KYRIAN IWUOHA V IGNATIUS OHAZURUIKE

KYRIAN IWUOHA V IGNATIUS OHAZURUIKE


READ CASE SUMMARY


IN THE COURT OF APPEAL OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON FRIDAY THE 22ND DAY OF APRIL, 2016


APPEAL NO: CA/OW/343/2010

CITATION: CA (2016) 4 LLER 2

Before Their Lordships

IGNATIUS I. AGUBE, J.C.A.

PETER OLABISI IGE, J.C.A.

FREDERICK O. OHO, J.C.A.


BETWEEN

1. KYRIAN IWUOHA
2. DR. MARTINS IWUOHA

(APPELLANTS)

AND

1. IGNATIUS OHAZURUIKE
2. MRS. LUCY OHAZURUIKE
3. MRS. VERONICA OHAZURUIKE
4. MISS. FLORENCE OHAZURUIKE

RESPONDENTS


PRONOUNCEMENTS

A. CUSTOMARY LAW
1. Customary Arbitration–What must a party plead and prove to make a native arbitartion binding?

The Law is settled that a party wishing to rely on decision of Native Arbitration to support his or her title to land claimed must not only plead the report or judgment of the Arbitrators, it must be proved in accordance with all the conditions laid down for a valid decision in Native Arbitration as to whether it binds the parties thereto or that it could be used against the privies of parties to the arbitration. See: 1. DR. D. C. O. OKOYE VS. ANOR. VS. C. OBIASO & ORS. (2010) 4 SCM 143 at 163 where Adekeye JSC said: “A party can prove the existence of a customary arbitration by pleading and establishing the following:-

(a) That there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons.

(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitrations will be accepted as final and binding.

(c) That the said arbitration was in accordance with the custom of the parties or of their trade or business.

(d) That the arbitrators reached a decision and published their award: and

(e) That the decision or award was accepted at the time it was made. Igwego v. Ezeugo (1992) 6 NWLR pt. 249 pg. 561 Anyabunsi v. Ugwunze (1995) 6 NWLR (pt. 401) pg. 255 Egesimba v. Onuzuruike (2003) 15 NWLR (pt. 791) pg. 466. PER IGE, J.C.A. READ IN CONTEXT

B. EVIDENCE
2. Evaluation of Documentary Evidence–Does the appellate court have the same powers as the trial court to evaluate documentary evidence

Where as in this case the Appellants’ complaint is that the Lower Court failed to properly evaluate and accord weight to a document tendered as Exhibit at the trial Court this Court is also in the same position as the Court of trial to consider and evaluate the documentary evidence in order to discern whether there has been a miscarriage of justice against the Appellant. See: 1. MRS. L. C. UKEJE & ANOR. VS. MISS. G. A. UKEJE (2014) 11 NWLR (PART 1418) 384 at 403 H to 404 A per RHODES – VIVOUR, JSC. 2. CHIEF NYA EDIM EKONG VS. CHIEF ASUQUO E. OTOP & ORS. (2014) 11 NWLR (PART 1419) 549 at 573 F – H per OKORO, JSC who said:
“It is trite that all documents tendered before a Court at the trial of a case is part and parcel of the evidence to be considered in the determination of issues before the Court. Such documents usually referred to as exhibits are subject to scrutiny and to be tested for credibility and weight by the trial Court. Where the trial Court fails to examine documents tendered before it, an appellate Court is in a good position to evaluate such exhibits. See Ayeni v. Dada (1978) 3 SC 35; Bamgboye v. Olarenwaju (1991) 22 NSCC (Pt. 1) 501; (1991) 4 NWLR (Pt. 84) 132. I think since Exhibit ‘C’ was tendered before the trial Court and was part of the record of appeal before the court below, the Justices of that Court were eminently qualified to draw such inferences as they found fit and proper so to do.”
PER IGE, J.C.A. READ IN CONTEXT

C. FAIR HEARING
3. Audi Alteram Partem–A party cannot be made subject to a decision which he was not a party and which he did not have an opportunity to participate

The Law remains inviolate that a person who is not a party to an action or proceedings cannot suffer any penalty and by extension any benefit under such action or proceedings having regard to Section 36(1) of the Constitution of the Federal Republic as amended or altered: 1. THE NIGERIAN NAVY & ORS. V. NAVY CAPT. D. O. LABINJO (2012) 1 SCM 138 at159 I where PETER – ODILI JSC said:


“It is indeed true that it is a basic fundamental principle in our system of justice that no one can have a decision entered against him without him being heard. That being the essence of the maxim audi alteram partem. See: Ugo v. Obiekwe (1989) 1 NWLR (PART 99) 566 at 582 per Nnemeka – Agu JSC.” PER IGE, J.C.A. READ IN CONTEXT

D. PRACTICE AND PROCEDURE
4. Respondents Brief–Whether failure to file respondent’s brief automatically entitles appellant to judgement of the appellate court

It has been noted that the Respondents did not file Respondents’ Brief of Argument. This does not translate or amount to automatic win for the Appellants as Appellants must succeed or fail on their own Brief of Argument. See: 1. UNITY BANK PLC & ANOR. VS. MR. EDWARD BOUARI (2008) 2 SCM 193 at 212 per OGBUAGU, JSC who said: “In a line of decided authorities, it has been held that the failure of a Respondent to file a Reply Brief, is immaterial. This is because, an Appellant, will succeed on the strength of his case. But a Respondent, will be deemed to have admitted the truth of everything stated in the Appellant’s Brief in so far as such is borne out by the Records. In other words, it is not automatic. An Appellant, must succeed or fail on his own Brief. See the cases of John Holt Venture Ltd. v. Oputa (1996) 9 NWLR (Pt. 470) 101 C.A.; Onyejekwe v. The Nigeria Police Council (1996) 7 NWLR (Pt.463) 704 C. A. Wagri v. Waziri (1998) 1 NWLR (Pt. 533) 322 C. A. and UBA PLC v. Ajileye (1999) 13 NWLR (Pt. 633) 116 C. A. just to mention but a few.”


