In The Court of Appeal
(Calabar Judicial Division)
On Thursday, the 14th day of February, 2013
Suit No: CA/C/244/2011
Before Their Lordships
|
UZO I. NDUKWE-ANYANWU |
....... Justice, Court of Appeal |
|
JOSEPH TINE TUR |
....... Justice, Court of Appeal |
|
ONYEKACHI A. OTISI |
....... Justice, Court of Appeal |
Between
|
1. MR. IDO WILLIAM UTONG |
Appellants |
And
|
1. EDET ARCHIBONG UTONG |
Respondents |
|
|
|
|
|
|
RATIO DECIDENDI |
|
|
|
|
|
|
1 |
WORDS AND PHRASES - "ARBITRATION": Meaning of "Arbitration" |
|
|
|
"What is Arbitration? The learned authors of Black's Law Dictionary, 9th edition, page 119 define the word as: "A method of dispute resolution involving one or more neutral third parties who are usu. agreed to by the disputing parties and whose decision is binding." Per TUR J.C.A. (P. 36, paras. B-C) |
|
|
|
|
|
|
2 |
WORDS AND PHRASES - "JUDICIAL TRIBUNAL": Meaning of the word "Judicial Tribunal" |
|
|
|
"In Assampong vs. Amakwu & ors. (1952) 1 WACA 192 Kingdon C.J., sitting in the West African Court of Appeal explained what is meant by a "judicial tribunal" as follows: "A judicial decision is a decision of some question of law or fact pronounced by a judicial tribunal, and the meaning of that term is very wide. It is most certainly not confined to Courts and Arbitrators. "It is enough" Bays Spencer Bower at p.11 of his treaties) "If the alleged judicial tribunal can properly be described as a person, or body of persons, exercising judicial functions by common lay statute, patent, charter, custom or otherwise in accordance with the law of England, on in the case of a foreign tribunal, the law of the particular foreign state, whether he, or they be invested with permanent jurisdiction to determine all causes of a certain class as and when submitted, or be clothed by the State, or the disputants, with merely temporary authority to adjudicate on a particular dispute, or group of disputes." Does the tribunal whose decision is relied upon in this case come within the scope of this definition? I am of opinion that it does. I think that the evidence establishes that the tribunal consisted of a body of persons exercising judicial functions by custom, and duly invested with authority to adjudicate upon the dispute. In loose language its proceedings might be spoken of as an arbitration, but there was no arbitration in the technical English sense, and all the argument of Counsel for the plaintiff based on the assumption that such was the contention are beside the point." Per TUR J.C.A. (Pp. 32-33, paras. C-C) |
|
|
|
|
|
|
3 |
JUDGMENT AND ORDER - COURT JUDGMENT: Circumstances under which a person can be adversely affected by a judgment to which he is not a party |
|
|
|
"The general law is that no person is to be adversely affected by a judgment be it customary or otherwise in an action which he is not a party except where he can be shown to be a privy or is estopped by conduct. See Ekpoke v. Usilo (1978) 6-7 SC 187 at 201; Nwosu vs. Udeaja (1990) 1 SCNJ 152 at 177 and Njokanma v. Okonji (1989) 7 SCNJ 1." Per TUR J.C.A. (P. 37, paras. B-D) |
|
|
|
|
|
|
4 |
ARBITRATION - CUSTOMARY ARBITRATION: Types of customary Aritration |
|
|
|
"Customary Arbitration are of two main types. The first is made orally, and the second is recorded by the Customary Arbitrators. Be it noted that in the olden days writing was unknown to the natives. All transactions used to be oral. That is why the Courts recognized unrecorded decisions of Customary Arbitrators as having binding force if it could be established by evidence that the questions in dispute were determined by a judicial tribunal." Per TUR J.C.A. (P. 32, paras. A-C) |
|
|
|
|
|
|
5 |
ARBITRATION - CUSTOMARY ARBITRATION: Distinction between arbitrations at customary law from arbitration under the act |
|
|
|
