MAGNUS & ANOR v. OKPOTO & ORS
CITATION: (2018) LPELR-45618(CA)
In the Court of AppealIn the Port Harcourt Judicial Division
Holden at Port Harcourt
ON FRIDAY, 20TH JULY, 2018Suit No: CA/PH/49/2014
Before Their Lordships:
ISAIAH OLUFEMI AKEJU Justice, Court of AppealCORDELIA IFEOMA JOMBO-OFO Justice, Court of AppealBITRUS GYARAZAMA SANGA Justice, Court of Appeal
Between1. MR. OSOWEI MAGNUS2. MR. OSOWEI VICTORY(For themselves and on behalf of Osowei Family ofAgbura Town in Yenagoa Local Government Area ofBayelsa State)
- Appellant(s)
And1. MR. IKESIYE OKPOTO2. MR. ENIEKI OKPOTO3. MR. EGBERI OKPOTO4. MR. ABEBE OKPOTO5. MR. DIASUEME OKPOTO6. CHIEF OGBOMA OZEGE7. MR. MESSRS PONOMO AFERE8. MR. OPULU OKUONU9. MR. EBOBU IGWE(For themselves and on behalf of Beneclaker &Okpoto descendants of Agbura Town in YenagoaLocal Government Area of Bayelsa State)
- Respondent(s)
RATIO DECIDENDI
(201
8) LP
ELR-45
618(
CA)
1. ACTION - COUNTER-CLAIM: Duty of a defendant who counter-claims"The law is trite that a counter-claim is the claim of the Defendants itmust therefore be proved on the same standard with the claim. Thecounter-claimants therefore must succeed on the preponderance ofevidence they adduced during trial and not on the weakness of theClaimants claim unless where the evidence of the defendant strengthenhis claim. In EZEKIEL OYINLOYE V BABALOLA ESINKIN & ORS (1999)LPELR - 2886 (SC) the Apex Court held, per EJIWUNMI JSC, on page 15paragraphs B - D thus: -"It is also settled law that a plaintiff must succeed on thepreponderance of evidence he led, and on the strength of his own case,not by the weakness of the defence unless of course he finds in theevidence of the defence facts which strengthen his own case. SeeAkinola & Anor V Oluwo & 2 Ors. (1962) 1 SCNLR 352; (1962) 1 All NLR224 per Unsworth F.J. at 227; Woluchem & Ors V Gudi & Ors. (1981) 5SC 291 per Idigbe J.S.C. at 294".Per SANGA, J.C.A. (Pp. 21-22, Paras. B-A) - read in context
2. ACTION - PLEADINGS: Effect of failure to call evidence in support ofpleadings"It is my holding on this issue that the Respondents failed to adduceenough evidence in support of their pleadings in paragraphs 23, 24 and25 of their Statement of Defence and Counter-Claim, neither did theyproduced any documentary evidence in support of their pleadings. InCAMEROON AIRLINES V MR. MIKE E. OTUTUIZU (2011) LPELR - 827 (SC)the Supreme Court per RHODES-VIVOUR, JSC held on page 36paragraphs C - D thus: -"Averments in pleadings are facts as perceived by the party relying onthem. There must be oral or/and documentary evidence to show thatthe facts pleaded are true. Consequently, pleadings without evidenceto support it are worthless."Per SANGA, J.C.A. (P. 22, Paras. A-D) - readin context
(201
8) LP
ELR-45
618(
CA)
3. APPEAL - GROUND(S) OF APPEAL: Whether a ground of appeal isdirected at an obiter dictum or the ratio"I have noted that learned counsel to the respondents insinuated in hissubmission that the holding by the learned trial Judge on pages 390 to392 that: -"Besides the foregoing. I must also observe that it is even doubtfulwhether all the ingredients of a Valid Customary arbitration werepleaded and proved in this case. In EKE V OKWARANYA (2001) 12 NWLR{Pt. 726} 181 the Supreme Court in its lead judgment by SamsonOdemwingie Uwaifo JSC, confirming its earlier decisions in OHIAERI VAKABEZE (1992) 2 NWLR {Pt. 221} 1 stated "for there to be validcustomary arbitration, five ingredients must be pleaded and provednamely........."is an obita dicta as opposed to a ratio decidendi. With respect tolearned counsel that holding by the learned trial Judge wherein he citeddecisions of the Apex Court and copiously quoted its holdings cannot beand is not an obita dicta. As can be gleaned from the judgment it is aspecific and weighty findings of the trial Court as to the applicability ofthe customary arbitration award. The law is trite that grounds of appealmust be couched from a ratio decidendi of the judgment and not anobita dicta. See MOHAMMED V LAWAL (2005) 9 NWLR {Pt. 985} 400 AT405. It therefore follows that ground 1 of the Appellants AmendedNotice of Appeal and issue 2 formulated from it is an attack on thespecific holding of the lower Court and I so hold."Per SANGA, J.C.A. (Pp.38-39, Paras. D-E) - read in context
4. APPEAL - INTERFERENCE WITH FINDING(S) OF FACT(S):Circumstances in which an appellate court will interfere with thefindings of facts made by a lower court"It is my finding on this issue that the decision of the lower Court in itsjudgment delivered on 21st May, 2013 was persistent in error as itignores the facts and evidence before it which amounted to amiscarriage of justice. In NATIONAL ELECTRIC POWER AUTHORITY V J.A.OSOSANYA & ORS (2004) LPELR 1960 (SC) the Supreme Court heldthus:"A decision of a Court is perverse when it ignores the facts or evidencebefore it and when considered as a whole, amounts to a miscarriage ofjustice. In such a case, anappellate Court is bound to interfere with such a decision and to set itaside. See Agbomeji V Bakare (1998) 9 NWLR {Pt. 564} 1 at 8". PerIGUH JSC on page 24 paragraphs C - D."Per SANGA, J.C.A. (Pp. 40-41,Paras. D-A) - read in context
(201
8) LP
ELR-45
618(
CA)
5. ARBITRATION AND CONCILIATION - CUSTOMARY ARBITRATION:Conditions for the decision of a customary arbitration to apply asestoppel per rem judicatam; ingredients for a valid and bindingcustomary arbitration"Customary arbitration is one of the many ways of settling disputesamong African Societies. It refers the dispute to either the family head,or elders or chiefs of the community concerned for settlement, andupon subsequent acceptance of the arbitration grant or award, itbecomes binding on them. The parties are at liberty to resile at anystage of the proceedings up to that point. The conditions required forcustomary arbitration in Nigeria are: -1. The parties voluntarily submit their dispute to a non-judicial body towit, their elders or chiefs as the case may be for determination.2. The indication of willingness of the parties to be bound by thedecisions of the non-judicial body or freedom to reject the decisionwhere not satisfied.3. Neither of the parties has resiled from the decision so pronounced.?Once these conditions are satisfied the arbitration would be liberallytreated as a judicial proceeding and could be taken to operate as orcreated estoppel per rem judicatam. See ODONIGI V OYELEKE (2001) 2S.C.N.J. 198 at 213-214. Also, in DURUAKU EKE & ORS V UDEOZOROKWARANYIA & ORS (2001) LPELR - 1074 (SC) the Supreme Court whilepronouncing on the conditions for a decision of a customary arbitrationto apply as estoppel per rem judicatam; ingredients for a valid andbinding customary arbitration held per UWAIFO JSC on page 29paragraphs B - F thus: -".... it has been firmly held by this Court in at least two cases, namely,Agu V Ikewibe (1991) 3 NWLR {Pt. 180} 385 and Ohiaeri V Akabeze(1992) 2 NWLR {Pt. 221} 1 that for there to be a valid customaryarbitration, five ingredients must be pleaded and proved, namely: -(a) That there had been a voluntary submission of the matter in disputeto an arbitration of one or more persons.(b) That it was agreed by the parties either expressly or by implicationthat the decision of the arbitrator(s) would be accepted as final andbinding.(c) That the said arbitration was in accordance with the custom of theparties or of their trade or business.(d) That the arbitrator(s) reached a decision and published their award.(e) That the decision or award was accepted at the time it was made"I think anything short of these conditions will make any customaryarbitration award risky to enforce. In fact it is better to say that unlessthe conditions are fulfilled, the arbitration award is unenforceable."PerSANGA, J.C.A. (Pp. 30-32, Paras. B-B) - read in context
