance case and which it duly resolved is, “whether the customary arbitration done by the Oba of Benin has any effect on the dispute between the parties?”. The lower court further showed that if the issue is resolved in the affirmative, then the nature (or if I might say consequence or consequences) of the effect has/have to be determined. The lower court clearly saw no need to pronounce on the historical or oral traditions regarding the land in dispute and indeed never pronounced on it.
The position of law is that the presumption that the judgment of a lower court is correct is a proposition that is both elementary and fundamental to our judicial system. See: BHOJSONS PLC V. KALIO (2006) 25 NSCQLR 483. It is against this backdrop that the position of the law is also that an appellate court can only consider on appeal a matter that has been decided by the trial court or court below. See: AGBI V. OGBE (2004) 17 NSCQLR 499.Against the backdrop of all that I have said, it is my considered view that the Issue as formulated by the Respondents is more apt for the determination of the appeal. The Issues formulated by the Appellants would therefore be resolved vis-a-vis that of the Respondents.

APPELLANTS’ ISSUE 1:
The Appellants specifically questioned the correctness of the decisions/findings made by the lower court in relation to customary arbitration, by their Issue 1.

The stance of the Appellants on the issue of customary arbitration in the main is that the Respondents did not sufficiently plead the ingredients of a binding customary arbitration and never proved the same. Dwelling on the ingredients of a valid customary arbitration which the Respondents needed to plead, the Appellants reproduced copiously from a host of cases cited by them. I do not consider it expedient to set out the cases cited and/or the portions of the cases reproduced by the Appellants. It is the stance of the Appellants that the averment in paragraph 45 of the Respondents’ Further Amended Statement of Claim (No. 2) is an admission that they (Appellants) rejected the decision of the arbitration by the Oba of Benin and duly informed the Respondents of this. That the admission in the averment in paragraph 45 of the Respondents’ pleading in question, is one in respect of which there was no further dispute between the parties. The cases of Taiwo v. Adegbenro (2011) 11 NWLR (Pt. 1259) 562 at 584; and Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) 1, were cited in aid. They also referred to Section 123 of the Evidence Act on the same point. The Appellants urged this court to hold that the decision of the customary arbitration by the Oba of Benin does not constitute an estoppel per rem judicatam and consequently that they (Appellants) are not bound by the result of the said customary arbitration as the Respondents failed to aver in their pleading and prove by evidence the incidents or ingredients of customary arbitration.
Dwelling on the customary arbitration undertaken by the Oba of Benin, the Respondent submitted that the parties herein voluntarily submitted themselves to the same. Indeed, the Respondents in my considered view simply re-echoed all that the lower court said regarding the customary arbitration in question. Apparently, this is in appreciation of their role in the appeal, having not cross-appealed.
It is indisputable that the Respondents made the matter of the customary arbitration undertaken by the Oba of Benin in respect of the instant land matter an issue in their pleading referred to by the Appellants. This much is clear from the averments in paragraphs 31 – 46 of the said pleading. The situation depicted by the Respondents in the averments contained in the aforementioned paragraphs, is to the effect that the land in dispute had been part and parcel of their community land since the existence of their village and had continued to be inherited by generations from time immemorial. That it was due to the good neighbourliness that existed between the Appellants’ community/village and theirs many years ago and the fact that both communities amongst others, formed the “Oka Community”, that Appellants’ community was allocated part of the land in question to farm whenever members of Appellants’ community came requesting for land from them (Respondents) for that purpose. The Respondents also averred to the effect that though they initially reported the matter involving them and the Appellants to Oba Akenzua II, consequent to the trespass committed by the Appellants in selling some parts of the land in 1973, there was however no conclusive arbitration on the matter before the Oba joined his ancestors. That after the ascension to the throne of the current Oba of Benin, the complaint previously made to Oba Akenzua II, was renewed and consequent upon this, the Oba invited all the Oka communities (which included the communities of the two parties herein) through a letter dated 4/8/1986. That the panel constituted by the Oba of Benin to investigate the matter could not submit its report for about 7 years and as a result of this, another letter dated 19/8/1993 was written to the Oba reminding him of the pending land dispute. That as a result of the letter, the Oba of Benin invited both communities to his palace and thereafter set up another committee to investigate the matter. That the panel duly carried out its mandate and in this regard not only visited the disputed boundary but heard from both communities and submitted a report to the Oba of Benin. That the Oba of Benin on 23/9/1993, delivered his judgment in the matter and which judgment was in their (Respondents) favour. The Respondents not only made averments as to the manner in which they further published the decision of the Oba but the steps they took before getting this done. In particular the Respondents averred in paragraph 45 of their pleading referred to by the Appellants thus:-