"Where the case is fought on pleadings all the essential elements that constitute a valid Customary Arbitration must be pleaded. Where one of the parties deny that there was no voluntary submission to Customary Arbitration, if the award was reduced into writing as in this appeal, it becomes a question of fact to be determined by the learned trial Judge. See in Oparaji v. Ohanu (1999) 6 SCNJ 27 at 28 to 29 where Iguh, JSC restated the principles as follows: "I think I ought to start by restating the well settled principle of law that where two parties to a dispute voluntarily submit the issue in controversy between them to an arbitration according to customary law and agree expressly or by implication that the decision of such arbitration would be accepted as final decision, then once the arbitrators reach a decision, it would no longer be open to either party to subsequently back out of or resile from the decision so pronounced. See Opanin Kwasi and others vs. Joseph Larbi (1952) 13 WACA 76 (P.C); Ozo Ezejiofor Oline and Others vs. Jacob Obodo and Others (1958) SCNLR 298; Philip Njoka vs. Felix Ekeocha (1972) 2 ECSLR 199; Eguere Inyang v. Simeon Essien (1957) 2 FSC 39 etc. 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: - (i) that both parties submitted to the arbitration; (ii) that the parties accepted the terms of the arbitration and (iii) that they agreed to be bound by the decision of the 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 an 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. See Idika and Others vs. Erisi and others (1988) 1 NSCC 977 at 986; (1988) 2 NWLR (Pt.78) 563; Mogo Chikwendu v. Mbamali and Another (1980) 304 SC 31 at 48; Joseph Larbi and Opanin Kwasi and Another (1950) 13 WACA 81; Opanin Kwasi and Another v. Joseph Larbi and Another (supra); Ahiwe Okere and Others vs. Marcus Nwoke and Others (1991) 8 NWLR (Pt 209) 317. I should also observe that 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 Joseph Larbi and Another v. Opanin Kwasi and Another (supra) and Agu vs. Ikewibe (1991) 3 NWLR (Pt.80) 385." Per TUR J.C.A. (Pp. 34-36, paras. C-B) -read in context |
|
|
|
|
|
|
6 |
APPEAL - GROUND OF APPEAL: Requirement of the Court of Appeal Rules, 2011 that parties distill issues for determination from the grounds of appeal |
|
|
|
"Before I delve into the issues in controversy I wish to draw Counsel's attention to the requirements of brief writing as set out under the Court of Appeal Rules, 2011. A Brief of Argument must be paragraphed and paginated. The appellants set out the two original and four additional grounds of appeal which total six but went ahead to argue the grounds of appeal rather than the issues formulated. With the coming into effect of the Court of Appeal Rules, 2011 the parties are to distill issues for determination from the grounds of appeal. The advantage inherent in this procedure is that a lone issue may arise from many grounds of appeal and thereby narrow the controversies for determination. It is not permissible for one ground of appeal to contain many issues for determination. See Kalu v. Odili (1992) 6 SCNJ (pt.1) 76. The Courts will not however insist on strict compliance with a particular rule of Court if such a posture would inflict outright injustice on any of the parties in their pursuit of justice. In certain occasions the provisions of some harmless Rules of Court will give way to the interest of justice where they are in conflict. See Saleh v. Monguno (2006) 7 SCNJ 236/255; Oloha v. Akereja (1998) 1 NSCC 120 at 156." Per TUR J.C.A. (P. 14, paras. A-F) - read in context |
|
|
|
|
|
|
7 |
EVIDENCE - ONUS OF PROOF: Upon whom lies the onus to prove otherwise where a witness denies signing a document |
|
|
|
"The law is well settled that where a witness denies signing a document the onus is on the party asserting to prove otherwise. This is done by tendering a document that bears the true or authentic signature of that party for purposes of comparison by the learned trial Judge to aid him arrive at a just decision. See Odu v. The State (1965) NMLR 129 at 123; Obue v. The State (1976) 1 All NLR 165 at 172; Nwobodo v. Onoh (1984) 1 SCNLR 1 at 34." Per TUR J.C.A. (Pp. 17-18, paras. F-A) - read in context |
|
|
|
|
|
|
8 |
APPEAL - POWER OF APPEAL COURT: Power of appellate court to amend an award or relief erroneously granted by the trial Court in favour of the Respondents to reflect the correct relief sought and entitled to, before the lower Court |
|
|
|
"This Court has the powers to amend the award or relief erroneously granted by the trial Court in favour of the Respondents to reflect the correct relief that they sought and were actually entitled to, before the lower Court. See Chief Kwekwu Assampony v. Kweku Amuaku (1932) 1 WACA 192 at 193" Per TUR J.C.A. (P. 44, paras. F-G) -read in context |
