MAGNUS & ANOR v. OKPOTO & ORS

CITATION: (2018) LPELR-45618(CA)

In the Court of AppealIn the Port Harcourt Judicial Division

Holden at Port Harcourt

ON FRIDAY, 20TH JULY, 2018Suit No: CA/PH/49/2014

Before Their Lordships:

ISAIAH OLUFEMI AKEJU Justice, Court of AppealCORDELIA IFEOMA JOMBO-OFO Justice, Court of AppealBITRUS GYARAZAMA SANGA Justice, Court of Appeal

Between1. MR. OSOWEI MAGNUS2. MR. OSOWEI VICTORY(For themselves and on behalf of Osowei Family ofAgbura Town in Yenagoa Local Government Area ofBayelsa State)

- Appellant(s)

And1. MR. IKESIYE OKPOTO2. MR. ENIEKI OKPOTO3. MR. EGBERI OKPOTO4. MR. ABEBE OKPOTO5. MR. DIASUEME OKPOTO6. CHIEF OGBOMA OZEGE7. MR. MESSRS PONOMO AFERE8. MR. OPULU OKUONU9. MR. EBOBU IGWE(For themselves and on behalf of Beneclaker &Okpoto descendants of Agbura Town in YenagoaLocal Government Area of Bayelsa State)

- Respondent(s)

RATIO DECIDENDI

(201

8) LP

ELR-45

618(

CA)

1. ACTION - COUNTER-CLAIM: Duty of a defendant who counter-claims"The law is trite that a counter-claim is the claim of the Defendants itmust therefore be proved on the same standard with the claim. Thecounter-claimants therefore must succeed on the preponderance ofevidence they adduced during trial and not on the weakness of theClaimants claim unless where the evidence of the defendant strengthenhis claim. In EZEKIEL OYINLOYE V BABALOLA ESINKIN & ORS (1999)LPELR - 2886 (SC) the Apex Court held, per EJIWUNMI JSC, on page 15paragraphs B - D thus: -"It is also settled law that a plaintiff must succeed on thepreponderance of evidence he led, and on the strength of his own case,not by the weakness of the defence unless of course he finds in theevidence of the defence facts which strengthen his own case. SeeAkinola & Anor V Oluwo & 2 Ors. (1962) 1 SCNLR 352; (1962) 1 All NLR224 per Unsworth F.J. at 227; Woluchem & Ors V Gudi & Ors. (1981) 5SC 291 per Idigbe J.S.C. at 294".Per SANGA, J.C.A. (Pp. 21-22, Paras. B-A) - read in context

2. ACTION - PLEADINGS: Effect of failure to call evidence in support ofpleadings"It is my holding on this issue that the Respondents failed to adduceenough evidence in support of their pleadings in paragraphs 23, 24 and25 of their Statement of Defence and Counter-Claim, neither did theyproduced any documentary evidence in support of their pleadings. InCAMEROON AIRLINES V MR. MIKE E. OTUTUIZU (2011) LPELR - 827 (SC)the Supreme Court per RHODES-VIVOUR, JSC held on page 36paragraphs C - D thus: -"Averments in pleadings are facts as perceived by the party relying onthem. There must be oral or/and documentary evidence to show thatthe facts pleaded are true. Consequently, pleadings without evidenceto support it are worthless."Per SANGA, J.C.A. (P. 22, Paras. A-D) - readin context

(201

8) LP

ELR-45

618(

CA)

3. APPEAL - GROUND(S) OF APPEAL: Whether a ground of appeal isdirected at an obiter dictum or the ratio"I have noted that learned counsel to the respondents insinuated in hissubmission that the holding by the learned trial Judge on pages 390 to392 that: -"Besides the foregoing. I must also observe that it is even doubtfulwhether all the ingredients of a Valid Customary arbitration werepleaded and proved in this case. In EKE V OKWARANYA (2001) 12 NWLR{Pt. 726} 181 the Supreme Court in its lead judgment by SamsonOdemwingie Uwaifo JSC, confirming its earlier decisions in OHIAERI VAKABEZE (1992) 2 NWLR {Pt. 221} 1 stated "for there to be validcustomary arbitration, five ingredients must be pleaded and provednamely........."is an obita dicta as opposed to a ratio decidendi. With respect tolearned counsel that holding by the learned trial Judge wherein he citeddecisions of the Apex Court and copiously quoted its holdings cannot beand is not an obita dicta. As can be gleaned from the judgment it is aspecific and weighty findings of the trial Court as to the applicability ofthe customary arbitration award. The law is trite that grounds of appealmust be couched from a ratio decidendi of the judgment and not anobita dicta. See MOHAMMED V LAWAL (2005) 9 NWLR {Pt. 985} 400 AT405. It therefore follows that ground 1 of the Appellants AmendedNotice of Appeal and issue 2 formulated from it is an attack on thespecific holding of the lower Court and I so hold."Per SANGA, J.C.A. (Pp.38-39, Paras. D-E) - read in context

4. APPEAL - INTERFERENCE WITH FINDING(S) OF FACT(S):Circumstances in which an appellate court will interfere with thefindings of facts made by a lower court"It is my finding on this issue that the decision of the lower Court in itsjudgment delivered on 21st May, 2013 was persistent in error as itignores the facts and evidence before it which amounted to amiscarriage of justice. In NATIONAL ELECTRIC POWER AUTHORITY V J.A.OSOSANYA & ORS (2004) LPELR 1960 (SC) the Supreme Court heldthus:"A decision of a Court is perverse when it ignores the facts or evidencebefore it and when considered as a whole, amounts to a miscarriage ofjustice. In such a case, anappellate Court is bound to interfere with such a decision and to set itaside. See Agbomeji V Bakare (1998) 9 NWLR {Pt. 564} 1 at 8". PerIGUH JSC on page 24 paragraphs C - D."Per SANGA, J.C.A. (Pp. 40-41,Paras. D-A) - read in context

(201

8) LP

ELR-45

618(

CA)

5. ARBITRATION AND CONCILIATION - CUSTOMARY ARBITRATION:Conditions for the decision of a customary arbitration to apply asestoppel per rem judicatam; ingredients for a valid and bindingcustomary arbitration"Customary arbitration is one of the many ways of settling disputesamong African Societies. It refers the dispute to either the family head,or elders or chiefs of the community concerned for settlement, andupon subsequent acceptance of the arbitration grant or award, itbecomes binding on them. The parties are at liberty to resile at anystage of the proceedings up to that point. The conditions required forcustomary arbitration in Nigeria are: -1. The parties voluntarily submit their dispute to a non-judicial body towit, their elders or chiefs as the case may be for determination.2. The indication of willingness of the parties to be bound by thedecisions of the non-judicial body or freedom to reject the decisionwhere not satisfied.3. Neither of the parties has resiled from the decision so pronounced.?Once these conditions are satisfied the arbitration would be liberallytreated as a judicial proceeding and could be taken to operate as orcreated estoppel per rem judicatam. See ODONIGI V OYELEKE (2001) 2S.C.N.J. 198 at 213-214. Also, in DURUAKU EKE & ORS V UDEOZOROKWARANYIA & ORS (2001) LPELR - 1074 (SC) the Supreme Court whilepronouncing on the conditions for a decision of a customary arbitrationto apply as estoppel per rem judicatam; ingredients for a valid andbinding customary arbitration held per UWAIFO JSC on page 29paragraphs B - F thus: -".... it has been firmly held by this Court in at least two cases, namely,Agu V Ikewibe (1991) 3 NWLR {Pt. 180} 385 and Ohiaeri V Akabeze(1992) 2 NWLR {Pt. 221} 1 that for there to be a valid customaryarbitration, five ingredients must be pleaded and proved, namely: -(a) That there had been a voluntary submission of the matter in disputeto an arbitration of one or more persons.(b) That it was agreed by the parties either expressly or by implicationthat the decision of the arbitrator(s) would be accepted as final andbinding.(c) That the said arbitration was in accordance with the custom of theparties or of their trade or business.(d) That the arbitrator(s) reached a decision and published their award.(e) That the decision or award was accepted at the time it was made"I think anything short of these conditions will make any customaryarbitration award risky to enforce. In fact it is better to say that unlessthe conditions are fulfilled, the arbitration award is unenforceable."PerSANGA, J.C.A. (Pp. 30-32, Paras. B-B) - read in context

