Enoch Ezerioha & Ors. V. Mathias Ihezuo (2009)
LawGlobal-Hub Lead Judgment Report
EJEMBI EKO, J.C.A.
The appellants were the Defendants in the suit NO.CC/ISK/9/94 at the Customary Court of Imo State in the Ideato South District sitting at Isiekenesi. The Respondent was the Plaintiff in that court.
The Customary Court (hereinafter called “the trial court”) delivered its judgment on 24th May, 1996 declaring inter alia that
- The plaintiff, Mathias Ihezuo is entitled to the customary right of occupancy of the Ala Okpulo Ayirigwe or Okpotokpo Ayirigwe situate and lying at Umuju Umuobomin Ideato South Local Government Area on survey plan No. ASA/IMD/55/94 prepared by Surveyor J.O. Agugua, Owerri.
- All the economic trees on the land belong to the plaintiff Mathias Ihezuo except the mahogany tree which the defendant cut down being one of the causes of action. This Court orders that the first defendant be allowed to make use of that mahogany tree only.
Aggrieved by the judgment of the trial court the appellants, who were the defendants, lodged their appeal against the same to the Customary Court of Appeal of Imo State, sitting at Owerri. The appeal was heard and in a unanimous decision the Customary Court of Appeal dismissed the appeal and affirmed the decision and orders of the trial court. The appellants, further aggrieved, have further appealed to this court. The notice of appeal to this court is at pages 186 – 190 of the record of appeal. The notice of appeal has four grounds of appeal. The four grounds of appeal, without their particulars, are herein below reproduced. That is –
GROUND ONE
The Customary Court of Appeal was in error of customary law when it held, thus:
From the totality of the evidence of the parties on this first issue, the court’s impression of the credit and credibility of the, witnesses as well as the drift of the entire case, there seems to be a reasonable probability that there was a grant of the land in dispute by Okwaraeke to Ayirigwe in perpetuity for valuable consideration. There is circumstantial evidence yielding inference that Okwaraeke’s family was polygamous and that his son by Nwadi, named Mgbwu alias Okwaranaeke was not the eldest son of Okwaraeke. In this circumstance the mention of the land in dispute as part of the “heritable estate” of Okwaraeke is nothing of great weight in the Igbo traditional society. Even as the evidence went beyond Okwaranaku, the trial court seems to have concluded, reasonably, that the main drift of the case is towards an absolute grant by the original customary ownership [sic-owner] of the land in dispute, and therefore, failed to hold that there was no proof, upon credible basis, of a transfer of title to the land in dispute to Ayirigwe under native law and custom.
GROUND TWO
The Customary Court of Appeal misdirected itself in customary law when it held, that –
Again the fact that the parcels of land surrounding the land in dispute belong mainly to relatives of the Appellants is of no, consequence, bearing in mind that Okwaraeke is the predecessor of the two kindreds of Umuja [sic: umuju] and Umuokorobi to which the parties in this appeal belong. I repeat the obvious that land is immovable. The fact that a purchaser, like in the present case, is from a village or kindred different from the original owner will not frustrate or negate the right acquired. The argument about contiguity of the land to other interests is directed more towards exciting prejudice than to establishing the truth of my [sic] issue and, therefore failed to appreciate that the plaintiff was not a descendant of Okwaraeke, and did not claim to have got the land in dispute by purchase under native law and custom.
GROUND THREE
The Customary Court of Appeal having found, rightly, that possession of land is evidence of its ownership under customary law and that a person in possession naturally protects the subject matter of his possessory right, misdirected itself when it held; thus –
Which, I think, is why the events of 1952, 1974 and 1975 over the land in dispute can not be anything else but the action of Respondent’s father to protect his property against invasion of right mounted by the 1st defendant/appellant and his late uncle? The fact that some economic trees are owned by a person is not conclusive evidence that such person owns the land on which the tree grows. Therefore, one need to state clearly foravoidance of doubt that the maxim Quic quid plantatur solo, solo cedit does not always apply in Nigeria’s customary law.
GROUND FOUR
The Court of Appeal [sic] was in error when it failed to consider the complaint of the defendants, and pronounce on whether the dialogue of the parties and/or their forebears in 1974 and 1975 with regard to the land in dispute amounted to binding customary arbitration under the parties native law and custom.
From the foregoing four grounds of appeal the Appellants’ counsel formulated three issues for determination in Appellants Brief of Argument dated 10th November, 2002 and filed on 6th December 2002 but deemed filed and served by leave of this court as 23rd November 2004. The issues formulated by the Appellants are:
a. whether the Respondent proved his root of title in this case. /Grounds 1 and 3/
b. whether the Plaintiff/Respondent proved the situs of the land in dispute /Ground2/
c. whether there was a binding customary arbitration in this case /Ground 4/.
