MR. IDO WILLIAM UTONG & 5 OTHERS    V.  EDET ARCHIBONG UTONG & 4 OTHERS (CA/C/244/2011) [2013] 3 (14 February 2013);

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  • MR. IDO WILLIAM UTONG & 5 OTHERS    V.  EDET ARCHIBONG UTONG & 4 OTHERS (CA/C/244/2011) [2013] 3 (14 February 2013);

 

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 
2. UDO WILLIAM UTONG 
3. ALPHONSUS UDO OTON 
4. UNANAOWO LUKE UNANAOWO 
5. ETIM SAM 
6. OKON EDU

Appellants

 

 

 

 And

    

1. EDET ARCHIBONG UTONG 
2. BASSEY ARCHIBONG UTONG 
3. PHILIP ARCHIBONG UTONG 
4. EMMANUEL ARCHIBONG UTONG 
5. ASUQUO 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 should be partitioned. Part of Exhibit "B" reads as follows:

"SHARING OF UTONG UYO AKPE'S FARM LAND BETWEEN CHIEF WILLIAMS UTONG AND THE CHILDREN OF LATE CHIEF ARCHIBONG UTONG HELD AT CHIEF ONONOKPONO NYOHO'S COMPOUND ON 20TH DECEMBER, 1999, ADJOURNED TO 30TH DECEMBER, 1999 AND FINALLY ON 13TH JANUARY, THE YEAR 2000.

INVESTIGATION: During the investigation the panel (Mbuong Isong) discovered that the following plots were occupied by the said families, namely:- Asung Alenang 11 plots, Ibiok Miime 11 plots, Edong Apa 5 plots, Akpu-Ukom Ufok Nwed 17 plots, Ukpoi Ate Asaha 17 Plots, Adighi Edop, Adighi Asiak Apa 13 plots, Usana Umon 14 plots, Apa Etinim 10 plots, Eti Afie No.2 12 plots, Ibiok 76 plots, Eti Afie Adighi Inung 42 plots and Ape Ukom Afana.

It is a traditional fact that in sharing of any assets and liabilities of a Late father who married to two or more wives to the first son owned by the senior wife and also any son owned by the junior wife in existence of which the complainants in this case has no claim of right to forfeit the defendant's plots of farm land, since the children of late Chief Archibong Utong has given the complainants Chief Williams Utong a sheep and a ram which he Chief Williams Utong demanded from them. And also in accordance the amount which the panel also discovered through an agreement made between Chief William Utong and the Children of Late Chief Archibong Utong of 20th September, 1996, shown that six thousand, two hundred and twenty naira (N6,220.00) which Chief William spent to secure the family of the two parties, the amount was shared into two which three thousand one hundred and ten naira (N3,110.00) was paid by the children of Late Chief Archibong Utong.

In this respect Chief William Utong agreed, that the disputed farm lands should be shared between him Chief William and Utong and the children of late Chief Archibong Utong in acres. 

Finally the panel (Mbuong Isong) further appealed to Chief William Utong being a senior person in the family now to always give those under him the correct information about family's properties so as to avoid un-due problems or death in the family.

On the 30th December, 1999 was the second hearing of the case. The panel (Mbuong Isong) therefore told the two parties Chief William Utong and the children of late Chief Archibong to give the following items for the sharing purposes. 1 she goat, 2 crates of minerals, 1 jar of palm wine, 5 yams and physical cash of one thousand Naira (1,000.00) to be presented on the 13th January, 2000.

JUDGMENT: The panel (Mbuong Isong) appointed, therefore on the 13th January, 2000 decided that since the total farm land situated at the following lands known and called at:

NO:    NAMES OF FARM LAND     NO OF PLOTS    NAME OF OWNERSHIP

1.     Asung Atenang          11        Archibong Utong

2.     Ibiok Mi-ime          11        William Utong

3.     Edong Apa          5       William Utong

4.     Ate-Nung                    5       Archibong Utong

5.     Apu-Kom Ufok Nwed        17       Archibong Utong

6.     Upoi Ate Asaha          17       William Utong

7.     Adighi Edop          -       Archibong Utong

8.     Adighi Asiak          -       William Utong

9.     Apa                      13       Archibong Utong

10.     Usang Mmong          14       William Utong

11.     Apa Eti Inim          10       William Utong

12.     Eti Afie No.2          12       Archibong Utong

13.     Ibiok                       76       William Utong 40 plots

                               Archibong Utong 36 plots

14.     Eti Afie Adighi Inung        42             Archibong Utong 21 plots

                               William Utong 21 plots

NOTE: The panel in conclusion advised the two families to clear or farm Ibiok plot at the same or year so that the said land could be shared properly as a correct record of Ibiok not fully known. Regard to a wife of late Daniel Utong the panel decided that since the widow allowed by the two families that is Chief Archibong Utong and William Utong in that the position of lands where the widows was farming, if the farm land is now divided or snared to chief William Utang and late Chief Archibong Utong the widow by named and popularly called "EDAK AYANGA" wife of late Chief Daniel Utong must continue to farm her portion till death. The two families of William and Archibong accepted the decision by the panel (Mbuong Isong). Furthermore, the family of late Chief Effiong Abasi represented by the son Mr. Ndueso Effiong Abasi asked the panel (Mbuong Isong) and also Chief William Utong that out of the two families which the family land are now shared to, which one of the family that he Ndueso son of Effiong Abasi belong to.

Answer to his question Chief William explained to the panel that he Ndueso had already been given five areas of lands to the families of "ITIOK UYO APE" at:

1. Upoi

2. Akpu-Kom - Opposite of Alphonsus Udo Oton

3. Akai Idiok

4. Eti Afie, Afaha - Afaha

5. Part of Ibio which he had been farming.

Through cross-examination by the panel, he Ndueso was asked whether he accepted the five portions of land given to him by Chief William and Chief Archibong Utong's Children? He Ndueso said "Yes" and thank the families.

APPEAL: This panel unanimously agreed that any aggrieve party or parties wishing to appeal in respect of this case to any court of law should pay to the seven men panel the sum of Fifty Thousand Naira (N50, 000.00 only before they appear in any Court of law to testify in respect of this matter."

The "land in dispute" simply means the land claimed by the Respondents and that claimed by the appellants. See Akintola v. Solano (1986) 2 NWLR (pt.24) 598 at 622. The parties in this appeal are presumed to know the land in dispute. It is their late ancestor's land. A plan is not needed in such a circumstance. See Ibuluya V. Dikibo (1976) 6 SC 97 at 107; Olujinle v. Adeagho (1989) NWLR (Pt.75) 238 at 249; Atolagbe v. Shorun (1985) 4 SC 250 at 257 and Sokpui v. Agbozo 13 WACA 24.

In Exhibit "C" the 2nd appellant is listed as the 20th grandchild of late Owong Wiiliam Utong Uyo Ape Enang. I endorse the findings of the learned trial Judge when after comparing the signatures on Exhibit "A" and "B" and seeing Exhibit "C" his Lordship made the following findings and conclusions:

"...It is for this reason that I find that it was the 2nd defendant who signed Exhibit "B" for his father in 2000 due to his failed eye sight. When his father did not have that problem he signed Exhibit "A".

Again by virtue of section 108(1) of the Evidence Act I can compare the signature on Exhibit "A" and "B". I have done so and I am convinced one person signed the two exhibits and that was the 2nd defendant. Particular (i) and (ii) of paragraph 12 of the amended statement of defence are dismissed."

At no time did the 2nd appellant seek to impugn the authenticity of Exhibit "A", that he did not sign same as a witness. Neither did the 2nd appellant seek in the counter-claim that Exhibit "B" be set aside on any ground. The usual practice is to apply that a court of competent jurisdiction should set aside an award if any of the parties is not satisfied with the outcome of the arbitration. See Kobina Foli V. Obeng Akese (1930-31) 1 WACA 1. In determining the bindingness of Customary Arbitration, it is the purpose the parties voluntarily submitted the dispute to the elders that determines its validity. For instance, in Inyang & Anor. V. Essien & Anor. (1957) 3 FSC 39 all the parties voluntarily submitted their dispute before a body of councilors for the purpose of "making peace" between them. But the Council could not do so. The Federal Supreme Court held that the decision of the Council was only to make peace hence did not constitute re judicata in the subsequent proceedings. This case is to be contrasted with Oline & others vs. Obodo & ors. (1958) 3 FSC 84. In this case the appellants and the respondents jointly executed a lease in favour of a company. A dispute arose regarding the sharing of the rents between the appellants and the respondents. The District officer in the area suggested that the parties should submit the dispute to the Assistant District officer (Mr. Lawrence) and further advised them to file written submissions. Though this was not done, the parties met on the land in dispute. Their representatives agreed orally to be bound by Mr. Lawrence's award. Mr. Lawrence delivered his award orally and thereafter reduced same into writing which was admitted at the trial as Exhibit "13". When it became clear to the plaintiffs/respondents that the appellants/defendants would not abide by the award made by Mr. Lawrence they proceeded to the Court and pleaded the award. One of the arguments advanced by the defendant's learned Counsel was that Mr. Lawrence did not hold an arbitration proceeding but had merely made a settlement which did not bind the parties. In rejecting this argument the Federal Supreme Court held at page 86 of the judgment that:

"...there may be a binding oral agreement to arbitrate under native law and custom. There can be no doubt that that is so. The parties are natives and there was nothing to prevent them agreeing to have their dispute settled in accordance with Native Custom... It is also submitted that Mr. Lawrence should have recorded evidence which was given at the arbitration. In my view, this was not necessary. The representatives of the parties were present on the land and Mr. Lawrence heard what they had to say and which enabled him to assess on the land the amounts of the rents the parties were entitled to as their shares. It is true that although in the statement of claim the plaintiffs averred that the parties by writing submitted the dispute to an arbitrator, the plaintiffs gave evidence that the submission was made orally. There was no objection on behalf of the defendants. The defendants, therefore, were aware of the nature of the arbitration which the plaintiffs relied upon on the claim...

In the case of Opanin Asong Kwasi and others v. Joseph Richard Obuadang Larbi (2), Privy Council Judgment it was held that where the parties submitted their dispute for settlement by arbitration in accordance with Native Customary Law and one party withdrew from the arbitration before it was completed the award of the arbitration was nevertheless binding on all the parties. In the present case there is a finding of fact against the appellants that they attended the arbitration and that they agreed to be bound by the award of the arbitrator. The judgment of the learned chief Justice is supported by the evidence and these appeals are dismissed with costs assessed at 29 guineas."

See also Iguego & ors. v. Ezeugo & ors. (1992) 6 NWLR (Pt.249) 561.

Again in Kobina Foli v. Obeng Akese supra the West African court of Appeal held at page 2 of the judgment that, "...in submissions to arbitration the general rule is that as the parties choose their own arbitrator to be the judge in the disputes between them, they cannot when the award is good on its face, object to his decision, either upon the law or the facts."

In Opanin Asong Kwasi & Ors. v. Joseph Richard Larbi (1952) 13 WACA 76 it was mutually agreed to withdraw the land claim from the Native Court "B" and to submit the dispute to arbitration by a panel of Elders of Apapam comprising eleven elders. The parties paid the necessary fee to signify their consent to refer the matter to arbitration. During inspection by messengers sent by the Arbitration Panel the appellants could not show the boundaries of the land in dispute; the Respondent did. At the resumed hearing the appellants absented themselves. They sent a letter dissociating themselves from the arbitration proceedings. They further demanded a refund of the money they had advanced for inspection of the disputed land. The Customary Arbitrators published the award. When the case came before the Native Court once more the Respondents moved the hand of the Court to enforce the arbitral award. The appellants took objection on the grounds that the arbitration proceedings had not been recorded, and, secondly, that they had withdrawn from the arbitration before the award was made. The arguments were over-ruled. The West African Court of Appeal, on a subsequent appeal, examined the records and were satisfied that this was not a mere negotiation for a settlement but that it was a formal arbitration. On a further appeal to the Privy Council, Lord Normand held that:

"...In native customary law the Elders have a recognized judicial function and are in fact a tribunal before which natives can bring their disputes for judicial decision. (Danguah, Akan Laws and Customs. pp.88 f8). It seems to their Lordships improbable that the intervention of the Odikro and the Elders was for the purpose of aiding a settlement by negotiation rather than for the purpose of discharging a judicial function in the form of an arbitration. Secondly, the proceedings before the Elders as narrated in this finding have no resemblance to negotiations for a settlement but have all the marks of a well conducted formal arbitration. Thirdly, the Native Court "B" when the case again came before it treated the award as an award in an arbitration and acted upon it by giving judgment in accordance with it. They knew how and with what intention the proceeding had originated and they could not honestly have acted as they did if the proceedings been for the purpose of facilitating a settlement."