(201
8) LP
ELR-45
618(
CA)
6. ARBITRATION AND CONCILIATION - CUSTOMARY ARBITRATION:Binding effect of a customary arbitration"Upon stating my finding above on customary arbitration I will concludewith the pronouncement of the Apex Court in EMMANUEL OKPALAIGWEGO & ORS VFIDELIS OJUKWU EZEUGO & ORS (1992) LPELR - 1458 (SC) whereOGUNDARE JSC while quoting NNAEMEKA-AGU JSC in his lead judgmentin OJIBAH V OJIBAH (1991) 5 NWLR {Pt. 191} 296 at 314 held thus:"In my view, the law is pretty well settled that where two parties to adispute voluntarily submit their matter in controversy to arbitrationaccording to customary law and agreed expressly or by implication thatthe decision of the arbitrators would be accepted as final and binding,then once the arbitrators reach a decision; it is no longer open to eitherparty to subsequently back out of such a decision....."Per SANGA, J.C.A.(Pp. 39-40, Paras. F-C) - read in context
(201
8) LP
ELR-45
618(
CA)
7. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: What is required ofa person relying on evidence of traditional history in an action fordeclaration of title to land"The question to be answered is whether this pleading and theevidence of D.W.3 met the requirement of the law on the evidencerequired from the respondent to prove that they are entitled to theircounter claim? The standard enunciated by the Supreme Court inSUNDAY UKWU EZE & ORS V GILBERT ATASIE & ORS (2000) LPELR 1190(SC) on pages 12 - 13 paragraphs E - A per UWAIFO JSC is as follows:"The law is that to establish the traditional history of land relied on asroot of title, appellant must plead the names of the founder and thoseafter him upon whom the land devolved to the last successor(s) andlead evidence in support without leaving gaps or creating mysterious orembarrassing linkages which have not been and cannot be explained.In other words, the pleading of the devolution and the evidence insupport must be reliable, being credible or plausible, otherwise theclaim for title will fail. See AKINLOYE V EYIYOLA (1969) NMLR 9; ELIAS VOMO BARE (1982) 5 SC 25; MOGAJI V CADBURY NIGERIA LTD (1985) 2NWLR {Pt. 77} 413; UCHENDU V OGBONI (1999) 5 NWLR {Pt. 60} 337."I have carefully considered the narration of the history of the land bythe respondents particularly in paragraph 23 above visa a vis thetestimony of their star witness; Chief Ozege Ogboma on pages 269 to273 of the records and it is obvious that it did not meet therequirements enunciated by the Apex Court in EZE V ATASIE (Supra)that claimants must not only plead the names of the founder of theland and those after him upon whom the land devolved to the lastsuccessor, he must lead evidence in support without leaving gaps orcreating mysterious linkages which cannot be explained. TheRespondent narrated who "begat" who in paragraph 23 of theirpleadings but they failed to proffer evidence to support their claim onwho handed over the land to who, who farmed the land among thosewho were "begat" by Tomonagha and Okpoto."Per SANGA, J.C.A. (Pp.19-21, Paras. D-B) - read in context
(201
8) LP
ELR-45
618(
CA)
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the
Leading Judgment): This appeal emanates from the
Judgment of BOLOU M. UGO J., (now JCA) of High Court of
Justice Bayelsa State Yenagoa Judicial Division delivered on
21st May, 2013. By an endorsed Writ of Summons and
Statement of Claim dated 28/2/2012 the Appellants sued
the Respondents in a representative capacity as Claimants
and Defendants respectively, in Suit No. YHC/25/2012
claiming for the following reliefs: -
1. A DECLARATION that the incessant harassment,
embarrassment, intimidation, threatening, disturbance
and/or interference with the Claimants’ OSOWEI family
right of ownership and use of a portion of the Claimants
OSOWEI Family Land (i.e. 13.75 plots), lying, situate, being
at and known as OSOBUGAN BUSH, in Agbura Town,
Yenagoa Local Government Area, a place within the
jurisdiction of this honourable Court, (which said land
shares common boundaries with the land of Mr. Friday
Otuoku on the 1st side, Shell and Agip pipelines on the 2nd
side, a carnal (sic) on the 3rd side and the land of Mr.
Bomeden Ekpokiri and an Access Road on the 4th side) by
the defendant, is unlawful,
1
(201
8) LP
ELR-45
618(
CA)
wrongful, illegal and same amounts to flagrant and violent
violation of the Claimant’s family fundamental rights
constitutionally guaranteed under Sections 43 and 44 of the
Constitution of the Federal Republic of Nigeria, 1999 (as
amended).
2: A DECLARATION that the continuous threat by the
defendant to forcefully acquire 13.75 Plots of land from the
Claimants OSOWEI family large expanse of land described
in Relief 1 above is unlawful, wrongful, illegal and same
amounts to trespass on the land of the Claimants
OSOWEI family and a flagrant and violent violation of the
claimant’s OSOWEI family fundamental rights
constitutionally guaranteed under Section 48 & 44 of the
Constitution of the Federal Republic of Nigeria, 1999 (as
amended).
3. A DECLARATION that the continuous intimidation of
the Claimants by the Defendants using men of the Nigerian
Police Force, Bayelsa State Police Command to arrest the
Claimants over the Claimants OSOWEI family large
expanse of land described in Relief 1 above is unlawful and
contrary to the claimants fundamental r ights
constitutionally guaranteed under Section 35 of the
Constitution of the Federal
2
(201
8) LP
ELR-45
618(
CA)
Republic of Nigeria, 1999 (as amended).
4: AN AWARD OF N20,000,000.00 (Twenty Million
Naira) only against the defendants, being exemplary
damages for Defendants’ act of trespass to the land of the
Claimants OSOWEI family described in Relief 1 above and
for the unlawful, illegal, wrongful, flagrant and violent
violation of the claimants’ and claimants OSOWEI family
fundamental rights as stated of Sections 35 and 43 of the
Constitution of the Federal Republic of Nigeria, 1999 (as
amended).
5: AN ORDER OF PERPETUAL injunction restraining the
defendants jointly and severally by themselves, servants,
agents, privies and cohorts or surrogates, from further
trespassing on the claimants OSOWEI family land describe
in Relief 1 above and/or violating the claimants lawful, legal
and/or constitutional rights, in any of the ways stated in
reliefs 1, 2, and 3 above, and/or in any other way
whatsoever.
(pages 13 – 14 of the record of appeal).
