ACHUGWO & ORS v. AKALAZU & ANOR (2021)

ACHUGWO & ORS v. AKALAZU & ANOR

(2021)LCN/15174(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, March 05, 2021

CA/OW/A/70/2016

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

1. IGNATIUS ACHUGWO 2. SAMUEL UBA 3. PETER NJANWA OKORO APPELANT(S)

And

1. FERDNAND AKALAZU 2. PAUL AKALAZU RESPONDENT(S)

WAYS BY WHICH PROOF OF OWNERSHIP OF LAND MAY BE ESTABLISHED

As rightly contended by both learned Counsel, the five established ways of proof of ownership of land are the following: 1. Traditional evidence 2. By production of documents of title 3. By acts of ownership extending over a period of time 4. By acts of long possession and enjoyment of land 5. By proof of possession of connected and adjacent and in the circumstances rendering it probable that claimant is also owner of such adjacent land See Idundun v. Okumagba (1976) 10 NSCC Page 445 at 453 Line 42; Page 457 Line 45 per Fatayi-Williams J.S.C.; Arije v. Arije (2018) 16 NWLR Part 1644 Page 67 at 88 Para. B–D per Kekere-Ekun J.S.C.; Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 329-330 Para H-A per Peter-Odili JSC. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

WHETHER A CLAIMANT CAN RELY ON THE WEAKNESS OF THE DEFENCE IN PROOF OF HIS CASE

It is settled law that a claimant has to prove his case on the strength of his case and not on the weakness of the defence unless it supports his case. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

POSITION OF THE LAW REGARDING THE EFFECT OF MINOR CONTRADICTIONS ON THE ADMISSIBILITY OF EVIDENCE OF TRADITIONAL HISTORY

It was held by the Supreme Court in the case of Kayili v Yilbuk (2015) 7 NWLR Part 1457 Page 26 at 77 Para E-F, per Ogunbiyi J.S.C. that: “The Court does not reject the evidence of a party simply on minor contradictions. This is moreso especially in situations where proof is based on evidence of traditional history, as it is in the case at hand; there are bound to be slips in the evidence of witnesses; absence of such would certainly give reason for casting doubts on the credibility and the truth of the witnesses. Traditional history of witnesses cannot come out in mathematical exactness or exactitude.” Indeed, in the Privy Council case of Kojo II v. Bonsie & Anor (1957) 1 WLR 1223 at 1226, considered as the locus classicus, it was held by Lord Denning, as follows: – “The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard, it must be recognized that in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatsoever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet but may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and seeing which of two competing histories is more probable.” Underlining Mine See also Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 330 Para B-E per Peter-Odili J.S.C.; Elegushi v. Oseni (2005) 14 NWLR Part 945 Page 348 at 366 Para F-H; at 370 Para F per Onu J.S.C. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

EFFECT OF AN UNREBUTTED ORAL EVIDENCE

It is trite law that where a Claimant adduces oral evidence which establishes his claim against the Defendant in terms of the writ and the evidence is not rebutted by the Defendant, the Claimant is entitled to judgment. See Musa v. Yerima (1997) 7 NWLR Part 511 Page 27 at 41-42, Para H-A per Onu J.S.C.; Pali v Abdu (2019) 5 NWLR Part 1665 Page 320 at 333 Para B-C per Eko J.S.C.; Adeleke v. Iyanda (2001) 13 NWLR Part 729 Page 1 at 22-23 Para A-C per Uwaifo J.S.C. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