In conclusion Lord Normand held at page 80 of the judgment that:

"...Since it is established that the parties gave their consent to the submission of the dispute to the Elders without any express reservation of a right to resile, and since there is certainly no right to resile after the award is made, it is for the appellants to satisfy the Board that a right so contrary to the basic conception or arbitration is recognized by native customary law. In this they have failed..."

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. 

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.

If this (as I hold) judicial tribunal gave a decision upon a question of fact that decision is a "judicial decision," and this brings me to the second constituent element which must be established."

As to how it will be proved that the decision of the Customary Arbitrators was pronounced or published, Kingdom C.J., held in Assampong V. Amuaku & ors. (supra) at page 197 that:

"...The only course open is for this Court to come to a decision upon the evidence given. The fact is that the decision was pronounced and its substance must be proved by the best evidence available. Obviously it is expected that a written record should be produced. In the absence of record I consider the evidence of Kweku Baa, one of the persons who actually pronounced the decision, was the best available. His evidence (which I have already quoted) is clear and definite that a decision was given, and that it decided that the boundary between Efilfa and Gaitua was Wura Ekwia. Against this there are the denials of the plaintiff himself and his witness Kobina Aduakwa. The trial Judge regarded plaintiff's own denial as 'suspicious,' and disbelieved his evidence that there was no such litigation. I have no hesitation in accepting Kwekwu's Baa's evidence as true and holding that the judicial decision relied upon was in fact pronounced, as alleged."

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."

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."

In this appeal the late father of the appellants and the Respondents had entered into a binding and enforceable contract. When that contract could not be executed, there arose what in law may be called "grievance arbitration." This is defined by the learned authors of Black's Law Dictionary (supra) page 120 as "1. Arbitration that involves the violation or interpretation of an existing contract. The arbitrator issues a final decision regarding the meaning of the contractual terms." That, in my view is the purport of Exhibit "B". Exhibit "B" constitutes a publication of the award of the disputed land to the Respondents. I uphold the conclusions of the learned trial Judge at page 158 tines 19-23 of the printed record where his Lordship held that:

"...It cannot be disputed that the parties in this case voluntarily submitted the sharing of the family farmlands to an arbitration according to their customs and either expressly or by implication agreed to accept what the arbitration would decide as final and binding. The defendants are now trying to reside (sic) from the decision which they signed through the 2nd defendant."

The appellants have an interest in family property which they can protect by litigation. See Sogunle v. Akerelo (1967) NMLR 58 at 60; Tewogbade v. Akande (1968) NMLR 404. 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. In Assampong v. Amuaku (supra) Kingdom C.J., held that for Customary Arbitration to be valid:

"Sixthly, it must be established that the parties to the judicial decision, or their privies, were the same persons as the parties to the proceedings in which the estoppel is raised, or their privies, or that the decision was conclusion in vein."

See also Njokanma vs. Okonji (1989) 7 SCNI 1.

The fact that the appellants' names did not appear on Exhibit "B" as named parties does not mean they cannot be bound by its contents. In Nkyi vs. Darku 14 WACA 488 the dispute involved the lands between the people of Asin Akropong and Assin Yakumasi. They shared a common border. But when a dispute arose between the two communities the controversy was submitted to Customary Arbitration in 1911 and subsequently affirmed by Customary Arbitrators in 1921. In 1924 the parties came before Hall J., to give effect to the boundary settlement as awarded by the arbitrators. One of the contesting parties pleaded that the boundary demarcation of 1916 and as confirmed in 1921 had no binding effect. Exhibit "D" was tendered as a plan of the land that had formed part of the previous arbitral adjudication. The Court found that Chief Kobina Fori, a representative of the present opposer's predecessor had testified in that suit in support of the boundary demarcated in Exhibit "D". The Government used Exhibit "D" without opposition from any of the parties to survey and finally demarcates the land. At page 440 of the judgment Coussey J.A. made the following observation:

"...Today the position is altered, and the opposer - appellant seeks to avoid the very boundary which his predecessor's representative, in collaboration with the first grantor's predecessor, played a major role in establishing not only as defining the boundaries of their separate sub-stools but obviously the limits of the two states in this area."