The Respondent’s brief is dated 24th June, 2005. It was filed on 24th August, 2005. Upon leave granted on 27th February, 2006 the Respondent’s brief was deemed filed and served that same day. At paragraph 3 pages 5 of the Respondent’s brief the issues formulated by the Appellants were adopted. It was however, observed therein that Appellants’ issue (a), as framed, and does not cover ground 3 of the Grounds of Appeal. Further in paragraph 4.12 at page 9 of the Respondent’s brief it was contended that the Appellants’ argument about economic trees is outside this issue as framed, that evidence on ownership of economic trees is evidence of possession, and that root of title and possession are two distinct ways, out of the five ways, of proving ownership of land. It was further submitted that ground 3 is not covered by issue (a); that this court can not pick the argument relating to root of title and ignore the argument on economic trees, which is not included in the issue as formulated, and that is trite law that argument is based on issue framed and not on the ground of appeal.
I have read grounds 1 and 3, earlier reproduced above, and issue (a) formulated by the Appellants’ counsel. Ground one of the Appellants’ grounds of’ appeal complains in the main that the Customary Court of Appeal erred in customary law when it held that the grant to Ayirigwe by Okwaraeke was an “absolute grant by the customary owner”, Ground three [3], on the other hand, complains that the Customary Court of Appeal erred in customary law when it refused to apply the common law principle of “quic quid plantatur, solo, solo cedit” to hold that the owner of the tree fixed to the land, is the owner of the land, Both grounds raise no issue as to the root of title of the Respondent.
Appeals in this court are heard or argued on the issues formulated from the grounds of appeal. The issues formulated must, flow directly from the grounds of appeal. They can not be formulated from nowhere. They are therefore incompetent if they flow, or are formulated, from nowhere: IHEANACHO v. EJIOGU [1995] 4 NWLR [pt.389] 324; PORT HARCOURT CITY LGC v. EKEOHA [2008] ALL FWLR [pt. 422] 1174 @ 1192. Issue (a) is not related to grounds one [1] and three [3] of the Appellants grounds of appeal that it purports to cover. Issue [a] as formulated is at variance with the said grounds of appeal. In consequence the grounds of appeal, as they stand, are deemed to have been abandoned and therefore are liable to be struck out: UNITY BANK PLC v. BOUARI [2008] 7 NWLR [pt.1086] 372 @ 400 D – G. Accordingly issue [a] and the grounds it purports to cover are hereby struck out.
Issue [b] is whether the Respondent proved the situs of the disputed land. The contention of the Appellants on this issue is that in view of the disagreement of the parties on the proper location or situs of the land in dispute it was necessary for the trial court and the court below to make a finding on it based on the available evidence. Relying on FRED EGBE v. ADEFARASIN [1987] 1 NWLR [pt.47] 1 @ 20 it was submitted that since the parties joined issues on the proper situs or location of the disputed land, the trial court was bound to make a finding on the issue. The Respondent called the disputed land Okpotokpo Ayirigwe situate at Umuju, while the Appellants insisted that the disputed land is called Isi Ulo Ufor or Isi Ulo Ezanwa and that it was situate at Okorobi. Appellants’ counsel further submitted that one Bartholomew Udorie from Amagu village who the Respondent claimed to be the boundary man did not testify at the locus in quo and that on the other hand, Simon Nwosu of Okorobi gave evidence at the locus in quo in support of the Appellants. That since ownership of adjoining land is regarded in IDUDUN v. OKUMAGBA [1976] 9 – 10 SC 227 as one of the ways of proving ownership of land there was clear evidence that the Appellants owned the disputed land. It was further submitted that the effect of holding that the Appellants and their relations live on the adjoining lands is the necessary inference that the Respondent failed to prove the situs of the land. BURUWA v. OGUNSHOLA [1938] 4 WACA 150 is said to be the authority for the submission. Appellants’ counsel further submitted that in the absence of any credible evidence of transfer of title to Ayirigwe, through whom the Respondent’s claim is predicated, the contiguity of the disputed land with the adjoining land belonging to the Appellants is relevant under customary law. In conclusion, counsel urged this court to make the finding of fact on this issue on the authority of OKORIE NWAEZEMA & ORS v. OBETA NWAIYEKE [1990] 3 NWLR [pt.137] 230 @ 240-241.