POSITION OF THE LAW REGARDING THE PRECONDITIONS FOR THE VALIDITY OF A CUSTOMARY ARBITRATION

The Supreme Court, per Edozie J.S.C., had occasion to pronounce on customary arbitration in the case of Okereke v Nwankwo (2003) LPELR-2445(SC); (2003) 9 NWLR Part 826 Page 592, at 613 Para C-H where they held as follows:- “Speaking on the subject in Raphael Agu v Christian Ikewibe (1991) 3 NWLR (Pt. 180) 385 at 407, Karibi- Whyte, J.S.C. defined customary arbitration as an arbitration in dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either the chiefs or elders of their community and the agreement to be bound by such decision or freedom to resile where unfavourable. A decision by a Court of competent jurisdiction creates an estoppel per rem judicatam but an award by a customary arbitration will have the same consequence if certain pre-conditions are satisfied. These are distilled in a plethora of decisions of this Court. See Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1 at 23-24; Awosile v. Sotunbo (1992) 5 NWLR (Pt. 243) 514 at 532; Oparaji v. Ohanu (1999) 9 NWLR (Pt. 618) 290 at 308; Odonigi v. Oyeleke (2001) 6 NWLR (Pt. 708) 12 at 28. From the principles enunciated in these decisions, the ingredients or preconditions for a valid customary arbitration may be stated to be as follows: 1. that there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons; 2. that it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding; 3. that the arbitration was in accordance with the custom of the parties or of their trade or business; 4. that the arbitrators reached a decision and published their award and; 5. that the decision or award was accepted at the time it was made.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Customary Court of Appeal, Imo State (hereafter referred to as “the lower Court”) coram Hon. Justices P.I. Okpara (President), M.E. Njoku and V.U. Okorie, in a judgment delivered on 5/10/2014 allowing the appeal of the Respondents herein.

The facts leading to this appeal are that the Respondent and Ferdinand Akalazu (now deceased), as Plaintiffs before the Customary Court of Mbaitoli Local Government Area of Imo State, holden at Obinnoha, (hereafter referred to as the “trial Court”) instituted an action in a representative capacity against the Appellants as Defendants, seeking the following reliefs:
“a. A Declaration that the Plaintiffs are the persons entitled to the grant of Customary Right of Occupancy over that piece or parcel of land known as and called “NWAOJAA” situate at Umuokwere, Okwu, Ogbaku within jurisdiction.
b. An Order of Perpetual Injunction restraining the Defendants by themselves, their servants, agents, privies and workmen from trespassing into this NWAOJAA land

without the consent and authority of the plaintiffs first had and obtained.
c. N100,000.00 (One Hundred Thousand Naira) damages for trespass.”

In proof of their case at the trial Court, the Respondents called five witnesses, while the Appellants called four witnesses. At the close of trial, following a visit to the locus in quo and delivery of written addresses by Counsel to the parties, the trial Court delivering its judgment, dismissed the case of the Respondents. Aggrieved, the Respondents appealed to the lower Court. The Appellants also cross appealed against part of the decision. They both filed Briefs of Arguments. In the unanimous judgment of the Court, delivered on 5/12/14, the appeal of the Respondents was allowed and the judgment of the lower Court set aside. The claim of the Respondents before the trial Court was granted and the Cross Appeal of the Appellants was dismissed. Dissatisfied with this judgment, the Appellants have appealed to this Court, by a four ground Notice of Appeal filed on 5/3/2015.

In ventilation of their arguments, the Appellants, on 30/5/2017, filed an Appellant’s Brief of Arguments, deemed as

properly filed on 5/10/17, settled by Chidi B. Nworka Esq, in which three issues were distilled for determination, as follows:
1. Whether the lower appellate Court was right to hold that Respondents established the traditional history they relied upon in proof of their claim for title.
2. Whether the lower appellate Court was right in holding that proof of pledge is sufficient act of ownership to found proof of title.
3. Whether the appellate lower Court was right in affirming the decision of the trial Court that there was inconclusive evidence of the customary arbitration between the parties.

The learned Counsel to the Respondents, Chief Okey Ehieze (KSC) filed, on 20/2/2018, a Respondent’s Brief of Arguments, pursuant to the order of the Court granted on 14/2/18. He adopted the issues for determination formulated by the Appellants’ Counsel.

I shall accordingly adopt these issues, with slight amendments for succinctness but shall take the 1st and 2nd issues together, namely:
1. Whether or not the lower Court was right to hold that the Respondents established the traditional history they relied upon in proof of

their claim for title?
2. Whether or not proof of the pledge of the land constituted an act of ownership, which, coupled with proof of traditional ownership of the land, sufficiently established title in favour of the Respondent.