2. STABILINI VISIONI NIG. LTD. VS. SANDERTON VENTURES LTD. (2011) 8 NWLR (PART 1249) 258 at 272 H to 272 A per OKORO JCA (now JSC) who said: “Let me quickly add that it is not the Law that where a Respondent fails to file his brief, judgment must be entered for the Appellant, far be it. An Appellant in such circumstance still has the duty of convincing the Court that he is entitled to judgment. Therefore, though the Respondent has not filed brief in this appeal, I shall treat the issues raised by the Appellant in line with the relevant laws and authorities available for the purpose of reaching fair decision.” PER IGE, J.C.A. READ IN CONTEXT

5. Pleadings–On the rule that parties are bound by their pleadings; and must be lead evidence in support of same, or it will be deemed abandoned

The settled position of the Law is that parties are bound by their pleadings. The Court is also bound by the pleadings of the parties and is not permitted to make case for the parties outside their pleadings and evidence in support thereof: See: AFRICAN CONTINENTAL SEAWAYS LTD. V. NIGERIAN DREDGING ROADS AND GENERAL WORKS LTD. (1977) 5 SC 235 at 249 – 250 per IRIKEFE JSC.


As a corollary to the above a party is also under a bounden duty to call evidence in support of his pleading otherwise the pleading that is not covered or supported by evidence of the pleader will be deemed abandoned. This is applicable to the two sides in civil proceedings. See: CBN V. AITE OKOJIE (2015) 8 SCM 21 at 41 per RHODES – VIVOUR, JSC who said: “Pleadings are no evidence. The Defendant must call evidence to support his averments where this is not done the Defendant is deemed to have abandoned his defence. See Okechukwu v. Okafor (1961) 2 SCNLR p.369.” PER IGE, J.C.A. READ IN CONTEXT


LEAD JUDGEMENT DELIVERED BY IGE, J.C.A.


This is an appeal against the judgment of the High Court of IMO STATE, MBANO/ETITI JUDICIAL DIVISION contained in the decision of Honourable Justice F. I. DURUOHA – IGWE delivered on the 22nd day of October, 2009.

The Appellants as Plaintiffs had by their Writ of Summons issued out of the said High Court on 10th day of May, 2005 claimed against the Defendants now Respondents as follows:

“The sum of N20 MILLION NAIRA AS GENERAL DAMAGES FOR TRESPASS.”

Pleadings were duly exchanged and the matter proceeded to trial. The Appellants called two witnesses while the Respondent called one witness. Thereafter the Learned trial Judge gave a considered judgment after Counsel’s address dismissing the Appellants suit.

The Learned trial Judge held among others thus:

“One would’ve thought that Plaintiffs would have called an independent witness to prove this custom on which they hinged their claim but they did not. Custom is a question of fact to be proved by evidence. It is also pertinent to note that Exhibit “A” on which plaintiffs hinged their case was a case between F. I. Ohazuruike of defendants’ family and one Ebere Madu. Plaintiffs or any member of their family were not parties. Evaristus Iwuoha through whom Plaintiffs now claim the land was only a witness called by F.I. Ohazuruike. Even though some aspects of Exhibit ‘A’ may be relevant to this case, but can plaintiffs rely on it as document awarding them title? I do not think so. However, they may amongst other evidence rely on it to buttress their case. I am of the view that Plaintiffs have not proved the custom through which they claim.

On the other hand, even though Defendants have convincingly proved that they were in possession, they have not proved ownership. Exhibit ‘B’ the purchase receipt even though couched as a receipt purports to transfer interest in land to Julius Ohazuruike and so is a registrable instrument. I admitted it in evidence for what is worth and not as proof of defendants’ title to the land in dispute. At best, it is an acknowledgement of payment of money, from this arises equitable interest capable of being converted into a legal estate by specific performance. See the case of Ogunbami v. Abowab. 13 WACA 222. So, I have no choice than to fall back on defendants’ evidence of acts of ownership, i.e. farming and reaping crops therefrom and getting the portion as their share during the family sharing. It is in evidence that Plaintiff’s never exercise such acts of ownership and did not even know the land was theirs until the so called arbitral award of 1999. According to evidence of PW1 and PW2 Plaintiffs started farming the land after the award and were so doing by 7/5/05 when defendants allegedly broke and entered the land. So both parties are claiming to be in possession, there is no such thing as concurrent possession of the same piece of land by 2 persons claiming adversely to one another. In such a situation the person in actual possession will be entitled to judgment. In this case, the defendants from the facts and circumstances, were in actual possession of the land in dispute. See the Supreme Court decision in Ogunbiyi vs. Adewunmi (1988) 5 NWLR (Pt. 93 215 S. C.