Accompanying the statement of claim is a list of claimants’
witnesses to be called at the trial consisting of 4 names,
(Mr. Osowei Millio, Mr. Osowei Magnus, Mr. Osowei
Victory
3
(201
8) LP
ELR-45
618(
CA)
and Mr. Ekpulu Izige). Written depositions of Claimants’
witnesses is on pages 16 – 49 of the record of appeal. The
Claimants also attached a list of documents they intend to
rely upon during trial (pages 50–51). Copies of the
documents are on pages 52 to 60 of the Records. I noted
the exparte application filed by the Claimants on
01/06/2012 seeking for leave to employ the services of a
Surveyor to survey the land in dispute and the Survey Plan
produced subsequently be filed and included in the list of
documents to be relied upon by the Claimants on pages 74
– 78 of the record of appeal. The Claimants earlier filed a
motion on notice seeking for an order by the lower Court
entering judgment for the Claimants in terms of the reliefs
they sought in the statement of claim. They deposed to the
facts that despite service of all processes on the Defendants
on 1/3/2012 and 12/3/2012, they failed and/or refused to
enter appearance. The motion, affidavit in support attached
to which are copies of affidavit of service of all the
processes on the Defendants and a written address are on
pages 61 to 73 of the records of appeal.
It was on 1st June, 2012 that the Defendants filed
4
(201
8) LP
ELR-45
618(
CA)
a motion on notice seeking for an order for extension of
t ime within which the Defendant can f i le their
memorandum of conditional appearance, statement of
defence and other processes out of time. An affidavit in
support to which are the memorandum of conditional
appearance and a Statement of Defence accompanied the
application. (pages 79– 98 of the record of appeal). In their
Statement of Defence the Defendants Counter Claimed
against the Claimants as follows: -
(a) A declaration to the effects that the Defendants are the
deemed customary owners of all that piece of land referred
to and situate at Osobugan bush Agbura Epie in Yenagoa
Local Government Area of Bayelsa State, more particularly
described in paragraph 6 of Statement of Defence.
(b) An Order of perpetual injunction restraining the
Claimants, their agents, heirs, assigns, servants, privies
and legal representative(s) however described, from further
tampering with or entering into the Defendant land as
described above.
The Defendant also filed witness depositions of their
witnesses (Bomedie Ayinbal (Ekpokiri), Chief Ogbalavie
Isiko, Mr. Egberi Okpoto and Chief Bedford Iso Okuonu
5
(201
8) LP
ELR-45
618(
CA)
on pages 90 to 100 of the record of appeal). The Claimants
filed (with leave of the lower Court) their Reply and
Defence to Counter Claim on pages 110 – 115 of the
Records. They also filed another list of witnesses to be
called at the trial consisting of 5 names as follows (1) Mr.
Osowei Millio, (2) Mr. Osowei Victory, (3) Mr. Abraham, (4)
Mr. Friday Otuoku and (5) Mr. Dabiri O. Thomas together
with their written depositions. (pages 116 – 135 of the
record of appeal). On page 136 the Claimants filed an
additional list of documents to be relied upon at the trial as
follows: -
1. Litigation Survey Plan
2. Police Report
3. Legal Letter to the Police for Police Report.
Copies of the above documents also accompanied the
application. (pages 136 – 140 of the record of appeal).
On pages 162 – 165 of the records the Defendants filed a
motion on notice seeking for leave to amend their
Statement of Defence dated 28th January, 2013. An
affidavit in support and the Proposed Amended Statement
of Defence accompanied the application. The main reason
for the application is that the Defendants engaged the
6
(201
8) LP
ELR-45
618(
CA)
services of a Surveyor to produced a Survey Plan of the
land in dispute. A copy of the Survey Plan is on page 171 of
the record of appeal. The Defendant also filed another
motion dated 28/01/2013 seeking for leave to call the
Surveyor and one Chief Ogboma Ozege as additional
witnesses. Their written depositions accompanied the
application. The Claimants filed a counter affidavit against
the two motions. Their main reason is that they have
already closed their case on 22nd January, 2013. The
Defendants did not give even a hint that they intend to file
a Survey Plan even while the Claimants’ Survey Plan was
admitted in evidence and marked as Exhibit ‘F’ on
15/1/2013 through C.W.2. On 5/2/2013 the learned trial
Judge delivered his ruling wherein he refused the
application for amendment (pages 265 – 269 of the record
of appeal). The Defendants (who had open their defence
and called two witnesses) then continued with their
defence.
During hearing of the suit the Claimants called two
witnesses, to wit; C.W. 1 – Mr. Ekpulu Izige. He is
Chairman of the 3 Man Arbitration Panel or Peace
Committee. He adopted his written deposition and was
cross-examined by
7
(201
8) LP
ELR-45
618(
CA)
learned counsel to the Defendants (pages 235 – 240 of the
record of appeal). C.W.2 is the second appellant Mr.
Osowei Victory. During his testimony in chief the following
documents were admitted in evidence and marked
accordingly through him: -
1. Laminated 2 - page Power of Attorney dated 24/01/2002
donated by Nelson Osowei & 3 others of Agura to Mr.
Marine Jacob (Nigeria) Enterprises. Estimators, in respect
of enumeration/evaluation and negotiation of economic
trees and crops in Osobugan Bush – Exhibit ‘A’.
2. A “rather pink duplicate copy” of a receipt of
N217,000.00 made on a document bearing Nigeria Agip Oil
Co. Ltd and receipted for by Nelson Osowei and Gilbert
Osowei on 28/10/2004 – Exhibit ‘B’.
3. A document on letter headed paper of K. O. Ogbonna &
to Life etc addressed to the Commissioner of Police,
Bayelsa State Police Command – Exhibit ‘C’.
4. Laminated photocopy of First Bank of Nigeria Plc cheque
of N259,000.00 issued to Dressman B. Ogbara – Exhibit ‘D’.
5. A two page Copy of Petition dated 20/2/2012
8
(201
8) LP
ELR-45
618(
CA)
titled “Re: Reminder with Respect to Petition to threat to
l i fe etc” written by N. A. Wanogho Esq. to the
Commissioner of Police, Bayelsa State Command – Exhibit
‘E’.
6. Survey Plan No. BY/SC/975/0467/2012 by Surveyor
Dabiri Thomas as on 7/6/2012 – Exhibit ‘F’.
The Defendants called three witnesses as follows: -
1. D.W.1 is Bedford Iso Okuonu a farmer. He adopted his
testimony in chief and was cross examined by learned
counsel to the Claimants. (pages 259 – 262 of the record of
appeal).
2 . D . W . 2 i s B o m e d e i A y i n b a l a E x k p o k i r i a
businessman/farmer. He also adopted his written
deposition and was cross examined. (pages 262 – 263 of the
Records).
3. D.W.3 is Chief Ozege Ogboma who said he is a civil
servant. He also adopted his written deposition made on
28/01/2013 and was subsequently cross-examined. (pages
269 to 273 of the record of appeal).
On 10th April, 2013 learned counsel to parties adopted
their respective written addresses. Learned trial Judge
adjourned to 8/5/2013 for judgment. However it was on
21st May, 2013 that judgment was delivered. The judgment
is on pages
9
(201
8) LP
ELR-45
618(
CA)
277 to 330 of the record of appeal. The learned trial Judge
after reviewing the evidence adduced by the parties and
the submissions by learned counsel to the parties in their
final written addresses reached the following decision: -
“In short, there are too many contradictions in the Osoweis
case; they lied in all things great and small. I am of the
view their claim to the disputed land is baseless. I believe
they are neither owners nor ever been in possession of it.
Their complaints to the police of forcible entry to the
disputed land by the Okpotos land are therefore also
unwarranted being that it is not their land. In consequence,
I dismiss their claims in their entirety.