(201

8) LP

ELR-45

618(

CA)

6. ARBITRATION AND CONCILIATION - CUSTOMARY ARBITRATION:Binding effect of a customary arbitration"Upon stating my finding above on customary arbitration I will concludewith the pronouncement of the Apex Court in EMMANUEL OKPALAIGWEGO & ORS VFIDELIS OJUKWU EZEUGO & ORS (1992) LPELR - 1458 (SC) whereOGUNDARE JSC while quoting NNAEMEKA-AGU JSC in his lead judgmentin OJIBAH V OJIBAH (1991) 5 NWLR {Pt. 191} 296 at 314 held thus:"In my view, the law is pretty well settled that where two parties to adispute voluntarily submit their matter in controversy to arbitrationaccording to customary law and agreed expressly or by implication thatthe decision of the arbitrators would be accepted as final and binding,then once the arbitrators reach a decision; it is no longer open to eitherparty to subsequently back out of such a decision....."Per SANGA, J.C.A.(Pp. 39-40, Paras. F-C) - read in context

(201

8) LP

ELR-45

618(

CA)

7. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: What is required ofa person relying on evidence of traditional history in an action fordeclaration of title to land"The question to be answered is whether this pleading and theevidence of D.W.3 met the requirement of the law on the evidencerequired from the respondent to prove that they are entitled to theircounter claim? The standard enunciated by the Supreme Court inSUNDAY UKWU EZE & ORS V GILBERT ATASIE & ORS (2000) LPELR 1190(SC) on pages 12 - 13 paragraphs E - A per UWAIFO JSC is as follows:"The law is that to establish the traditional history of land relied on asroot of title, appellant must plead the names of the founder and thoseafter him upon whom the land devolved to the last successor(s) andlead evidence in support without leaving gaps or creating mysterious orembarrassing linkages which have not been and cannot be explained.In other words, the pleading of the devolution and the evidence insupport must be reliable, being credible or plausible, otherwise theclaim for title will fail. See AKINLOYE V EYIYOLA (1969) NMLR 9; ELIAS VOMO BARE (1982) 5 SC 25; MOGAJI V CADBURY NIGERIA LTD (1985) 2NWLR {Pt. 77} 413; UCHENDU V OGBONI (1999) 5 NWLR {Pt. 60} 337."I have carefully considered the narration of the history of the land bythe respondents particularly in paragraph 23 above visa a vis thetestimony of their star witness; Chief Ozege Ogboma on pages 269 to273 of the records and it is obvious that it did not meet therequirements enunciated by the Apex Court in EZE V ATASIE (Supra)that claimants must not only plead the names of the founder of theland and those after him upon whom the land devolved to the lastsuccessor, he must lead evidence in support without leaving gaps orcreating mysterious linkages which cannot be explained. TheRespondent narrated who "begat" who in paragraph 23 of theirpleadings but they failed to proffer evidence to support their claim onwho handed over the land to who, who farmed the land among thosewho were "begat" by Tomonagha and Okpoto."Per SANGA, J.C.A. (Pp.19-21, Paras. D-B) - read in context

(201

8) LP

ELR-45

618(

CA)

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the

Leading Judgment): This appeal emanates from the

Judgment of BOLOU M. UGO J., (now JCA) of High Court of

Justice Bayelsa State Yenagoa Judicial Division delivered on

21st May, 2013. By an endorsed Writ of Summons and

Statement of Claim dated 28/2/2012 the Appellants sued

the Respondents in a representative capacity as Claimants

and Defendants respectively, in Suit No. YHC/25/2012

claiming for the following reliefs: -

1. A DECLARATION that the incessant harassment,

embarrassment, intimidation, threatening, disturbance

and/or interference with the Claimants’ OSOWEI family

right of ownership and use of a portion of the Claimants

OSOWEI Family Land (i.e. 13.75 plots), lying, situate, being

at and known as OSOBUGAN BUSH, in Agbura Town,

Yenagoa Local Government Area, a place within the

jurisdiction of this honourable Court, (which said land

shares common boundaries with the land of Mr. Friday

Otuoku on the 1st side, Shell and Agip pipelines on the 2nd

side, a carnal (sic) on the 3rd side and the land of Mr.

Bomeden Ekpokiri and an Access Road on the 4th side) by

the defendant, is unlawful,

1

(201

8) LP

ELR-45

618(

CA)

wrongful, illegal and same amounts to flagrant and violent

violation of the Claimant’s family fundamental rights

constitutionally guaranteed under Sections 43 and 44 of the

Constitution of the Federal Republic of Nigeria, 1999 (as

amended).

2: A DECLARATION that the continuous threat by the

defendant to forcefully acquire 13.75 Plots of land from the

Claimants OSOWEI family large expanse of land described

in Relief 1 above is unlawful, wrongful, illegal and same

amounts to trespass on the land of the Claimants

OSOWEI family and a flagrant and violent violation of the

claimant’s OSOWEI family fundamental rights

constitutionally guaranteed under Section 48 & 44 of the

Constitution of the Federal Republic of Nigeria, 1999 (as

amended).

3. A DECLARATION that the continuous intimidation of

the Claimants by the Defendants using men of the Nigerian

Police Force, Bayelsa State Police Command to arrest the

Claimants over the Claimants OSOWEI family large

expanse of land described in Relief 1 above is unlawful and

contrary to the claimants fundamental r ights

constitutionally guaranteed under Section 35 of the

Constitution of the Federal

2

(201

8) LP

ELR-45

618(

CA)

Republic of Nigeria, 1999 (as amended).

4: AN AWARD OF N20,000,000.00 (Twenty Million

Naira) only against the defendants, being exemplary

damages for Defendants’ act of trespass to the land of the

Claimants OSOWEI family described in Relief 1 above and

for the unlawful, illegal, wrongful, flagrant and violent

violation of the claimants’ and claimants OSOWEI family

fundamental rights as stated of Sections 35 and 43 of the

Constitution of the Federal Republic of Nigeria, 1999 (as

amended).

5: AN ORDER OF PERPETUAL injunction restraining the

defendants jointly and severally by themselves, servants,

agents, privies and cohorts or surrogates, from further

trespassing on the claimants OSOWEI family land describe

in Relief 1 above and/or violating the claimants lawful, legal

and/or constitutional rights, in any of the ways stated in

reliefs 1, 2, and 3 above, and/or in any other way

whatsoever.

(pages 13 – 14 of the record of appeal).