Having evaluated the evidence before me, I am afraid plaintiffs have not discharged the burden of proof placed on them by law. They have not proved their case on the preponderance of evidence. This suit is accordingly dismissed.”

Pages 102 – 104 of the record.

Aggrieved by the judgment of the trial Court the Appellants filed Notice and grounds of appeal dated 12th day of May, 2010 on 23rd day of June, 2010. The said grounds of appeal and their particulars are as follows:

“3. GROUND OF APPEAL

GROUND ONE

The learned trial Judge erred in Law in making Order dismissing Suit No. HME/26/2005 when the Court held “by their own evidence the Defendants showed that they have been on the land since 1964.

PARTICULARS OF ERROR

i. The above finding or holden is not supported by evidence adduced in Court as the Lower Court confused evidence with pleadings.

ii. The Defendants tendered and relied on Exhibit ‘B’ as given them a right to the land subject matter of the trespass action.

iii. The Defendants cannot rely on acts of alleged possession in 1964 and on Exhibit ‘B’ at the same time as giving them right to trespass into the land subject matter of the trespass action.

iv. In its Ruling dated the 20th day of November 2008 the Lower Court made it clear that Exhibit ‘B’ did not pass title to the land to the Defendants.

GROUND TWO

The learned trial Judge erred in Law when it held that the Plaintiffs now Appellants were not in possession of the land subject matter of the Suit as at 7th May, 2005 when the Defendants broke into it to farm without the consent of the Appellants.

PARTICULARS OF ERROR

i. There was uncontradicted evidence of the PW1 and PW2 regarding who was in possession of the land the subject matter of the trespass action before the act leading to the Suit.

ii. The PW2 was an independent witness being the secretary of the family meeting known as Umudurukwaku to which both the Plaintiffs and the Defendants belong.

iii. Exhibit ‘A’ was admitted in Court without objection and the Court ought to have given it its full weight.

iv. Exhibit ‘A’ showed that Umudurukwaku Kindred put the Plaintiffs now Appellants in possession immediately after their decision.

v. The Defendants on the other hand relied on the right of a person, namely Julius Ohazuruike who was not a party in the Suit as the source of their right to the land in dispute.

GROUND THREE

The learned trial Judge erred in Law when it held “Plaintiff’s Counsel address urged me to look at Exhibit ‘A’ to see that that a member of defendants’ family was one of those who gave excusive ownership to Plaintiffs. I have looked at Exhibit ‘A’ and as I had earlier noted someone (F. I. Ohazuruike) was in possession of the land before 1999 when plaintiffs were purportedly adjudged owners of the land.”

PARTICULARS OF ERROR

i. The defendants never told the Lower Court they trespassed or entered into the land at the instance of F. I. Ohazuruike.

ii. F. I. Ohazuruike is not synonymous with the Defendants now Respondents.

iii. Exhibit ‘A’ clearly showed that F. I. Ohazuruike was among those that put the Plaintiffs in possession of the land subject matter of the trespass action.

iv. Exhibit ‘A’ is a decision based on the custom of Umudurukwaku and those who took the decision were in a better position to know their custom than the Lower Court where custom was not made an issue.

v. The Defendants in their evidence maintained that they were on the land at the instance of Mr. Julius Ohazuruike.”

(Pages 106 – 108 of the record).

The Appellants’ Brief of Argument dated 12th day of November, 2014 on 14-11-2014. The Respondents did not file Brief of Argument. When the appeal came up for hearing on 28th day January, 2016, the Learned Counsel to the Appellants, adopted and relied on the Appellants Brief of Argument.

The Learned Counsel to the Appellants B. N. ONUOHA Esq. distilled three issues for determination of the appeal viz:

1. Whether the Respondents led any evidence to establish that they have been on the land subject matter of this suit since 1964?

2. Whether the Appellants established that they were in exclusive possession of the land subject matter of the

trespass action as at 7th May 2005 when the cause of action arose.?

3. Whether the refusal of the Lower Court to give effect to Exhibit “A”, particularly the fact that Chief F. I. Ohazuruike, head of the Respondents’ family, was among those that awarded the ownership and exclusive possession of the land subject matter of the trespass action, occasioned injustice in this suit.

It has been noted that the Respondents did not file Respondents’ Brief of Argument. This does not translate or amount to automatic win for the Appellants as Appellants must succeed or fail on their own Brief of Argument. See:

1. UNITY BANK PLC & ANOR. VS. MR. EDWARD BOUARI (2008) 2 SCM 193 at 212 per OGBUAGU, JSC who said:
“In a line of decided authorities, it has been held that the failure of a Respondent to file a Reply Brief, is immaterial. This is because, an Appellant, will succeed on the strength of his case. But a Respondent, will be deemed to have admitted the truth of everything stated in the Appellant’s Brief in so far as such is borne out by the Records. In other words, it is not automatic. An Appellant, must succeed or fail on his own Brief. See the cases of John Holt Venture Ltd. v. Oputa (1996) 9 NWLR (Pt. 470) 101 C.A.; Onyejekwe v. The Nigeria Police Council (1996) 7 NWLR (Pt.463) 704 C. A. Wagri v. Waziri (1998) 1 NWLR (Pt. 533) 322 C. A. and UBA PLC v. Ajileye (1999) 13 NWLR (Pt. 633) 116 C. A. just to mention but a few.”