Appellants’ Submissions
The Appellant’s learned Counsel has submitted that the traditional history presented by the Respondent at the trial Court was contradictory, failing to establish the very source of its root, thus leaving unexplained gaps in the traditional history. Citing the case of Uwah v Uwah (2014) All FWLR Part 760 Page 1245 (CA), Counsel submitted that having failed to prove their root of title, they cannot turn round to rely on acts of ownership. There was thus no basis for the application of the Rule in Kojo v Bonsie (1957) 1 NLR Page 1223. Furthermore, there was no single recent act of ownership to warrant the application of the Rule, the proof of pledge being over 200 years ago, with no evidence of any moves to redeem the land or other acts of possession. To the contrary is the evidence of PW2 that it was the Appellants that tried to redeem the land from him. In any event, the fact that

the land was pledged by persons in possession of the same does not make the person the owner of the land.

Giving the requirements of a pledge, as held in the case of Fagge v Tukur (2007) All FWLR Part 387 Page 876, he submitted that having failed to prove their traditional history with respect to the person who allegedly pledged the land, the pledge cannot be said to have proved acts of ownership. There was also no evidence on record to prove that it is the custom of the parties that anybody who pledged the land was the owner. The lower Court was wrong, Counsel argued, to have set aside the decision of the lower Court and awarded title in favour of the Respondents.

Respondents’ Submission
The Respondent’s Counsel submitted a misconception by the Appellants’ Counsel. Agreeing that both sides relied on traditional history as their root of title and that they both traced their title to one “Oshiudu”, the difference in their genealogies, he pointed out, is that while the Appellants allege that Oshiudu inherited the land from his father Okwere who it was that deforested the land, the Respondent claims that it was

Oshiudu that deforested the land. Referring to differences in the line of inheritance by both sides, he agreed that there were inherent contradictions in the Appellants’ traditional history, thus making the application of the rule in Kojo v Bonsie Supra mandatory by reference to facts in recent years. The pledge of the land by the Respondents, as rightly held by the lower Court, was also an act of ownership, acts of ownership being one of the accepted ways of proof of title to land.

With regard to the pledge, learned Counsel submitted that the families to whom the land was pledged gave unchallenged and uncontradicted evidence of the pledge of the land in dispute, which is thus deemed admitted, with no further requirement for proof and have been in possession of the land. He cited the case of Fasoro v Beyioku (1988) 2 NWLR Part 76 Page 263 as authority for the principle that acts of ownership include selling, leasing, renting and pledging of the land. Counsel contended further that the Appellants, not having appealed against the trial Court upholding of the pledge and the trial Court being presumed as versed with the customary law of its area,

cannot fault the finding which thus subsists.

In the Appellants’ Reply Brief, learned Counsel to the Appellant contended that the Respondent’s witnesses were challenged on the pledge. He also wondered as to how a witness can be confronted with the pledge of land which does not belong to them. He insisted that a pledge alone is not conclusive proof of ownership of land.

RESOLUTION
As rightly contended by both learned Counsel, the five established ways of proof of ownership of land are the following:
1. Traditional evidence
2. By production of documents of title
3. By acts of ownership extending over a period of time
4. By acts of long possession and enjoyment of land
5. By proof of possession of connected and adjacent and in the circumstances rendering it probable that claimant is also owner of such adjacent land
SeeIdundun v. Okumagba (1976) 10 NSCC Page 445 at 453 Line 42; Page 457 Line 45 per Fatayi-Williams J.S.C.; Arije v. Arije (2018) 16 NWLR Part 1644 Page 67 at 88 Para. B–D per Kekere-Ekun J.S.C.; Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 329-330 Para H-A per Peter-Odili JSC.

In the instant case, the account of the Respondent as put forward by his witnesses is that they and the Appellants are both descendants of their ancestor named Oshiudu who deforested a large expanse of land called NWAOJAA. The said Oshiudu begat a son called Oparaunamba who was survived by three sons namely: Okwaranochie, Nwozaka and Okoroha. At the death of their father the three sons shared the landed property of their father including the NWAOJAA land. It was Okoroha who inherited the portion now in dispute. The witnesses further testified that they descended from Okoroha lineage while the Appellants descended from Okwaranochie lineage. Okoroha whilst alive divided his said land into two parts and pledged one portion to one Okorie of Umuokwere, Okwu, Ogbaku at the sum of Ukwu ego ato, while the remaining portion was pledged out to Osuagwu of same Umuokwere, Okwu Ogbaku at the sum of Ukwu ego ise.