Accompanying the statement of claim is a list of claimants’

witnesses to be called at the trial consisting of 4 names,

(Mr. Osowei Millio, Mr. Osowei Magnus, Mr. Osowei

Victory

3

(201

8) LP

ELR-45

618(

CA)

and Mr. Ekpulu Izige). Written depositions of Claimants’

witnesses is on pages 16 – 49 of the record of appeal. The

Claimants also attached a list of documents they intend to

rely upon during trial (pages 50–51). Copies of the

documents are on pages 52 to 60 of the Records. I noted

the exparte application filed by the Claimants on

01/06/2012 seeking for leave to employ the services of a

Surveyor to survey the land in dispute and the Survey Plan

produced subsequently be filed and included in the list of

documents to be relied upon by the Claimants on pages 74

– 78 of the record of appeal. The Claimants earlier filed a

motion on notice seeking for an order by the lower Court

entering judgment for the Claimants in terms of the reliefs

they sought in the statement of claim. They deposed to the

facts that despite service of all processes on the Defendants

on 1/3/2012 and 12/3/2012, they failed and/or refused to

enter appearance. The motion, affidavit in support attached

to which are copies of affidavit of service of all the

processes on the Defendants and a written address are on

pages 61 to 73 of the records of appeal.

It was on 1st June, 2012 that the Defendants filed

4

(201

8) LP

ELR-45

618(

CA)

a motion on notice seeking for an order for extension of

t ime within which the Defendant can f i le their

memorandum of conditional appearance, statement of

defence and other processes out of time. An affidavit in

support to which are the memorandum of conditional

appearance and a Statement of Defence accompanied the

application. (pages 79– 98 of the record of appeal). In their

Statement of Defence the Defendants Counter Claimed

against the Claimants as follows: -

(a) A declaration to the effects that the Defendants are the

deemed customary owners of all that piece of land referred

to and situate at Osobugan bush Agbura Epie in Yenagoa

Local Government Area of Bayelsa State, more particularly

described in paragraph 6 of Statement of Defence.

(b) An Order of perpetual injunction restraining the

Claimants, their agents, heirs, assigns, servants, privies

and legal representative(s) however described, from further

tampering with or entering into the Defendant land as

described above.

The Defendant also filed witness depositions of their

witnesses (Bomedie Ayinbal (Ekpokiri), Chief Ogbalavie

Isiko, Mr. Egberi Okpoto and Chief Bedford Iso Okuonu

5

(201

8) LP

ELR-45

618(

CA)

on pages 90 to 100 of the record of appeal). The Claimants

filed (with leave of the lower Court) their Reply and

Defence to Counter Claim on pages 110 – 115 of the

Records. They also filed another list of witnesses to be

called at the trial consisting of 5 names as follows (1) Mr.

Osowei Millio, (2) Mr. Osowei Victory, (3) Mr. Abraham, (4)

Mr. Friday Otuoku and (5) Mr. Dabiri O. Thomas together

with their written depositions. (pages 116 – 135 of the

record of appeal). On page 136 the Claimants filed an

additional list of documents to be relied upon at the trial as

follows: -

1. Litigation Survey Plan

2. Police Report

3. Legal Letter to the Police for Police Report.

Copies of the above documents also accompanied the

application. (pages 136 – 140 of the record of appeal).

On pages 162 – 165 of the records the Defendants filed a

motion on notice seeking for leave to amend their

Statement of Defence dated 28th January, 2013. An

affidavit in support and the Proposed Amended Statement

of Defence accompanied the application. The main reason

for the application is that the Defendants engaged the

6

(201

8) LP

ELR-45

618(

CA)

services of a Surveyor to produced a Survey Plan of the

land in dispute. A copy of the Survey Plan is on page 171 of

the record of appeal. The Defendant also filed another

motion dated 28/01/2013 seeking for leave to call the

Surveyor and one Chief Ogboma Ozege as additional

witnesses. Their written depositions accompanied the

application. The Claimants filed a counter affidavit against

the two motions. Their main reason is that they have

already closed their case on 22nd January, 2013. The

Defendants did not give even a hint that they intend to file

a Survey Plan even while the Claimants’ Survey Plan was

admitted in evidence and marked as Exhibit ‘F’ on

15/1/2013 through C.W.2. On 5/2/2013 the learned trial

Judge delivered his ruling wherein he refused the

application for amendment (pages 265 – 269 of the record

of appeal). The Defendants (who had open their defence

and called two witnesses) then continued with their

defence.

During hearing of the suit the Claimants called two

witnesses, to wit; C.W. 1 – Mr. Ekpulu Izige. He is

Chairman of the 3 Man Arbitration Panel or Peace

Committee. He adopted his written deposition and was

cross-examined by

7

(201

8) LP

ELR-45

618(

CA)

learned counsel to the Defendants (pages 235 – 240 of the

record of appeal). C.W.2 is the second appellant Mr.

Osowei Victory. During his testimony in chief the following

documents were admitted in evidence and marked

accordingly through him: -

1. Laminated 2 - page Power of Attorney dated 24/01/2002

donated by Nelson Osowei & 3 others of Agura to Mr.

Marine Jacob (Nigeria) Enterprises. Estimators, in respect

of enumeration/evaluation and negotiation of economic

trees and crops in Osobugan Bush – Exhibit ‘A’.

2. A “rather pink duplicate copy” of a receipt of

N217,000.00 made on a document bearing Nigeria Agip Oil

Co. Ltd and receipted for by Nelson Osowei and Gilbert

Osowei on 28/10/2004 – Exhibit ‘B’.

3. A document on letter headed paper of K. O. Ogbonna &

to Life etc addressed to the Commissioner of Police,

Bayelsa State Police Command – Exhibit ‘C’.

4. Laminated photocopy of First Bank of Nigeria Plc cheque

of N259,000.00 issued to Dressman B. Ogbara – Exhibit ‘D’.

5. A two page Copy of Petition dated 20/2/2012

8

(201

8) LP

ELR-45

618(

CA)

titled “Re: Reminder with Respect to Petition to threat to

l i fe etc” written by N. A. Wanogho Esq. to the

Commissioner of Police, Bayelsa State Command – Exhibit

‘E’.

6. Survey Plan No. BY/SC/975/0467/2012 by Surveyor

Dabiri Thomas as on 7/6/2012 – Exhibit ‘F’.

The Defendants called three witnesses as follows: -

1. D.W.1 is Bedford Iso Okuonu a farmer. He adopted his

testimony in chief and was cross examined by learned

counsel to the Claimants. (pages 259 – 262 of the record of

appeal).

2 . D . W . 2 i s B o m e d e i A y i n b a l a E x k p o k i r i a

businessman/farmer. He also adopted his written

deposition and was cross examined. (pages 262 – 263 of the

Records).

3. D.W.3 is Chief Ozege Ogboma who said he is a civil

servant. He also adopted his written deposition made on

28/01/2013 and was subsequently cross-examined. (pages

269 to 273 of the record of appeal).

On 10th April, 2013 learned counsel to parties adopted

their respective written addresses. Learned trial Judge

adjourned to 8/5/2013 for judgment. However it was on

21st May, 2013 that judgment was delivered. The judgment

is on pages

9

(201

8) LP

ELR-45

618(

CA)

277 to 330 of the record of appeal. The learned trial Judge

after reviewing the evidence adduced by the parties and

the submissions by learned counsel to the parties in their

final written addresses reached the following decision: -

“In short, there are too many contradictions in the Osoweis

case; they lied in all things great and small. I am of the

view their claim to the disputed land is baseless. I believe

they are neither owners nor ever been in possession of it.

Their complaints to the police of forcible entry to the

disputed land by the Okpotos land are therefore also

unwarranted being that it is not their land. In consequence,

I dismiss their claims in their entirety.

For the several reasons I have given above, I hold that the

Beneclaker/Okpotos have proved their counter claim on the

balance of probability, that the land in dispute was granted

and partitioned by Odi its founder to his daughter

Beneclaker, their ancestress.