2. STABILINI VISIONI NIG. LTD. VS. SANDERTON VENTURES LTD. (2011) 8 NWLR (PART 1249) 258 at 272 H to 272 A per OKORO JCA (now JSC) who said:

“Let me quickly add that it is not the Law that where a Respondent fails to file his brief, judgment must be entered for the Appellant, far be it. An Appellant in such circumstance still has the duty of convincing the Court that he is entitled to judgment. Therefore, though the Respondent has not filed brief in this appeal, I shall treat the issues raised by the Appellant in line with the relevant laws and authorities available for the purpose of reaching fair decision.”(back to top?)

The issues formulated by the Appellant will now be dealt with in sequence.

ISSUE 1

Whether the Respondents led any evidence to establish or show that they have been in possession of the land subject matter of the trespass since 1964 as held by the Lower Court.

The Learned Counsel to the Appellants stated that the Respondents did not lead any evidence to establish or show that they have been in possession of the subject matter of the trespass action since 1964. Reference was made to page 99 Line 18 of the record concerning the finding of the trial Court to the effect that the Respondents led evidence in line with facts pleaded in paragraph 8 of their Statement of Defence that they have been in possession of the land as far back as 1964 before the land was shared or allocated.

The Learned Counsel to the Appellants submitted that the finding that the “DW1 testified accordingly” is not borne out of the record. That the testimony of the said DW1 can be found on pages 74 – 78 and 187 – 91 of the Record of Appeal. That DW1 never told the Court that they were farming the land the subject matter of the trespass action since 1964. That the Learned trial Judge was confusing pleadings with evidence and that the two are not the same. That pleading which is not supported by evidence is deemed abandoned.

He relied on the cases of:

1. ASADU V. IFEANYI (2009) 28 WRN 125 at 142 and

2. ADU VS. GBADAMASI (2009) 19 WRN 178 at 193.

That the only evidence given by DW1 was that his mother was farming on the land from January, 1991. That the evidence on page 89 of the record by DW1 goes to no issue because they were not pleaded anywhere in the Statement of Defence. That, that evidence on facts not pleaded go to no issue relying on the cases of:

1. Abubakar vs. Joseph (2008) 50 WRN 1 at 54 and

2. OLUBODUN VS. LAWAL (2008) 51 WRN 1 at 45.

That the Lower Court did not rely on any evidence adduced before it came to the conclusion that the Respondents have been in possession of the land subject matter of trespass action since 1964.

The settled position of the Law is that parties are bound by their pleadings. The Court is also bound by the pleadings of the parties and is not permitted to make case for the parties outside their pleadings and evidence in support thereof: See: AFRICAN CONTINENTAL SEAWAYS LTD. V. NIGERIAN DREDGING ROADS AND GENERAL WORKS LTD. (1977) 5 SC 235 at 249 – 250 per IRIKEFE JSC.


As a corollary to the above a party is also under a bounden duty to call evidence in support of his pleading otherwise the pleading that is not covered or supported by evidence of the pleader will be deemed abandoned. This is applicable to the two sides in civil proceedings. See: CBN V. AITE OKOJIE (2015) 8 SCM 21 at 41 per RHODES – VIVOUR, JSC who said: “Pleadings are no evidence. The Defendant must call evidence to support his averments where this is not done the Defendant is deemed to have abandoned his defence. See Okechukwu v. Okafor (1961) 2 SCNLR p.369.”(back to top?)

It is true that the Defendants did not specifically lead evidence of their possession as dating back to 1964 in the witness box but the 1st DW testified on page 89 of the record said that UMUABIKA sold the land in dispute to Julius Ohazuruike his elder brother in 1991 for the sum of N1,500.00 and that his mother was farming on it since 1991. His evidence was that the land in dispute formed part of family land or community land of UMUABIKA in general and that the daughter of Ukachukwu sold the land to one Amos Onyeji. That DW1’s father Josiah Ohazuruike and David Maduwube sued Amos Onyeji to reclaim the land and that the matter was concluded in 1955 when the land in this suit reverted back to UMUABIKA in general. DW1 then testified:

“Since 1955, anybody who is a member of Umuabika can work on the land and harvest economic trees thereon. My mother used to farm on this particular land which is the subject matter of this action before my brother Julius Obilo Ohazuruike bought it from Umuabika.”

These piece of evidence of DW1 were nowhere challenged under Cross Examination. As a matter of fact PW1 under Cross Examination admitted the fact of pledge of Ukachukwu’s land to Amos Onyeji and that the father of DW1 assisted in redeeming the land which included the land in dispute and under Cross Examination on page 56 of the record the following questions and answers appear viz:

“Q. Do you know that when Ukachukwu died, the surviving daughter – Ogoma pledged the landed property of her father to Onyeji.

A. I heard that she did so.

Q. Do you know that those parcels of land pledged by Ogoma were later redeemed.

A. I know that.

Q. One of the redeemed parcels of land is the subject matter of this suit.

A. That is true.”

The evidence of DW1 and the findings of the trial Judge show that the Defendants now Respondents were at all time material in possession of the land in dispute even before the purchase by Julius Ohazuruike vide Exhibit “B”. In effect there are other pieces of evidence on record showing that the Defendants were in possession.

It is not every slip in a judgment that can result in the judgment being set aside. A mistake that would warrant a judgment to be said aside must be substantial. Reading the judgment as a whole there is cogent evidence showing that possession of the land in dispute by the Respondent preceded the 1999 date which Appellants claimed the land was adjudged as belonging to their father by Native Arbitrators of the Appellants and Respondent’s community.