Unknown to them, the Appellants went behind them to redeem both lands from the families to whom the properties were pledged but who refused to release the lands to the Appellants. In reaction to this refusal and in abuse of their numerical

strength, the Appellants forcibly entered into the Respondent’s said land and started claiming ownership of same.

The case of the Appellants, however, is that the larger land was deforested by Okwere their ancestor, who had two sons called Oshiudu and Ogoma and that it was Oshiudu who got the land in dispute as his own share of their father’s estate. After his death, his son Orie, got the said land and thereafter his son called Okwaranochie, the land subsequently devolving to them.

At the close of the cases of both parties, the trial Court embarked on a visit to the locus in quo on 4th April, 2012 where the trial Court saw the land in dispute and also took evidence of the Respondent’s three witnesses who are boundary neighbours to the land in dispute.

The trial Court, in its judgment at Page 102 of the Record, held:
“The Court from the evidence adduced in Court and at locus holds that Plaintiff proved their claim of Okoroha’s pledge of the two portions of this land in dispute to Okorie and Osuagwu families.
A party alleging pledge means that he is the original owner of the land and must prove title in

one of the five ways established in Okumagba v Idundun (1976) 9-10 SC, 227.”
On whether the Respondents had proved ownership, held, at Page 103:
“The Plaintiffs identified the land in dispute by calling boundary neighbours both in the Court and at locus. They gave evidence of the boundary marks like palm trees, ububra trees, ohuru and ubena trees which they showed at locus. The defendants called no boundary neighbours at the locus.”

Contrarily, it dismissed the Respondent’s case, holding, at Page 106 of the Record, as follows:
“The PW1 testified that the land in dispute was deforested by Oshiudu their forefather. But during cross-examination admitted that Okwerre begat Oshiudu and that he was not sure if Okwerre farmed on the land in dispute like Oshiudu. 1st Plaintiff, PW1, said that it was likely that Oshiudu got the land from Okwerre. PW1 was the star witness both in Court and at locus. In his cross-examination on 19/5/2011, PW1 contradicted himself that he was not sure who deforested the land in dispute. The question to ask here is whether it was Oshiudu or Okwerre his Father.
This contradiction is fatal

to the plaintiff’s’ case as they relied on traditional history in proof of their claim. The PW3 – 2nd plaintiff did not know of Okwerre while the PW4 said that Orie was the father of Oshiudu but later said it was Okwerre and called that names of the sons of Okwerre as the same as the sons of Oshiudu.
It is clear from the contradictory evidence of the Plaintiffs that they were not sure of the history of the land in dispute and therefore that suit merits dismissal.”

On appeal to the lower Court, the lower Court, pronouncing on the conflict in the traditional history of both parties, held, at Page 209 of the Record:
“From the above foregoing (sic), it is very clear that both parties traced their origin to common ancestor Oshindu (sic), but along the line while the appellants said that from Oshindu it passed to Okwaraunamba then to Okoroha, the respondents stated that the land in dispute passed from Oshindu to Orie to Okwaraunamba to Okwaranozie.
This is where the conflict that needed to be resolved by the lower Court had it adverted its mind to the ancient case of Kojo II V Bonsie (supra).
I agree with the

Counsel for the appellants that if the lower Court had applied that principle as enunciated in the case of Kojo II V Bonsie, it would have come to a different conclusion.
The lower Court further held that:
“the Appellants had by credible, cogent and reliable evidence proved that they and the Respondents derive their origin from one ancestor, Oshindu (sic). And that in such a situation, there is no requirement for the Plaintiffs, as in this case Appellants to prove who founded the land, how he founded the land and the intervening particulars before the land devolved on them.”
It held that the trial Court came to a “perverse conclusion”, further holding:
“It is the position of the law that where parties trace their origin from a common ancestor and there arose a conflict, the Court has a duty to consider the recent acts of ownership or possession as was decided in a line of cases after the celebrated case of Kojo II V Bonsie (supra) by the Privy Council.
It is settled law that a claimant has to prove his case on the strength of his case and not on the weakness of the defence unless it supports his case.