“Paragraph 45

The Plaintiffs aver that members of the Defendants’ Community being unhappy with the judgment of the Oba of Benin decided on certain mischievous plans against the entire Okabere Community by sidetracking the customary judgment of His Highness, Oba of Erediauwa of Benin.”

The Appellants duly reacted to the matter of the customary arbitration as pleaded in the Respondents’ pleading. This they did at pages 47 – 48 of the record. The paragraphs cannot be made out because of the manner of binding of the record. On the aforementioned pages, the Appellants claimed they too made reports to the Oba of Benin. That as a result of the reports they (Appellants) made, the Oba of Benin tried to mediate in the matter and two teams visited the land in dispute for this purpose. The first team visited during the reign of Oba Akenzua II and this team after conducting an inspection at which the Respondents’ community members were present, declared to the hearing of everyone thereat that the Respondents’ people have no claim. That the second team which was again accompanied by both sides, did not carry out an extensive inspection like the first team. The second team simply selected a spot between Erhue Shrine and Odighi Shrine, as the boundary. That the representatives of both parties were informed of this and that this enraged the Respondents’ people. It is the stance of the Appellants that neither of the two teams openly declared in favour of the Respondents and this was what led the Respondents to take the matter further to the Oba’s palace and that the palace did not heed the opinion of its two teams. It is the position of the Appellants that the whole exercise at the palace was enveloped in bias, outright favoritism and injustice to the advantage of the Respondents. The Appellants further stated that they later protested the conduct of the Respondents and the Palace teams that finally gave judgment to the Respondents, to the Oba of Benin.
I am of the considered view that given the averments in the pleadings of the parties as narrated above, it is simply a figment of the imagination of the Appellants for them to say that the ingredients of a valid customary arbitration were not sufficiently pleaded. One of the cardinal or principal functions of pleadings is to give notice to the adversary regarding the nature of the case he is going to meet in court and answer upon the evidence to be adduced. From the pleadings of the parties, it is my considered view that the Respondents not only sufficiently pleaded the customary arbitration they relied upon, but that the Appellants understood the same, so much, that they pleaded the customary mediations that were undertaken at their own instance in respect of the boundary of the land in dispute and how the mediations came to be.
In any event, I cannot but note that the Appellants given the arguments/submissions in their Brief of Argument are not denying the fact that the customary arbitration as pleaded by the Respondents actually took place and that the decision of the arbitration was published to the parties. What I understand them as disputing is their having agreed to be bound by the decision of the said customary arbitration. A stance, which they claim the Respondents have admitted by the averment in paragraph 45 of their (Respondents) pleading.
It is no doubt now settled law that people can resort to customary arbitration for the purpose of resolving their dispute and that the law will not allow parties to a customary arbitration to resile from the decision given by the customary arbitrators. However, before parties to a customary arbitration can be held to be bound by the decision arrived thereat, the law has also set out clearly the conditions that must be shown to exist. See in this regard the case of AGU V. IKEWIBE (1991) 4 SCNJ 56. This is one of the cases cited in the Appellants’ Brief of Argument in relation to customary arbitration. In the case under reference, the Supreme Court dwelling on customary arbitration stated per Karibi-Whyte, JSC; at pages 70 – 72, thus: –
“It is somewhat of a surprise in view of the evidence before the learned justice of the Court of Appeal, by both parties to the appeal before him and submissions of learned counsel that he can hold and express such a strong view about a practice relied upon by the parties. The learned justice of the Court of Appeal held the view that on the strength of decided cases that the concept of customary arbitration was peculiar to the Akans of Ghana and declared at p.573:
“…………………………………
Without conceding that Nigerian law recognises customary arbitration, the learned justice went on to hold that in the light of the vesting of the judicial powers of the Constitution in the Courts named in S.6(5) of the Constitution 1979, any other exercise of judicial power would be unconstitutional and invalid. Any question as to Arbitration could only apply to the extent that and in the manner permitted by the Arbitration Act.
There seems to me some misconception about some of the provisions of Constitution 1979, and the freedom between disputing parties to settle their differences in the manner acceptable to them. It is clearly unarguable that the judicial powers of the Constitution in S.6(10 is by S. 6(5) vested in the Courts named in that section. Not so a Customary arbitration. What then is customary arbitration? 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 Chiefs or Elders of their community, and the agreement to be bound by such decision or freedom to resile where unfavourable.
In the first place a customary arbitration is not an exercise of the judicial power of the Constitution not being a function undertaken by the Courts. Secondly, customary law is by virtue of section 274(3),(4)(b) an “existing law” being a body of rules of law in force immediately before the coming into force of the Constitution 1979. Thus customary law which includes customary arbitration was saved by section 274(3)(4)(b) of the Constitution 1979. See Giwa v. Inspector-General of Police (1985) 6 N.C.L.R.369, Enyinna v. Commissioner of Police (1985) N.C.L.R. 464.
It is well-accepted that one of the many African modes of settling disputes is to refer the dispute to the family head or elders of the community for a compromise solution based upon the subsequent acceptance by both parties of the suggested award, which becomes binding only after such signification of its acceptance, and from which either party is free to resile at any stage of the proceedings up to that point. This is a common method of settling disputes in all indigenous Nigerian societies………………….
………………………….
It can be deduced from the above decisions that Nigerian Law recognises arbitrations at customary law which are distinct and different arbitration under statute, if the following conditions are satisfied: –