See: CHIEF ADEBISI ADEGBUYI VS. APC & ORS. (2014) 12

SCM (Pt. 2) 30 at 46 per FABIYI JSC who said:

“The Court below found that ‘the trial Judge could not have intended to use the word ‘dismissal’ after stating clearly that the issues are triable and evidence would have to be taken.’ It is rightly found that it is not every slip of a Judge that can result in the judgment being set aside for a mistake to so result, it must be substantial in the sense that it affected the decision appealed against. The case of Onajobi v. Olampekin (1985) 11 SC (Pt 2) 156 is in point.

This Court said it clearly in Adetayo v. Attorney – General Ogun State (2008) 2 SCNJ 352 at 366 – 367 (2008) 5 SCM 1 per Niki Tobi JSC that:-

“In order to pick faults in judgment of a trial Judge, the appellate Court should not take paragraphs or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the Court. An Appellate Court cannot allow an appellant to read a judgment in convenient instalments to underrate or run down the judgment.”

The findings of the trial Judge concerning possession cannot be faulted. Consequently Issue 1 is resolved against the Appellants.

ISSUE 2

Whether the Appellants establish that they were in exclusive possession of the land subject matter of this trespass action as at 7th May, 2005 when cause of action arose.

Learned Counsel to the Appellant answered the question posed in the affirmative. He argued that in action for trespass all a Plaintiff needs to do is to establish possession even if he is a trespasser and that a defendant can only justify his entry on the land by showing a better title. He relied on the cases of OLUBODUN V. LAWAL Supra 74 and EKWERE Vs. IYIEGBU (1972) 6 SC 116. He relied the evidence of PW2 which he described as unchallenged to the effect that it was discovered that all lands owned by Ukachukwu Abika were to be rightly inherited under their custom by EVEREST IWUOHA of the Appellants’ family who Appellants said was called by Chief F. I.

Ohazuruike of Respondents’ family to give evidence for him. That by virtue of Exhibit “A” Chief F. I. Ohazuruike accepted Exhibit “A” the decision of the arbitrators and that he in fact joined the arbitrators in physically putting the Appellants represented by their senior brother Mr. Everest Iwuoha in possession. He referred the Court firstly to the Court enunciation of the Law that when both parties claim possession trespass will be at the suit of one who can show that title is in him. Appellants also relied on pages 102 – 103 of the record wherein the trial Judge held that Exhibit “A” cannot confer title on the Appellants.

That the traditional arbitration was not done in Court by members of the kindred including E. I. Ohazuruike Ebere Madu and Everestus Iwuoha. That it was along the line that the person called to give evidence turned out to be the person entitled to inherit the land in dispute before the Arbitrators that is between F. I. Ohazuruike of the Respondent’s family and Ebere Madu who the Appellants said is also of Umudurukwaku Kindred. That all the persons involved agreed or accepted that Everest Iwuoha be given the land as his inheritance. That the Respondents did not lodge appeal anywhere against the decision in Exhibit “A”. That the Lower Court is therefore wrong to hold that Appellants cannot rely on Exhibit “A” as awarding them title to the land subject matter of the trespass action.

On the effect or bindingness of Arbitration award or judgment on parties, learned Counsel to the Appellant relied on the following cases namely:

1. ONYENGE V. EBERE (2005) 51 WRN 1 at 25 per NIKI TOBI JSC and;

2. OPARAJI VS. OHANU (1999) 9 NWLR (PART 618) 290 at 304.

The Learned Counsel to the Appellants acknowledged the fact that the original parties were F. I. Ohazuruike and Ebere Madu. That the moment the parties to the arbitration accepted Everest Iwuoha as the owner of the land, the parties to the dispute in arbitration are deemed to have accepted Everest Iwuoha as a party to the arbitration. That issue of a formal application for joinder of a party in a traditional Arbitration is not in tandem with its strict application as in our regular Courts of record. He therefore urged this Court to hold that the land in dispute was properly ceded to Everest Iwuoha in the Native Arbitration. He relied on Exhibit “A” which was copied on pages 115 – 126 of the record.

That the Lower Court was wrong in failing to give full effect to Exhibit “A”. That as at 7th May, 2005 Appellants were in exclusive possession.

Where as in this case the Appellants’ complaint is that the Lower Court failed to properly evaluate and accord weight to a document tendered as Exhibit at the trial Court this Court is also in the same position as the Court of trial to consider and evaluate the documentary evidence in order to discern whether there has been a miscarriage of justice against the Appellant. See: 1. MRS. L. C. UKEJE & ANOR. VS. MISS. G. A. UKEJE (2014) 11 NWLR (PART 1418) 384 at 403 H to 404 A per RHODES – VIVOUR, JSC.(back to top?)

2. CHIEF NYA EDIM EKONG VS. CHIEF ASUQUO E. OTOP & ORS. (2014) 11 NWLR (PART 1419) 549 at 573 F – H per OKORO, JSC who said:(back to top?)

“It is trite that all documents tendered before a Court at the trial of a case is part and parcel of the evidence to be considered in the determination of issues before the Court. Such documents usually referred to as exhibits are subject to scrutiny and to be tested for credibility and weight by the trial Court. Where the trial Court fails to examine documents tendered before it, an appellate Court is in a good position to evaluate such exhibits. See Ayeni v. Dada (1978) 3 SC 35; Bamgboye v. Olarenwaju (1991) 22 NSCC (Pt. 1) 501; (1991) 4 NWLR (Pt. 84) 132. I think since Exhibit ‘C’ was tendered before the trial Court and was part of the record of appeal before the court below, the Justices of that Court were eminently qualified to draw such inferences as they found fit and proper so to do.”(back to top?)

