Chief Ogunderu Oremade Awonusi & Anor. V. Mr. Adeyemi Odunsi Awonusi (2006)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
This is an appeal against the judgment delivered by Saula, while sitting at the High Court of Justice, Sagamu in Ogun State of Nigeria on 30th July, 2004. In the judgment, the claims of the plaintiff at the trial court and respondent herein were substantially granted as prayed.
The plaintiffs claims as contained in paragraph 29 of the statement of claim read thus:
“29, WHEREOF the plaintiffs claim against the defendants jointly and severally (sic) read as follows:
(a) An order directing the defendants to:
(i) make a full disclosure of the total number of plots in each of Phases I and II of the Oliwo Awonusi Family land.
(ii) tender a full financial account of all the plots of land sold by the defendants in Phases I and II of the Oliwo Awonusi Family land.
(iii) disclose the amount of money if any, distributed among each of the five branches of Oliwo Awonusi Family.
(b) A declaration that the plaintiff is entitled to be paid the sum of one thousand Naira (N1,000.00) or five hundred Naira (N500.00) on every plot of land sold in each of Phases I and II of the Oliwo Awonusi Family land in accordance with the judgment of Ewusi-in-Council which was delivered on 26/6/91.
(c) A declaration that the plaintiff is entitled to allotment of a proportionate and reasonable member (sic) number of plots in Phases I and II of the Oliwo Awonusi family land as ordered by the Ewusi-In-Council on 26/6/91.
(d) An order directing the defendants to allow the plaintiff to exercise his right of option to purchase some of the plots of land in Phases I and II of the Oliwo Awonusi Family land in accordance with the judgment of Ewusi -In-Council of 26/6/91.
(e) An order restraining the defendants from further selling the land in Phases I and II of the Oliwo Awonusi Family land until the defendants have carried out the order of Ewusi-In-Council as contained in their judgment of 26/6/91.
f) A declaration that the plaintiff as a principal member of Oliwo Awonusi Family is entitled to be involved in the sale of Oliwo Awonusi Family land.”
It is apt to state, albeit, briefly the evidence adduced on both sides of the divide for a clear focus. The plaintiff maintained that a vast land known as Ado farmland belonged to his grandfather by name OJiwo Awonusi who had five children namely Oremade, Joye, Odunsi, Sewoniku and Oyesanya. Oremade begat the 1st defendant along with others. Joye begat the 2nd defendant with others and Odunsi begat the plaintiff along with others as well.
OJiwo Awonusi was survived by his five children who inherited his vast farm land. Each of them farmed on the land. When they died, their children inherited their respective portions on which they farmed and the crops thereon. The plaintiff said he inherited six farm lands from his father – Odunsi.
In 1974, the defendants persuaded the whole family that as the Government was proposing to acquire their land, they should lay-out the land to forestall same. This led to the first lay-out by the family called Phase I. The plaintiff said he had 80 plots as his personal holding in that phase. Twelve plots from Phase I were allocated to each of the five branches of the family and the plaintiff had a share from same. He requested to purchase some plots therefrom for his personal use. The request was not granted; whereas one Mrs. Stella Iyabo Bashorun, the 1st defendant’s niece was allocated 24 plots therefrom for her poultry business. The defendants deal recklessly with the sale of plots in the lay-outs and failed to render accounts of their transactions to anybody. They moved to Phase II and destroyed his crops thereon without compensation. The plaintiff, in protest, removed one of the survey pillars. The defendants sued him to Ewusi palace and he attended. The Ewusi-In-Council heard both parties and settled the matter as per the judgment in Exhibit A & A1. The defendants failed to comply with the orders of Ewusi-In-Council. The Plaintiff sent a petition to the Bureau for Lands in Abeokuta which advised the parties to settle at home. When the defendants did not change, the plaintiff instituted this action. He maintained that the 1st defendant made himself the head of the family and made the 2nd defendant his secretary.