(a) If parties voluntarily submit their dispute to a non-judicial body to wit their Elders or Chiefs as the case may be for determination; and

(b) The willingness of the parties to be bound by the decision of the non-judicial body or freedom to reject the decision where they are not satisfied is indicated.

In the case of OJIBAH V. OJIBAH (1991) 6 SCNJ 156, the Supreme Court again had cause to dwell on customary arbitration and the Court per Nnaemeka-Agu, JSC; at page 169 stated thus: –
“As I indicated above, I do not think from the concurrent findings of the courts below on the point that the appellant expressed any reservation during the submission of the dispute to the customary arbitration body. I should also accept the concurrent finding that he did not even resile from the decision against him soon after the arbitral body handed down their award but that he tried to do so afterwards. He could not do that. In my view, the law is pretty settled that where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to customary law and agreed expressly or by implication that the decision of the arbitrators would be accepted as final and binding, then once the arbitrators reach a decision; it is not no longer open to either party to subsequently back out of such a decision.”

Before now, I have noted that the Appellants given the arguments/submissions in their Brief of Argument are not denying the fact that the customary arbitration as pleaded by the Respondents actually took place and that the decision of the arbitration was published to the parties. It must be appreciated that “publication” of the decision of a customary arbitration does not necessarily have to be contained in a document. In this regard is the settled position of the law that documentary evidence is unknown to native law and custom. See OLUBODUN V. LAWAL (2008) 35 NSCQLR 570.
The Oba of Benin testified as PW1. The totality of his evidence spans pages 81 – 82 of the record. In his evidence, the Oba stated to the effect that the matter between the parties that he entertained and adjudicated upon customarily, was a dispute “between the Okabere and Okaniro Community over their boundary”. The Oba also disclosed that it was on 23/9/1993 that he gave his decision on the matter and that the decision was as reflected in Exhibit ‘E’. The decision was that the traditional and historical Obo junction which has been the original boundary point between the two communities should remain so. It is instructive to note that the Appellants never cross-examined the Oba to show that the Oba’s decision was not published to the parties and to them in particular. What they succeeded in eliciting from the Oba under cross-examination was to the effect that the people of the two warring communities were invited to the palace before the making of the decision in Exhibit E; and also that he (Oba) does not normally entertain protests letters after he had delivered his decision in a matter. In other words, the Appellants never suggested that the decision of the Oba was never published to them talk less of furnishing any iota of evidence in support of any such situation. It would appear that it is in realization of this position that the Appellants never argued that they at any point in time prior the decision of the Oba, resiled from the customary arbitration or that at anytime immediately after the publication of the decision by the Oba, they rejected the decision of the Oba to his face. Hence resort by the Appellants to the averment in paragraph 45 of the Respondents’ pleading in aid of their position that they rejected the decision of the Oba of Benin. I must however state that by no stretch of imagination can the averment in paragraph 45 of the Respondents’ pleading be taken as an admission by the Respondents that the Appellants immediately rejected the decision of the Oba after it was made by the Oba and/or that they ever rejected the said decision as binding on them in any manner recognized by law. All that the averment in question shows in my considered view, is that the Appellants continued to act in defiance or disobedience of the binding decision of the Oba. See EZERIOHA V. IHEZUO [2010] All FWLR (Pt.540) 1259 at 1274 where Eko, JCA; dealing on the essence of arbitration and attitude of court to it, said thus: –
“The very essence of arbitration is not only alternative dispute resolution, but the promotion of the public policy to the effect that, it is in the interest of the community that there should be an end to disputes. Where parties and concerned members of the community elect that a dispute be settled out of court and in furtherance of the same there was a mediation and the terms of settlement announced which are acceptable to the parties, the court of justice should not treat such mediation lightly. Since agreements are meant to be honoured and equity acts in personam, the law and equity will act in unison to estop a party to such mediation or out of court settlement who had accepted the terms of settlement from reneging and acting to the contrary of what he had accepted.”