The Law is settled that a party wishing to rely on decision of Native Arbitration to support his or her title to land claimed must not only plead the report or judgment of the Arbitrators, it must be proved in accordance with all the conditions laid down for a valid decision in Native Arbitration as to whether it binds the parties thereto or that it could be used against the privies of parties to the arbitration. See: 1. DR. D. C. O. OKOYE VS. ANOR. VS. C. OBIASO & ORS. (2010) 4 SCM 143 at 163 where Adekeye JSC said:(back to top?)

“A party can prove the existence of a customary arbitration by pleading and establishing the following:-

(a) That there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons.

(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitrations will be accepted as final and binding.

(c) That the said arbitration was in accordance with the custom of the parties or of their trade or business.

(d) That the arbitrators reached a decision and published their award: and

(e) That the decision or award was accepted at the time it was made. Igwego v. Ezeugo (1992) 6 NWLR pt. 249 pg. 561 Anyabunsi v. Ugwunze (1995) 6 NWLR (pt. 401) pg. 255 Egesimba v. Onuzuruike (2003) 15 NWLR (pt. 791) pg. 466.”(back to top?)

2. MR. MELFORD AGALA & ORS. VS. CHIEF BENJAMIN OKUSIN & ORS. (2010) 5 SCM 22 at 49 D – I to 50 A

– C where Ogbuagwu JSC said:

“This should have been the end of this appeal, but let me by way of emphasis, deal with the issue relating to native or customary arbitration. Generally, by Section 6 (1) & (5) of both the Constitution of the Federal Republic of Nigeria, 1979 and 1999, it is in the Courts and not to non-judicial bodies, that judicial powers of the Federal Republic of Nigeria, is vested. The Courts therefore, take the view that it is open to the parties, to choose whether to follow the normal channel for determination of any controversy through the machinery of the Courts or to submit the matter voluntarily, to the non-judicial body for a decision. If they choose the former, the decision of a Court of competent jurisdiction on such a matter, would constitute an estoppels per rem judicatam. Where they choose the latter and there was an intervention by a non-judicial body, then the Court ought to be satisfied that a number of conditions precedent, were satisfied before it could hold that the decision constitutes estoppels. The conditions precedent to bindingness of a customary arbitration, are as follows:

“(a) there must have been a voluntary submission of the disputes by the parties to the non-judicial body;

(b) the parties must have agreed to be bound by the decision of the non judicial body as final;

(c) that the decision was in accordance with the custom of the people or of their trade or business; and

(d) that the arbitrators reached a decision and published their award”. See the cases of Awosile v. Chief Sotunbo (supra) (a), 532 citing the cases of Inyanz v. Essien (1957) SCNLR 112; Njoku v. Ekeocha (1972) 2 ECSLR 199; Idika & Ors. v. Erisi & Ors. (1988) 2 NWLR (Pt. 78) 563; (1988) 5 SCNJ. 208; and Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385; (1991) 4 SCNJ. 56. In this last case, Nnaemeka – Agu, JSC stated at page 533 inter alia, as follows:

“Parties to disputes will do well to remember that such persons or bodies … though highly placed and respected… are not judicial bodies. Before their decision on any matter in dispute between parties can be relied upon as estopel, all the above requirements of a binding customary arbitration must be shown to have been observed. The pleadings and evidence in this case fall far short of those requirements. Once such is the position, the case must be decided on the relative strengths of other facts established by evidence.”

The only pleading of the Appellants touching and relating to the aforesaid Exhibit “A” the decision of Native Arbitration can be found in paragraphs 4 of the Appellant’s Statement of Claim page 3 of the record by appeal thus:

“4. The issue of ownership of the land had since been settled in favour of the Plaintiffs in a native Arbitration before Umudurukwaku people to which the Plaintiffs and the Defendants belong since July 1999. Copy of the proceedings and decision are hereby pleaded.”

The above averment was denied in paragraph 1 of the Statement of Defence.

In his findings on Exhibit “A” the Learned trial Judge said:

“In proof of their case, Plaintiffs led evidence to show that they came into possession of the land in dispute through the decision of Umudurukwaku as reflected in Exhibit ‘A’. under cross examination PW1 testified that Ugoanyanwu (Iwuoha) his grand-father took over the wife of Ukachukwu and along with her, the landed property of her late husband. This was the bedrock of the decision in Exhibit ‘A’ awarding the parcel of land to Ugoanyanwu (Iwuoha). This witness also admitted under cross –examination that Josiah Ohazuruike redeemed the lands of Ukachukwu from Amos Onyeji but that he did so in aid of his brother Ugoanyanwu. The suit for this redemption was in 1955. See paragraphs 4 and 5 of the Statement of Defence. Plaintiffs led no evidence that at this time, the land had been adjudged that of Ugoanyanwu. Exhibit ‘A’ which so did was in 1999. So how could Josiah redeem the land for on his behalf when he had not been adjudged the owner? It is not true nor possible.

