Court name
Supreme Court
Case number
SC 1441 of 1985

Chief Awara Osu & Ors v Ibor Igiri & Ors (SC 1441 of 1985) [1988] NGSC 37 (05 February 1988);

Law report citations
Media neutral citation
[1988] NGSC 37
Coram
Nnamani, JSC
Uwais, JSC
Belgore, JSC
Wali, JSC
Craig, J.S.C

CHIEF AWARA OSU & ORS (APPELLANT)

v.

IBOR IGIRI & ORS (RESPONDENT)

(1988) All N.L.R. 129

 

Division: Supreme Court Of Nigeria

Date of Judgment: February, 5, 1988

Case Number: (SC.1441 1985)

Before: Nnamani, Uwais, Belgore, Wali, Craig, J.J.S.C

 

The appellants were the plaintiffs who initiated the proceedings leading to this appeal in the customary court, known as District Court of Bahumono now in Cross River state. The cause of the action was an expanse of land reflected in the two plans tendered and admitted as Exhibits.

The plaintiffs herein appellants testified that they allowed the respondents into the area of their plan verged pink as yearly tenants over a period of time on payment of tributes, but later the respondents started encroaching into the area verged yellow. Chief Awara Osu as an elder of the plaintiffs had to invoke juju curse but the elders of the community believing in the efficacy of juju, prayed him to revoke the curse.

A settlement was arranged where-of the appellants were prevailed upon to give parts of their land on the portion verged pink to the respondents on the undertaking by the respondents to surrender part of their own land to the appellants.

The appellants gave traditional history of the land dating back to nine generations. The respondents seized advantage of the settlement by further encroachment and consolidation on the disputed land but declined on their own undertaking to give part of their own land to the appellants.

This led the appellants to litigation as each party must have regarded the attempted settlement, Exhibit C as no more binding. By majority decision, the district court gave judgement to the plaintiffs but the Chief Magistrate Court upset the judgement on appeal.

On a further appeal to the High Court, the judgement of the Chief Magistrate Court was set aside on the ground that the learned Chief Magistrate wrongly applied section 40 of the land Use Act in coming to his decision. On further appeal to the court of Appeal, the appeal was upheld, in essence, the judgment of the Chief Magistrate was restored. Against the decision of the Court of Appeal the appellants being dissatisfied, therefore appealed to the Supreme Court.

HELD:-

(1)     Where land ownership is claimed in customary law, the best evidence is that of traditional title proved by way of ancestral history of ownership.

(2)     Customary Courts are not bound by the evidence Act unless subsequently so conferred with the power to apply it. The Court hearing appeals from customary or Area or District Courts whatever designation of those courts presided over by lay men should be wary to apply the strict technicalities of procedure or Evidence Act in reviewing those appeals if such application will destroy the substance and merit of the matters heard in those inferior courts.

(3)     The meeting at which the parties met leading to Exhibit C cannot be regarded as a Tribunal or even Arbitration and Exhibit C could not in law be regarded as a strict legal document and therefore could not be res judicata. A fortori, it could not be estoppel as both parties regarded it as a dead document.

(4)     Exhibit C could never be said to have been caught up by section 131 (1) of the Evidence Act because of the provision of section 1(4)(c) of the same Act which precludes the application of the Act to any judicial proceedings in the customary courts.

Appeal allowed.

N. N. Anah (with him P.N. Umeh; V.I. Aganekwu)

H. I. Okoli and E.O.E. Ekong for the Appellants.

A. O. Mogboh, S. A. N. (with him A. O. Onua for the Respondents)

Cases referred to:-

(1)     Agedegudu v. Ajenifuja (1963) 1 All NLR 187

(2)     Afonja v. Aiyelagba (unreported FSC.317/1961 decided on 11/12/1962

(3)     Akintola v. Oluwa (1962) 1 All NLR pt. II 224

(4)     Karimu v. Fajube (1968) N.MLR 151

(5)     Kwasi v. Larbe XIII WACA 76

(6)     Nwabia v. Adiri (1958) 3 FSC 112/114

(7)     Nwokolo Oliko & anor v. Ofili Okonkwo & ors. 1970 1 All NLR 86

(8)     Olire v. Obodo 3 F.S.C. 84.