For the several reasons I have given above, I hold that the
Beneclaker/Okpotos have proved their counter claim on the
balance of probability, that the land in dispute was granted
and partitioned by Odi its founder to his daughter
Beneclaker, their ancestress.
I also find as fact that they and their ancestors inherited it
from her and have been in exclusive possession of it over
the years.
I find as a fact, too, that it is rather the Osoweis who have
10
(201
8) LP
ELR-45
618(
CA)
been in trespass of the said land as evidenced by their
wrongful sale of it in 2011. Accordingly, I grant the
Beneclacker/Okpoto descendants’ counter claims and make
the following orders in their favour…”
Learned trial Judge then granted all the reliefs claimed by
the Defendants in their counter claim. On the 3rd claim he
reduced the amount of general damages claimed from
N10,000,000.00 (Ten Million Naira) to N80,000.00 (Eighty
Thousand Naira).
The Claimants were dissatisfied with this decision so they
filed a Notice of Appeal containing three grounds of appeal
which, shorn of their particulars, reads thus: -
GROUND ONE:
The learned trial Judge erred in law in disregarding the
findings of the Customary Arbitration Panel, which
awarded only 4.5 plots of land to the Defendants (conceded
by the Claimants and Verged ‘Purple’ in the Claimants
Survey Plan No. BY/SC/975/0467/2012 admitted in
evidence by the trial Court as Exhibit F), on the ground that
“it is even doubtful whether all the ingredients of a Valid
Customary arbitration were pleaded and proved in this
case.
11
(201
8) LP
ELR-45
618(
CA)
GROUND TWO:
The learned trial Judge erred in law when he held that: -
“the Beneclaker/Okpoto descendants are the persons
entitled to be granted a statutory right of occupancy over
the portion of Osobugan land bounded by Shell and Agip
Company pipelines, a canal and the lands of Chief Bedford
Iso Okuonu, Bemedei Ayibala Ekpokisi and Friday Otuoku
amongst others, which said land measures 26558.148
square metres (6.640 acres, or 2.656 hectres, or about 18
plots) and is more properly delineated and verged brown in
Survey Plan No. BY/SC/975/0467/2012 of 07/06/2012 made
by Survey or Dabiri Thomas.
GROUND THREE
The judgment of the trial Court is against the weight of
evidence.
Learned counsel to the appellant however filed a motion on
notice on 25th March, 2015 to amend their notice of appeal
which was granted on 2nd April, 2015. It was on that date
the appellant filed their Amended Notice of Appeal
containing four grounds of appeal. The Record of Appeal
was complied and transmitted to this Court on 30th
January, 2014 but deemed as properly compiled and
transmitted on 2nd April, 2015. The appellants’ brief of
argument was filed on
12
(201
8) LP
ELR-45
618(
CA)
16/04/2015. Learned counsel withdrew same and it was
struck out. He then filed appellants’ Amended Brief of
Argument on 01/12/2016 which we deemed on 08/05/2017.
It was settled by Felix T. Okorotie Esq. In it, learned
counsel formulated three issues out of the four grounds of
appeal as follows:
1. Whether the Respondents pleaded and led credible
evidence as to how they became owners of the land in
dispute? (Ground 4 of the Amended Grounds of Appeal)
2. Whether the customary arbitration award/ judgment that
the portion of land in dispute in Osobugan bush is just 4.5
plots of land is binding on the Appellants and Respondents?
(Ground 1).
3. Whether a Court of law has jurisdiction to grant in
excess of what is claimed? (Grounds 2 and 3).
The Respondent filed a brief of argument on 4th October,
2016 which learned counsel applied to withdraw and we
struck it out. A.F. Gbaranma Esq. filed the Respondents’
consequential Amended Brief of Argument on 15th May,
2017. Learned counsel adopted the three issues formulated
by the appellants in their Amended Brief of Argument.
Learned counsel to the appellant also filed a Reply Brief on
16th May, 2017.
13
(201
8) LP
ELR-45
618(
CA)
ISSUE 1 is
Whether the Respondents pleaded and led credible
evidence as to how they became owners of the land in
dispute?
In his submission while arguing this issue, learned counsel
to the Appellants answered in the negative. That the
Respondent did not led credible evidence as to how they
became owners of the land in dispute. That the grant of the
Respondent counter claim led to filing this appeal. That the
law is trite that a counter claim is a separate and
independent action, therefore it must pleaded and credible
evidence led in proof of the said counter claim; cited:
ALHAJI HAIDO & ANOR V ALHAJI USMAN (2004) ALL
FWLR {Pt. 201} 1765 at 1782. That a claimant as well as
a counter claimant must succeed on the preponderance of
evidence led on the strength of his case and not on the
weakness of the defence. Cited OYINLOYE V ESINKIN
(1999) 10 NWLR {Pt. 624} 540 at 549; and Section 131
of the Evidence Act, 2011.
Learned counsel submitted further that the claims of the
Respondents in the counter claim is based on traditional
history. That their history is that the land in dispute passed
to them through their ancestor, one Beneclaker. That the
14
(201
8) LP
ELR-45
618(
CA)
respondent did not plead the names of those who inherited
the land in dispute which devolved to them without leaving
any gap to the last successor, cited ELIAS V OMO-BARE
(1982)5 SC 25; EZE V ATASIE (2000) 10 NWLR {Pt.
679} 470 at 482 paragraphs D – F. That the question
that arose for determination is; what are the names of the
children of Tomonagha that inherited the land from her?
Which of them was the post senior? What was the
ascending order of the devolution? How are the respondent
related to those children through whom they inherited the
land in dispute? Etc. That there is a big gap in the
traditional history of the respondent on how the land in
dispute devolved on them. That the respondent have
created “Mysterious or embarrassing linkages which have
not been and cannot be explained.” Learned counsel urged
the Court to resolve this issue in favour of the appellants.
In his submission on this issue, learned counsel to the
respondents urged the Court to answer in the positive. That
they, have clearly pleaded and led credible evidence as to
how they became the owners of the land in dispute.
Learned counsel submitted that learned counsel to the
15
(201
8) LP
ELR-45
618(
CA)
Appellants’ contention that the respondents did not plead
the name of the founder of the land in dispute and those
after him to misrepresentation of facts of this case. Learned
counsel quoted the holding of learned trial judge on pages
368 to 369 of the record of appeal. That the Respondent
pleaded in paragraph 23 of their statement of defence and
counter claim how the land in dispute devolved to them
through Odi who was the common ancestor of both parties.
Learned counsel to the respondent urged the Court not to
disturb the findings of the learned trial Judge as it is clear
that his clients traced their right to declaration of title to
the land in dispute to its logical conclusion. That it is trite
law that findings of a lower Court will not be disturbed
except in cases where same is found to be based on a
substantive or procedural misapprehension of the facts
before the trial Court. Cited; OJIAKO V A-G, ANAMBRA
STATE (2000) 1 NWLR {Pt. 641} 375. That learned
counsel to the appellant merely drew the attention of this
Court to paragraphs 24 and 25 of the respondent statement
of defence and counter claim
16
(201
8) LP
ELR-45
618(
CA)
without referring to paragraph 23 (supra). Learned counsel
quoted the said paragraph 23 and paragraphs 24, 25 and
26 of the written deposition of DW.3 Chief Ogboma Ozege.
Learned counsel finally submitted that the respondent only
have the duty to link the land in dispute to the respondents
who are the actual owners of the land and that was what
they did. Quoted the holding by the learned trial Judge on
page 403 of the records and urged this Court to resolve this
issue in favour of the respondent.