It is trite that where issues are joined on the existence or nonexistence of any fact the court shall make its finding on it. See FRED EGBE v. ADEFARASIN [supra]. In the instant appeal the Respondent, as the plaintiff, maintained that the disputed land, which he called Okpotokpo Ayirigwe or Ala Okpulo Ayirigwe, is situate at Umuju. The Appellants on their part insisted that the disputed land which they call Isi Ulo Ufor or Isi Ulo Ezenwa is situate at Okorobi. The identity of the land, as opposed to the actual village it is situate, is not very much in dispute. Issues were not joined on that as such, Identity of a disputed land is a fact in issue only when a party raises it either in his pleading, cross-examination of his opponent or in his own testimony: ARABI v. OLOYA [2001] 6 NWLR [pt.708] 37; OSAZUWA v. ISIBOR [2004] 3 NWLR [pt. 859] 16. There is no such thing in this case.
At the locus in quo at page 72 of the Record the DW.1 1st Defendant/Appellant, confirmed the extent of land shown by the PW.1, Plaintiff/Respondent, except for minor details. Exhibit A, survey plan No AS.A/IMD/55/94 prepared by Surveyor J.O. Agugwo was admitted in evidence at page 10 of the Record, without objection. Similarly Exhibit C, containing the arbitral award was a crucial piece of evidence on which the judgment of the trial court was hinged. It was on the basis of Exhibits A and C that the trial court at page 103 declared that –
The plaintiff, Mathias Ihezuo is entitled to the customary right of occupancy of Ala Okpulo Ayirigwe or Okpotokpo Ayirigwe situate and lying at Umuju Umuobom in Ideato South Local Government Area on survey plan No. ASA/IMD/55/94 prepared by Surveyor J.O. Agugwo, Owerri.
The Customary Court of Appeal affirmed this finding or declaration at page 184 of the Record to the effect that “the trial court [was] right in declaring the Respondent entitled to customary Right of occupancy over the land represented in Exhibit A”. These are concurrent findings of fact which this court cannot ordinarily disturb unless there are very special circumstances: AGBI v. AUDU OGBE [2006] 11 NWLR [pt.990] 65 @ 116.
The writ of summons on which the particulars of claim were endorsed shows that the Respondent, as the plaintiff, was claiming that he is entitled to the declaration that the Customary Right of occupancy over the land called ALA OKPULO AYIRIGWE or ALA OKPOTOKPO AYIRIGWE situate at Umuju Umuobom in Ideato South Local Government Area vests in him.
Appellants counsel made so much fuss of the ownership of adjoining lands and their contiguity with the disputed land. He did not appreciate the unassailable finding of the Customary Court of Appeal at page 183 lines 22 – 27 of the Record. Again the fact the parcels of land surrounding the land in dispute belong mainly to relatives of the Appellant, is of no consequence, bearing in mind that Okwaraeke is the predecessor of the two kind reds of Umuju and Umuokorobi to which the parties in this appeal belong.
There are abundant evidence on the Record showing that Okorobi, Amagu and Umuju village share boundaries with the disputed land, and that the three villages are all descendants of Okwaraeke. It is clear from Dw.1’s evidence that the Appellants are descendants of Okwaraeke through Ezenwalokwutere while the Respondent is a descendant of Okwaraeke through Mgbowu, alias Okwaranaku; and, that Ezenwawkwutere land Okwaranaku have different mothers, Okwaranaku’s mother was Nwadi, the sister of Ayirigwe. The Customary Court of Appeal alluded to the fact of Okwaraeke maintaining a polygamous family at page 183 of the Record. Properly put the Respondent’s claim was merely to secure the land he inherited from his ancestral maternal uncle Ayirigwe from his half brothers since their predecessor in title, Okwaraeke had, in his lifetime made grant of the same to Ayirigwe, the brother of his great grand mother, Nwadi.
Issue [b] in my considered view has no substance. I hereby resolve it against the Appellants, By way of an epilogue I ask: does not really matter whether the situs of the land is in Umuju or Okorobi village as long as the ownership of it vests in the Respondent? Every Nigerian, including this Respondent, has the right to acquire and own immovable property any where in Nigeria. The right is further reinforced by section 43 of the Constitution of the Federal Republic of Nigeria 1999. No rule of customary law can derogate from this constitutional right. The Customary Court of Appeal in the lead judgment, was right in holding that “the fact that a purchaser, like in the present case, is from a village or kindred different from the original owner will not frustrate or negate the right acquired”.