Statutes referred to:-

(1)     Evidence Act

(2)     Land Use Act.

Nnamani, JSC. I had a preview of the judgment just delivered by my learned brother, Belgore, J.S.C. and I entirely agree with his reasoning and conclusions.

It seems to me too that the learned trial Judge who heard this matter on appeal from the learned Chief Magistrate dealt admirably with all the issues that arose. His judgment was set aside by the Court of Appeal, Enugu Judicial Division, on the sole ground of the effect which ought to be given to Exhibit C, an agreement between the parties to which I shall make reference below. Indeed the only ground argued by respondents herein, who were appellants at the Court of Appeal, was.

"The learned trial Judge of the High Court erred in law by not considering the effect or importance of Exhibit 'C', a document executed by the parties and tendered in Court, in settlement of suit 14/76 between the same parties over the same parcel of land which the defendant both in this suit and in that case called IDO ORAH land or IDO ORA"

Phil-Ebosie, J.C.A. who wrote the lead judgment of the Court of Appeal had concluded thus:-

"The learned trial Judge also in interpreting Exhibit 'C' observed in his judgment that the Exhibit contained the term. It is my view, however, with respect that the learned trial Judge was wrong as nowhere in Exhibit 'C' can such a term be found or inferred. As to the evidence of the plaintiff Section 131 (1) of the Evidence Act makes it inadmissible as its effect would be to add, alter, or vary a contract that has been reduced to writing"

Two additional grounds of appeal in this Court show the gravamen of the appellants' complaints against that judgment of the Court of Appeal.

1.      The learned Justices of the Court of Appeal erred in law by treating either Exhibit 'B' or 'C' as res judicata or an estoppel.

Particulars

2.      The learned Justices of the Court of Appeal erred in law by holding that by Section 131(1) of the Evidence Act the Plaintiffs/Appellants could not lead evidence of the conditions which gave rise to Exhibit 'C'."

It is pertinent to mention that at the hearing of this appeal, Learned Senior Advocate appearing for the Respondents, Mr Mogboh indicated that he was not insisting on Exhibits 'C' being a basis for res judicata but for issue estoppel. This considerably narrowed the matters to be decided in the appeal. Put briefly, as these matters have been fully dealt with by my learned brother, Exhibit 'B' was the proceedings instituted by the respondents in respect of the same land i.e. Suit 14/76. This Suit was withdrawn following some agreement between the parties. That agreement which was reduced to writing was tendered in the course of this Suit as Exhibit 'C'.

Looking carefully at Exhibit 'C' at page 30 of the Record, there is no doubt that it was signed by representatives of both sides-three ward heads and the group head of Ediba. It is clear that an attempt was made to demarcate the boundaries of both communities with the use of Okono trees. The agreement dated 26th April, 1976 recites that-

"the members of Enusokwe ward and Ezomo Ward in Ediba have to resolve to finding a solution to settle their land case dispute by getting together and peacefully entered the disputed land to create a boundary agreeable to the two parties" (Italics mine)

It then talked of a boundary southwards created and planted with 13 Okono trees at intervals. If, as the Court of Appeal held, no evidence could be introduced to explain, vary, or alter this agreement, then on the face of Exhibit "C" issue estoppel would have been well founded. In other words, when the appellants filed their Suit 14/78 in the District Court for declaration of title to the same land, they would have been met successfully with a plea that the issue of the boundary between their lands had been settled between the parties. But Section 131(1) of the Evidence Act on which the Court of Appeal relied for excluding any evidence which tended to explain or alter Exhibit 'C' is not applicable. Section 131(1) states:-

"When any judgment of any Court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases on which secondary evidence is admissible ... nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence. Provided that any of the following matters may be proved:-"

The Court of Appeal clearly lost sight of Subsection (c)-

"the existence of any separate oral agreement, constituting a condition precedent to the attacking of any obligation under any such contract, grant or disposition of property."

There was evidence by the 1st Plaintiff/Appellant, which the trial District Court accepted, that Exhibit 'C' was predicated on the understanding that both parties would make grants of their land. While the Appellants granted their own land for purposes of peace, the respondents granted none.