By this proposition, the case of the defence too is that their ancestor was Oshindu. The common Oshindu was also admitted by the appellants as their ancestor. And pledge has been held to be acts of ownership. See the case of Fasoro V Beyioku (supra) (sic).
It is my considered view that both parties could not have been quite sure of the stories they told of events that occurred before they were born. And that honest mistake was not a material contradiction as wrongly held by the lower Court.
In the light of the above, this issue No. 1 succeeds and it is resolved in favour of the Appellants.

I have no reason to disagree with the lower Court. As stated above, the Respondents traced their title to Oshiudu. While the Appellants went further to Okwere, who they said to be the father of Oshiudu and who it was that deforested the land, the Respondent’s witness while conceding that the father of Oshiudu may have been Okwerre, insisted that the person known to them as the one who deforested the land was Oshiudu. This fact, I hold, does not amount to a contradiction, neither does it mean that the case of the Respondents is not proved. The minor

contradictions alluded to in the genealogy of the Respondents are minor and do not impact on the cogency and credibility of these witnesses, I hold.
It was held by the Supreme Court in the case of Kayili v Yilbuk (2015) 7 NWLR Part 1457 Page 26 at 77 Para E-F, per Ogunbiyi J.S.C. that:
“The Court does not reject the evidence of a party simply on minor contradictions. This is moreso especially in situations where proof is based on evidence of traditional history, as it is in the case at hand; there are bound to be slips in the evidence of witnesses; absence of such would certainly give reason for casting doubts on the credibility and the truth of the witnesses. Traditional history of witnesses cannot come out in mathematical exactness or exactitude.”
Indeed, in the Privy Council case of Kojo II v. Bonsie & Anor (1957) 1 WLR 1223 at 1226, considered as the locus classicus, it was held by Lord Denning, as follows: –
“The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard, it must be recognized that in the course of transmission from generation to

generation, mistakes may occur without any dishonest motives whatsoever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet but may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and seeing which of two competing histories is more probable.”
Underlining Mine
See also Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 330 Para B-E per Peter-Odili J.S.C.; Elegushi v. Oseni (2005) 14 NWLR Part 945 Page 348 at 366 Para F-H; at 370 Para F per Onu J.S.C.
The alleged contradictions are thus expected and not fatal to the Respondent’s case. It is thus left to test the traditional history of the parties with recent facts.

I do agree with the learned Counsel to the Respondent that a pledge is an act of ownership of land. It is certainly rebuttable but has not been rebutted in this case. The evidence of PW4 is that the land was pledged

to his family over 200 years ago. The other witnesses of the Respondent similarly gave evidence of the pledge to PW4’s family. There was no challenge to this evidence, merely a request by defence Counsel at the trial Court, under cross examination, to know how long ago the pledge was and for how much. There was no challenge to the fact of the pledge, nor, as aforesaid, was any evidence adduced in rebuttal.
It is trite law that where a Claimant adduces oral evidence which establishes his claim against the Defendant in terms of the writ and the evidence is not rebutted by the Defendant, the Claimant is entitled to judgment. See Musa v. Yerima (1997) 7 NWLR Part 511 Page 27 at 41-42, Para H-A per Onu J.S.C.; Pali v Abdu (2019) 5 NWLR Part 1665 Page 320 at 333 Para B-C per Eko J.S.C.; Adeleke v. Iyanda (2001) 13 NWLR Part 729 Page 1 at 22-23 Para A-C per Uwaifo J.S.C.

Appellants’ Counsel has however argued that a pledge of over 200 years is not a recent fact, as contemplated in the case of Kojo II v Bonsie Supra and can therefore not confer ownership on the Respondent’s family. The facts presented by the Respondent’s witnesses,

however, are that the family to whom the land was pledged is still on the pledged land and which pledge the Appellants sought to redeem but were rejected, leading to the trespass complained of, thus qualifying, I hold, as a recent act of possession.
Furthermore, even if the argument of the Appellants is accepted that a pledge of land, without more, may not be conclusive proof of ownership of land, where traditional ownership of the land has been established, as held by the lower Court, acts of ownership, as in the pledge, will merely be a surplusage. This is because all modes of proof of title are independent and equal. It is sufficient if only one of them is proved. See Addah v. Ubandawaki (2015) 7 NWLR Part 1458 Page 325 at 343 Para C-D; at 344 Para A per Fabiyi J.S.C.; Onovo v. Mba (2014) 14 NWLR Part 1427 Page 391 at 420-421 Para F-D per Ogunbiyi J.S.C.; Biariko v. Edeh-Ogwuile (2001) 12 NWLR Part 726 Page 235 at 263 Para D per Onu J.S.C.