Coussey J.A., held at pages 440-441 of the judgment as follows:

"It is clear to my mind that the opposer - appellant is estopped from re-agitating the boundary laid down by Hall, J. (i) As the evidence in the 1924 suit shows, it was demarcated as a result of the active participation of his predecessor in title and therefore binds the oppose. (ii) He is estopped from alleging that the land to the West of the boundary laid down is attached to his Paramount Stool, for his predecessor's representative in 1916 and 1921, when taking part in the boundary settlement, did not assert for the stool of Assin Apimanim a claim of title to the land to the West of agreed boundary line. (iii) He is further estopped because his interest, if any, as has been demonstrated are coterminous with those of the Ohene of Assin Akropong represented in the 1924 suit by Katurka Yardom. A person may be bound by a judgment though not a party to it, if he is in the same interest as a party and might, if he had chosen to take the necessary steps under Order 3, rule 5 of the Rules of Court, have been admitted as a party - Farquharson v. Seton (1) and In re Lart: Wilkinson vs. Blades (2). As Lord Penzance said in Wytcherby vs. Andrews (3), "That is founded on justice and common sense". It is observed also that the opposer appellant did not call evidence and did not prove at the enquiry any title in his paramount stool upon which his ground of opposition that part of the land attached to his stool could be founded. The issues were therefore rightly decided and I would therefore dismiss this appeal with costs allowed at 42 11s.od Euro."

It is within the province of the learned trial Judge to resolve the conflicting evidence and to decide which party to believe or not. My humble view is that oral evidence cannot be admitted to contradict, alter, add to or vary the contents of Exhibit "B" which shows that it was signed by the 2nd appellant as a witness on 20th September, 1996. In such a case Exhibit "B" will be used as acid test to evaluate the oral evidence. See Fashanu v. Adekoya (1974) 9 NSCC 327 at 331; Olujinle v. Adeagbo (1988) 2 NWLR (pt.75) 238 at 253 and Kimdey v. Military Governor of Gongola State (1988) 2 NWLR (Pt.77) 445 at 473; Union Bank of Nigeria Ltd. v. Sax Nig. Ltd. (1994) 9 SCNJ 1; Union Bank of Nigeria Ltd. vs. Ozigi (1994) 5 SCNJ 41 and Ajuwon vs. Adeoti (1990) 3 SCNJ 159. The learned trial Judge held at page 86 lines 7-22 of the printed record as follows:

"Exhibit "C" had come in to debunk the story told by the defendants that they do not know who Udo William Massody is. The funeral programme of the Late William Utong Uyoape is a name associated with the 1st and 2nd defendants. The programme was for the funeral service of the Late Onong William Massody Utong Uyoape Enang. The children of the 2nd defendant bear their names as:

"1. William Udo William Massody

2. Juliana Udo W. Massody

3. Mary Udo W. Massody

4. Namdi Udo w. Massody."

I find as a fact that 2nd defendant signed Exhibit "B" for and on behalf of his father. All the parties signed or thumb-printed on the sharing document except the father of the 1st and 2nd defendants on whose behalf the 2nd defendant signed. I also find as a fact that Exhibit "B" cannot by any stretch of imagination be regarded as a fraud. The parties voluntarily submitted themselves to the arbitration. Exhibit "B" is an evidence of petition being carried out. From Exhibit "B" the land in dispute is listed as No.12 and it was clearly shown to have been shared to the plaintiff."

The learned trial Judge's finding that the appellants want to resile from the partitioning of family land contrary to Exhibit "B" remained unchallenged in the lower court and before this Court. The findings emanate from the weight of evidence adduced at the trial. For all these reasons I resolve issue one against the appellants.

ISSUE TWO:

On issue two learned Counsel to the appellant drew the Court's attention to the fact that the Respondents sought in their statement of a claim a declaration that they were entitled to a statutory Right of occupancy, general damages and perpetual injunction restraining the appellants and their privies/servants/agents etc, from trespassing into the land in dispute. But the learned trial Judge awarded them a customary right of occupancy over the disputed land, general damages and perpetual injunction. Thus the learned trial Judge became Father Christmas which decided authorities have frown at. Learned Counsel urged this Court to resolve issue 5 in favour of the appellants. On the whole learned Counsel to the appellants urged that this appeal should be allowed and the judgment of the lower Court set aside. 

Learned Counsel to the Respondents contended that the appellants had not shown what injustice was caused to them when the learned trial Judge granted the Respondents a declaration of title to a Customary rather than a statutory Right of Occupancy claimed in paragraph 19(a) of the statement of claim. Current judicial attitude leans in favour of substantial rather than technical justice. Counsel cited Famfa Oil Ltd. vs. Attorney-General of the Federation (2005) 18 NWLR (Pt.852) 452 at 460. Besides, not every error committed by a trial Judge will lead to the judgment been overturned on appeal. Counsel referred to Nkoko vs. Akpaka (2000) 7 NWLR (Pt.664) 225 to urge that issue two should be resolve against the appellants and the appeal should be dismissed. The judgment of the learned trial Judge should be affirmed.