|
|
|
|
|
|
|
|
|
JOSEPH TINE TUR J.C.A. (Delivering the Leading Judgment): The Respondents were the plaintiffs before the High Court of Justice, Okobo, Akwa Ibom State. They instituted this suit on 22nd day of February, 2008 and sought the following reliefs against the appellants/defendants:
"19. By the said acts of trespass by the defendants above described the plaintiffs have suffered damage and claim against the defendants jointly and severally as follows:
(a) A declaration that the plaintiffs are entitled to a statutory right of occupancy to all that piece or parcel of land known as ETI AFIE No. 2 situate, lying and being at Nung Atai Odobo Village in Okobo Local Government Area and which is bounded on the first side by the lands of Uduak Joshua and Edet Effiong Esio and on the second side by the land of Etim Edoho and on the third side by the lands of Joe Ononokpono, Afahaene John Efie and Ndueso Effiong Bassey and on the fourth side by the land of Edem Ama.
(b) The sum of N5, 000,000.00 Five Million Naira) being general damages for the trespass committed by the defendants.
(c) An order of perpetual injunction restraining the defendants by themselves, servants and/or agents from committing further acts of trespass thereon."
The appellants/defendants filed a counter claim/an Amended Statement of Defence and sought the following remedies against the Respondents:
"1. By way of counter claim the 1st and 2nd defendants hereby repeat all the paragraphs on the statement of claim.
2. Whereof the 1st and 2nd defendants claim as follows:
"(a) A declaration that the 1st and 2nd defendants are entitled to the customary right of occupancy over the land comprising 18 parcels known as Etiafie No.2 lying and situate at Nung Atai Odobo village in Okobo Local Government Area.
b) Perpetual injunction to restrain the plaintiff by themselves, their servants, agents, privies and assigns from interfering with the 1st and 2nd defendants' right to the lands now disputed by the plaintiffs.
(c) N5 Five Million Naira being general damages for trespass."
Lordship dismissed the counter-claim hence this appeal. Being aggrieved with this judgment the appellants filed a Notice of Appeal with two original grounds of appeal on 6th August, 2010. Four additional grounds were with leave of this Court filed on 4th November, 2010. The learned Counsel to the appellants distilled six issues for determination in their joint Brief of Argument filed on 15th November, 2011. The Respondents also identified a lone issue for determination in the brief filed on 21st December 2011. Before I consider the issues raised for determination may I recapitulate the facts that led to the institution of the suit in the Lower Court now subject matter of this appeal.
The Respondents/plaintiffs' case before the lower Court was that they and the appellants have the same great grandfather by name Utong Uyoape Enang. The children of Utong Uyoape Enang all died leaving William Utong Uyoape the father of 1st-2nd appellant. William Utong Uyoape was alive he redeemed the family land for the sum of N6,200.00. He requested that if the Respondents refunded part of that sum he will share or partition the family land with them, they being the children of his late brother by name Archibong Utong Uyoape (deceased). The Respondents pleaded that they did so on 20th September, 1996, as evidenced in Exhibit "A". After refund, a dispute arose in the course of sharing or partitioning the family property. William Utong Uyoape, the father of the 1st and 2nd appellants suggested, and they agreed, that the dispute should be submitted to elders in their village for adjudication. This was done. The Customary Arbitrators partitioned the family land and they went into immediate possession of the land, planted palm trees and cassava since the year 2000. The evidence of the partition is Exhibit "B". However when William Utong Uyoape died sometimes in 2005, the 1st and 2nd appellants committed acts of trespass into the land partitioned in their favour by the Customary Arbitrators. This they did so by leasing to the 3rd-6th appellants. When the leasing was opposed by the Respondents, the 1st - 2nd appellants threatened to kill them hence the institution of the suit in the lower Court.