Issue [c] is whether there was a binding customary arbitration in this case. The grouse of the Appellants under this issue is that at the trial court the Appellants, as defendants, submitted that in law conciliatory proceedings were privileged yet the trial court held that the findings and decisions of the arbitration panel were legally binding on the parties; and that at the Customary Court of Appeal they made it an issue and the Customary Court of Appeal made no finding on this issue. Appellants’ counsel therefore urged this court to determine this issue, as it was erroneous on the part of the Customary Court of Appeal not to have determined this issue. He then urged that it be determined by us now that the conciliatory efforts of 1974 and 1975 were of no evidential value and can not amount to a valid customary arbitration, in this case. He further submitted that the exercise which resulted in Exhibit C was not conducted by the body to whom the court assigned the matter to wit: Umuokwaraudu and Umuokearaonyioha titled men in Umuobom and that since the members of the panel had no right to change the composition of the panel as directed by the court that the proceedings of the panel were vitiated thereby. He cited UWALAKA NWAUKA v. UZOMA NWAECHE [1993] 5 NWLR [pt. 293] 295 @ 309. He further submitted that the conditions for a valid customary arbitration as laid down in OHIAERI v. AKABEZE [1992] NWLR [pt.221] 1 @ 17, namely that the parties must willingly submit to arbitration and accept the decision of the arbitral body were not proved as Exhibit C was not signed by parties to indicate their acceptance; and that the Respondent did not tender the certified record of proceedings of the court did show that the court made the arbitral award part of its judgment. He further submitted that the fact that in 1975 the Respondent’s father again sued the Appellants is further proof of the non acceptance of the arbitral decision.
The counsel for the Respondent, in his brief, submitted that both the trial court and the court below found that both parties accepted the 1974/1975 arbitrations, and therefore OHIAERI v. AKABEZE [supra] is irrelevant. He further submitted that Exhibit C resolved the dispute and that the fact that the Appellants reneged on it does not mean that they did not accept it initially. He submitted further that there was abundant evidence that the 1st Appellant accepted the 1975 arbitration as he accepted the Iroko tree and the Mbubo [back yard] land awarded to him and that PW.3 who was awarded an Iroko tree also accepted it. Still on” Exhibit C, Respondent’s counsel submitted that the arbitration resulting in Exhibit C was the one the Magistrate’s Court; Orlu referred to the title holders [Ndi Nzes] to settle and report back, which they did.
I have given very calm consideration to the issues raised herein vis-‘E0-vis the Record of appeal. It is not correct, as submitted by the Appellants’ counsel, that the Customary Court of Appeal did not determine the issue of customary arbitration. At pages 180 – 181 of the Record the court below stated thus-
It would appear that whoever [sic] was any disturbance by trespass until 1952 according to the Respondent, it was a trespass by Ejekewe Ezerioha. The 1st defendant/Appellant, cousin to Ejikewe who did not challenge the evidence of respondent by cross-examination until respondent’s counsel unwittingly asked him about it through cross-examination of the 1st appellant. Learned counsel asked about dispute over land, and 1st appellant said there was no dispute. Again there was conflict in 1974 between the Respondent’s father and the 1st appellant over an Iroko tree on the disputed land. At the material time there were three such trees thereon. The 3rd PW.1 a descendant of Okwaraeke, also asserted right to iroko timber tree. Through customary arbitration the bone of contention was resolved. The arbitrators shared the iroko trees: one to 1st appellant and supporters, one to PW.3 and one to Respondent.
As regards the land, a strip adjoining the compounds of the appellants was marked out as backyard [mbubo]. The 1st defendant/Appellant harvested the iroko. PW.3 also haversted his share, leaving Respondent’s share even till the time of trial. But the 1st appellant denied the settlement adding that he sold the one PW.3 harvested to him. He gave no evidence at any time about the sale the price, the witnesses.
Acceptance of arbitral award can be proved by evidence other than the parties signing the arbitral award. In this case evidence points unequivocally to the appellants accepting and making use of the mbubo and the iroko awarded to them. What other proof do we need? A party to a proceeding who does not appeal or take steps to have it reviewed is deemed to have accepted the verdict against him.