I also find as fact that they and their ancestors inherited it

from her and have been in exclusive possession of it over

the years.

I find as a fact, too, that it is rather the Osoweis who have

10

(201

8) LP

ELR-45

618(

CA)

been in trespass of the said land as evidenced by their

wrongful sale of it in 2011. Accordingly, I grant the

Beneclacker/Okpoto descendants’ counter claims and make

the following orders in their favour…”

Learned trial Judge then granted all the reliefs claimed by

the Defendants in their counter claim. On the 3rd claim he

reduced the amount of general damages claimed from

N10,000,000.00 (Ten Million Naira) to N80,000.00 (Eighty

Thousand Naira).

The Claimants were dissatisfied with this decision so they

filed a Notice of Appeal containing three grounds of appeal

which, shorn of their particulars, reads thus: -

GROUND ONE:

The learned trial Judge erred in law in disregarding the

findings of the Customary Arbitration Panel, which

awarded only 4.5 plots of land to the Defendants (conceded

by the Claimants and Verged ‘Purple’ in the Claimants

Survey Plan No. BY/SC/975/0467/2012 admitted in

evidence by the trial Court as Exhibit F), on the ground that

“it is even doubtful whether all the ingredients of a Valid

Customary arbitration were pleaded and proved in this

case.

11

(201

8) LP

ELR-45

618(

CA)

GROUND TWO:

The learned trial Judge erred in law when he held that: -

“the Beneclaker/Okpoto descendants are the persons

entitled to be granted a statutory right of occupancy over

the portion of Osobugan land bounded by Shell and Agip

Company pipelines, a canal and the lands of Chief Bedford

Iso Okuonu, Bemedei Ayibala Ekpokisi and Friday Otuoku

amongst others, which said land measures 26558.148

square metres (6.640 acres, or 2.656 hectres, or about 18

plots) and is more properly delineated and verged brown in

Survey Plan No. BY/SC/975/0467/2012 of 07/06/2012 made

by Survey or Dabiri Thomas.

GROUND THREE

The judgment of the trial Court is against the weight of

evidence.

Learned counsel to the appellant however filed a motion on

notice on 25th March, 2015 to amend their notice of appeal

which was granted on 2nd April, 2015. It was on that date

the appellant filed their Amended Notice of Appeal

containing four grounds of appeal. The Record of Appeal

was complied and transmitted to this Court on 30th

January, 2014 but deemed as properly compiled and

transmitted on 2nd April, 2015. The appellants’ brief of

argument was filed on

12

(201

8) LP

ELR-45

618(

CA)

16/04/2015. Learned counsel withdrew same and it was

struck out. He then filed appellants’ Amended Brief of

Argument on 01/12/2016 which we deemed on 08/05/2017.

It was settled by Felix T. Okorotie Esq. In it, learned

counsel formulated three issues out of the four grounds of

appeal as follows:

1. Whether the Respondents pleaded and led credible

evidence as to how they became owners of the land in

dispute? (Ground 4 of the Amended Grounds of Appeal)

2. Whether the customary arbitration award/ judgment that

the portion of land in dispute in Osobugan bush is just 4.5

plots of land is binding on the Appellants and Respondents?

(Ground 1).

3. Whether a Court of law has jurisdiction to grant in

excess of what is claimed? (Grounds 2 and 3).

The Respondent filed a brief of argument on 4th October,

2016 which learned counsel applied to withdraw and we

struck it out. A.F. Gbaranma Esq. filed the Respondents’

consequential Amended Brief of Argument on 15th May,

2017. Learned counsel adopted the three issues formulated

by the appellants in their Amended Brief of Argument.

Learned counsel to the appellant also filed a Reply Brief on

16th May, 2017.

13

(201

8) LP

ELR-45

618(

CA)

ISSUE 1 is

Whether the Respondents pleaded and led credible

evidence as to how they became owners of the land in

dispute?

In his submission while arguing this issue, learned counsel

to the Appellants answered in the negative. That the

Respondent did not led credible evidence as to how they

became owners of the land in dispute. That the grant of the

Respondent counter claim led to filing this appeal. That the

law is trite that a counter claim is a separate and

independent action, therefore it must pleaded and credible

evidence led in proof of the said counter claim; cited:

ALHAJI HAIDO & ANOR V ALHAJI USMAN (2004) ALL

FWLR {Pt. 201} 1765 at 1782. That a claimant as well as

a counter claimant must succeed on the preponderance of

evidence led on the strength of his case and not on the

weakness of the defence. Cited OYINLOYE V ESINKIN

(1999) 10 NWLR {Pt. 624} 540 at 549; and Section 131

of the Evidence Act, 2011.

Learned counsel submitted further that the claims of the

Respondents in the counter claim is based on traditional

history. That their history is that the land in dispute passed

to them through their ancestor, one Beneclaker. That the

14

(201

8) LP

ELR-45

618(

CA)

respondent did not plead the names of those who inherited

the land in dispute which devolved to them without leaving

any gap to the last successor, cited ELIAS V OMO-BARE

(1982)5 SC 25; EZE V ATASIE (2000) 10 NWLR {Pt.

679} 470 at 482 paragraphs D – F. That the question

that arose for determination is; what are the names of the

children of Tomonagha that inherited the land from her?

Which of them was the post senior? What was the

ascending order of the devolution? How are the respondent

related to those children through whom they inherited the

land in dispute? Etc. That there is a big gap in the

traditional history of the respondent on how the land in

dispute devolved on them. That the respondent have

created “Mysterious or embarrassing linkages which have

not been and cannot be explained.” Learned counsel urged

the Court to resolve this issue in favour of the appellants.

In his submission on this issue, learned counsel to the

respondents urged the Court to answer in the positive. That

they, have clearly pleaded and led credible evidence as to

how they became the owners of the land in dispute.

Learned counsel submitted that learned counsel to the

15

(201

8) LP

ELR-45

618(

CA)

Appellants’ contention that the respondents did not plead

the name of the founder of the land in dispute and those

after him to misrepresentation of facts of this case. Learned

counsel quoted the holding of learned trial judge on pages

368 to 369 of the record of appeal. That the Respondent

pleaded in paragraph 23 of their statement of defence and

counter claim how the land in dispute devolved to them

through Odi who was the common ancestor of both parties.

Learned counsel to the respondent urged the Court not to

disturb the findings of the learned trial Judge as it is clear

that his clients traced their right to declaration of title to

the land in dispute to its logical conclusion. That it is trite

law that findings of a lower Court will not be disturbed

except in cases where same is found to be based on a

substantive or procedural misapprehension of the facts

before the trial Court. Cited; OJIAKO V A-G, ANAMBRA

STATE (2000) 1 NWLR {Pt. 641} 375. That learned

counsel to the appellant merely drew the attention of this

Court to paragraphs 24 and 25 of the respondent statement

of defence and counter claim

16

(201

8) LP

ELR-45

618(

CA)

without referring to paragraph 23 (supra). Learned counsel

quoted the said paragraph 23 and paragraphs 24, 25 and

26 of the written deposition of DW.3 Chief Ogboma Ozege.

Learned counsel finally submitted that the respondent only

have the duty to link the land in dispute to the respondents

who are the actual owners of the land and that was what

they did. Quoted the holding by the learned trial Judge on

page 403 of the records and urged this Court to resolve this

issue in favour of the respondent.