In any case, even if subsection (c) did not apply, the whole of Section 131 (1) is still rendered inapplicable by the provisions of Section 1(4)(c) of the Evidence Act which provides that, "(4) This ordinance shall apply to all judicial proceedings in or before any court established in the Federation of Nigeria but it shall not apply ... (c) to judicial proceedings in or before a native court unless the Governor in Council shall by order confer ... jurisdiction ... ordinance"

The present suit was before the District Court which was native court.

Evidence to explain or alter Exhibit 'C' was therefore admissible. Such evidence, which was in abundance, was accepted by the trial Court. Not only was there evidence that the respondents did not bring their own land, a condition precedent for the enforcement of Exhibit 'C', On page 37, the defendant during examination by Court said as follows:-

Q.      Did both of your people agreed (sic) to the boundary fixed in 1976?

A.      Yes.

Q.      Do you still stand on the agreement?

A.      No."

The plaintiff in evidence had concluded at page 13 of the record,

"He told the defendants to go to their land and share to me. On saying this to the defendants I told Oyong that if the defendants failed to share land to me, my own land should not be tampered with"

Once Exhibit `C' is destroyed, I cannot see the basis on which the Court of Appeal could have disturbed the judgment of the learned appellate Judge.

For these reasons, and for the more detailed reason given in the lead judgment, I allow the appeal, set aside the judgment of the Court of Appeal dated 31st July, 1984 and restore the judgment of the Appellate Judge of the Ikom High Court dated 6th February, 1981. I abide by all the other orders made by my learned brother, Belgore, J.S.C.

Uwais, JSC. I have had the opportunity of reading in draft, the judgment of my learned brother Belgore, J.S.C. I agree with him that this appeal should be allowed. I endorse the orders contained in the said judgment.

Belgore, JSC. The Appellants were plaintiffs and initiated the proceedings leading to this appeal in the customary court, known as District Court of Bahumono now in Cross River State. By majority decision the District Court gave judgment for the plaintiffs but the Chief Magistrate Court sitting at Ugep upset this judgment on appeal. When the appeal went to High Court sitting at Ikom the learned Judge in his appellate jurisdiction set aside the decision of the Chief Magistrate and restored that of the District Court. On further appeal to the Court of Appeal at Enugu, the appeal was upheld and in essence the decision of the Chief Magistrate, Ugep was restored.

The matter giving rise to the suit in the District Court is an expanse of land reflected in the two plans tendered and admitted each as Exhibit A. The Exhibit A of the plaintiffs, now appellants, is drawn on scale of 1:5000 metres while that of the respondents is on 1:2000 metres scale; the two plans are identical in features except that the latter is larger than the former because of the scale projection. The two plans indicate Rukura stream to the south. The area in dispute could be divided into two. The first part on the appellants' plan is verged pink and is to the eastern side; this part on the respondents' plan is not clearly demarcated but end at the eastern end of the other portion in dispute. The second part is verged yellow on both plans. The plaintiffs (appellants) testified that they allowed the defendants (respondents) into the area on their (plaintiffs') plan verged pink as yearly tenants over a period of time on payments of tributes, but later the respondents started encroaching into the area verged yellow. Chief Awara Osu for the plaintiffs had to invoke juju curse but the elders of the community, believing in the efficacy of the juju, prayed him to revoke the curse. A settlement was arranged whereof the appellants were prevailed upon to give parts of their land on the portion verged pink to the respondents on the undertaking by the respondents to surrender part of their own land to the appellants. The appellants gave traditional history of the land dating back to nine generations. The respondents seized advantage of the settlement by further encroachment and consolidation on the disputed land but reneged on their own undertaking to give part of their own land to the appellants. This led the appellants to litigation as each party must have regarded the attempted settlement, Exhibit C, as no more binding. The remarkable accuracy of the plaintiff, Chief Awara Osu, in describing the entire land in issue, including details left out by their own surveyor but shown in the respondents own plan, e.g the passage of Oba Stream, the Epinaosa Stream etc. might have convinced the majority in the District Court. For on the side of the respondents the DW4 Bassey Muze, gave their own natural boundary as "Oba Stream on the right" i.e. moving North-South from Water Board Premises. Their own plan, also Exhibit A, shifts the boundary quite some distance west of Oba Stream; even though this is indicated as boundary set after 1976 settlement. He claimed the land as his own and that his forefathers owned it; and that it was about seven years to the time he gave evidence in Court that his people started to build on the disputed land. Apart from baldly claiming that the land belonged to him because his forefathers owned it, his other reason was that he used to follow his father to the farm thereon and he was shown the boundaries. He agreed there were moves to effect settlement of the dispute out of Court and that Exhibit C was the settlement terms but that he was no longer standing-by that agreement.