The uncontested fact is that the Respondents sought a declaration to a statutory Right of Occupancy to the land known as "ETI AFIE No. 2 situate, lying and being at Nung Atai Odobo Village in Okobo Local Government Area of Akwa Ibom State of Nigeria."The location of a land in dispute determines the Court with jurisdiction to entertain controversies arising from ownership or possession. See Dweye v. Iyomahan (1983) 2 SCNLR 135 at 138. The High Court has jurisdiction to entertain controversies in respect of land situate in non-urban areas. See Sadikwu v. Dalori (1996) 4 SCNJ 209. There is presumption in law that Archibong Utong Uyoape (deceased), the great grandfather of the parties held family land under customary law, hence, he is presumed to have possessed a customary Right of Occupancy. Section 50(1) of the land use Act, 1978 defines the term "Customary right of occupancy "as" the right of a person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a Local Government under this Decree." This is not the same as a statutory Right of occupancy which means, "a right of occupancy granted by the Military Governor under this Decree." The learned trial Judge took judicial notice of the urban Areas (Designation) Order, a subsidiary legislation made pursuant to the Land Use Act, 1978 particularly Order 2, to hold that Nung Atai Odobo Village is not within an Urban Area. In that case, since the parties' ancestor is deemed to have had a customary right of occupancy over family land, it was not out of place for the Respondents to have asked for declaration that upon success at the trial they were entitled to a statutory Right of Occupancy from the Governor of Akwa Ibom State over the land in dispute. Granting the Respondents another Customary Right of occupancy amounted to granting them what they already had in law and fact by virtue of ancestral ownership of the land. The Respondents were in my view, entitled to the relief they claimed, namely, a statutory Right of Occupancy under paragraph 19(a) of the statement of claim. The learned trial Judge erred in law and in fact to have granted the Respondents a Customary Right of Occupancy, a relief they did not claim. See Nigerian Housing Development Society v. Mumuni (1977) 2 SC 57 at 81; Egri v. Uperi (1974) 1 NMLR 22; Ekpenyong v. Nyong (1975) 2 SC 71 and Njoku vs. Eme (1973) 5 SC 293 at 300. However, it is not every error committed by a learned trial Judge that is susceptible for an appeal to be allowed. See Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417 at 430; Ezekpelechi vs. Ugorji (1991) 7 SCNJ (Pt.2) 196 at 258; Onifade v. Olayiwole (1990) 11 SCNJ 10 at 22 and Ugo vs. Obiekwe (1989) 2 SCNJ 95 at 103-104. I hereby set aside the award of Customary Right of Occupancy granted the Respondents by the learned trial Judge. I shall invoke the powers of this Court under Section 15 of the Court of Appeal Act, 2004 to grant the Respondents a declaration that they are entitled to a statutory Right of Occupancy as claimed 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. 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, I resolve issue two against the appellants. The appellants should honour the contractual obligations entered into between their late father and the respondents. They should accept the fact that they are bound by exhibit "B". It is ridiculous for the 2nd appellant to deny the name by which he is known in the family just for filthy lucre, founded on the desire to grab the land in dispute to the exclusion of the Respondents. This kind of misconduct often generates bad blood in any family, which extends to generations yet unborn. The judgment of the learned trial Judge is hereby affirmed. The appeal is dismissed. I award N50,000.00 costs to the Respondents.

UZO I. NDUKWE-ANYANWU J.C.A.: I had the privilege of leading in draft form the judgment just delivered by my learned brother Joseph Tine Tur, JCA. I am in total agreement with the detailed way he had treated all the issues as articulated by the Appellant.

I also dismiss this appeal and affirm the judgment of the trial Judge. I abide by the order as to costs contained in the lead judgment.

Justice, Court of

ONYEKACHI A. OTISI J.C.A.: I have had the opportunity of reading in draft the Judgment just delivered by my learned Brother, Joseph Tine Tur JCA. I am in complete agreement, and I have nothing further to add. I abide with the Orders made in the lead Judgment, including the Order as to costs.

     Appearances       

E.O Oquong, Esq.

For the Appelants

       

E. Ekpenyong, Esq.

For the Respondents