Another interesting fact that emerged under cross-examination was the date of redemption of these lands. PW1 did not know when the redemption took place. He did not also know whether or not his grand-father Ugoanyanwu on whose behalf the land was allegedly redeemed was dead or alive at the time of redemption. Defendants also contended that the lands of Ukachukwu were shared among Umuabika. This question was put to PW1 under cross-examination and he answered in the affirmative. By Exhibit ‘A’ which is Plaintiffs’ document, the land in dispute-referred to as “Ala Umueke” was allocated to Ohazuruike during the sharing.” (Pages 98 – 99 of the record).

And on page 99 – 100 the trial Judge said:

“There is need to have a second look at Exhibit ‘A’ is in respect of a dispute between Ebere Madu and Chief F. I. Ohazuruike – Evaristus Iwuoha was called by F. I. Ohazuruike to give evidence in support of his case. In that case/arbitration F. I. Ohazuruike was contesting the property of the sharing. Evaristus was not a party in the case/arbitration before the Umudurukwaku- he was a witness. However, by a strange turn of events, evidence emerged during the hearing that the land should go to his (Everistus) grand-father by virtue of his taking over Ukachukwu’s wife- Onyemutaraju. All and sundry were in agreement including the parties Evaristus was happy and thanked everybody for giving him the landed property of Ukachukwu with effect from 02/01/99 and Exhibit ‘A’ further stated: “………..And He advised anybody who planted any crops on the said lands to harvest them when due. And he also asked anybody spent (sic) anything during the land matters in those days should come to him for a refund …”. In order words, he (Evaristus) recognized that people had planted on the land. This supports the pleading and evidence of Defendants that 2nd defendant had been farming the land since 1964 and also up to 2/01/99, the day of the said arbitral award. Most importantly, by Exhibit ‘A’, the land in dispute was allocated to F. I. Ohazuruike of defendants family. So it was in his possession and not in the possession of Plaintiffs.

Defendants denied any arbitration before the Umudurukwaku and also the resultant Exhibit ‘A’. Be that as it may, Plaintiffs have a case to prove. Their case or claim is that defendants trespassed into the land belonging to them. I have x-rayed the evidence proffered on both sides.”

Further on pages 102 to 103 of the record the trial Judge said:

“One would’ve thought that Plaintiffs would have called an independent witness to prove this custom on which they hinged their claim but they did not. Custom is a question of fact to be proved by evidence. It is also pertinent to note that Exhibit “A” on which plaintiffs hinged their case was a case between F. I. Ohazuruike of defendants’ family and one Ebere Madu. Plaintiffs or any member of their family were not parties. Evaristus Iwuoha through whom Plaintiffs now claim the land was only a witness called by F.I. Ohazuruike. Even though some aspects of Exhibit ‘A’ may be relevant to this case, but can plaintiffs rely on it as document awarding them title? I do not think so. However, they may amongst other evidence rely on it to buttress their case. I am of the view that Plaintiffs have not proved the custom through which they claim.

On the other hand, even though Defendants have convincingly proved that they were in possession, they have not proved ownership. Exhibit ‘B’ the purchase receipt even though couched as a receipt purports to transfer interest in land to Julius Ohazuruike and so is a registrable instrument. I admitted it in evidence for what is worth and not as proof of defendants’ title to the land in dispute. At best, it is an acknowledgement of payment of money, from this arises equitable interest capable of being converted into a legal estate by specific performance. See the case of Ogunbami v. Abowab. 13 WACA 222. So, I have no choice than to fall back on defendants’ evidence of acts of ownership, i.e. farming and reaping crops therefrom and getting the portion as their share during the family sharing. It is in evidence that Plaintiff’s never exercise such acts of ownership and did not even know the land was theirs until the so called arbitral award of 1999.”

The findings are justified and supported by evidence. I am of the solemn view that members of the Plaintiffs family were not parties to the arbitration in question and the Respondents who were Defendants were also not parties to the Native Arbitration. I think it is repugnant to logic that Everest Iwuoha who was never a party to an arbitration could be the beneficiary of the disputes between F. I. Ohazuruike and Ebere Madu. The award to Everest Iwuoha has taken the proceedings leading to Exhibit “A” out of the purview of Native Arbitration properly so called. Exhibit “A” cannot inure for the benefit of the Plaintiffs and cannot be enlisted as estoppel of any form against the Respondents.

The Law remains inviolate that a person who is not a party to an action or proceedings cannot suffer any penalty and by extension any benefit under such action or proceedings having regard to Section 36(1) of the Constitution of the Federal Republic as amended or altered: 1. THE NIGERIAN NAVY & ORS. V. NAVY CAPT. D. O. LABINJO (2012) 1 SCM 138 at159 I where PETER – ODILI JSC said:

“It is indeed true that it is a basic fundamental principle in our system of justice that no one can have a decision entered against him without him being heard. That being the essence of the maxim audi alteram partem. See: Ugo v. Obiekwe (1989) 1 NWLR (PART 99) 566 at 582 per Nnemeka – Agu JSC.”(back to top?)

2. RALPH UWAZURUIKE & ORS. VS. THE A. G. OF THE FEDERATION (2013) 10 NWLR (PART 1361) 105 at 130 A – B per FABIYI JSC who said:

“I wish to point it out here that in the exparte application filed by the appellants at the Federal High Court, Owerri, the respondent was not a party to same. Any order made against a person who was not a party to the action before the Court is to no avail. Such cannot stand the test of time and is not binding on such a non-party to the action. See: UKU V. OKUMASHA (1974) ALC NLR 475.”