Upon the evidence before it the majority judgment of District Court went in favour of the appellant. The minority judgment was based on "many years usage of the land together with the permanent buildings and economic trees planted which had been yielding fruits unchallenged since many years and plaintiffs' first witness answer that both parties use the land in common show that the claim is not justified ..."

The appellate Chief Magistrate at Ugep certainly got carried away by the provisions of Land Use Act 1978 and held that by virtue of S.40 thereof the District Court had no jurisdiction to award title to land but could only declare who had right of occupancy to the land. Secondly, he held that the evidence offered in the District Court was not sufficient to find for the plaintiffs. The Chief Magistrate gave his reasons by picking what he regarded as holes in plaintiff's case. The presence of yam barns and permanent buildings on the land put up by defendants without plaintiffs' consent are among these. He never believed that inpecuniousity of the plaintiffs preventing them from suing for these acts of trespass by defendants could be true. He held that the majority of the District Court ought not to believe the plaintiffs, because trees planted thirty eight years ago was long possession and continuous enough to arrive at presumption that the land belonged to the defendants. He never adverted to traditional history of the plaintiffs dating back to nine generations. He finally concluded that the jurisdiction of the District Court was ousted by the Land Use Act 1978 s.40; even if the jurisdiction was not ousted, he would have arrived at the conclusion that the evidence offered by the plaintiffs was not enough to grant their prayers and thus set aside the judgment of the majority of District Court and upheld the minority judgment. Against this an appeal was lodged at the High Court at Ikom.

The judge held that the Chief Magistrate wrongly applied s.40 Land Use Act 1978. He held that the Act merely provides that in case of declaration of title pending before any court before the commencement of the Act, the trial court should not award title if the case was completed after commencement, but to enter a verdict that a person is entitled to right of occupancy over the land. The appellate High Court judge held:

"From the facts in this present case in dispute to a great extent is land used mostly for farming with only a small portion of it used for residence. From my observation in the evidence adduced the plaintiffs relied on traditional evidence very strongly ancestral history being brought into focus, with a few acts of occupation by way of farming, while the defendants rely only on facts of occupation or possession of the land by putting up yam barns, palm trees and permanent buildings on the land. The district court in its majority judgment strongly relied upon facts of ancestral history so ably adduced by plaintiffs, upon the fact of permission being granted to defendants to use the land, and upon the features the court observed while inspecting the locus in quo, where by they found in favour of the plaintiffs.

But the minority judgment of the District Court which the Learned Chief Magistrate preferred on appeal, relied not on ancestral history of ownership at all but rather on being in possession of the land only for a long time hence the Defendants' only ground of appeal was that the declaration was made with their permanent buildings on the land. See page 48 line 5 of the Record of Proceedings. Doubtless it is a matter of common knowledge that in this part of the world permanent buildings belong not to ancient but to modern times. From the plans filed in this case by both sides (Exhibit `A') it is clear that both communities of Ezono Ward and Enusokwe ward have their main residential areas respectively outside the area in dispute; therefore at most in the past this land in dispute was only used for farming as shown in evidence. The six buildings put up must be of the recent past."

"Each party in this suit claim that they originally owned the land by inheritance, that they gave out a portion of it to the other party because they wanted it for farming. They each claim having worked and farmed on the land for a very long time before the other community came in to interfere. The District Court inspected the land; the majority believed the plaintiff story and rejected that of the Defendants, but the Chief Magistrate's Court preferred the defendant's story to the plaintiffs' own as did the minority decision. The big question as at now is should the Customary right of occupation be declared, for whom, and over what area of the land? With this back ground review of the matter we shall now proceed to examine the other grounds of appeal to see if they have been substantiated.