The defendants maintained that the whole family made the 1st defendant the family head after the death of the former family head – Efuwape Awonusi. The whole family, at a meeting decided to pool their farm lands together and lay them out in Phases. In Phase I, 12 plots were allocated to each of the 5 branches of the family. The plaintiff had his own share from his branch. Two additional plots were allocated to him and one plot to his son. They maintained that funds from sales in phase I were shared to the 5 branches and the plaintiff enjoyed his own share therefrom.
On getting to Phase II, the plaintiff resisted the work on same and uprooted pillars thereon. They reported to the Ewusi who advised him to settle with the family and stop disturbing the layout. The plaintiff reported the family at the Bureau for lands in Abeokuta where he was also advised to go and settle the matter peacefully. The plaintiff said he should be allocated 26 plots but the family offered him 8 plots which he rejected. The defendants maintained that they render account regularly to the family and that each branch of the family has a representative in the Committee administering the project.
The learned trial judge was properly addressed by learned counsel on both sides. In a considered judgment entered on 30-7-04, the learned trial judge found substantially in favour of the plaintiff and entered judgment for him.
The defendants felt unhappy with the stance of the trial judge and have appealed to this Court. The Notice of Appeal dated 22-10-04 and filed on the same date was accompanied by five grounds of appeal.
The reliefs sought from this court read as follows:
“a. An order of this Honourable Court sitting (sic) setting aside the judgment of the lower court.
b. An order of this Honourable Court dismissing the Plaintiff/Respondent’s case.
c. An order of this Honourable Court ordering the Plaintiff/Respondent to pay the costs of the proceedings of the lower court to the defendants/appellants and to also pay the costs of the above appeal to the appellants.”
On behalf of the appellants, five Issues were formulated for determination of this appeal. They read as follows:
“1. Whether or not the learned trial judge can admit in evidence in these proceedings:
(i) The certified true copy of the minutes of the Ewusi -In-Council.
(ii) The certified true copy of a letter from the Bureau of Lands Sagamu tendered in the proceedings before the Ewusi-In-council in the trial of the above case before the Ewusi-In-Council.
(iii)The minutes of the Reconciliatory meeting of the Ewusi-In-Council between the plaintiffs led group, which documentary evidence are irrelevant to the proceedings at the lower court pursuant to which the said documents are inadmissible in the proceedings before the lower court.
- Whether or not the learned trial judge could have made an order.
(i) That the defendants should make a full disclosure of the total number of plots in each of Phase I and Phase II of the Oliwo Awonusi family layout.
(ii) Render a full financial account of all the plots of land sold by the defendants in Phase I and Phase II of the Oliwo Awonusi Layout Scheme.
(iii) To render the account of the amount of money, if any distributed among each of the five branches of Oliwo Awonusi Family having regard to the issues joined on the pleadings on the number of plots comprised in Phase I and Phase II of the Family Layout Scheme and the price at which each plot of land in Phase I and Phase II of the said layout is sold.
- Whether or not the learned trial judge could grant the reliefs claimed by the plaintiff in the above action when the plaintiff has not proved his case to the standard required by the law.
- Whether the learned trial judge could have granted the reliefs claimed by the plaintiff who has not joined all necessary parties to the above action.
- Whether or not the learned trial judge can admit the judgment delivered by the Ewusi-In-Council in the above action as binding on the parties to the above action in the case before her and to proceed further to use the said judgment of the Ewusi-In-Council in arriving at her decision in her judgment in the above case.”
On behalf of the respondent, five issues were also couched for determination of the appeal. They read as follows:
“3.01 Whether it is permissible for the defendants/ appellants to change from the position they took at the trial for a different position and or ground at this appeal stage or argue the reverse of the evidence led at the trial.
3.02 If issue one above is resolved in the negative, whether the defendants/appellants have not substantially changed their position and or ground taken at the trial in this appeal and also argued the reverse of the evidence led.