See also the cases OKOYE V. OBIASO [2010] All FWLR (Pt. 526) 489; and KOLAWOLE V. OLORI [2010] All FWLR (Pt. 514) 35. These cases clearly show that once the decision or award of an arbitrator is accepted as at the time it was made, the parties to the dispute settled by the arbitrator will not be allowed to resile or renege from the decision.
I have before now, re-produced extensively, the reasoning of the lower court regarding the issue of the customary arbitration to which parties in the instant case by their respective communities voluntarily submitted to, and I cannot but agree with conclusion of the lower court on the matter against the backdrop of all that I have also stated hereinbefore. Flowing from all that has been said is that Appellants’ Issue 1 is resolved against them.

APELLANTS’ ISSUE 8:
It is the stance of the Appellants on this Issue that the lower court substituted a new cause of action for the parties as opposed to the claim before it. In this regard the Appellants argued that it was wrong for the lower court to have found that the dispute between the parties was not one over title to the land in dispute but rather one in relation to boundary. That this amounted to a substitution of a cause of action different from that submitted to the court for adjudication. That the court as well as the parties are bound by the case put forward by the parties and the case of Ojo-Osagie v. Adonri (1994) 6 NWLR (Pt. 349) 131 at 154, was cited in aid. The Appellants further argued that where a court is constrained to raise an issue upon which to determine a case the parties ought to be heard on it and the case of State v. Oladimeji (2003) 14 NWLR (Pt. 839) 57 was cited in aid. The Appellants went further to relate the fact that the lower court made a new case for the parties to the Respondents’ claim for declaration and relied heavily on the case of Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) 1 at pages 51 – 52, which was re-produced in their Brief of Argument.
Dwelling on this Issue, the Respondents submitted to the effect that the lower court did not substitute a new cause of action for the parties. That the parties themselves having regard to their respective pleadings, oral evidence and documentary evidence, particularly the evidence of the Oba of Benin showed that the single issue for resolution in the case is that of boundary between the Appellants’ community and theirs (i.e. Respondents’ community). That all the other facts pleaded including those introduced by the numerous amendments to the pleadings and historical facts were geared toward the proof of the exact boundary location between both communities. This Court was urged to look into the case in this light and that if this was done, it would be seen that there was no need to go through the hog of title or no title as the customary overlords of both parties, (i.e. Oba of Benin) having listened to the parties orally including the fact finding report from his (Oba) chiefs had already given his decision to his subjects on the sole issue presented to him, which was where the exact boundary lay between both communities. That this is particularly so as all the land in Bini Kingdom belonged to the Oba before the advent of the Land Use Act. That (Respondents) have sued for declaration of entitlement to customary right of occupancy after the customary custodian of the Bini people had decided on what is the accurate boundary between both communities. Hence it is the stance of the Respondents that the case of Dunze v. Nwosu (supra) is not applicable in the circumstances of the instant case. This is particularly so as parties in the Odunze case (supra) never submitted themselves voluntarily or otherwise to customary arbitration whose decision would be binding on them. That if this had been the case, the Supreme Court would perhaps have applied the doctrine of estoppel and the judgment would have been different. It is the stance of the Respondents that the evidence of the Oba as to the exact boundary between his two subject communities should be given over-riding prominence in view of the fact that he is an expert on his people’s custom and traditions. That the Oba being the custodian of the Bini custom and former Trustee of all Bini Lands until the advent of the Lands Use Act of 1978, his decision on the tradition/history of his people where there is conflict in parties’ case should and, ought to be relied upon. The case of Nwawuba v. Elemuo (1988) 2 NWLR (Pt. 78) 581 at 584 was cited in aid.