I accordingly hold, in resolution of issue No. 1 against the Appellant, that the lower Court was right to hold that the Respondents established the traditional history they relied upon in proof of their claim for title.

Also, resolving issue No. 2 against the Appellants, I hold that proof of the pledge of the land constituted an act of ownership, which, coupled with proof of traditional ownership of the land sufficiently established title in favour of the Respondent.

The 3rd issue for determination is:
“Whether the lower Court was right to affirm the decision of the trial Court that there was no credible evidence of arbitration by the Eze in Council binding on the parties as to act as estoppel against the Respondents.”

Appellants’ Submission
Learned Appellants’ Counsel has submitted that both parties led evidence that their dispute was arbitrated upon by a native panel headed by their traditional ruler, which arbitration was at the instance of the Respondents and that a verdict was rendered. The law is well settled that what is admitted requires no proof. Thus, the fact that there was a customary arbitration between the parties required no other proof before the trial Court, the only point of disagreement being what the actual verdict was. While Respondents said the verdict was that the land should be divided into

two, between the disputing parties, the Appellants stated that the verdict was that they owned the land.

He submitted that in resolution of this disagreement, the verdict of a customary arbitration can be proved by the best evidence available and not necessarily by written memorandum. He cited the cases of Utong V Utong 2014 ALL FWLR PT.746, 447 and Ezerioha V Ihezuo (2010) ALL F.W.L.R. PART 540, 1259. These decisions, he submitted, are in accord with the provisions of Order X Rule 5(1) of the Imo State Customary Court Rules, 1989. He considered the best evidence, in the absence of any written memorandum, to be the evidence of DW4, Eugene Amaeze, a member of the Eze’s Cabinet that conducted the arbitration, which verdict was that the Appellants owned the land. Being an independent witness and from the same village as the parties, his evidence should be believed. The trial Court, he said, was wrong to refuse to act on this best evidence available on the ground that the witness did not remember the date of the arbitration in an otherwise cogent testimony of a witness. The lower Court was therefore wrong to have affirmed the perverse decision of the

trial Court and dismiss the Cross Appeal of the Appellants against that decision.

On the binding nature of customary arbitration, and that they constitute res judicata, he cited the cases ofOparaji V Ohanu 1999 6 SCNJ 27 at 38; Onyenge V Ebere 2004 6 SCNJ 126 at 141 – 143, Okereke V Nwankwo 2003 4 SCNJ 211; Eke V Okwaranyia 2001 4 SCNJ 300. The parties have no competence to, and are estopped from re-litigating the subject matter. The trial Court thus had no jurisdiction to entertain the suit.

Respondent’s Submissions
The learned Respondents’ Counsel submitted that an Appeal Court will rarely upset the findings of fact made by a trial Court and affirmed by an appellate Court, whose findings are not treated lightly. He cited the cases of Maku V. Al-Makura (2016) ALL FWLR (Pt. 832) 1606, UGOGU V. F.R.N. (2016) ALL FWLR (Pt. 837) 588; AJI V. C.B.D.A, (2016) ALL FWLR 175.

Counsel submitted that in view of the conflicting accounts, the only way to resolve the same was to tender the written decision of the Eze in Council, the Eze himself or his Secretary, to give oral evidence of their decision, which unfortunately was not

done. DW4 who claimed to be a cabinet member could not remember when the alleged decision was made, how many persons constituted the Eze-in-Council for purposes of hearing the matter and how many times the case was heard before verdict was delivered. The two lower Courts were thus right to reject the conflicting evidence of both parties with respect to the arbitration. The provisions of Order X Rule 5(1) of the Customary Court Rules, 1989 cannot thus aid the Appellants, as the evidence of DW4 in the circumstances of this case cannot be regarded as the best evidence available.