3.03 Whether the defendants/appellants are proper parties in the peculiar circumstance of this case.
3.04 Whether the Ewusi-In-Council judgment (Exhibits ‘A’ and ‘A1’) is a valid judgment of a customary arbitration tribunal regularly admitted in evidence and binding on the parties in the instant appeal.
3.05 Whether the trial court properly appraised and evaluated the evidence adduced vis-a-vis the facts pleaded before arriving at its decision in this case.”
Issue 1, as postulated on behalf of the appellants, has to do with the propriety or otherwise of the admission of Exhibits ‘A’ and ‘B’, proceedings/decisions of the Ewusi-In-Council and a letter from the Bureau of Lands, Sagamu respectively by the lower court. The appellants have axe to grind with the admission of the stated exhibits as according to their counsel, they were tendered through the Registrar of the lower court. Learned counsel for the appellants also maintained that Exhibit’ A’ was not admissible in evidence since it was written in Yoruba.
It is extant in the record of appeal that both documents had earlier on been tendered at the Customary Court, Sagamu in Suit No. IRCC/252/98 between the parties. On appeal from the decision of the Customary Court, the exhibits moved to the High Court Registry. The Registrar of the High Court tendered the certified true copies of the documents and they were admitted at the lower court. Since the documents were properly pleaded and relevant to the proceedings, I see no big deal in the complaint raised on this point. Being public documents produced by the Registrar of the High Court who had custody of them, complaint by the appellants failed to hit the target. I need to point it out here that the issue of not signing Exhibit ‘A’ by the maker did not arise at the lower court. Indeed, it was signed by the Ewusi of Makun Sagamu, the Chairman of the Arbitration body who testified as D.W.2 for the appellants and confirmed that Exhibit ‘A’ contained the authentic terms of their settlement of the dispute between the parties by the Ewusi-In-Council.
Exhibit ‘A’ written in Yoruba language was later translated into English language which was tendered and admitted as Exhibit’ A1′. I note that the appellants ignored the existence of Exhibit’ A1′. To my mind this has knocked the bottom out of the arguments and submissions on Exhibit ‘A’. Let me point it out here that counsel’s submissions do not form part of evidence or the reality of what transpired at the hearing of a matter. See Olufosove v. Fakorede (1993) 1 NWLR (Pt. 272) 774 at p. 783.
Learned counsel should appreciate that addresses are principally designed to assist the court. No amount of brilliance in a fine speech can make up for the lack of evidence to prove and establish or else disprove and demolish points in issue. Refer to Niger Constructions Ltd. V. Okugbeni (1987) 4 NWLR (Pt. 67) 787 at 792; Obodo v. OLumo & anr (1987) 3 NWLR (Pt. 66) 111 at 123. Learned counsel should appreciate the available facts very well so as to ensure that he does not misfire in dishing out inordinate submissions.
I have no hesitation in resolving issue I against the appellants and in favour of the respondent.
The next issue argued by the appellants is issue No. 5 which is whether or not the learned trial judge was right in relying on the decision of Ewusi-In-Council, Exhibits ‘A’ & ‘A1’ in arriving at her judgment. Learned counsel, to put it briefly, felt that the decision of the Ewusi-in-Council cannot constitute estoppel. He cited the case of Awosile v. Sotunbo (1992) 5 NWLR (Pt. 243) 514 at 532. He felt that the learned trial judge acted on a non-judicial judgment in arriving at her own decision. He cited Opeoka v. Opadiran (1994) 5 NWLR (Pt. 344) 368.
Learned counsel for the Respondent submitted that the Ewusi-In-Council proceeding is a customary arbitration recognized by our superior courts. He cited Ume v. Okoronkwo (1996) 12 SCNJ 404 at 412; Egesimba v. Onuzuruike (2002) 9 SCNJ 46 at p. 64; Oparaji v. Otanu (1999) 6 SCNJ 27 at pp. 38-39.
At this point, I need to explore at a reasonable length the meaning and purport of a customary arbitration. The question which I wish to frame succinctly here is – what is a customary arbitration?