Learned counsel to the appellants debunked the submission

by the respondents in their Reply Brief. That apart from

pleading the founder of the land, the respondent did not

plead who was the next in succession to the title of the land

in dispute down to the last successor which fall short of the

requirement of the law. That the learned trial judge was

wrong to have found for the respondent based on the

weakness of the appellants case. That it is trite law that a

counter claim just like a claim must succeed on the

preponderance of evidence led and on the strength of his

case and not the weakness of the defence cited.

OYINLOYE V ESINKIN (1999) 10 NWLR (PT. 624) 540

at 549. That the

17

(201

8) LP

ELR-45

618(

CA)

Respondents’ counter claim is declaratory in nature and it

is trite law that declaratory claims cannot be granted even

on admission by the adverse party. Cited; DIM

V ENEMUO (2009) 10 NWLR {Pt. 1149} 353 at

380–381 paragraphs F – D; VINCENT BELLO

V MAGNUS EWEKA (1981) 1 SC 101.

FINDINGS ON ISSUE 1

I have considered the submissions by learned counsel on

this issue. The main plank on which the appellants counsel

attacked the respondents counter claim is that because it is

based on traditional history the respondent is duty bound to

plead the names of the founder of the land and those after

him upon whom the land devolved to the last successor

without leaving gaps or “Mysterious linkages” which

cannot be explained. On his part learned counsel to the

respondents submitted that they met this requirement in

paragraphs 23, 24 and 25 of appellants statement of

defence and counterclaim wherein they pleaded thus:

“23. The defendant avers that they are descendant of Odi

and Odi begat Beneclaker and Owiriba Beneclaker begat

Tomonagha, Tomonagha married Okpoto and begat

Anearegu, Afere, Roland, Jonah and Omafeine.

18

(201

8) LP

ELR-45

618(

CA)

Afere begat the 1st, 3rd, 4th, 5th and 9th defendants.

Roland begat the 2nd defendant and Jonah begat the 8th

defendants”

24. The defendants aver that Odi their great, great

grandfather founded and disvirgined several lands

including the land in dispute called Oso bugan bush. Odi

gave portions of land to his children and the land in dispute

is given to Beneclaker.”

25. The defendants aver that Beneclaker farmed on the

land in dispute called Osobugan bush and after her demise

same devolved on her child called Tomonagha. After

Tomonagha’s demise, the land in dispute devolved to the

defendants.” (page 88 of the Records).

The question to be answered is whether this pleading and

the evidence of D.W.3 met the requirement of the law on

the evidence required from the respondent to prove that

they are entitled to their counter claim? The standard

enunciated by the Supreme Court in SUNDAY UKWU EZE

& ORS V GILBERT ATASIE & ORS (2000) LPELR 1190

(SC) on pages 12 – 13 paragraphs E – A per UWAIFO JSC is

as follows:

“The law is that to establish the traditional history of land

19

(201

8) LP

ELR-45

618(

CA)

relied on as root of title, appellant must plead the names of

the founder and those after him upon whom the land

devolved to the last successor(s) and lead evidence in

support without leaving gaps or creating mysterious or

embarrassing linkages which have not been and cannot be

explained. In other words, the pleading of the devolution

and the evidence in support must be reliable, being

credible or plausible, otherwise the claim for title will fail.

See AKINLOYE V EYIYOLA (1969) NMLR 9; ELIAS

V OMO BARE (1982) 5 SC 25; MOGAJI V CADBURY

NIGERIA LTD (1985) 2 NWLR {Pt. 77} 413;

UCHENDU V OGBONI (1999) 5 NWLR {Pt. 60} 337.”

I have carefully considered the narration of the history of

the land by the respondents particularly in paragraph 23

above vis-à-vis the testimony of their star witness; Chief

Ozege Ogboma on pages 269 to 273 of the records and it is

obvious that it did not meet the requirements enunciated

by the Apex Court in EZE V ATASIE (Supra) that claimants

must not only plead the names of the founder of the land

and those after him upon whom the land devolved to the

last successor, he must lead evidence in support without

leaving gaps or

20

(201

8) LP

ELR-45

618(

CA)

creating mysterious linkages which cannot be explained.

The Respondent narrated who “begat” who in paragraph 23

of their pleadings but they failed to proffer evidence to

support their claim on who handed over the land to who,

who farmed the land among those who were “begat” by

Tomonagha and Okpoto.

The law is trite that a counter-claim is the claim of the

Defendants it must therefore be proved on the same

standard with the claim. The counter-claimants therefore

must succeed on the preponderance of evidence they

adduced during trial and not on the weakness of the

Claimants claim unless where the evidence of the

defendant strengthen his claim. In EZEKIEL OYINLOYE

V BABALOLA ESINKIN & ORS (1999) LPELR – 2886

(SC) the Apex Court held, per EJIWUNMI JSC, on page 15

paragraphs B – D thus: -

“It is also settled law that a plaintiff must succeed on the

preponderance of evidence he led, and on the strength of

his own case, not by the weakness of the defence unless of

course he finds in the evidence of the defence facts which

strengthen his own case. See Akinola & Anor V Oluwo &

2 Ors. (1962) 1 SCNLR 352; (1962) 1

21

(201

8) LP

ELR-45

618(

CA)

All NLR 224 per Unsworth F.J. at 227; Woluchem &

Ors V Gudi & Ors. (1981) 5 SC 291 per Idigbe J.S.C. at

294”.

It is my holding on this issue that the Respondents failed to

adduce enough evidence in support of their pleadings in

paragraphs 23, 24 and 25 of their Statement of Defence

and Counter-Claim, neither did they produced any

documentary evidence in support of their pleadings. In

CAMEROON AIRLINES V MR. MIKE E. OTUTUIZU

(2011) LPELR – 827 (SC) the Supreme Court per

RHODES-VIVOUR, JSC held on page 36 paragraphs C – D

thus: -

“Averments in pleadings are facts as perceived by the party

relying on them. There must be oral or/and documentary

evidence to show that the facts pleaded are true.

Consequently, pleadings without evidence to support it are

worthless”.

I resolve this issue in favour of the appellants.

Issue 2 is:

Whether the customary arbitration award/ judgment that

the portion of land in dispute in Osobugan bush is just 4.5

plots of land is binding on the Appellants and Respondents?

While arguing issue 2 learned counsel to the Appellants

submitted that prior to filing this suit

(201

8) LP

ELR-45

618(

CA)

22

(201

8) LP

ELR-45

618(

CA)

there was a customary arbitration over the plots of land in

dispute. The said customary arbitration consists of 3

members headed by C.W.1 Mr. Ekpulu Izigie. That the

committee made an award to the effect that the

Respondents’ portion of land in the land in dispute is just

4.5 plots and not 18 plots as claimed by the Respondents.

That the fact that there was Customary Arbitration over the

land in dispute is captured in paragraphs 21, 22, 23, 24, 25

and 26 of the Appellants’ pleadings. Learned counsel

quoted the said paragraphs verbatim. That the Respondent

admitted that that there was a Customary Arbitration over

the land in dispute as shown in paragraph 15 of the

Amended Statement of Defence. That the Respondents’

witnesses also confirmed that there was a customary

arbitration over the land in dispute. Learned counsel gave

an example of the testimony of D.W.2 under cross-

examination on page 262 of the record of appeal. He also

cited the Supreme Court’s decision in EMMANUEL

OKPALA IGWEGO & ORS V FIDELIS EZEUGO & ORS

(1992) 6 NWLR {Pt. 249} 561 at 576. He also cited:

EHOCHE V IJEGWA (2003) 7 NWLR {Pt. 818} 139 at

151 –153 paragraphs H –C.