In the Appellants’ Reply Brief, learned Counsel to the Appellants submitted, citing UKEJE V UKEJE 2014 ALL FWLR PT. 730, 1323, that a concurrent finding, no matter the number of lower Courts, which is perverse or contrary, will be set aside. The concurrent findings of the two lower Courts is perverse, he said, in view of the evidence of DW4, an independent witness, a member of the Eze’s cabinet and who participated in the arbitration.

RESOLUTION
The Supreme Court, per Edozie J.S.C., had occasion to pronounce on customary arbitration in the case of Okereke v Nwankwo

(2003) LPELR-2445(SC); (2003) 9 NWLR Part 826 Page 592, at 613 Para C-H where they held as follows:-
“Speaking on the subject in Raphael Agu v Christian Ikewibe (1991) 3 NWLR (Pt. 180) 385 at 407, Karibi- Whyte, J.S.C. defined customary arbitration as an arbitration in dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either the chiefs or elders of their community and the agreement to be bound by such decision or freedom to resile where unfavourable. A decision by a Court of competent jurisdiction creates an estoppel per rem judicatam but an award by a customary arbitration will have the same consequence if certain pre-conditions are satisfied. These are distilled in a plethora of decisions of this Court. See Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1 at 23-24; Awosile v. Sotunbo (1992) 5 NWLR (Pt. 243) 514 at 532; Oparaji v. Ohanu (1999) 9 NWLR (Pt. 618) 290 at 308; Odonigi v. Oyeleke (2001) 6 NWLR (Pt. 708) 12 at 28. From the principles enunciated in these decisions, the ingredients or preconditions for a valid customary arbitration may be stated to be as follows:

that there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons;
2. that it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding;
3. that the arbitration was in accordance with the custom of the parties or of their trade or business;
4. that the arbitrators reached a decision and published their award and;
5. that the decision or award was accepted at the time it was made.”

In the instant case, it has not been disputed by the Respondent that they submitted the dispute for resolution to the Eze in Council. This fact was admitted by them.

Under cross examination of PW1, Ferdinand Akalazu, the erstwhile 1st Respondent, before his death, the proceedings went thus:
Q. “Before you brought this suit to this Court, was there any arbitration in this suit.
A. Yes
Q. Where – which body.
A. Eze Okoronta of Okwu Ogbaku.
Q. Who took the matter to Eze Okoronta.
A. I did.
Q. What was the decision of Eze Okoronta.
A. The decision was that the side of Okorie belong to the

defendants while Osuagwu was still farming belongs to us but we refused.”

The Respondent, testifying as PW3 in examination in chief, responded to the questions put to him thus, at Page 17 of the record:
“Yes, the matter was arbitrated on locally by the Eze of Okwu. My uncle 1st Plaintiff and I were present at the arbitration.
Yes, we stated our case.
The panel passed a judgment which we refused to accept there and then. There was no way they can divide our land into two, giving the one with Okorie to the defendants and the one with Osuagwu to us because it is one land and ours.
Under cross examination, the conversation went as follows:
Q. “You know about the arbitration in respect of the land in dispute by Eze Okoronta.
A. Yes.
Q. What was the decision of the Eze.
A. He said that the one pledged to Okorie family should be given to the defendants. While that with Osuagwu should be given to us (plaintiffs) but note that the area they trespassed into is where Osuagwu family are farming. But we rejected the judgment there and then.
Underlining Mine

The star witness of the Appellant on the matter of the arbitration is DW4, Eugene Amaeze, his testimony on this issue, at page 45 of the Record, is as follows:
“A. It belongs to Okwaranochie
Q. Do you know Eze Okoronta.
A. Yes I do, he is Eze of Okwu
Q. Was there any dispute on this land before the traditional ruler of Okwu.
A. Yes.
Q. What was the finding of the Eze.
A. The Cabinet found that Okwaranochie family owned the land.
Q. How did you know this information.
A. I was a Cabinet member that time.”
Under cross examination, the testimony went thus:
“Q. Which unit did you represent in the Cabinet.
A. I represented Umuokwere village.
Q. What day was the decision made.
A. It has been long. I cannot remember the date
The trial Court on whether customary arbitration had been proved, held as follows at Pages 96-98:-
“Both parties in this suit did not give details of the said arbitration by the Eze and his cabinet. It was not clear if the decision was oral or written and no document was tendered. Also neither the Eze or the cabinet secretary was called to testify if still alive. However, the DW4