In RaphaeL Agu v. Ozurumba Ikewibe (1991) 3 NWLR (Pt. 180) 385 at p. 407; Karibi-Whyte, JSC pronounced as follows:
“I venture to regard customary law arbitration as an arbitration in dispute founded on the voluntary submission of the parties to the decision of the Arbitrators who are either the Chiefs or Elders of their community and the agreement to be bound by such decision or freedom to resile where unfavourable.”
Let me briefly refer to the opinion of Dr. T. O. Elias (of blessed memory) in his Nature of African Customary Law (1956) p. 212 where he described customary arbitration as a mode of:-
“referring a dispute to the family head or an elder of the community for a compromise solution based upon subsequent acceptance by both parties of the suggested award, which becomes binding only after such signification of its acceptance from which either party is free to resile at any stage of the proceedings up to the point.”
The specie of arbitration often referred to as customary arbitration was graphically defined by Ikpeazu, J. in the case of Philip Njoku v. Felix Ekeocha (1972) 2 ECSLR 199 as:-
“Where a body of men, be they Chiefs or otherwise act as arbitrators over a dispute between the parties, their decision shall have a binding effect, if it is shown firstly that both parties submitted to the arbitration. Secondly, that the parties accepted the terms of the arbitration and thirdly, that they agreed to be bound by the decision, such decision has the same authority as the judgment of a judicial body and will be binding on the parties and thus create an estoppel.”
In Mbagbu v. Agochukwu (1973) ECSLR (Pt. 1) 90, the issue was whether a dispute taken to a local non-judicial body of elders for settlement was binding on the parties. It was held that the decision was binding if accepted at the time it was made.
In Oparaji v. Ohanu (supra) at p. 39, the Supreme Court held that:-
“Arbitrations at customary law must, however, be distinguished from arbitrations under the Act. The Nigerian Law recognizes and accepts the validity and binding nature of arbitrations under customary law if it is established:
- That both parties submitted to the arbitration;
- That the parties accepted the terms of the arbitration; and
- That they agreed to be bound by the decision of arbitrators.
It ought to be pointed out that a customary law arbitration decision has the same authority as the judgment of a judicial tribunal and will be binding on the parties and thus create estoppel. Whether, however, such a decision will operate as estoppel per rem judicatam or issue estoppel can only be decided where the terms of the decision are clearly known and ascertained and, where they so operate, both parties are entitled to invoke the plea.”
Where an arbitration under customary law is pronounced valid and binding, it would be repugnant to good sense and equity to allow the losing party to reject or resile from the decision of the arbitrators to which he had previously agreed. See Ume v. Okoronkwo (supra) and Egesimba v. Onuzumike (supra) at p.64.
It is common ground in this case that the appellants were the initiators of the proceedings before the Ewusi-In-Council. They cannot therefore be heard to say that they did not voluntarily submit to the jurisdiction of that tribunal. The respondent equally voluntarily submitted to the jurisdiction of the arbitration panel. I cannot trace any iota of force exerted on any of the parties on record to force him to go before the Ewusi-In-Council for settlement of their dispute. The only reasonable conclusion is that the parties, of their own free volition, submitted themselves to the jurisdiction of that tribunal.
There is no doubt about it that the parties were heard by the Ewusi-In-Council which made its findings and awards as contained in Exhibits ‘A’ & ‘A1’. However, contrary to the stand of the appellants at the lower court, they tried to depict at this appeal stage that they are not satisfied with the decision of Ewusi-In-Council. This is a change of position in this Court. But the appellants must appreciate the fact that justice is not interested in scoring debating points. A party should be consistent in stating his case and consistent in proving it both at the lower court and in trying to prop same here. See Akunteziri v. Okenwa (2000) 12 SCN! 242 at 258.
I have to state it here that both sides expressed satisfaction with the decision of the Ewusi-In-Council. And they impliedly agreed to be bound by same. It is apt to show what transpired at the hearing of the suit by the trial court. At page 119 lines 21-24 of the record, P.W.4 said:
“The two sides were satisfied with the judgment of Ewusi-In-Council. Ewusi made an order that Chief Oremade should buy a bottle of Schnapps and all of us should go to his house, pray and shake hands and that was done.”