Learned counsel to the appellants debunked the submission
by the respondents in their Reply Brief. That apart from
pleading the founder of the land, the respondent did not
plead who was the next in succession to the title of the land
in dispute down to the last successor which fall short of the
requirement of the law. That the learned trial judge was
wrong to have found for the respondent based on the
weakness of the appellants case. That it is trite law that a
counter claim just like a claim must succeed on the
preponderance of evidence led and on the strength of his
case and not the weakness of the defence cited.
OYINLOYE V ESINKIN (1999) 10 NWLR (PT. 624) 540
at 549. That the
17
(201
8) LP
ELR-45
618(
CA)
Respondents’ counter claim is declaratory in nature and it
is trite law that declaratory claims cannot be granted even
on admission by the adverse party. Cited; DIM
V ENEMUO (2009) 10 NWLR {Pt. 1149} 353 at
380–381 paragraphs F – D; VINCENT BELLO
V MAGNUS EWEKA (1981) 1 SC 101.
FINDINGS ON ISSUE 1
I have considered the submissions by learned counsel on
this issue. The main plank on which the appellants counsel
attacked the respondents counter claim is that because it is
based on traditional history the respondent is duty bound to
plead the names of the founder of the land and those after
him upon whom the land devolved to the last successor
without leaving gaps or “Mysterious linkages” which
cannot be explained. On his part learned counsel to the
respondents submitted that they met this requirement in
paragraphs 23, 24 and 25 of appellants statement of
defence and counterclaim wherein they pleaded thus:
“23. The defendant avers that they are descendant of Odi
and Odi begat Beneclaker and Owiriba Beneclaker begat
Tomonagha, Tomonagha married Okpoto and begat
Anearegu, Afere, Roland, Jonah and Omafeine.
18
(201
8) LP
ELR-45
618(
CA)
Afere begat the 1st, 3rd, 4th, 5th and 9th defendants.
Roland begat the 2nd defendant and Jonah begat the 8th
defendants”
24. The defendants aver that Odi their great, great
grandfather founded and disvirgined several lands
including the land in dispute called Oso bugan bush. Odi
gave portions of land to his children and the land in dispute
is given to Beneclaker.”
25. The defendants aver that Beneclaker farmed on the
land in dispute called Osobugan bush and after her demise
same devolved on her child called Tomonagha. After
Tomonagha’s demise, the land in dispute devolved to the
defendants.” (page 88 of the Records).
The question to be answered is whether this pleading and
the evidence of D.W.3 met the requirement of the law on
the evidence required from the respondent to prove that
they are entitled to their counter claim? The standard
enunciated by the Supreme Court in SUNDAY UKWU EZE
& ORS V GILBERT ATASIE & ORS (2000) LPELR 1190
(SC) on pages 12 – 13 paragraphs E – A per UWAIFO JSC is
as follows:
“The law is that to establish the traditional history of land
19
(201
8) LP
ELR-45
618(
CA)
relied on as root of title, appellant must plead the names of
the founder and those after him upon whom the land
devolved to the last successor(s) and lead evidence in
support without leaving gaps or creating mysterious or
embarrassing linkages which have not been and cannot be
explained. In other words, the pleading of the devolution
and the evidence in support must be reliable, being
credible or plausible, otherwise the claim for title will fail.
See AKINLOYE V EYIYOLA (1969) NMLR 9; ELIAS
V OMO BARE (1982) 5 SC 25; MOGAJI V CADBURY
NIGERIA LTD (1985) 2 NWLR {Pt. 77} 413;
UCHENDU V OGBONI (1999) 5 NWLR {Pt. 60} 337.”
I have carefully considered the narration of the history of
the land by the respondents particularly in paragraph 23
above vis-à-vis the testimony of their star witness; Chief
Ozege Ogboma on pages 269 to 273 of the records and it is
obvious that it did not meet the requirements enunciated
by the Apex Court in EZE V ATASIE (Supra) that claimants
must not only plead the names of the founder of the land
and those after him upon whom the land devolved to the
last successor, he must lead evidence in support without
leaving gaps or
20
(201
8) LP
ELR-45
618(
CA)
creating mysterious linkages which cannot be explained.
The Respondent narrated who “begat” who in paragraph 23
of their pleadings but they failed to proffer evidence to
support their claim on who handed over the land to who,
who farmed the land among those who were “begat” by
Tomonagha and Okpoto.
The law is trite that a counter-claim is the claim of the
Defendants it must therefore be proved on the same
standard with the claim. The counter-claimants therefore
must succeed on the preponderance of evidence they
adduced during trial and not on the weakness of the
Claimants claim unless where the evidence of the
defendant strengthen his claim. In EZEKIEL OYINLOYE
V BABALOLA ESINKIN & ORS (1999) LPELR – 2886
(SC) the Apex Court held, per EJIWUNMI JSC, on page 15
paragraphs B – D thus: -
“It is also settled law that a plaintiff must succeed on the
preponderance of evidence he led, and on the strength of
his own case, not by the weakness of the defence unless of
course he finds in the evidence of the defence facts which
strengthen his own case. See Akinola & Anor V Oluwo &
2 Ors. (1962) 1 SCNLR 352; (1962) 1
21
(201
8) LP
ELR-45
618(
CA)
All NLR 224 per Unsworth F.J. at 227; Woluchem &
Ors V Gudi & Ors. (1981) 5 SC 291 per Idigbe J.S.C. at
294”.
It is my holding on this issue that the Respondents failed to
adduce enough evidence in support of their pleadings in
paragraphs 23, 24 and 25 of their Statement of Defence
and Counter-Claim, neither did they produced any
documentary evidence in support of their pleadings. In
CAMEROON AIRLINES V MR. MIKE E. OTUTUIZU
(2011) LPELR – 827 (SC) the Supreme Court per
RHODES-VIVOUR, JSC held on page 36 paragraphs C – D
thus: -
“Averments in pleadings are facts as perceived by the party
relying on them. There must be oral or/and documentary
evidence to show that the facts pleaded are true.
Consequently, pleadings without evidence to support it are
worthless”.
I resolve this issue in favour of the appellants.
Issue 2 is:
Whether the customary arbitration award/ judgment that
the portion of land in dispute in Osobugan bush is just 4.5
plots of land is binding on the Appellants and Respondents?
While arguing issue 2 learned counsel to the Appellants
submitted that prior to filing this suit
(201
8) LP
ELR-45
618(
CA)
22
(201
8) LP
ELR-45
618(
CA)
there was a customary arbitration over the plots of land in
dispute. The said customary arbitration consists of 3
members headed by C.W.1 Mr. Ekpulu Izigie. That the
committee made an award to the effect that the
Respondents’ portion of land in the land in dispute is just
4.5 plots and not 18 plots as claimed by the Respondents.
That the fact that there was Customary Arbitration over the
land in dispute is captured in paragraphs 21, 22, 23, 24, 25
and 26 of the Appellants’ pleadings. Learned counsel
quoted the said paragraphs verbatim. That the Respondent
admitted that that there was a Customary Arbitration over
the land in dispute as shown in paragraph 15 of the
Amended Statement of Defence. That the Respondents’
witnesses also confirmed that there was a customary
arbitration over the land in dispute. Learned counsel gave
an example of the testimony of D.W.2 under cross-
examination on page 262 of the record of appeal. He also
cited the Supreme Court’s decision in EMMANUEL
OKPALA IGWEGO & ORS V FIDELIS EZEUGO & ORS
(1992) 6 NWLR {Pt. 249} 561 at 576. He also cited:
EHOCHE V IJEGWA (2003) 7 NWLR {Pt. 818} 139 at
151 –153 paragraphs H –C.