Ground 2 of Additional Grounds is that the Learned Chief Magistrate erred in law by reversing the judgment of the District Court on weight of evidence when there was not much on record to tilt the weight of evidence in favour of the respondents. This ground is similar to the omnibus ground being ground 1 of the original grounds which Appellants' Counsel argued extensively. Even Ground 3 of the Additional Grounds dealing with evidence of Traditional History given by appellant is closely linked up with the omnibus ground therefore three grounds:-

Omnibus ground, Ground 2 and 3 of additional grounds can safely be considered together. As I observed already above both communities claimed they each traditionally owned the land in dispute; both each say that they gave out a portion of the land to the other for farming upon requests made. Both of them talk of an agreement to share the land and give out a portion to the other, and both claim repudiation of the gentleman's agreement reached and both want the entire Land in dispute.

Evidence of traditional ownership of land:-

From the records of proceedings the plaintiff very ably traced their genealogy and showed how title to the land changed hands through many generations till it reached the plaintiff. The defendants gave no ancestral history of ownership whatsoever. At page 35 of the records under cross examination the Plaintiff asked the 1st Defendant how defendant's father owned the land. The answer was at line 32 that "He cleared the bush and made heaps." Thus defendant's father owned the land not by customary inheritance but by clearing and making heaps there. Obviously that was not convincing to any body, so the District Court accepted the traditional evidence of ownership given by plaintiff as proving Customary right to title, and rejected defendants' usage of the land alone as proof of title. Where land ownership is claimed in Customary Law the best evidence is that of traditional title proved by way of ancestral history of ownership. See the ratio in case of Ntoe Ekpo v. Eta Ita above quoted.

Where both sides claim ownership and both of them adduce evidence of ownership through ancestral history the better evidence of traditional ownership given by either side will warrant title being declared for that party:-See Karimu v. Fajube 1968 NMLR 151."

Learned judge then proceeded to set out the issues the parties relied upon for their claim to title to the land in question. Each side claimed they traditionally owned the land, with each side claiming giving the other portions of the land to farm upon; both claimed there was an agreement to settle amicably and share the land and give out portions to each other and both claimed repudiation of this agreement. He held that from the evidence before the District Court the plaintiffs traced traditional history to nine generations which the majority of that Court believed; and what the minority relied upon was long possession and erection of permanent buildings all within living memory i.e. thirty eight years. He relied on Karimu v. Fajube, (1968) NMLR.151. He held that the traditional history before the Trial Court should not have been disturbed by the Chief Magistrate.

It must be mentioned that the 3rd Defendant Chief Ewa Unah admitted liability right from the start of the case; the plaintiff also testified as to how one Eva Odoki family was still paying tribute just as 3rd Defendant was doing. According to learned appellate High Court judge, he could find no logic or reason in the Chief Magistrate setting aside the decision of the District Court on all the facts clearly before that Court and in the face of contradictions in the case for Defendants. He found that at the trial Court not only was the case of the plaintiffs strong but also the contradictions and weakness in the defendants' case gave force for them to have taken advantage of and relied on Akintola v. Oluwa, (1962) I All N.L.R., Pt.II 224 and distinguished it from the case of Agedegudu v. Ajenifuja (1963) 1 All NLR 187. He therefore set aside the judgment of the Chief Magistrate and restored the majority judgment of the District Court with some amendment to take cognisance of Land Use Act, and he set aside the order to quit granted by the District Court. Against this an appeal was lodged with the Court of Appeal, Enugu.

Of the seven grounds of appeal filed in Court of Appeal, only one was argued, and it is pertinent to set out the ground reading as follows:-

"The learned Judge of the High Court erred in law by not considering the effect or importance of Exhibit `C', a document executed by the parties and tendered in Court in settlement of suit 14/76 between the same parties over the same parcel of land which the defendant both in this Suit and in that case called IDO OBAH land or IDO OBA."