The Respondent, as plaintiff at the lower court, testified as P.W.5. At page 125 lines 25-26 of the transcript record of appeal said:
“After hearing both sides, the Ewusi gave judgment. I was satisfied with the judgment of Ewusi-in-Council.”
At page 139 lines 23-30, a question put to the 1st Appellant and his answer to same read as follows:
“Question – When they finished their deliberation the two sides thanked the council and said they were satisfied.
Answer – Yes they followed me home and I gave them drinks.”
The Ewusi of Makun Sagamu, Oba Ogunsowo OIutayo Efuwape testified as D.W.2 on behalf of the appellants. At page 143 lines 24-26 he said –
“Pages 2-3 paragraphs (a) – (b) of Exhibit A were exactly the terms of our settlement. Both sides were happy that day.”
With the above position of things as depicted, I strongly feel that it does not lie in the mouths of any of the parties to say that he did not agree with the decision of Ewusi-in-Council dated 26/6/91 as contained in Exhibit ‘A’ in Yoruba language and translated into English language in Exhibit ‘A1’. It will be tantamount to a ruse or an eye wash to find otherwise in the prevailing circumstance.
It is not in contention that the decision in Exhibits ‘A’ and ‘A1’ is in accordance with the custom of the parties herein. The parties, having expressed satisfaction with the decision of the Ewusi-in-Council, agreed to be bound by it. It occurs to me that the appellants cannot renege from same. The decision which is binding on them creates an estoppel which the respondent, rightly in my view and based on decided authorities, employed by pleading and proving same.
Again, without any hesitation, I resolve issue 5 against the appellants and in favour of the respondent.
Issue No.4 as formulated on behalf of the appellant relates to joinder of necessary parties. It is issue 3 in the respondent’s brief of argument.
On behalf of the appellants, learned counsel observed that there is evidence that a committee of ten was appointed by the family to administer the estate. He felt that the plaintiff should have joined all the members of the committee to enable each of them defend himself or herself. He submitted that if necessary parties are not joined in an action any judgment delivered must be set aside. He referred to Makori v. Lere (1992) 3 NWLR (Pt. 231) 525; Jadesimi v. Okotie-Eboh (1989) 4 NWLR (Pt. 113) 113 at 126.
Learned counsel for the respondent pointed it out that the issue of joinder of parties was not pleaded and that it was raised for the first time at address stage. He felt that the appellants ought not to be allowed to argue that proper parties were not before the trial court.
Learned counsel maintained that the appellants pleaded and led evidence to the effect that they were the ‘all-in-all’ in respect of the administration of the Oliwo Awonusi estate. They held themselves out as representatives of the estate. Learned counsel felt that the lower court was right in dealing with their case in the manner in which they held themselves out before the court. He cited Ngwu v. Ozongwu (1999) 11 SCNJ 1 at 12.
Learned counsel further submitted that the mere fact that the Writ of Summons does not show that the appellants are sued in a representative capacity does not vitiate or invalidate the proceedings as long as it is in evidence that the defence was prosecuted throughout in a representative capacity. The court can enter judgment against such defendants, as in this case, even if an amendment to reflect that capacity had not been applied for and granted. He cited Kyari v. Alkali (2001) 5 SCNJ 421 at 455-456; Nsirim v. Onuma Ltd. (2001) 3 SCNJ 142 at 154.
There is no modicum of doubt about it that both in the statement of defence as well as the evidence led by the appellants at the trial court, both of them held themselves out as representing Oliwo Awonusi family in respect of the administration of the estate. The 1st appellant was the head of the family, treasurer and chairman of the committee. The 2nd appellant was the secretary, financial secretary and member of the committee. Both of them testified as D.W.1 and D.W.4 respectively. It is extant in the record that they compromised their peoples’ rights in the manner in which they recklessly dealt with sale of plots in the estate. The 1st appellant issued a receipt – Exh. ‘G’ dated 26-3-77 to one Olaniyi Amusa for payment of N1,000 contrary to the sum of N6,500 paid in Exh. ‘H’ of the same date by the same Amusa for a plot and maintained that why he did so was known to the family. They behaved as if they were the ‘all-in-all’ and not accountable to anyone. They were not even ready to open up to the lower court.