Eugene Amaeze from Umuojiaku Umuokwere gave evidence that there was an arbitration over this land before Eze Okoronta. That he knew this because he was a cabinet member. That he represented Umuokwere village of both parties in this suit. The DW4 however did not know the date of the arbitration first like the parties.
….A Court faced with the issue of customary law arbitration must first of all painstakingly take evidence, sift same and determine whether the parties agreed to the composition of the arbitration, whether the arbitrators reached a decision and published or announced the decision to the parties and also whether the parties there and then accepted the result of the arbitration. This is because a party cannot resile from the decision which he had earlier on accepted. So before a Court can properly hold that a customary arbitration constitutes an estoppel per rem judicatam, it must be convinced that there was indeed a proper arbitration. The reason being that there is a difference between customary arbitration and negotiation for a settlement. Where the intervention was merely an attempt at settlement of the dispute

between the parties,it is not binding and cannot create estoppel….The parties in this suit did not lead credible evidence to show that there was credible customary arbitration between them before the Eze Okoronta.”
The lower Court, affirming this decision held, at Page 217 of the Record, as follows:
“I am of the firm view after going through the pages of the records, that there was not credible evidence of arbitration by the Eze in council binding on the parties as to act as estoppel against the appellants. It is my considered view that the Lower Court was right in its conclusion that the verdict of the Eze in council was not credible.”

From the evidence of the parties set out above, while it is not in doubt that the Respondent’s family submitted the dispute to arbitration, it is clear that the resolution by the Eze in Council was not accepted by the Respondents, thus breaching the 5th condition stipulated above in Okereke v Nwankwo Supra, to create an estoppel per rem judicatam.
In addition, there are contradictions, I find, in the evidence of the parties, with regard to the decision of the Eze in Council.

The lower Court was thus right to affirm the decision of the trial Court that there was no “credible evidence of arbitration by the Eze in council binding” on the parties.
It is settled law that where there is sufficient evidence to support concurrent findings of fact by two lower Courts, such findings should not be disturbed unless there is a substantial error apparent on the record: that is, the findings have been shown to be perverse, some miscarriage of justice or some material violation of some principle of law or of procedure is shown. See Nigerian National Petroleum Corporation v. Roven Shipping Ltd (2019) 9 NWLR Part 1676 Page 67 at 90 Para C-D per Peter-Odili J.S.C.; Lewis v. United Bank for Africa Plc (2016) 6 NWLR Part 1508 Page 329 at 349 Para A-E per Kekere-Ekun J.S.C.
No error has been found concerning the lower Court’s decision on arbitration and neither has it been shown to be perverse or to violate any principle of law or procedure. The lower Court, I accordingly hold, was right to affirm the decision of the trial Court that there was no credible evidence of arbitration by the Eze in Council binding on the parties

as to act as estoppel against the Respondents. I again resolve this issue against the Appellants.

Having resolved all the issues against the Appellants, this appeal fails and is hereby dismissed. The judgment of the lower Court is accordingly affirmed. Costs of N200,000.00 are awarded as costs against the Appellants.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in advance the leading judgment prepared by my learned brother, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. His Lordship has painstakingly considered and resolved the issues in contention in the appeal. I agree totally with the reasoning and conclusions reached by his Lordship in respect of the issues and I do not have anything useful to add by way of contribution.

Accordingly, I too find the instant appeal to fail and hereby dismiss the same. I abide by the consequential orders in the leading judgment including the order in respect of costs.

AMINA AUDI WAMBAI, J.C.A.: I read before now, the leading judgment of my learned brother, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. His Lordship has ably considered and resolved the issues in the appeal to my

admiration. I agree with the reasoning and conclusion that the appeal is bereft of any merit. I adopt the reasoning in the lead judgment as mine in dismissing the appeal, and in affirming the judgment of the lower Court. I abide the Order as to cost.

Appearances:

Chidi B. Nwoka, Esq. For Appellant(s)

Chima Ezike (Miss) with him, D. C. Ebere, Esq. For Respondent(s)