23
(201
8) LP
ELR-45
618(
CA)
Learned counsel further argued that for customary
arbitration to constitute estoppel, the following ingredients
must exist: -
1. That there had 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 arbitrator(s) would be
accepted as final and binding.
3. That the said arbitration was in accordance with the
custom of the parties or of their trade or business.
4. That the arbitrator(s) reached a decision.
5. That the decision or award was accepted at the time it
was made.
C i t e d : DURUAKU EKE & ORS V UDEOZOR
OKWARANYIA & ORS (2001) 12 NWLR {Pt. 726} 181
AT 208; OKOYE & ANOR V OBIASO & 3 ORS (2010) 3
SC {Pt. 11} 69 at 103 – 104. Learned counsel then
analysed the five ingredients as it relates to this Suit
seriatim and submitted that the implication is that the 3
man Arbitration Committee recommended that the
respondents own only 4.25 plots of land and not 18 plots.
That this decision was accepted by the Respondents and it
is binding and
24
(201
8) LP
ELR-45
618(
CA)
subsisting on both the Appellants and Respondents. That it
follows that the lower Court was patently wrong when it
held that it is doubtful whether all the ingredients of a valid
customary arbitration were pleaded and proved in this
case. He urged the Court to set aside the judgment of lower
Court on this note and resolve this issue in favour of the
Appellants.
In his submission while arguing this issue, learned counsel
to the respondents submitted that once again learned
counsel to the appellants is under a misconception of the
facts and circumstances of this case. That this is because
the issue the trial Court dealt with was whether the alleged
customary arbitration award was for four and behalf plots,
as alleged by the appellant or 18 plots or more as alleged
by the respondents. That after taking evidence the lower
Court came to the conclusion that it was for 18 plots or
more as described by the respondents. Learned counsel
also, underlined for emphasis, the fact that the alleged
customary arbitration was not published that is why while
the appellants are contending that there was demarcation
of 4½ plots the respondents were insisting that there
25
(201
8) LP
ELR-45
618(
CA)
was no demarcation at all as the area the Panel deliberated
upon was 18 plots or more.
Learned counsel also submitted that the submission by
learned counsel to the appellants in paragraph 5.5 of their
brief where the learned trial Judge stated that it is doubtful
if the ingredients of a valid customary arbitration were
pleaded was an obiter dicta and did not form the reason for
the judgment. That the learned trial Judge merely stated in
passing that he wondered if all the conditions for a valid
customary arbitration were even present in that case.
Learned counsel quoted the holding by the learned trial
Judge on pages 390 to 392 of the records. That moreover,
the issue of whether there was valid arbitration was not
raised by any of the parties as it was not pleaded to form
the basis of an estoppel in the instant appeal.
That it was after the finding by the learned trial Judge that
the evidence of C.W.1 who was the chairman of the panel
was false and unbelievable on whether or not it was 4½
plots as contended by the appellants or 18 plots as
contended by the respondents that the pendulum swung in
favour of the said respondents. That the issue of
26
(201
8) LP
ELR-45
618(
CA)
whether or not there was a valid arbitration was said in
passing. Learned counsel submitted further that the
appellants did not plead anywhere in their pleadings that
they are relying on estoppel per rem judcicata in
prosecuting their claim or in defence of their counter claim.
So it is wrong for learned counsel to the appellants to urge
the Court to enter judgment in their favour on basis of
estoppel per rem judicata. Cited: EBBA V OGODO (2002)
FWLR {Pt. 27} 2094, (1984) 4 SC 84; UKAEGBU
V UGORJI (1991) NSE (Vol. 22) 298; CHINWENDU V
MBAMALI (1980) 3 – 4 SC 31 at 128 paragraphs D–E;
IKOTUN V OYEKANMI (2008) All FWLR {Pt. 433}
1281. That appellants cannot rely on estoppel per rem
judicatam because such principle can only be used as a
shield and not a sword. Cited LAMIDI LADIMEJI & ANOR
V SUARA SALAMI & ORS (1998) 5 NWLR {Pt. 548} 1
SC; YOYE V OLUBODE (1974) 1 All NLR {Pt. 2} 118.
Learned counsel submitted further that learned counsel for
the Appellants is under the mistaken belief that he can rely,
plead and lead evidence on previous judgment in support of
his case as opposed to relying on same as estoppel per rem
27
(201
8) LP
ELR-45
618(
CA)
judicata. That the law is trite that evidence not pleaded
goes to no issue. The Appellants’ having not pleaded that
they will be relying on estoppel per rem judicata in the
defence of the Counter Claim of the Respondent cannot
now make issue out of it on appeal. Cited: FERDINARD
GEORGE V UBA (1972) 889 SC. 264 at 274 – 276;
ALHAJI SANNI SHUAIBU V J.O. BAKARE (1984) 12 SC
187 at 194 – 196; CIVIL DESIGN LTD V. SCOA (NIG)
LIMITED (2007) 29 NSCQR 1298 at 1339. Learned
counsel submitted further that there is no indication on the
Appellants’ Survey Plan (Exhibit ‘F’) of any banana tree or
plantain or small hill between the purple verged portion on
the said document. That CW1 told the Court while
testifying under cross-examination that they used a banana
tree/plantain and a small hill to demarcate the land in
dispute. That CW1 also testified that the boundary mark
was far from the 4.25 plots they allocated to the
respondents, which means that the respondents’ portion of
land is bigger than 4.25 plots as he alleged in his statement
on oath. That the respondents called credible witnesses
who testified on boundaries of the land in dispute.
28
(201
8) LP
ELR-45
618(
CA)
That CW1 also testified that the boundary mark was far
from the 4.25 plots they allocated to the respondents,
which means that the respondents’ portion of land is bigger
than 4.25 plots as he alleged in his statement on oath. That
the respondents called credible witnesses who testified on
boundaries of the land in dispute.
That even assuming, though not conceding, that the Court
wants to consider whether or not all the conditions of a
customary arbitration are met in the instant suit, that only
3 of the conditions of customary arbitration as listed in
OHIAERI V AKABEZE (Supra) are still lacking in the
instant suit. They are: -
3. That the arbitration was in accordance with the custom
of the parties or their trade or business.
4. That the arbitrator(s) reached a decision and published
their award.
5. That the decision or award was accepted at the time it
was made.
Learned counsel analysed the three ingredients seriatim
and urged the Court to resolve this issue in favour of the
respondents.
I have noted the submission by learned counsel to the
appellants in their Reply Brief and I will refer to it in
deciding this issue.
29
(201
8) LP
ELR-45
618(
CA)
FINDINGS ON ISSUE 2:
Issue 2 is:
Whether the customary arbitration award/ judgment that
the portion of land in dispute in Osobugan bush is just 4.5
plots of land is binding on the Appellants and Respondents?
Customary arbitration is one of the many ways of settling
disputes among African Societies. It refers the dispute to
either the family head, or elders or chiefs of the community
concerned for settlement, and upon subsequent acceptance
of the arbitration grant or award, it becomes binding on
them. The parties are at liberty to resile at any stage of the
proceedings up to that point. The conditions required for
customary arbitration in Nigeria are: -
1. The parties voluntarily submit their dispute to a non-
judicial body to wit, their elders or chiefs as the case may
be for determination.
2. The indication of willingness of the parties to be bound
by the decisions of the non-judicial body or freedom to
reject the decision where not satisfied.