The learned trial judge pointed it out that in Exhibit ‘N the heading reads ‘settlement of dispute between Awonusi Family and Mr. Odunsi Adeyemi’. Therein, the 1st appellant spoke on behalf of the family.
I agree with the learned trial judge that it is settled law that where a person by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither her nor his representative in interest shall be allowed in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing. This is as stated by Lord Denning in the High Trees Case (1947) K.B. 130; (1956) 1 All ER. 256. See also Sosanva v. Onadeko (2000) 21 WRN 43 at p.49.
The appellants prosecuted the defence throughout in a representative capacity. The mere fact that the writ of summons did not depict that they were sued in a representative capacity will not vitiate or invalidate the proceedings at the trial court. The case of Kyari v. Alkali (supra) cited by the respondent’s counsel is of moment. The pleadings disclose a representative capacity and it is clear that the case was fought throughout in that capacity. The learned trial judge was right in entering judgment against the appellants in a representative capacity in which they held themselves even when there is no amendment reflecting same having been sought and granted.
In my considered opinion, the complaint in respect of this issue is not based on a firm ground at all. I resolve this issue against the appellants and in favour of the respondent.
Issue No. 3 couched by the appellants is whether the learned trial judge could grant the reliefs claimed by the plaintiff when he has not proved same to the standard required by the law. The respondent felt that the issue should be whether the trial court properly appraised and evaluated the evidence adduced by the parties before arriving at its decision.
It is clear to me that the crux of the matter at the trial court has to do with mal-administration of the Oliwo Awonusi Family Estate by the duo – the appellants. The 1st appellant who testified as D.W.l admitted their fraudulent practices to the effect that they usually put ridiculous amount in the receipt book for reasons best known to themselves. They had the effrontery to say that they are only accountable to themselves and their cohorts.
The learned trial judge made specific findings of fact on the fraudulent practices of the appellants who have not appealed on same. Such findings remain inviolate. Why then should the appellants not be ordered to render accounts? I think they should. And the learned trial judge was right in restraining them from further carrying out their wanton acts of wasting the land by questionable sale of plots therein even to the detriment of their children yet unborn. Let them explain how they spent about N12 million for preparation of the layouts. The receipts sourced by them during the pendency of the action only totalled N54,000. They should render accounts.
Courts of record do not condone fraud and dishonesty. They often abhor, frown at and condemn such mundane practices. In a society that relishes in materialism, courts should not relent on their efforts in trying to reduce unwholesome practices. The courts, by so doing, should ensure that trustees are truthful and fair in the discharge of their assignments. I say no more.
I agree with the learned counsel for the respondent that the findings of fact by the learned trial judge remain sacrosanct.
The learned trial judge did a nice job. I am unable to fault her. See Okino v. Obanebira (1999) 12 SCNJ 27 at p. 44. I shall not tamper with the balanced appraisal of evidence ably carried out by the learned trial judge. The evidence adduced by the respondent and his witnesses far outweighed that of the appellants who merely tried to put up a bold face based on fraud; all to no avail. See Mogaji v. Odofin (1978) 4 SC 91 at p. 93; Bello v. Eweka (1981) 1 SC 101.
I resolve this issue, no doubt, against the appellants and in favour of the respondent.
I think that I am done. The appeal is clearly devoid of merit and it is hereby dismissed without any hesitation. I hereby affirm the judgment delivered by the learned trial judge on 30th July, 2004 in its entirety. The appellants shall pay N5,000 costs to the respondent.
Other Citations: (2006)LCN/2123(CA)