The appellants' case before the lower Court was that the panel of Customary Arbitrators was headed by one Chief Ononokpono Nyoho of Nung Attai Odobo Village. One of the Arbitrators was Chief Effiong Edak Ekong the Village Head who had opposed their late father when he vied for a chieftaincy title. The Village Head became their deceased father's arch-enemy. Their late father insisted that his arch-enemy should not be a member of the customary Arbitration but the Chairman would not order him to step down. Their late father then withdrew participation in the arbitration proceedings hence he never signed Exhibit "B"; neither was Exhibit "B" dated. The 2nd appellant also denied signing Exhibit "B" on behalf of their late father as alleged by the Respondents. The trial Court however relied on Exhibit "B" to found in favour of the Respondents hence this appeal.
ISSUES IN CONTROVERSY:
The issues set down for determination by the appellants are as follows:
"3.1 Whether the trial court was right in placing reliance on Exhibit "B", when the document is fraught with so many defects and cannot constitute a valid arbitral award.
3.2 Whether the trial court was right in placing heavy reliance on Exhibit "B" when it was not signed and/or dated by late Chief William Utong or the 1st an 2nd Defendants/Appellants.
3.3 Whether Exhibit "B" before the trial court constituted a valid customary arbitration, upon which the Court could rely.
3.4 Whether the trial Court could ascribe to the 2nd Defendant the names Udo William Massody, William Massody or William Massodi when the 2nd Defendant denied bearing those names.
3.5 Whether the trial Court could rightly give to the plaintiffs/Respondents the relief they did not seek.
3.6 Whether the trial Court can substitute its own version of evidence in place of the sworn statement on oath of the defence."
The Respondents' learned Counsel formulated one lone issue for determination:
"Whether having regards to the pleadings in the matter, the evidence adduced and the findings made, the decision of the trial Judge were justified."
Before I delve into the issues in controversy I wish to draw Counsel's attention to the requirements of brief writing as set out under the Court of Appeal Rules, 2011. A Brief of Argument must be paragraphed and paginated. The appellants set out the two original and four additional grounds of appeal which total six but went ahead to argue the grounds of appeal rather than the issues formulated. With the coming into effect of the Court of Appeal Rules, 2011 the parties are to distill issues for determination from the grounds of appeal. The advantage inherent in this procedure is that a lone issue may arise from many grounds of appeal and thereby narrow the controversies for determination. It is not permissible for one ground of appeal to contain many issues for determination. See Kalu v. Odili (1992) 6 SCNJ (pt.1) 76.
The Courts will not however insist on strict compliance with a particular rule of Court if such a posture would inflict outright injustice on any of the parties in their pursuit of justice. In certain occasions the provisions of some harmless Rules of Court will give way to the interest of justice where they are in conflict. See Saleh v. Monguno (2006) 7 SCNJ 236/255; Oloha v. Akereja (1998) 1 NSCC 120 at 156. I shall consider the six issues formulated by the appellants for determination. But having read the pleadings, the oral and documentary exhibits coupled with the reasoning of the learned trial Judge, I am of the humble opinion that they can be compressed and argued under two main headings, namely:
ISSUE ONE:
1. Paragraph 3.1 - Issue No.1
Paragraph 3.2 - Issue No.2
Paragraph 3.3 - Issue No.3
Paragraph 3.4 - Issue No.4.
Both issues relate to the weight to be attached to Exhibit "A", "B" and "C" which the Respondents relied upon in the lower Court. I shall treat them as issue number one. However, issue 3.6 is not related to any ground of appeal. Accordingly it is struck out.
ISSUE TWO:
Paragraph 3.5 - Issue No.5
I shall consider this under issue two.