The Appellants it is to be noted made submission in this vein in their Brief of Argument at paragraph 10.04 on pages 22 – 23: –

“When the particulars in the Statement of Claim are read along with the claims made by the Respondents, it is manifest that this simply was a land dispute not just a boundary dispute as the lower court would appear to have described the Respondents’ case. In the nature of evidence called by the parties, there is no doubt that parties were neighbours who shared a common boundary line. Notwithstanding that the dispute was as to where the boundary line lay, it was still necessary for the Respondents to show the origin of their title and explain in the process how the boundary line came to be at the point where the Respondents claimed it was.”

It is however to be noted that in arguing their Issue 1 (which has been resolved against them) the Appellants submitted in paragraph 4.10 on page 11 of their Brief of Argument thus: –
“Since the Respondents failed to aver in their Further Amended Statement of Claim No.2 and prove by evidence the above stated incidents or ingredients of customary arbitration, we urge My Lords to hold that the decision of the customary arbitration does not constitute an estoppel per rem judicatam and consequently the Appellants were not bound by the result of The Oba of Benin in this case.”

The inference I make from the portions of the Appellants’ Brief of Argument re-produced above, is that the Appellants concede that the decision in a customary arbitration can constitute estoppel per rem judicatam. In any event, see the case of INYANG V. ESIEN (1957) SCNLR 112, cited by the Appellants. At page 115 it was stated to the effect that the decision in a customary arbitration that is binding on the parties thereto can constitute res judicata; whereas that of a settlement cannot. It is however the stance of the Appellants that the decision of the Oba of Benin in the matter between the communities now represented by the parties herein, cannot operate as res judicata having regard to the claims of the Respondents.
I have painstakingly read the Odunze case (supra) relied heavily upon by the Appellants and I cannot but note that a particular decision is useful upon its peculiar facts.
The dispute referred to the Oba of Benin and upon which the Oba pronounced, was as to the extent of the boundary of the land of the community of the Respondents vis-a-vis the land of the community of the Appellants given the acts of the Appellants in selling parts of the land of the Respondents in 1973. It was in the face of this complaint that the Oba of Benin pronounced upon the boundary between the two communities as being at the historical Obo Junction. The Odunze case (supra) shows that a case in which the exact location of boundary is disputed must necessarily involve a determination of which part of the land beyond or within the disputed point belongs to who. It is therefore inconceivable how the Oba of Benin in pronouncing on the boundary between the Respondents’ community and Appellants’ community respectively, in the peculiar circumstances of the matter involving the parties can be said not to have decided the question of the title to the land being claimed by each of the two warring communities in the circumstances of the complaint made to the Oba.
The decision in a customary arbitration it must be appreciated is not in the same league with that of a court where one of the parties thereto does not resile from the arbitration at any time before the customary arbitrator reaches a decision or the decision reached by the customary arbitrator is not rejected at the point it is made, or immediately thereafter. Parties thereto are bound with the decision for entirety as it were.
The lower court clearly saw that all the averments in the Respondents’ pleading were designed for the purpose of enforcing as it were the decision of the Oba of Benin regarding the boundary between the two communities of the parties and which decision had not only settled the issue of title concerning the land in dispute but a decision from which the Appellants could no longer resile and which at all material times to the filing of the instant action they (Appellants) had never rejected in any manner known to law. I have before now, reproduced the reasoning of the lower court in identifying the sole Issue for determination in the instant case as being “whether the customary arbitration done by Oba of Benin has any effect on the dispute between the parties”? It was in considering the issue that the lower court said thus: “In this case there is evidence that the matter in controversy i.e. the matter of boundary was submitted to the Oba for adjudication by the parties voluntarily.” And later on said: “I have considered the evidence concerning the historical or oral traditions about the early history of Okabere and Okaniro. I do not think they are of much importance in a situation such as this when there is a subsisting customary decision by an authority recognized by both sides. This is more so as the essence of all the historical/oral tradition stories are to establish the boundary which PW1 in his judgment has settled.” I do not understand the lower court to have substituted any new cause of action for the parties as contended by the Appellants having regard to the pleadings in the instant case. All that the lower court has done is to appreciate the fact that the issue regarding title to the land within the two contending boundaries held to by the parties before the Oba of Benin, has been duly resolved by the Oba given his decision fixing the boundary where it was i.e. at the historical Obo Junction. I definitely cannot fault the lower court in this regard. The situation would have been different if the Appellants had adduced evidence to establish the fact that the decision of the Oba of Benin was not binding on them and the lower court had made a finding in that respect in favour of the Appellants. In that situation it would have been fatal to the case of the Respondents if they did not plead their root of title to the land in dispute and established the same by credible evidence. In other words for as long as the decision of the Oba remains, the question of title to the parcels of land on each side of the boundary as decided by the Oba, is no longer in dispute. For the same reasons as elaborately canvassed above, the Issues questioning the correctness of the position of the lower court in not making specific findings on conflicting traditional history; Respondents’ root of title and identity of the land in dispute (which is undoubtedly known by the parties that have been found to be bound by the customary arbitration undertaken by the Oba of Benin), are academic. This is because and as rightly stated by the lower court the subsisting decision of the Oba in the customary arbitration he undertook and upon which the Respondents have substantially based the instant case renders these unnecessary.
Flowing from all that has been said is that Appellants’ Issues 3, 6, 8 and 9 are resolved against them.

