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FRIDAY, 1 JUNE, 1992.


3PLR/1992/23  (SC)


NWLR (Pt. 243)514






ABUBAKAR BASHIR WALI, J.S.C. (Read the Leading Judgment)




Ladi Williams – for the appellant

  1. Awoniyi – for the respondent



APPEAL – Concurrent findings of facts – Attitude of the Supreme Court thereto.

APPEAL – Ground of appeal –Argument on issue not related thereto -How treated.

ARBITRATION – Customary arbitration – Effect of valid customary arbitration.

ARBITRATION- Customary arbitration – Validity and bindingness of- Conditions precedent thereto.

CONSTITUTIONAL LAW – Judicial powers – Exercise of – 1979 Constitution of the Federal Republic of Nigeria, Section 6 considered.

CONTRACT – Contract document – Lack of knowledge of content thereof – Whether sufficient proof of plea of non est factum.

CONTRACT – Execution of contract – Contract executed with full knowledge of nature of – Whether plea of non est factum could invalidate same.

CONTRACT – Non est factum – Plea of – Effect.

CONTRACT – Non est factum – Plea of – When it can be raised – When-it will not avail.

CONTRACT – Non est factum – Plea of – Whether proof of fraud essential.

CONVEYANCING – Deed of conveyance – Due execution before magistrate Whether presumption of regularity applicable thereto~

COURT – Court granting relief not sought – Propriety of.

CUSTOMARY LAW – Customary arbitration – Effect of valid customary arbitration.

CUSTOMARY LA W – Customary arbitration – Intervention of traditional ruler in disputes – Whether constitutes customary arbitration.

CUSTOMARY LAW – Customary arbitration – Validity and Bindingness of Conditions precedent thereto.

ESTOPPEL – Customary arbitration – When operates as estoppel.

JUDGMENT AND ORDER – Relief not sought – Court granting same – Propriety of.

PRACTICE AND PROCEDURE – Concurrent findings of courts below – Attitude of-the Supreme Court thereto.

PRACTICE AND PROCEDURE – Pleading – Illiteracy – Need to plead where sought to be relied upon.



WALI, J.S.C. (Delivering the lead judgment)

The appellant was the plaintiff in the High Court of Ogun State of Nigeria, in the Shagamu Judicial Division wherein he brought an action against the respondent/defendant, his former son-in-law, claiming as follows:


“(a)    An Order setting aside the Deed of Conveyance obtained by FRAUD dated 25th day of June, 1965 registered as No. 1 at page 1 in Volume 867 of the Register of Deeds kept at the Land Registry Ibadan now Abeokuta.


(b)     An accounts of rents collected from all the buildings on the landed property by the defendant between 1963 and 1976. Payment over to the plaintiff of whatever is found due to him.”


Pleadings were filed and exchanged. Both the appellant and the respondent gave evidence and called witnesses in support of their cases. In a considered judgement by Delano, J., (as he then was) he dismissed the appellant’s claims, concluding as follows:


“(a)    the claims of the plaintiff in its (sic) entirety also fails (sic) and it (sic) is accordingly dismissed.


(b)     The counter-claim of the defendant in its entirety also fails and it is accordingly dismissed.


(c)     the defendant shall return to the plaintiff the sum of five thousand Naira (#5,000.00) paid to the defendant.”


The learned trial judge made no order as to costs.


The appellant, being dissatisfied with the judgment handed down by the trial court, appealed against it to the Court of Appeal, Ibadan Division. In a considered judgment of the Court of Appeal delivered by Ogundare J.C.A., (as he then was) and to which both Omo J.C.A. (as he was then) and Onu J.C.A., subscribed, he dismissed the appeal of the appellant and set aside the order made by the trial court that the respondent should refund to the appellant the sum of N5,000.00. The facts of the appellant’s case simply put are as follows:


The appellant, by purchase in 1953 under Native Law and Custom from Ijokun Community, became the owner of the parcel of land situate and lying at Shagamu. By a deed of conveyance dated 8th June, 1964 (Exhibit ’A’) executed between the Ijokun Community on the one part and the appellant on the other part the said parcel lying and situate at Orile Ikojun (Sabo) Shagamu was conveyed to the appellant as the purchaser, for a consideration of Forty Nine Pounds and Ten Shillings (£49. 10.0). Later on, the appellant became indebted to the respondent to the tune of ….£1,600.88.


As a result of the indebtedness, the appellant said, by an oral agreement, he entrusted the collection of rents from the two houses built on the land to the respondent in order to reimburse himself in the sum of £1,600.00 or N3,200.00. Then in 1965 at the suggestion of the respondent, the appellant executed Exhibit “B” another deed of conveyance in the respondent’s favour for a consideration of N4,800.00 the amount he was at the time indebted to the respondent; as security for the said debt. From that time the respondent continued to collect and receive the rents accruing from the two buildings without rendering any account to the appellant. The appellant also complained that the respondent had by 1969, built five more houses on the land without his permission or consent.


In 1973 the appellant demanded from the respondent a return of his land, the deed of conveyance (Exhs. “A” and “B’) and for an account of the rents collected, plus payment of any amount found due either way.


There was an attempt by the Akarigbo of Ijebu Remo and his Chiefs to settle the matter which partially succeeded. The appellant thereupon instituted this action claiming the relief contained in his writ of summons.


The facts of the respondent’s case may briefly be stated thus –


The appellant was the owner of the parcel of land in dispute with two dilapidated mud buildings thereon. In 1965 the appellant sold and conveyed to the respondent the parcel of land plus the two buildings thereon for N4,800.00. The deed of conveyance is Exhibit B. Between 1965 and 1972, not only did the respondent repair and renovate the two dilapidated buildings already on the land, but had erected and completed five additional storey buildings thereon to the knowledge of the appellant.