23

(201

8) LP

ELR-45

618(

CA)

Learned counsel further argued that for customary

arbitration to constitute estoppel, the following ingredients

must exist: -

1. That there had been a voluntary submission of the

matter in dispute to an arbitration of one or more persons.

2. That it was agreed by the parties either expressly or by

implication that the decision of the arbitrator(s) would be

accepted as final and binding.

3. That the said arbitration was in accordance with the

custom of the parties or of their trade or business.

4. That the arbitrator(s) reached a decision.

5. That the decision or award was accepted at the time it

was made.

C i t e d : DURUAKU EKE & ORS V UDEOZOR

OKWARANYIA & ORS (2001) 12 NWLR {Pt. 726} 181

AT 208; OKOYE & ANOR V OBIASO & 3 ORS (2010) 3

SC {Pt. 11} 69 at 103 – 104. Learned counsel then

analysed the five ingredients as it relates to this Suit

seriatim and submitted that the implication is that the 3

man Arbitration Committee recommended that the

respondents own only 4.25 plots of land and not 18 plots.

That this decision was accepted by the Respondents and it

is binding and

24

(201

8) LP

ELR-45

618(

CA)

subsisting on both the Appellants and Respondents. That it

follows that the lower Court was patently wrong when it

held that it is doubtful whether all the ingredients of a valid

customary arbitration were pleaded and proved in this

case. He urged the Court to set aside the judgment of lower

Court on this note and resolve this issue in favour of the

Appellants.

In his submission while arguing this issue, learned counsel

to the respondents submitted that once again learned

counsel to the appellants is under a misconception of the

facts and circumstances of this case. That this is because

the issue the trial Court dealt with was whether the alleged

customary arbitration award was for four and behalf plots,

as alleged by the appellant or 18 plots or more as alleged

by the respondents. That after taking evidence the lower

Court came to the conclusion that it was for 18 plots or

more as described by the respondents. Learned counsel

also, underlined for emphasis, the fact that the alleged

customary arbitration was not published that is why while

the appellants are contending that there was demarcation

of 4½ plots the respondents were insisting that there

25

(201

8) LP

ELR-45

618(

CA)

was no demarcation at all as the area the Panel deliberated

upon was 18 plots or more.

Learned counsel also submitted that the submission by

learned counsel to the appellants in paragraph 5.5 of their

brief where the learned trial Judge stated that it is doubtful

if the ingredients of a valid customary arbitration were

pleaded was an obiter dicta and did not form the reason for

the judgment. That the learned trial Judge merely stated in

passing that he wondered if all the conditions for a valid

customary arbitration were even present in that case.

Learned counsel quoted the holding by the learned trial

Judge on pages 390 to 392 of the records. That moreover,

the issue of whether there was valid arbitration was not

raised by any of the parties as it was not pleaded to form

the basis of an estoppel in the instant appeal.

That it was after the finding by the learned trial Judge that

the evidence of C.W.1 who was the chairman of the panel

was false and unbelievable on whether or not it was 4½

plots as contended by the appellants or 18 plots as

contended by the respondents that the pendulum swung in

favour of the said respondents. That the issue of

26

(201

8) LP

ELR-45

618(

CA)

whether or not there was a valid arbitration was said in

passing. Learned counsel submitted further that the

appellants did not plead anywhere in their pleadings that

they are relying on estoppel per rem judcicata in

prosecuting their claim or in defence of their counter claim.

So it is wrong for learned counsel to the appellants to urge

the Court to enter judgment in their favour on basis of

estoppel per rem judicata. Cited: EBBA V OGODO (2002)

FWLR {Pt. 27} 2094, (1984) 4 SC 84; UKAEGBU

V UGORJI (1991) NSE (Vol. 22) 298; CHINWENDU V

MBAMALI (1980) 3 – 4 SC 31 at 128 paragraphs D–E;

IKOTUN V OYEKANMI (2008) All FWLR {Pt. 433}

1281. That appellants cannot rely on estoppel per rem

judicatam because such principle can only be used as a

shield and not a sword. Cited LAMIDI LADIMEJI & ANOR

V SUARA SALAMI & ORS (1998) 5 NWLR {Pt. 548} 1

SC; YOYE V OLUBODE (1974) 1 All NLR {Pt. 2} 118.

Learned counsel submitted further that learned counsel for

the Appellants is under the mistaken belief that he can rely,

plead and lead evidence on previous judgment in support of

his case as opposed to relying on same as estoppel per rem

27

(201

8) LP

ELR-45

618(

CA)

judicata. That the law is trite that evidence not pleaded

goes to no issue. The Appellants’ having not pleaded that

they will be relying on estoppel per rem judicata in the

defence of the Counter Claim of the Respondent cannot

now make issue out of it on appeal. Cited: FERDINARD

GEORGE V UBA (1972) 889 SC. 264 at 274 – 276;

ALHAJI SANNI SHUAIBU V J.O. BAKARE (1984) 12 SC

187 at 194 – 196; CIVIL DESIGN LTD V. SCOA (NIG)

LIMITED (2007) 29 NSCQR 1298 at 1339. Learned

counsel submitted further that there is no indication on the

Appellants’ Survey Plan (Exhibit ‘F’) of any banana tree or

plantain or small hill between the purple verged portion on

the said document. That CW1 told the Court while

testifying under cross-examination that they used a banana

tree/plantain and a small hill to demarcate the land in

dispute. That CW1 also testified that the boundary mark

was far from the 4.25 plots they allocated to the

respondents, which means that the respondents’ portion of

land is bigger than 4.25 plots as he alleged in his statement

on oath. That the respondents called credible witnesses

who testified on boundaries of the land in dispute.

28

(201

8) LP

ELR-45

618(

CA)

That CW1 also testified that the boundary mark was far

from the 4.25 plots they allocated to the respondents,

which means that the respondents’ portion of land is bigger

than 4.25 plots as he alleged in his statement on oath. That

the respondents called credible witnesses who testified on

boundaries of the land in dispute.

That even assuming, though not conceding, that the Court

wants to consider whether or not all the conditions of a

customary arbitration are met in the instant suit, that only

3 of the conditions of customary arbitration as listed in

OHIAERI V AKABEZE (Supra) are still lacking in the

instant suit. They are: -

3. That the arbitration was in accordance with the custom

of the parties or their trade or business.

4. That the arbitrator(s) reached a decision and published

their award.

5. That the decision or award was accepted at the time it

was made.

Learned counsel analysed the three ingredients seriatim

and urged the Court to resolve this issue in favour of the

respondents.

I have noted the submission by learned counsel to the

appellants in their Reply Brief and I will refer to it in

deciding this issue.

29

(201

8) LP

ELR-45

618(

CA)

FINDINGS ON ISSUE 2:

Issue 2 is:

Whether the customary arbitration award/ judgment that

the portion of land in dispute in Osobugan bush is just 4.5

plots of land is binding on the Appellants and Respondents?

Customary arbitration is one of the many ways of settling

disputes among African Societies. It refers the dispute to

either the family head, or elders or chiefs of the community

concerned for settlement, and upon subsequent acceptance

of the arbitration grant or award, it becomes binding on

them. The parties are at liberty to resile at any stage of the

proceedings up to that point. The conditions required for

customary arbitration in Nigeria are: -

1. The parties voluntarily submit their dispute to a non-

judicial body to wit, their elders or chiefs as the case may

be for determination.

2. The indication of willingness of the parties to be bound

by the decisions of the non-judicial body or freedom to

reject the decision where not satisfied.

3. Neither of the parties has resiled from the decision so

pronounced.