The Respondents cannot be held bound by decision of Arbitration Exh. “A”.

Exhibit “A” is of no evidential value to the Appellant’s Case and appeal. The finding of the trial Court on Exhibit “A”, the decision of Arbitration Panel, is sound and cannot be faulted. Issue 2 is hereby resolved against the Appellants in favour of the Respondents.

ISSUE NO. 3

Whether the refusal of the Lower Court to give effect to Exhibit “A” particularly the fact that Chief F. I. Ohazuruike, head of Respondents family, was among those who awarded ownership and gave exclusive possession of the land subject matter of this trespass action to the Appellants, occasioned injustice in this suit?.

The Learned Counsel to Appellants referred once again to Exhibit “A” the decision of a Traditional Arbitration Panel. That the Lower Court recognized the fact that Appellants right to maintain the trespass action was based mainly on Exhibit “A”. Page 101 of the record was relied upon. That the Lower Court did not appreciate the fact that the Respondents were not claiming through F. I. Ohazuruike but through Julius Ohazuruike and were relying on alleged sale to Julius Ohazuruike as per Exhibit “B” which, according to Appellants the Lower Court rightly held did not pass any title to Julius Ohazuruike. Appellants drew attention to Cross Examination of DW1 on pages 90 – 91 of the record. That the Lower Court was wrong, to attribute the alleged possession of the land by Chief F. I. Ohazuruike to Respondents. That parties are bound by their pleadings. That the Lower Court relied on two things to found exclusive possession in favour of Respondents viz:

1. Paragraph 8 of the Respondents’ Statement of Defence.

2. The finding of Lower Court that Exhibit “A” refers to the land in dispute as “Ala Umueke” as being allocated to Ohazuruike during the sharing.

That the Lower Court was wrong on the two grounds.

That such issues were not placed before the Court of first instance and as such the trial Court lacks the power to make the findings. That the Court did it suo motu. The Appellants concluded by arguing that refusal of the Lower Court to give effect to Exhibit “A” occasioned injustice against Appellants.

It is trite Law that an appellate Court should not ordinarily disturb or tamper with the findings of facts made the trial Court particularly if such findings are in consonance with evidence on record. This is because the duty to appraise or evaluate the oral evidence given at the trial Court is pre-eminently that of trial Court which saw and heard the witnesses.

See: M. ACHILITU & ORS. VS. EZEKIEL ANYATONWU (2013) 12 NWLR (PART 1. 368) 256 A – G per AKAAHS JSC. The Appellate Court will only in the appropriate circumstances set aside any finding that is not consisted or flow from the evidence on record.

This Court can in such situation reverse the Lower Court and make proper inferences from the facts found to be at variance with established facts in the case.

See: (1) MOHAMMED HUSSEIN 1 & ANOR. VS. M. N.

MOHAMMED & ORS. (2015) 3 NWLR (PART 1445) 100 at 134 D – E per RHODES – VIVOUR JSC.

(2) ADIELE IHUNWO VS. JOHNSON IHUNWO & ORS. (2013) 8 NWLR (PART 1357) 550 at 571 D where ARIWOOLA JSC said:

“It has been held and it is trite law, the “appeals to appellate Courts are by way of rehearing. In hearing in appeal, the appellate Court should reconsider the materials before the trial Court and should not hesitate to overrule its decision even on facts where, after giving due regards to the advantage which the trial Court has of seeing the witness, it is clear the decision is wrong. See: Okhuarobo & Ors. v. Aigbe (supra).”

I am of the firm view that rather than blame the Court the Appellants should blame themselves because they were the ones attributing the right of Chief F. I. Ohazuruike to the Respondents as if the Respondents were at the arbitration with him. The Appellants cannot rely on part of Exhibit “A” favourable to them and tried to discard the unfavourable portion of it.

They are bound by the credit and debit side of Exhibit “A”. The trial Judge did not travel outside Exhibit “A” but brought out clearly matters that transpired at the arbitration. Since by their submissions the Appellants relied solely on Exhibit “A” they cannot expect the Court to scrounge for other pieces of evidence or facts to enable them sustain the action. They cannot even rely on any weakness in the Respondents case to shore up their title.

The Learned trial Judge’s findings do not occasion any miscarriage of justice. I also adopt my reasoning under Issue two above in resolving Issue 3 against the Appellants. In the result the Appellant’s appeal lacks merit and it is hereby dismissed in its entirety.

The Imo State High Court judgment delivered on 22nd day of October, 2009 by Honourable Justice F. I. DURUOHA-IGWE is hereby affirmed. There will be no Order as to costs.

ACUBE, J.C.A.: I was opportune to read the lead judgement of my learned brother, P. O. IGE, JCA, in advance. My lord has adequately dealt with and resolved the issues that fell for determination in the lower Court and rightly held that the Appellants Appeal lacked merit and should be dismissed. I am also in total agreement with him that the Appeal lacks merit and is accordingly dismissed.
I also make no order as to costs.

OHO , J.C.A.: I had the opportunity of reading the draft of the judgement just delivered by my learned Brother, PETER OLABISI IGE, JCA. I am in total agreement with the reasoning and conclusions in dismissing this Appeal. I abide by the consequential orders made by my lord.

APPEARANCES:

B. N. ONUOHA Esq. for the APPELLANTS.

Respondents are not represented.