APPELLANTS’ ISSUES 2, 5 AND 7:

These three Issues relate to the counter-claim of the Appellants and I will consider them together. The Appellants have rightly submitted to the effect that the substantive or main case and counter claim are two separate actions. The Appellants in my considered view also rightly submitted that it is due to the position of the law that a counter-claim is an independent action, that it (counter-claim) has its own set of pleadings and that the facts pleaded by each party must be established by credible evidence at the trial unless they are admitted. The cases of Okonkwo v. C.C.B. (Nig) Plc (2003) 8 NWLR (Pt. 822) 347 at 402 – 403; and Ladunni v. Wema Bank Ltd (2011) 4 NWLR (Pt. 1236) 44 at 67 – 68 cited by the Appellants are apt in relation to counterclaim.
Applying the principles relating to counter-claim to the instant case, the Appellants submitted that it was erroneous in law for the Respondents to have led evidence in defence to their (Appellants) counter-claim over nine months after they (Appellants) closed their case and filed their written address. That the evidence adduced by the Respondents in defence of the counter-claim ought to have been adduced immediately after the close of the defence/presentation of the counter-claim. That the procedure adopted by the lower court in permitting the Respondents to lead evidence in defence of the counter-claim after they (Appellants) had filed their written address on the said claim was prejudicial and in breach of their (Appellants) right to fair hearing. It is the stance of the Appellants that the pleading and evidence that the parties voluntary submitted themselves to customary arbitration which was relied upon by the lower court to determine the main suit was pleaded in the Respondents’ Further Amended Defence to Counter-Claim No. 4 at page 52 of the record, and that it was therefore erroneous in law for the lower court to have used the pleading and evidence in the defence to the counterclaim to determine the main suit.
Dwelling on the Issue as to whether the lower court adequately considered their counter-claim, the Appellants in the main anchored their submissions on the need on the part of the Respondents to have pleaded their root of title and to have led evidence in the proof of the same. It is the stance of the Appellants that though the lower court did not ascribe any probative value to the evidence of the Respondents in the proof of the counter-claim, it still dismissed the same. The Appellants submitted that the approach adopted by the lower court in dismissing their counter-claim was wrong and manifestly perverse.
Dwelling on the Issue of the Appellants relating to their counter-claim, the Respondents urged the Court to dismiss Appellants’ Issues 2 and 5 as the instant case has to do with the location of the customary boundary between the two different communities. Reference was made copiously to the pleadings of the parties in aid of the submission. The Respondents made the point that at all material times before PW1testified in the case, the Appellants had no counter-claim in the matter. That in the circumstances all the issues raised by the Appellants against the decision of the Oba of Benin were addressed by the Oba himself when he testified as PW1 on 16/10/98 and that the lower court was perfectly correct to treat the case the way it did. That the arguments on the issues tantamount to mere academic exercise.
Dwelling on the submission of the Appellants accusing the lower court of having not adequately and sufficiently considered their counter-claim, the Respondents submitted that the lower court needed not to have re-stated the evidence before it to show that it adequately considered the counter-claim. That the law does not require the lower court to specifically state reasons for its holding on every piece of evidence led. That the lower court properly narrowed the main issue for determination in this suit and the fact that the Appellants could have used more pages to do the same does not reduce the legality of the evaluation of evidence on the Appellants’ counter-affidavit, vis-a-vis the Respondents’ claim as well as the defence of the Respondents to the counter-claim.