Thus, only the gentleman's agreement, Exhibit C, was argued by the parties in the Court of Appeal. It was the contention of the Counsel for the defendants as appellants in that Court that Exhibit C by its contents operated as an estoppel and that the plaintiffs could not go back on it in that the agreement once reduced to writing and executed by the parties was binding and relied on Kwasi v. Larbe, XIII WACA 76 and Olire v. Obodo, 3F .S.C. 84. The counsel for the appellants (now respondents) contended that the plea of res judicata would apply if one of the parties took out another action against the other side for title to the same land. The respondents' counsel before that Court adhered, it would appear, strictly to the submission he relied upon at the High Court arguing that since the appellants (now before this Court respondents) reneged on their obligation under Exhibit C and both parties regarded Exhibit C as no more binding that Exhibit C was no more relevant. This was, according to Court of Appeal, because the respondents who were appellants before them were alleged in the evidence before District Court to have agreed to release portion of their own land to the appellants, an obligation they failed to fulfil. The Court of Appeal, relying on S.131(1) Evidence Act, held that extrinsic evidence could not be admitted to prove what was not contained in Exhibit C. It was solely on this that the judgment of the High Court in its appellate jurisdiction was set aside

Against the decision of the Court of Appeal the Plaintiffs have appealed to this Court. I have set out the history of the case from the District Court (Customary Court) to this Court so as to show how the issues progressed. The appeal here is based mainly on the additional grounds which the appellants brief dealt with at length. It must be mentioned that Mr Mogboth, S.A.N. counsel for the respondent conceded he would not insist on res judicata but would only contest the issue estoppel. This no doubt was prompted by additional ground which states:

"The learned Justices of the Court of Appeal erred in law by treating either Exhibit B or C as res judicata or an estoppel."

(The particulars were given as to errors in Law.) The Exhibit B is part of the proceedings of the District Court of Bahumono in suit No. 14/76 between the present respondent and the appellants where the suit was adjourned so that the parties could explore the possibility of amicable settlement. Exhibit C is the settlement seemed to be agreed upon and it contains evidence of some agreement to fix boundaries by features on the land and planting of trees as demarcation points. The evidence before the District Court was to the effect that the respondents soon after the agreement and after the demarcation trees were planted uprooted them. Secondly, there was evidence from the respondents, as well as from the appellant consequent upon the respondents' behaviour, that Exhibit C was no longer regarded as building. Thirdly, there was clear evidence in the District Court that the parties agreed to Exhibit C after oral agreement that the respondents would give certain portions of their own land to the appellants for what they (respondents) gained in Exhibit C upon which the respondents reneged. S.131 (1) of Evidence Act reads inter alia

131. (1)     When any judgment of any Court ..., or any grant or other disposition of property has been reduced to the form of a document ... no evidence may be given of such judgment or grant or disposition of property except the document itself ...; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence. Provided that any of the following matters may be proved ...

(c)     the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property."

Could Exhibit C constitute an estoppel? The appeal was argued solely before the Court of Appeal on Exhibit C on the issue of res judicata and estoppel. Assuming S. 131(1) of Evidence Act applies, could the Court of Appeal be right to ignore subsection (c) thereof? To my mind, on the narrow ground upon which the appeal in that Court was argued, had the Court properly adverted to the powers of the trial Court and subsection (c) of S.131(1) of the Evidence Act the vista for determination would have been wider.

There was clear and uncontradicted evidence that Exhibit C was prepared consequent to the meeting of elders who fixed boundaries on the land in dispute by using natural land marks like anthills and streams and artificial ones like the planting of trees. There is uncontradicted evidence that the respondents destroyed the artificial demarcating trees and regarded the agreement as mere opportunity to encroach further into the land in dispute. There is clear evidence accepted by majority judgment of the trial Court that the respondent failed to honour the oral agreement that was the condition precedent for the appellant to agree to Exhibit C agreeing to cede parts of their own land to appellants. This breach of faith by the respondents led both parties by their clear evidence in the trial customary court to regard Exhibit C as not binding but as at an end. The meeting at which the parties met leading to Exhibit C cannot be regarded as a tribunal or even arbitration and Exhibit C could not in law be regarded as a strict legal document.

On the evidence before the trial Court Exhibit C arose only out of attempt to settle the matter out of Court so that the parties could live "in peace and prosperity" as "brothers and sisters of one town" Whatever those words meant. Surely Exhibit C is not a judicial decision and rightly the respondents agreed it could not be res judicata. A fortiori, it could not be estoppel as both parties regarded it as a dead document. (See Nwokolo Oliko & Anor. v. Ofili Okonkwo & Others, (1970) 1 All NLR 86). Also see Nwabia v. Adiri, (1958) 3 F.S.C 112, 114. At any rate it is almost an impossible task even to link Exhibit C with any of the plans each marked Exhibit A-tendered by the parties. The above observations are made in case one even holds that Exhibit C is a document caught by S. 131(1) Evidence Act without the provision subsection (c) thereof.