ISSUE ONE:
Appellants' learned Counsel drew this Court's attention to the contents of Exhibit "B"; that it does not contain the signature of late Chief William Utong nor was it dated. That an unsigned and undated document has no legal effect on the party against whom it is sought to bind. It was further argued that Exhibit "B" did not constitute a valid customary law arbitration in view of the fact that there was no prior agreement by the parties to be bound by the decision of the chiefs to whom the exercise was submitted. Counsel referred to the case of Chief Simeon Nwanewuihe v. Christopher Nwanewuihe & 2 Ors (2007) 16 NWLR (pt.1059) 1 at 7 and Okparayi v. Ohanu (2001) FWLR (Pt.45) 485 at 588 as showing circumstances when an arbitral award could be valid or it would be set aside by the Court. Learned Counsel drew the Court's attention to the fact that the 2nd appellant also denied signing Exhibit "B'; neither did any of them do so. Counsel urged this Court to hold that the appellants were not bound by Exhibit "B". Issues 1-4 should be resolved in favour of the appellants.
The Respondents learned Counsel referred to the pleadings and documentary exhibits (Exhibits "A", "B" and "C") tendered at the trial to support their claim that the customary Arbitrators completed the assignment by sharing or partitioning family land. That the award was published in Exhibit "B". When the 2nd appellant denied signing Exhibit "B" the Respondents' tendered Exhibit "A" to show that in 1996 he had signed the same signature as in Exhibit "B". The Respondents again tendered Exhibit "C" the funeral programme of the appellants' late father where his name appeared as "Udo William Massody."
The learned Counsel to the Respondents further argued that the principal issue was whether family land was shared or not by the Customary Arbitrators. Counsel referred to the pleadings and Exhibit "B" as showing that family land was shared; that the portion in dispute is part of the land awarded the Respondents. The 2nd appellant signed Exhibit "B" for his late father who was then blind. The learned trial Judge compared the signature of Udo William Massody on Exhibits "A" and Exhibit "B" before believing that the 2nd appellant signed both exhibits. Furthermore, when the 2nd appellant sought to deny that he was not Udo William Massody, the Respondents tendered Exhibit "C" being the funeral programme of their late father, William Utong Uyoape Enang. In Exhibit "C" the children of the deceased bear the names William Udo William Massody (2nd appellant); Juliana Udo W. Massody; Mary Udo W. Massody, and Namdi Udo Massody.
Counsel submitted that the Respondents proved on a balance of probability that the 2nd appellant signed Exhibit "B". In that wise, the primary function of ascribing probative value to the oral and documentary evidence was discharged by the learned trial Judge. The findings should not be interfered with by the Appeal Court. Counsel cited Momoh v. Umoru (2011) 15 NWLR (pt.1270) 217 at 229-230. Counsel also argued that Customary Arbitrators did not exceed their terms of reference by making an award beyond what was submitted for adjudication. The award should not be set aside. Counsel cited Ikwomala v. Oniwaye (1990) 4 NWLR (Pt.146) 617 at 619 and Judicial Service Committee v. Onu (1990) 6 NWLR (pt.157) 407 at 416. That issue one should be resolved against the appellants.
The law is well settled that where a witness denies signing a document the onus is on the party asserting to prove otherwise. This is done by tendering a document that bears the true or authentic signature of that party for purposes of comparison by the learned trial Judge to aid him arrive at a just decision. See Odu v. The State (1965) NMLR 129 at 123; Obue v. The State (1976) 1 All NLR 165 at 172; Nwobodo v. Onoh (1984) 1 SCNLR 1 at 34. The learned trial Judge will then evaluate the oral and documentary evidence to determine, for instance, in this appeal, whether the person who signed Exhibit "A" not disputed, is the same whose signature appears on Exhibit "B" which is in dispute. His Lordship is empowered to do so under section 101(1) of the Evidence Act, 2011 which provides that:
"101(1) In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose."
The signatories on Exhibit "A" are as follows:
"Chief William Utong
Sgd. - 20/9/1996
Witness
Udo William Massody
Sgd.- 20/9/1996
Edet A. Utong
Sgd. - 20/9/1996
Witness
Archibong Akpan Ukpong
Sgd. - 20/9/1996."
The signatories on Exhibit "B" are as follows:
"Sign and sealed by the following people:
1. Signed/sealed:
Chief Willam Utong
FamilyHead
Date:...