3. Neither of the parties has resiled from the decision so
pronounced.
Once these conditions are satisfied the arbitration would be
liberally treated as a judicial proceeding and
30
(201
8) LP
ELR-45
618(
CA)
could be taken to operate as or created estoppel per rem
judicatam. See ODONIGI V OYELEKE (2001) 2 S.C.N.J.
198 at 213–214. Also, in DURUAKU EKE & ORS
V UDEOZOR OKWARANYIA & ORS (2001) LPELR –
1074 (SC) the Supreme Court while pronouncing on the
conditions for a decision of a customary arbitration to apply
as estoppel per rem judicatam; ingredients for a valid and
binding customary arbitration held per UWAIFO JSC on
page 29 paragraphs B – F thus: -
“…. it has been firmly held by this Court in at least two
cases, namely, Agu V Ikewibe (1991) 3 NWLR {Pt. 180}
385 and Ohiaeri V Akabeze (1992) 2 NWLR {Pt. 221}
1 that for there to be a valid customary arbitration, five
ingredients must be pleaded and proved, namely: -
(a) That there had been a voluntary submission of the
matter in dispute to an arbitration of one or more persons.
(b) That it was agreed by the parties either expressly or by
implication that the decision of the arbitrator(s) would be
accepted as final and binding.
(c) That the said arbitration was in accordance with the
custom of the parties or of their trade or business.
31
(201
8) LP
ELR-45
618(
CA)
(d) That the arbitrator(s) reached a decision and published
their award.
(e) That the decision or award was accepted at the time it
was made”
I think anything short of these conditions will make any
customary arbitration award risky to enforce. In fact it is
better to say that unless the conditions are fulfilled, the
arbitration award is unenforceable”.
Learned counsel to the appellants argued the five
ingredients seriatim on pages 8 to 11, paragraph 5.4 of
their brief and I will consider same.
1. Voluntary submission of the matter in dispute to
arbitration of one or more persons:
Both parties averred in their pleadings that there was
indeed a customary arbitration consisting of a Three Man
Peace Committee and both appellants and respondents
voluntarily submitted arbitration. The Appellants pleaded in
paragraphs 21 to 26 of their pleadings page 9 of records
accordingly. Paragraphs 22 and 23 reads: -
“22: The Claimants avers that pursuant to paragraph 21
above, a three Man Peace Committee (which had Mr.
Ekpulu Izige as Chairman, Mr. Osei Otumbere and Mr.
Oyonviemo Ovoh as Members) was set up to resolve the
32
(201
8) LP
ELR-45
618(
CA)
dispute”.
“23: The Claimant avers that the three Man Peace
Committee averred in paragraph 22 above, came to a
decision that the 4.25 plots of land the claimants sold (not
the subject matter of this suit) belonged to the defendants
family and as such the Claimants should allocate another
4.25 plots of land to the defendants family, from the
Claimants family.
The Defendants averred in paragraph 15 of their pleadings
that: -
“15: The Defendants specifically aver that the portion of
land in dispute in this suit is the same with the portion of
land which led to the setting up of the arbitration panel and
not a different portion of land. It is the same Osobugan
Bush and same is within the portion of land as described in
paragraph 6 above, thus paragraphs 25 and 26 are false
and are also denied”.
It is obvious from the pleadings above that parties willingly
and voluntarily submitted to arbitration.
2. Agreement by the parties either expressly or by
implication that they will accept the decision of the
arbitrators as final and binding: As can be deduced from
the evidence of the parties and their testimonies they
intended
33
(201
8) LP
ELR-45
618(
CA)
to abide by the decision of the parties. D.W.3 the star
witness of the Respondents agreed that the three man
peace committee gave decision although he was not
present on the spot. He was asked:
“Question: Did the three man committee not give a
decision?”
“Answer: They did. They decided that the land in dispute
belonged to us, the defendants”.
“Question: You will therefore agree with me that it was
4½ plots of land the 3-man peace committee award to your
people the defendants?”
“Answer: That is true”. (pages 270 – 271 of the records).
3: The arbitration was in accordance with the custom of the
parties or of their trade or business.
As I stated above customary arbitration is one of the many
ways of settling disputes among African Societies. The
Claimants pleaded that it is customary for disputants in
Agbura Community to submit their dispute to one or two
persons to act as arbitrators and to settle such dispute.
C.W.1 (who chaired the 3-Man Panel) explained during
cross-examination on page 239 of the Records when asked:
“Who established that your committee?”
34
(201
8) LP
ELR-45
618(
CA)
“A: In our place when two people are in disagreement they
usually choose people to settle their dispute. It is in that
way we were chosen by both sides to settle their dispute”.
The Defendants did not dispute this method of settling
dispute in their pleadings.
4. That the arbitrators reached a decision: It is obvious that
the 3 – Man Peace Committee reached a decision. Even
DW3 agreed that a decision was reached as I quoted above.
It is also obvious that the said decision was published by
the 3 – Man Panel as their findings were made known.
There is no requirement that a customary arbitration award
must be put down in writing. It suffices if the customary
arbitrators reached a decision which they pronounced to
the hearing of parties.
5: That the decision or award was accepted at the time it
was made.
I also find in favour of the appellants on this ingredient
since CW1 testified under cross-examination as follows: -
“Question: On your committee’s findings, you said the
Claimants here should look for another 4.25 plots of land
for the defendants in replacement for their
35
(201
8) LP
ELR-45
618(
CA)
(defendants) land used by the claimants?”
“Answer: Yes”.
“Question: Did the Defendants objected to that directive?”
“Answer: They did not”.
“Question: Did the Claimants actually relocate the
defendants as direct by your committee?”
“Answer: Yes they did.”
“Question: Did your Committee in the course of your visit
to the bush mark out the boundaries of the land between
the parties?”
“Answer: Yes we demarcated it between them.”
“Question: Did you also mark the 4.25 plots allocated to
the defendants?”
“Answer: Yes we did”.
“Question: What did you use as a boundary mark?”
“Answer: A banana/plantain and a small hill”.
“Question: I put it to you that the defendants did not agree
to leave their land for the Claimants?”
“Answer: No, they all agreed to our agreement. If they did
not, they would have told us so there”. (pages 238 to 239 of
the Records)
As submitted by learned counsel to the appellants the
decision by the 3 – Man Peace
36
(201
8) LP
ELR-45
618(
CA)
Committee was never challenged or set aside by a Court of
competent jurisdiction. DW3 confirmed this when he was
asked: -
“Question: Did you challenged the decision of the 3 man
peace committee in any Court?”
“Answer: We did not, if we would have done so it would
have been at the Customary Court because know
everything about this matter”. (page 272 of the record of
appeal).
It is obvious that the respondents were fully aware of the
decision of the arbitration committee and accepted same at
the time the decision was reached. If they were dissatisfied
they would have taken a legal action since they even know
the Court that had jurisdiction over such matters. The
implication above is that the decision of the 3 man
arbitration committee that the respondents own only 4.25
plots of land and not 18 plots was accepted by the
respondents that decision is subsisting and binding on both
the Appellants and Respondents. The trial Court was
therefore in error when after reviewing the evidence it held
that it is doubtful whether all the ingredients of a valid
customary arbitration were pleaded and proved in this
case.