Section 1(4) Evidence Act provides:

1.       (4)     "This Act shall apply to all judicial proceedings in or before any Court established in the Federal Republic of Nigeria but it shall not apply

(c)     to any judicial proceedings in or before a Native Court unless the Governor in Council shall by order confer upon any or all Native Courts in the State jurisdiction to enforce any or all of the provisions of this Act."

The Governor of South-Eastern State as former Cross River State was known never to have conferred this power on District Court or Customary Court (which nomenclature Native Courts later came to be known). Had the Court of Appeal adverted to this section, its decision might have been different. For Customary Courts are not bound by Evidence Act unless subsequently so conferred with the power to apply it. The Courts hearing appeals from Customary or Area Courts or District Courts whatever the designation of those Courts presided over by laymen, should be wary to apply the strict technicalities of procedure or Evidence Act in reviewing those appeals if such application will destroy the substance and merits of the matters heard in those inferior Courts. (See Afonja v. Aiyelagbe, (unreported, FSC 317/1961 decided on 11/12/62).

The only point taken and decided upon in the Court of Appeal being on the substance and merit of Exhibit C. I cannot see the merit in that decision standing. For the foregoing reasons, I allow this appeal and set aside the decision of the Court of Appeal, Enugu dated 26th day of October 1984. I restore the judgment of the High Court sitting at Ibom in Cross River State dated 13th day of February 1981. I award N500.00 as the cost in the Court of Appeal and N300.00 as the cost of this appeal to the plaintiffs/appellants against defendants /respondents.

Wali, JSC. I have had the privilege of reading in advance a copy of the lead judgment of my learned brother, Belgore, J.S.C. with which I entirely agree.

The agreement, Exhibit C can neither operate as res judicata nor can the same operate as issue estoppel. It is a gentlemen's agreement, mutually concluded between the appellant on one part and the respondent on the other part subsequent to an oral agreement that the respondents would give certain portion of their land to the appellant in return to the portion of appellant's land ceded to the respondents. The respondents failed and refused to honour their own side of the agreement. In my view, the appellants are at liberty to rescind Exhibit C and take back the portion of their land ceded to the respondents.

As clearly shown in the lead judgment, the provision of section 131(1) of the Evidence Act cannot be strictly applied to proceedings originating from Native or Area Courts, having regard to section 1(4) of the evidence Act.

For the reasons contained in the lead judgment, this appeal must succeed and it is accordingly allowed. The decision of the Court of Appeal, Enugu of 26th October 1984 is set aside and in place thereof the judgment of the High Court sitting at Ikom in Cross River State is hereby restored. I abide by the order of costs contained in the lead judgment.

Craig, JSC. I have had the advantage of reading in advance a copy of the judgment just delivered by my learned brother Belgore, J.S.C. and I agree with his reasoning and conclusions.

This case has had a chequered history. It started in April 1978 at the District Court (another name for Customary Court) of Bahumono in the former Cross River State, and altogether it has been through four different Courts. (District Court, Magistrate Court, High Court, and Court of Appeal)

The facts relating to the case and the adjudication made in the four previous Courts have been adequately set out in the lead judgment and there is no need to repeat them. But it is necessary to state that when the case got to the High Court, the learned Judge (Ntiam J.) showed a clear understanding of all the issues involved and made an excellent analysis of the evidence which had been given in the trial Court. In the result he drew correct inferences of law on that evidence and came to the conclusion that the Plaintiffs were entitled to judgment. He thereafter set aside the judgment of the Chief Magistrate and made appropriate orders in favour of the Plaintiffs. The Defendants were dissatisfied with that judgment and appealed to the Court of Appeal, Enugu, on 6 grounds of appeal. However, it would appear that the appeal was decided only on one of the grounds of appeal and that was whether

"The learned Judge of the High Court erred in law by not considering the effect or importance of Exhibit "C" a document executed by the parties and tendered in Court in settlement of Suit 14/1976 between the same parties over the same parcel of land which the defendant both in this suit and in that case called IDO OBAH land or IDO OBA."