As already stated by me the Appellants are very correct regarding their analysis of a counter-claim. The Appellants would however appear to have seriously misapprehended the manner of trial in an action with a counter-claim to the extent that they would appear to believe that evidence adduced in a case with a counter-claim is compartmentalized or categorized into “evidence in the main suit” and “evidence in the counter-claim” as it were. All that is required in a trial on pleadings is for the trial court to identify the matters on which parties have joined issues that call for resolution and use the evidence adduced before it on the said issues (if such evidence has been adduced) to resolve the issues in dispute. It is against the backdrop of what a counterclaim is, that the position of the law is that where the plaintiff in the main action fails, it does not necessarily follow that the counter-claim must succeed unless findings are made in the main action in favour of the plaintiff in the counter-claim (i.e. defendant in the main action) entitling him to succeed. This is because the counter-claim being an independent action by itself, the plaintiff therein can only succeed on the strength of his own case and not on the weakness of the defence. See OLUBODUN V. LAWAL (2008) 35 NSCQLR 570 at 644. In other words evidence adduced in a case with a counter-claim is freely used by the court to resolve the matters in respect of which parties are in disagreement.
Now, with specific reference to the submission of the Appellants that it was the pleading in the Respondents’ defence to their (Appellants) counter-claim that the lower court used in resolving the issue of customary arbitration; it would appear that nothing can be more further from the truth. In this regard, I have before now in the treatment of Appellants’ Issue 1 identified the averments in the pleadings of the parties that put in issue in the main case the fact of the customary arbitration undertaken by the Oba of Benin. The averments in this regard are not from the Respondents’ defence to the Appellants’ counter-claim. In any event the Respondents have glaringly shown that the Appellants had no counter-claim in the instant case as at the time the Oba of Benin testified concerning the customary arbitration he undertook in the matter between the communities now represented by the parties herein. It is therefore not in parity with common sense or indeed the law to argue that the evidence of the Oba of Benin was in aid of an averment which had not come into existence at the point in time the evidence was given.
In my considered view, the lower court having correctly identified the sole issue for determination in the instant case, glaringly gave the counter-claim the consideration it deserved and correctly too, found it (counter-claim) to be an afterthought having regard to the circumstances and what the Appellants were claiming therein. Indeed, the very fact of the Appellants’ counter-claim in the manner it is couched (and which I had earlier underlined above), knocked out the bottom from any argument or stance that the Respondents did not prove the identity of the land in dispute or that the land in dispute is not known to them (Appellants). This must be so as it is simply incomprehensible how the Appellants can in the action brought by the Respondents in relation to a parcel of land, claim ownership of the very parcel of land or part thereof for that matter, if they do not know the identity of the land to which the Respondents’ case relates in the first place.
Aside from this, the finding of the lower court regarding the subsistence of the decision of the Oba of Benin in relation to the land in dispute clearly rendered the counter-claim unsustainable for as long as the Appellants remained bound by the decision of the Oba of Benin. I therefore do not see why the lower court can be said to have been wrong in dismissing the counter-claim of the Appellants.
Flowing from all that has been said is that Appellants’ Issues 2, 5 and 7 are resolved against them.
APPELLANTS’ ISSUE 4:
Dwelling on this Issue the Appellants submitted that the position of evidence of a witness, who died before cross-examination on his evidence-in-chief, is settled. It is that such evidence is legal but the weight to be attached to such evidence should depend upon the circumstances of each case and the case of Mafidoh Okwa v. Iyere Iwerebor & Ors (1969) All NLR 83 at 86 was cited in aid. It is the stance of the Appellants going by this authority that the lower court misdirected itself in law and in fact when it held that the evidence of the “1st Defendant” has no probative value. This is because the lower court did not indicate that its decision was not to attach any weight to the evidence. That it was prejudicial to them (Appellants), that the evidence of the “1st Defendant” was excluded without any consideration on the basis of the said misdirection.