37
(201
8) LP
ELR-45
618(
CA)
The 3 – man customary arbitration committee awarded only
4.25 plots of land in the Osobugan Bush to the Respondents
as shown in the Survey Plan No. BY/SC/975/0467/2012
verged “purple” and admitted in evidence during trial and
marked as Exhibit ‘F’ D.W.3 confirmed this during cross-
examination when he was asked: -
“Question: You will therefore agree with me that it was
4½ plots of land the 3 – man peace committee awarded to
your people the defendants?”
“Answer: That is true”.
The lower Court was therefore wrong to award 18 plots of
land in Osobugan bush to the respondents in view of the
finding of the 3 Man Peace Committee which awarded 4½
plots of land to the said respondents.
I have noted that learned counsel to the respondents
insinuated in his submission that the holding by the learned
trial Judge on pages 390 to 392 that: -
“Besides the foregoing. I must also observe that it is even
doubtful whether all the ingredients of a Valid Customary
arbitration were pleaded and proved in this case. In EKE V
OKWARANYIA (2001) 12 NWLR {Pt. 726} 181 the
Supreme Court in its lead judgment by Samson
38
(201
8) LP
ELR-45
618(
CA)
Odemwingie Uwaifo JSC, confirming its earlier decisions in
OHIAERI V AKABEZE (1992) 2 NWLR {Pt. 221} 1
stated “for there to be valid customary arbitration, five
ingredients must be pleaded and proved namely……...”
is an obita dicta as opposed to a ratio decidendi. With
respect to learned counsel that holding by the learned trial
Judge wherein he cited decisions of the Apex Court and
copiously quoted its holdings cannot be and is not an obita
dicta. As can be gleaned from the judgment it is a specific
and weighty findings of the trial Court as to the
applicability of the customary arbitration award. The law is
trite that grounds of appeal must be couched from a ratio
decidendi of the judgment and not an obita dicta. See
MOHAMMED V LAWAL (2005) 9 NWLR {Pt. 985} 400
AT 405. It therefore follows that ground 1 of the
Appellants Amended Notice of Appeal and issue 2
formulated from it is an attack on the specific holding of
the lower Court and I so hold.
Upon stating my finding above on customary arbitration I
will conclude with the pronouncement of the Apex Court in
EMMANUEL OKPALA IGWEGO & ORS V
39
(201
8) LP
ELR-45
618(
CA)
FIDELIS OJUKWU EZEUGO & ORS (1992) LPELR –
1458 (SC) where OGUNDARE JSC while quoting
NNAEMEKA-AGU JSC in his lead judgment in OJIBAH V
OJIBAH (1991) 5 NWLR {Pt. 191} 296 at 314 held
thus:
“In my view, the law is pretty well 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 no longer open
to either party to subsequently back out of such a
decision…..”
It is my finding on this issue that the decision of the lower
Court in its judgment delivered on 21st May, 2013 was
persistent in error as it ignores the facts and evidence
before it which amounted to a miscarriage of justice. In
NATIONAL ELECTRIC POWER AUTHORITY V J.A.
OSOSANYA & ORS (2004) LPELR 1960 (SC) the
Supreme Court held thus:
“A decision of a Court is perverse when it ignores the facts
or evidence before it and when considered as a whole,
amounts to a miscarriage of justice. In such a case, an
40
(201
8) LP
ELR-45
618(
CA)
appellate Court is bound to interfere with such a decision
and to set it aside. See Agbomeji V Bakare (1998) 9
NWLR {Pt. 564} 1 at 8”. Per IGUH JSC on page 24
paragraphs C – D.
Upon considering the holding of the Supreme Court above,
it is my finding that the decision by the lower Court in its
judgment on 21st May, 2013 is hereby set aside. This issue
is resolve in favour of the appellants.
Issue 3 is:
Whether a Court of law has jurisdiction to grant in excess
of what is claimed?
I have considered the submissions by learned counsel on
this issue. But in view of my holding in issue 2 above this
issue is now no longer live it has been overtaken by events
and it is hereby discountenanced.
It is the judgment of this Court that this appeal has merit
and it is hereby allowed. The judgment by the lower Court
delivered on 21/5/2013 in Suit No. YHC/25/2012 is hereby
set aside. In its place, I make the following orders: -
1. It is hereby declared that the incessant harassment,
embarrassment, intimidation, threatening, disturbance
and/or interference with the Claimants’ OSOWEI family
right of ownership and use of a portion of the Claimants
41
(201
8) LP
ELR-45
618(
CA)
OSOWEI Family Land (i.e. 13.75 plots), lying, situate, being
at and known as OSOBUGAN BUSH, in Agbura Town,
Yenagoa Local Government Area, a place within the
jurisdiction of this honourable Court, (which said land
shares common boundaries with the land of Mr. Friday
Otuoku on the 1st side, Shell and Agip pipelines on the 2nd
side, a canal on the 3rd side and the land of Mr. Bomeden
Ekpokiri and an Access Road on the 4th side) by the
defendant, is unlawful, wrongful, illegal and same amounts
to flagrant and violent violation of the Claimant’s family
fundamental rights constitutionally guaranteed under
Sections 43 and 44 of the Constitution of the Federal
Republic of Nigeria, 1999 (as amended).
2. It is hereby declared that the continuous threat by the
defendant to forcefully acquire 13.75 Plots of land from the
Claimants OSOWEI family large expanse of land described
in Relief 1 above is unlawful, wrongful, illegal and same
amounts to trespass on the land of the Claimants OSOWEI
family and a flagrant and violent violation of the claimant’s
OSOWEI family fundamental rights constitutionally
guaranteed under Sections 48
42
(201
8) LP
ELR-45
618(
CA)
& 44 of the Constitution of the Federal Republic of Nigeria,
1999 (as amended).
3. It is hereby declared that the continuous intimidation
of the Claimants by the Defendants using men of the
Nigerian Police Force, Bayelsa State Police Command to
arrest the Claimants over the Claimants OSOWEI family
large expanse of land described in Relief 1 above is
unlawful and contrary to the claimants fundamental rights
constitutionally guaranteed under Section 35 of the
Constitution of the Federal Republic of Nigeria, 1999 (as
amended).
4. AN ORDER OF PERPETUAL injunction is issued
restraining the defendants jointly and severally by
themselves, servants, agents, privies and cohorts
surrogates, from further trespassing on the claimants
OSOWEI family land describe in Relief 1 above and/or
violating the claimants lawful, legal and/or constitutional
rights, in any of the ways stated in reliefs 1, 2, and 3 above,
and/or in any other way whatsoever.
The Respondents claims in the counter claim are hereby
dismissed for lacking in merit. The appellants are entitled
to cost which I assessed at N100,000.00.
43
(201
8) LP
ELR-45
618(
CA)
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother,.
BITRUS GYARAZAMA SANGA JCA gave me the opportunity
of reading before now the judgment just delivered. I agree
with the reasoning and conclusion of my learned brother
and I allow the appeal.
I abide by the consequential Orders.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I have the
benefit of reading in draft the judgment just delivered by
my learned brother Bitrus Gyarazama Sanga, JCA.
I am in agreement with the reasoning and conclusion
reached by the learned Justice that this appeal has merit
and should be allowed and it is so allowed by me. The
judgment of the lower Court in suit No. YHC/25/2012 is
thus set aside.
On the other part the respondents’ counter claim is
dismissed for lacking merit.
I abide by the consequential orders regarding costs as
made in the lead judgment.
(201
8) LP
ELR-45
618(
CA)
44
(201
8) LP
ELR-45
618(
CA)
Appearances:
Felix T. Okorotie, Esq. For Appellant(s)
A. F. Gbaranma, Esq. For Respondent(s)
(201
8) LP
ELR-45
618(
CA)