Once these conditions are satisfied the arbitration would be

liberally treated as a judicial proceeding and

30

(201

8) LP

ELR-45

618(

CA)

could be taken to operate as or created estoppel per rem

judicatam. See ODONIGI V OYELEKE (2001) 2 S.C.N.J.

198 at 213–214. Also, in DURUAKU EKE & ORS

V UDEOZOR OKWARANYIA & ORS (2001) LPELR –

1074 (SC) the Supreme Court while pronouncing on the

conditions for a decision of a customary arbitration to apply

as estoppel per rem judicatam; ingredients for a valid and

binding customary arbitration held per UWAIFO JSC on

page 29 paragraphs B – F thus: -

“…. it has been firmly held by this Court in at least two

cases, namely, Agu V Ikewibe (1991) 3 NWLR {Pt. 180}

385 and Ohiaeri V Akabeze (1992) 2 NWLR {Pt. 221}

1 that for there to be a valid customary arbitration, five

ingredients must be pleaded and proved, namely: -

(a) That there had been a voluntary submission of the

matter in dispute to an arbitration of one or more persons.

(b) That it was agreed by the parties either expressly or by

implication that the decision of the arbitrator(s) would be

accepted as final and binding.

(c) That the said arbitration was in accordance with the

custom of the parties or of their trade or business.

31

(201

8) LP

ELR-45

618(

CA)

(d) That the arbitrator(s) reached a decision and published

their award.

(e) That the decision or award was accepted at the time it

was made”

I think anything short of these conditions will make any

customary arbitration award risky to enforce. In fact it is

better to say that unless the conditions are fulfilled, the

arbitration award is unenforceable”.

Learned counsel to the appellants argued the five

ingredients seriatim on pages 8 to 11, paragraph 5.4 of

their brief and I will consider same.

1. Voluntary submission of the matter in dispute to

arbitration of one or more persons:

Both parties averred in their pleadings that there was

indeed a customary arbitration consisting of a Three Man

Peace Committee and both appellants and respondents

voluntarily submitted arbitration. The Appellants pleaded in

paragraphs 21 to 26 of their pleadings page 9 of records

accordingly. Paragraphs 22 and 23 reads: -

“22: The Claimants avers that pursuant to paragraph 21

above, a three Man Peace Committee (which had Mr.

Ekpulu Izige as Chairman, Mr. Osei Otumbere and Mr.

Oyonviemo Ovoh as Members) was set up to resolve the

32

(201

8) LP

ELR-45

618(

CA)

dispute”.

“23: The Claimant avers that the three Man Peace

Committee averred in paragraph 22 above, came to a

decision that the 4.25 plots of land the claimants sold (not

the subject matter of this suit) belonged to the defendants

family and as such the Claimants should allocate another

4.25 plots of land to the defendants family, from the

Claimants family.

The Defendants averred in paragraph 15 of their pleadings

that: -

“15: The Defendants specifically aver that the portion of

land in dispute in this suit is the same with the portion of

land which led to the setting up of the arbitration panel and

not a different portion of land. It is the same Osobugan

Bush and same is within the portion of land as described in

paragraph 6 above, thus paragraphs 25 and 26 are false

and are also denied”.

It is obvious from the pleadings above that parties willingly

and voluntarily submitted to arbitration.

2. Agreement by the parties either expressly or by

implication that they will accept the decision of the

arbitrators as final and binding: As can be deduced from

the evidence of the parties and their testimonies they

intended

33

(201

8) LP

ELR-45

618(

CA)

to abide by the decision of the parties. D.W.3 the star

witness of the Respondents agreed that the three man

peace committee gave decision although he was not

present on the spot. He was asked:

“Question: Did the three man committee not give a

decision?”

“Answer: They did. They decided that the land in dispute

belonged to us, the defendants”.

“Question: You will therefore agree with me that it was

4½ plots of land the 3-man peace committee award to your

people the defendants?”

“Answer: That is true”. (pages 270 – 271 of the records).

3: The arbitration was in accordance with the custom of the

parties or of their trade or business.

As I stated above customary arbitration is one of the many

ways of settling disputes among African Societies. The

Claimants pleaded that it is customary for disputants in

Agbura Community to submit their dispute to one or two

persons to act as arbitrators and to settle such dispute.

C.W.1 (who chaired the 3-Man Panel) explained during

cross-examination on page 239 of the Records when asked:

“Who established that your committee?”

34

(201

8) LP

ELR-45

618(

CA)

“A: In our place when two people are in disagreement they

usually choose people to settle their dispute. It is in that

way we were chosen by both sides to settle their dispute”.

The Defendants did not dispute this method of settling

dispute in their pleadings.

4. That the arbitrators reached a decision: It is obvious that

the 3 – Man Peace Committee reached a decision. Even

DW3 agreed that a decision was reached as I quoted above.

It is also obvious that the said decision was published by

the 3 – Man Panel as their findings were made known.

There is no requirement that a customary arbitration award

must be put down in writing. It suffices if the customary

arbitrators reached a decision which they pronounced to

the hearing of parties.

5: That the decision or award was accepted at the time it

was made.

I also find in favour of the appellants on this ingredient

since CW1 testified under cross-examination as follows: -

“Question: On your committee’s findings, you said the

Claimants here should look for another 4.25 plots of land

for the defendants in replacement for their

35

(201

8) LP

ELR-45

618(

CA)

(defendants) land used by the claimants?”

“Answer: Yes”.

“Question: Did the Defendants objected to that directive?”

“Answer: They did not”.

“Question: Did the Claimants actually relocate the

defendants as direct by your committee?”

“Answer: Yes they did.”

“Question: Did your Committee in the course of your visit

to the bush mark out the boundaries of the land between

the parties?”

“Answer: Yes we demarcated it between them.”

“Question: Did you also mark the 4.25 plots allocated to

the defendants?”

“Answer: Yes we did”.

“Question: What did you use as a boundary mark?”

“Answer: A banana/plantain and a small hill”.

“Question: I put it to you that the defendants did not agree

to leave their land for the Claimants?”

“Answer: No, they all agreed to our agreement. If they did

not, they would have told us so there”. (pages 238 to 239 of

the Records)

As submitted by learned counsel to the appellants the

decision by the 3 – Man Peace

36

(201

8) LP

ELR-45

618(

CA)

Committee was never challenged or set aside by a Court of

competent jurisdiction. DW3 confirmed this when he was

asked: -

“Question: Did you challenged the decision of the 3 man

peace committee in any Court?”

“Answer: We did not, if we would have done so it would

have been at the Customary Court because know

everything about this matter”. (page 272 of the record of

appeal).

It is obvious that the respondents were fully aware of the

decision of the arbitration committee and accepted same at

the time the decision was reached. If they were dissatisfied

they would have taken a legal action since they even know

the Court that had jurisdiction over such matters. The

implication above is that the decision of the 3 man

arbitration committee that the respondents own only 4.25

plots of land and not 18 plots was accepted by the

respondents that decision is subsisting and binding on both

the Appellants and Respondents. The trial Court was

therefore in error when after reviewing the evidence it held

that it is doubtful whether all the ingredients of a valid

customary arbitration were pleaded and proved in this

case.

37

(201

8) LP

ELR-45

618(

CA)

The 3 – man customary arbitration committee awarded only

4.25 plots of land in the Osobugan Bush to the Respondents

as shown in the Survey Plan No. BY/SC/975/0467/2012

verged “purple” and admitted in evidence during trial and

marked as Exhibit ‘F’ D.W.3 confirmed this during cross-

examination when he was asked: -

“Question: You will therefore agree with me that it was

4½ plots of land the 3 – man peace committee awarded to

your people the defendants?”