Dwelling on this Issue, the Respondents submitted that the decision of the lower court in not ascribing any probative value to the evidence of the “1st Defendant” who died before he was cross-examined has not occasioned any miscarriage of justice, nor prejudiced the case of the Appellants. This is particularly so as the said “1st Defendant” had not completed his evidence-in-chief before he died.
It is the stance of the Respondents that the evidence of a witness who never completed his evidence-in-chief for whatever reason cannot have any probative value. That such evidence is to be treated as abandoned and cannot be considered for any purpose. That the Okwa case (supra) therefore has no application in the instant case. That cases where the witnesses concluded their evidence-in-chief but were yet to be cross-examined are distinguishable from instances of “abandoned” evidence. That the Appellants, in any case have not shown how the evidence of the “1st Defendant” in question, could have changed the outcome of the trial at the lower court.
I would have wanted to consider this Issue in the light of the provisions of the extant Constitution of the Federal Republic of Nigeria relating to fair hearing particularly as the decision relied upon by the Appellants is one that pre-dated the coming into effect of the said extant Constitution. I however have to restrain myself from doing this as the Respondents have brought out the facts relating to the Issue into proper perspective having regard to the record.
In other words the Respondents have correctly shown that the situation in relation to the “1st Defendant” is not that of a witness that had completed his examination-in-chief before he died as the Appellants deliberately and wrongly too, portended the situation to be. In the circumstances to dwell on Appellants’ Issue 4 in the light of the extant Constitution would amount to dwelling on a factual situation that has no basis in the appeal.
Having regard to the factual situation on record, in relation to the “1st Defendant” to which Appellants’ Issue 4 relates, it is in my considered view that the Issue actually needs no consideration inasmuch as it is in the realm of a hypothetical situation. Without much ado the said Issue (i.e. Appellants’ Issue 4) is hereby resolved against them.
In the final analysis, and having resolved all the Issues formulated for the determination of the appeal against the Appellants, I find the instant appeal to be devoid of merit. It is hereby dismissed. The judgment of the lower court delivered on 26/6/2012 is accordingly affirmed.
Costs of N50,000.00 is awarded the Respondents jointly and against the Appellants jointly and severally.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had the privilege of reading the judgment in draft just delivered by His Lordship, the Hon. Justice A.O. Lokulo-Sodipe, JCA. Hence, I cannot but concur with the reasoning and conclusion reached therein, to the effect that the instant appeal is devoid of merits. The appeal is accordingly hereby dismissed. Resultantly, the vexed judgment, delivered by the High Court of Edo State on 26/6/2012 is affirmed.
I abide by the consequential Order of costs of N50,000.00 awarded in favour of the Respondents against the Appellants.

TOM SHAIBU YAKUBU, J.C.A.: Having perused the draft of the judgment, just delivered by my Lord AYOBODE OLUJIMI LOKULO-SODIPE, JCA., with whom I completely agree that this appeal is lacking in merits, I, too dismiss it. I have nothing more useful to add to his Lordship’s lucid reasoning and conclusion on the appeal.
I, affirm the well considered judgment of C.O. Idahosa, CJ., on Suit No. B/411/96 delivered on 26th June, 2012, accordingly.
I, abide by the order as to costs contained in the lead judgment.

Appearances

3rd and 4th Appellants are in Court.
H.G. Erhabor with M.O. OjoghoFor Appellant

AND

4th Respondent is in Court.
Chief A.B. Thomas with Jubril Eroh; and Robinson ImadeFor Respondent