Among the issues submitted to the Customary Court of Appeal for determination was the issue whether there was a binding customary arbitration which was accepted by the parties. I have no doubt, from the foregoing passage in the judgment of the Customary Court of Appeal, that the court below accepted that there was a binding customary arbitration and that the parties thereto, that is the 1st appellant, the respondent and the PW.3, accepted the terms of arbitral award. As the Supreme Court laid down in OHIAERI v. AKABEZE [supra] at pages 23 – 24, before applying the decision of customary arbitration as an estoppel, it is essential for the court to ensure that the parties had voluntarily submitted to the arbitration and indicated their willingness to be bound by the decision and had immediately after the pronouncement of the decision unequivocally accepted the award. In most cases the evidence that the parties voluntarily submitted to customary arbitration raises a presumption that they intended to be bound by the decision. There is abundant evidence through PW.1, PW.2 and PW.3, which the trial court and Customary Court of Appeal believed that the parties submitted to the arbitration and accepted the decision. The panel gave the PW.3 and 1st appellant each an iroko tree which they had since felled and sewn. The panel also gave appellants mbubo [backyard] land which they accepted and took. The DW.1, DW.2, and DW.3 also acknowledged that various arbitration panels have entertained the dispute between the parties and resolved it. The fact that a party to arbitration after accepting the terms of the award subsequently reneged on other aspects of the award, after benefiting therefrom, by flouting the terms as they affect the other party to the award, does not establish his non acceptance of the decision immediately it was announced. All that his conduct amounts to is that he acted unconscienably by approbating and reprobating on the issue. Equity acting in personam comes in handy at this stage to estop him, from reneging on the arbitration decision he had submitted to and acquiesced in, or accepted and indeed benefited from.
Relying on UWALAKA NWUKA v. NWAECHE [supra] it was submitted by Appellants’ counsel that since, PW.2 admitted that some titled men from both sides were excluded from the arbitration panel for being partisan the members of the panel had changed the composition of the panel as directed by the court. There is serious flaw in the argument. There is no evidence of the composition of the panel as directed by the court. The, evidence of the PW.2 under cross-examination is also to the effect that the title men in the community sought permission of the court to have the matter settled out of court and it was granted, It is also his evidence that title holders [Ndi Nzes] wanting to be fair in their deliberation excluded the title holders from the sides of the parties who were clearly partisan, I have read UWALAKA NWUKA v. NWAECHE (supra). The authority is inapplicable to the instant case, In the UWALAKA NWAUKA case [supra] the parties themselves chose the Elders or Okwelle Union to settle their dispute out of court, The Okwelle union, without recourse to the parties, nominated people of dubious membership of and of uncertain commitment to the union to do the arbitration. Hence the decision that a customary arbitration panel can not properly delegate the power conferred upon it by the parties to other people to mediate the dispute, as a delegate can not further delegate without approval or authority of the delegator. The rule is delegate’s non potest delegare. In the instant case the panels of arbitrators were members of the title holders [Ndi Nzes] who requested the permission of the court to settle the matter out of court. It was not the court that empanelled them.
The Appellants counsel made an issue of the arbitration panel being a conciliatory body and that as such during the conciliatory proceedings statements made therein were privileged and thus inadmissible in evidence. The target of this submission is Exhibit C and decision or result of the arbitration announced by the panel. One of the authorities cited is ASHIBUOGWU v. A.G. BENDEL [1988] 1 NWLR [pt.69] 138 where it was held that statement made in the course of a negotiation of compensation or offer of such compensation is analogous to a statement made “without prejudice” during negotiation and that such statements are privileged and inadmissible in evidence. The Appellants’ counsel has completely misconceived the law in application to the facts of this case. The evidence on the decision of the arbitration panel as announced is not on the foot age of statements made by the parties in the course of negotiations. Exhibit C and other evidence on the arbitration panels merely conveyed the decisions and the awards, and not the evidence of the parties.
The title holders approached the court to allow them settle the dispute out of court. The verbs settle means inter alia to adjust, to decide, to determine, to establish etc. see English Thesaurus Geddes & Grosset. It also means to bring [a quarrel] to an end”. When after their deliberations, upon hearing the parties, the arbitration panel announced their decision and the awards it means they had in their own way, brought the dispute of the parties to an end subject to the parties accepting their decision. Their decision on the evidence on which they came to the decision is not synonymous with the evidence of the parties in negotiation. What is privileged and inadmissible is the evidence or the statements the parties made in the course of negotiations and not the final decision based on such evidence.
The very essence of arbitration is not only alternative dispute resolution, but the promotion of the public policy to the effect that it is in the interest of the community that there should be an end to disputes. Where parties and concerned members of the community elect that a dispute be settled out of court and in furtherance of the same there was mediation and the terms of settlement announced which are acceptable to the parties, the court of justice should not treat such mediation lightly. Since agreements are meant to be honoured and Equity acts in personam, the law and equity will act in unison to estop a party to such mediation or out of court settlement who had accepted the terms of settlement from reneging and acting to the contrary of what he had accepted. I see no substance in this issue, Accordingly, I resolve it against the Appellants and in favour of the Respondent.
On the whole the appeal lacks substance and it is hereby dismissed in its entirety. The decision of the Customary Court of Appeal affirming the decision of the trial court is hereby affirmed, Costs at N40, 000,00 are hereby awarded to the Respondent against the Appellants.
Other Citations: (2009)LCN/3492(CA)