2. Sing/seal: SGD
Mr. Philip Archibong Utong
Date;12/2/2000
3. Sign/seal;SGD
Mr. Udo William Massody
Date;6/2/2000
4. Sign/seal;SGD
Mr. Emmanuel A. Utong
Date:6/2/2000
5. Sign/Seal:SGD
Chief Ononokpono Nyoho
Owong Isong, Nung Atai
Date; 30/1/2000
6. Sign/Seal: SGD
Chief Ben Akwa
Atibi Village - member
Date:30/1/2000
7. Sign /Seal:SGD
Chief Afaha Etong
Anua Village - Member
Date;30/1/2000
8. Sign/seal; SGD
Chief Umar Ononokpono
Owong Mkparae - Member
Odungkara Village
Date;30/1/2000
9. Sign/seal:SGD
Chief Edet Walter Udo
Member
Date;30/1/2000
10. Sign/seal:SGD
Chief E. E. Ekong
The Village Head
Nung Atai Odobo
Date;30/1/2000
A person who Signs a document as a witness is acknowledging that he or she saw, knows or can vouch the truth of what he signed. In The Criminal Prosecution in England, 1960 edition, Patrick Devlin states at page 66 that:
"Every witness is an editor: he tells you not everything he saw and heard, for that would be impossible, but what he saw and heard and found significant, and what he finds significant depends on his preconceptions."
When Exhibit "A" was tendered on 17th November 2008 through Philip Archibong Utong (PW1/3rd Respondent) the only grounds for objection by learned Counsel to the appellants was that Pw1 was not the maker. Secondly, that the 2nd appellant only signed as a witness. Nowhere was the objection hinged on the ground that the 2nd appellant did not sign Exhibit "A" in the year 1996 as a witness. Indeed, paragraphs 8-11 of the Respondents' statement of claim plead the following facts:
"8. On 20th September, 1996 William Utong Uyoape informed the plaintiffs that he spent the sum of N6,220.00 to redeem the lands of late Utong Uyoape including the land in dispute from people and that he was ready to share the said lands between himself and the plaintiffs being the surviving children of his late brother, Archibong Utong Uyoape if the plaintiffs were ready to refund part of the redemption sum to him together with one sheep and the plaintiffs agreed.
9. Further to paragraph 8 hereof the sum of N3,110.00 was paid to the 1st plaintiff to Chief William Utong to a document dated 20th September, 1996 together with one sheep. The document is pleaded.
10. Nevertheless, and in course of time the sharing of Utong Uyoape lands became a subject of arbitration before the Chiefs of Nung Atai Odobo village in 1999 and 2000. The arbitration was headed by the village head of Nung Atai Odobo, Chief E.E. Ekong.
11. During the arbitration Chief William Utong agreed that the farm land of Utong Uyoape including the land in dispute be shared between himself and the children of late Archibong Utong Uyoape."
See page 4 of the printed record of proceedings.
In the Amended Statement of Defence/Counter-claim filed on 22nd July, 2008 the appellants pleaded thus:
"SAVE AND EXCEPT as may directly or indirectly admitted the defendants denied each and every allegations of fact contained in the statement of claim as if such fact were set out seriatim and in like manner specially traversed.
1. The Defendants admit paragraphs 1, 2, 3, 4, 5, 6, 7(a) and (c), 9 and in part, 10 of the statement of claim."
Paragraphs 8, 9 and 10 of the Statement of claim are admitted by the appellants. This is supported by Exhibit "A" of 20th day of September, 1996. The condition precedent for sharing family land was the refund of part of the redemption sums to the late father of the 1st-2nd appellant. This is supported by Exhibit "A" of 20th September, 1996. Upon refund of this money and in the course of the sharing or partitioning of the land, a dispute arose and was voluntarily submitted by the parties to customary Arbitration before the chiefs of Nung Atai Odobo Village in 1999 and 2000. Exhibit "B" clearly shows that the late father of the 1st and 2nd appellants actively participated in the proceedings, answered questions and made admission before the Customary Arbitrators, agreeing that the family land sho