“Answer: That is true”.

The lower Court was therefore wrong to award 18 plots of

land in Osobugan bush to the respondents in view of the

finding of the 3 Man Peace Committee which awarded 4½

plots of land to the said respondents.

I have noted that learned counsel to the respondents

insinuated in his submission that the holding by the learned

trial Judge on pages 390 to 392 that: -

“Besides the foregoing. I must also observe that it is even

doubtful whether all the ingredients of a Valid Customary

arbitration were pleaded and proved in this case. In EKE V

OKWARANYIA (2001) 12 NWLR {Pt. 726} 181 the

Supreme Court in its lead judgment by Samson

38

(201

8) LP

ELR-45

618(

CA)

Odemwingie Uwaifo JSC, confirming its earlier decisions in

OHIAERI V AKABEZE (1992) 2 NWLR {Pt. 221} 1

stated “for there to be valid customary arbitration, five

ingredients must be pleaded and proved namely……...”

is an obita dicta as opposed to a ratio decidendi. With

respect to learned counsel that holding by the learned trial

Judge wherein he cited decisions of the Apex Court and

copiously quoted its holdings cannot be and is not an obita

dicta. As can be gleaned from the judgment it is a specific

and weighty findings of the trial Court as to the

applicability of the customary arbitration award. The law is

trite that grounds of appeal must be couched from a ratio

decidendi of the judgment and not an obita dicta. See

MOHAMMED V LAWAL (2005) 9 NWLR {Pt. 985} 400

AT 405. It therefore follows that ground 1 of the

Appellants Amended Notice of Appeal and issue 2

formulated from it is an attack on the specific holding of

the lower Court and I so hold.

Upon stating my finding above on customary arbitration I

will conclude with the pronouncement of the Apex Court in

EMMANUEL OKPALA IGWEGO & ORS V

39

(201

8) LP

ELR-45

618(

CA)

FIDELIS OJUKWU EZEUGO & ORS (1992) LPELR –

1458 (SC) where OGUNDARE JSC while quoting

NNAEMEKA-AGU JSC in his lead judgment in OJIBAH V

OJIBAH (1991) 5 NWLR {Pt. 191} 296 at 314 held

thus:

“In my view, the law is pretty well settled that where two

parties to a dispute voluntarily submit their matter in

controversy to arbitration according to customary law and

agreed expressly or by implication that the decision of the

arbitrators would be accepted as final and binding, then

once the arbitrators reach a decision; it is no longer open

to either party to subsequently back out of such a

decision…..”

It is my finding on this issue that the decision of the lower

Court in its judgment delivered on 21st May, 2013 was

persistent in error as it ignores the facts and evidence

before it which amounted to a miscarriage of justice. In

NATIONAL ELECTRIC POWER AUTHORITY V J.A.

OSOSANYA & ORS (2004) LPELR 1960 (SC) the

Supreme Court held thus:

“A decision of a Court is perverse when it ignores the facts

or evidence before it and when considered as a whole,

amounts to a miscarriage of justice. In such a case, an

40

(201

8) LP

ELR-45

618(

CA)

appellate Court is bound to interfere with such a decision

and to set it aside. See Agbomeji V Bakare (1998) 9

NWLR {Pt. 564} 1 at 8”. Per IGUH JSC on page 24

paragraphs C – D.

Upon considering the holding of the Supreme Court above,

it is my finding that the decision by the lower Court in its

judgment on 21st May, 2013 is hereby set aside. This issue

is resolve in favour of the appellants.

Issue 3 is:

Whether a Court of law has jurisdiction to grant in excess

of what is claimed?

I have considered the submissions by learned counsel on

this issue. But in view of my holding in issue 2 above this

issue is now no longer live it has been overtaken by events

and it is hereby discountenanced.

It is the judgment of this Court that this appeal has merit

and it is hereby allowed. The judgment by the lower Court

delivered on 21/5/2013 in Suit No. YHC/25/2012 is hereby

set aside. In its place, I make the following orders: -

1. It is hereby declared that the incessant harassment,

embarrassment, intimidation, threatening, disturbance

and/or interference with the Claimants’ OSOWEI family

right of ownership and use of a portion of the Claimants

41

(201

8) LP

ELR-45

618(

CA)

OSOWEI Family Land (i.e. 13.75 plots), lying, situate, being

at and known as OSOBUGAN BUSH, in Agbura Town,

Yenagoa Local Government Area, a place within the

jurisdiction of this honourable Court, (which said land

shares common boundaries with the land of Mr. Friday

Otuoku on the 1st side, Shell and Agip pipelines on the 2nd

side, a canal on the 3rd side and the land of Mr. Bomeden

Ekpokiri and an Access Road on the 4th side) by the

defendant, is unlawful, wrongful, illegal and same amounts

to flagrant and violent violation of the Claimant’s family

fundamental rights constitutionally guaranteed under

Sections 43 and 44 of the Constitution of the Federal

Republic of Nigeria, 1999 (as amended).

2. It is hereby declared that the continuous threat by the

defendant to forcefully acquire 13.75 Plots of land from the

Claimants OSOWEI family large expanse of land described

in Relief 1 above is unlawful, wrongful, illegal and same

amounts to trespass on the land of the Claimants OSOWEI

family and a flagrant and violent violation of the claimant’s

OSOWEI family fundamental rights constitutionally

guaranteed under Sections 48

42

(201

8) LP

ELR-45

618(

CA)

& 44 of the Constitution of the Federal Republic of Nigeria,

1999 (as amended).

3. It is hereby declared that the continuous intimidation

of the Claimants by the Defendants using men of the

Nigerian Police Force, Bayelsa State Police Command to

arrest the Claimants over the Claimants OSOWEI family

large expanse of land described in Relief 1 above is

unlawful and contrary to the claimants fundamental rights

constitutionally guaranteed under Section 35 of the

Constitution of the Federal Republic of Nigeria, 1999 (as

amended).

4. AN ORDER OF PERPETUAL injunction is issued

restraining the defendants jointly and severally by

themselves, servants, agents, privies and cohorts

surrogates, from further trespassing on the claimants

OSOWEI family land describe in Relief 1 above and/or

violating the claimants lawful, legal and/or constitutional

rights, in any of the ways stated in reliefs 1, 2, and 3 above,

and/or in any other way whatsoever.

The Respondents claims in the counter claim are hereby

dismissed for lacking in merit. The appellants are entitled

to cost which I assessed at N100,000.00.

43

(201

8) LP

ELR-45

618(

CA)

ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother,.

BITRUS GYARAZAMA SANGA JCA gave me the opportunity

of reading before now the judgment just delivered. I agree

with the reasoning and conclusion of my learned brother

and I allow the appeal.

I abide by the consequential Orders.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I have the

benefit of reading in draft the judgment just delivered by

my learned brother Bitrus Gyarazama Sanga, JCA.

I am in agreement with the reasoning and conclusion

reached by the learned Justice that this appeal has merit

and should be allowed and it is so allowed by me. The

judgment of the lower Court in suit No. YHC/25/2012 is

thus set aside.

On the other part the respondents’ counter claim is

dismissed for lacking merit.

I abide by the consequential orders regarding costs as

made in the lead judgment.

 

 

(201

8) LP

ELR-45

618(

CA)

44

(201

8) LP

ELR-45

618(

CA)

Appearances:

Felix T. Okorotie, Esq. For Appellant(s)

A. F. Gbaranma, Esq. For Respondent(s)

(201

8) LP

ELR-45

618(

CA)