Now Exhibit C arose in this way. In 1976 the present Defendants sued the Plaintiffs in Suit No.14/76 at the Bahumono District Court for Declaration of title to the land in dispute. On 12/4/76, when the case was first mentioned in Court, one Chief Eteng was on record (See p.26 of Record of Appeal) as asking the Court to allow him:

"to go with both parties for peace making since they are both closely related and that where the case becomes difficult to be settled, that he will bring the case back to Court. He finally requested for an adjournment."

The Court granted the request and adjourned the case till some other day. At the resumed hearing on the 12th May, 1976, a settlement was announced and the Court made a "Note" of it thus:

"NOTE: The plaintiff told the court that they have made peace amongst themselves and that he only came to the court in order to tell the court of the peace making, this the plaintiff supported by tendering an agreement made between the two parties and duly signed by the three ward heads and the group head of Ediba and we have also demarcated the bush with Okono tree and we solemnly promised that no party should trespass to the other piece of land. The defendant also told the court that he so much appreciated the way both the peace and the demarcation were made. The plaintiff therefore asked for a withdrawal in the case.

COURT ORDER:-The Court has therefore accepted the withdrawal but warn that both parties should always remain as brothers.

1. Sgd. E.E. Inoko

S.E. Ebari                                      Sgd, W.I.B.

Ebri Ubi                                         Essien

A. Irem                                         Registrar

                                                                                   12/5/76"

Thereafter the Court struck out the case. I must observe here that although the Court's notes speak about "tendering" the agreement of settlement, this document was not formally received in evidence, and what was intended must have been that the plaintiff merely showed the document to the Court.

However, in the events that later happened, the defendants in the instant appeal did not keep to the terms of that settlement, and the plaintiffs sued them for declaration of title to the same parcel of land in the present suit (vide Suit No 14/78).

Under Cross-examination, the Plaintiffs said that he was compelled to take the second action because the defendant had resiled from the former settlement. In his evidence at p.37 the defendant was asked the question

"Q.    Do you still stand on the agreement?

A.      No."

This confirmed the Plaintiff's story that the defendant did not regard himself bound by the terms of the settlement in the 1976 suit. Therefore, in their judgment, the District Court (at ... p.45) held that

"Exhibit "C" has no bearing with the said land case. The evidence of the plaintiff and that of his witnesses satisfied the Court."

In short, what the District Court was saying (although in a layman's language) was that since both parties have discarded the Agreement of Settlement, (that is they no longer regarded it as binding on them) that document ceases to be of any relevance to the case on hand: in the event, both parties would have to establish their case without the assistance of the Settlement. Exh. C.

When viewed in that light, it would seem that the District Court was right. The High Court (per Ntiam J.) saw the issues in this way and held at p. 103, of the Record that the plaintiffs were not estopped from bringing a fresh action to reclaim their land.

On the contrary, the Court of Appeal held that the plaintiffs were estopped from bringing a new action and that Exh. C was a bar to any fresh suit. The learned Justice of Appeal (Phil-Ebosie, J.C.A.) who read the lead judgment agreed with the Defendant's Counsel that the Defendant was entitled to a plea of res judicata. He also held that by virtue of section 131 of the Evidence Act, the Plaintiff could not give any evidence to alter or vary the terms of Ex. C. with the greatest respect to the learned Justice, the plaintiffs were not trying to alter or vary the terms of Ex. C. All they were saying was that both parties had abandoned the Settlement. The Defendant himself admitted this fact. In that respect, the whole dispute was thrown wide open,-the parties were brought back to the status quo ante. Therefore the position in which they were when this suit was filed was as if Ex. C had never been executed.

The question of res judicata does not arise, because Ex. C was not tied to any judgment rather it was the product of a settlement out of Court. For the reasons already stated, the question of section 131 of the Evidence Act does not also fall for consideration and in any case, as stated in the lead judgment, the Evidence Act does not apply to Native Courts.

It was for these reasons as well as for the fuller reasons expressed in the judgment of my learned brother Belgore, J.S.C. that I would allow the appeal, set aside the judgment of the Court of Appeal, Enugu, and restore the judgment of Ntiam J. of the Ikom High Court delivered on the 6th February 1981. There would be costs assessed at N500.00 in favour of the Plaintiff/Appellant.