By the time the dispute arose between the appellant and the respondent, the respondent claimed that he had spent over N100,000.00 on improvement to the land. He gave a condition that if the appellant would reimburse him in the sum of N100,000.00 he was prepared to reconvey the land together with improvement thereon to him.


When in 1972 the dispute as to the ownership of the land and the buildings thereon arose between the appellant and the respondent, the former reported the latter to the Akarigbo of Ijebu land as a result of which the Akarigbo and his Chiefs intervened. Resulting from the intervention the respondent said he agreed to reconvey the portion of the land in dispute covered by the two buildings originally erected thereon by the appellant on humanitarian reasons. This was done and the respondent signed a reconveyance of the said portion of land to the appellant. The appellant was not satisfied by this agreement, hence the institution of the present action.


Both parties filed and exchanged briefs. In the appellant’s brief, the following issues were formulated for determination:


“(i)     What is the effect or the legal consequence of the agreement reached between the parties following the reference of the dispute between the parties to His Highness the Akarigbo of Ijebu Remo and his Chiefs particularly in relation to the property in dispute. In the light of the concurrent findings of fact in the courts below concerning the aforementioned agreement what order or orders should the court have made on the claims before it?


(ii)     Was the court below correct in applying the provision of Order 3 Rule 23 of the Court of Appeal Rules?


For the respondent, the following 4 issues were formulated in the brief filed on his behalf:


Can the plaintiff/appellant raise the question relating to the effect on the legal consequences of the agreement reached between the parties concerning the property in dispute to His Highness the Akarigbo of Ijebu Remo as an issues before the Supreme Court having regard to the concurrent findings of fact in the court below and the Court of Appeal on the validity of Exhibit B in the above matter?


(ii)     If the answer to question (i) is yes, what is the effect or the legal consequence of the said agreement referred to in (i) above?


(iii)    In the light of the various findings of fact of the lower court set out at page 164 lines 17 to 34 and p.165 lines 1-38 of the records, what order or orders should the court have made on the claim before it?


(iv)    Was the court below correct in applying the provisions of order 3 rule 23 of the Court of Appeal Rules?


Issues (i) and (ii) in the appellant’s brief cover issues (i) and (ii) of respondent’s brief, while issue (ii) in the appellant’s brief also covers issues (iii) and (iv) of the respondent’s brief. Issues () and (i) were taken together in the respondent’s brief, while issues (ii) in the appellant’s brief also covers issues (ii) and (iv) of the respondent’s brief. Issues (i) and (ii) were taken together by the appellant in his brief. It was the contention of the appellant in his brief that the respondent by answering the invitation of Akarigbo to appear before him at the instance of the appellant who reported the matter to the Akarigbo, he had by implication agreed and submitted to the intervention of the paramount chief of the area, and therefore whatever decision was taken was binding on him. Learned counsel supported this assertion by referring to the acceptance by the respondent of the of N5,000.00 and said his keeping of this sum is consistent only with performance of the agreement which emerged between the parties after the intervention of the Akarigbo. He therefore further submitted, in the light of the agreement reached before Akarigbo the respondent has no right to retain the land in dispute and also the sum of N5,000.00.


On the application and interpretation of Order 3 rule 23 of the Court of Appeal Rules, 1981, learned counsel submitted that the Court of Appeal was wrong in construing it in such a way that it would operate to enable the court deal with an issue which is not on appeal before it.


In reply to the above submissions, learned counsel for the respondent submitted that it is clear from facts of the case that the parties are not ad idem on the terms of the settlement purported to have been reached before the Akarigbo. He said it was as a result of this nonconsensus that the appellant instituted the present action in the High Court praying that court to declare Exhibits B void on account of fraud and deceit. He contended that since the doctrine of non est factum has been held inapplicable by both the trial court and the Court of Appeal, and that the respondent has been held to be vested with title to the land, by virtue of Exhibit “B” the purported agreement reached between the parties before the Akarigbo has no legal consequence at all.


On the application and interpretation of Order 3 rule 23 of the Court of Appeal Rules, 1981, learned counsel submitted that although the respondent did not cross appeal on this issue he had given notice in the respondent’s brief that he would urge the Court of Appeal to correct the patent error on the record. He therefore further submitted that the Court of Appeal is right in applying the provisions of Order 3 Rule 23 of the Court of Appeal to set aside the trial court order that the respondent should refund the N5,000.00 paid to him by the appellant.


From the pleadings of both parties, particularly that of the appellant where he averred in paragraph 23 of the statement of claim that:


“The plaintiff contends that by fraud and deceit, the defendant unlawfully enriched himself by the said deed of conveyance of 25th June, 1965 in consequence of which plaintiff pleads “Non Est Factum” whereof the plaintiff claimed as per his writ of summons.”


It seems to me that he is no longer basing the relief sought on the agreement purportedly reached before the Akarigbo. There is also nothing in the appellant’s pleadings that he is seeking the enforcement of the purported sum agreed as an arbitration award conducted before a customary tribunal such as the Akarigbo and his other chiefs who participated in the settlement.


I n that stance, the determining issue in this appeal is that of non est factum.


In paragraphs 3,5,6,7,9,11 and 12 of the statement of claim the appellant averred thus:


“3.     In 1963 the defendant gave cash loan of £600 (now M1,200) to the plaintiff. The defendant also gave additional loans of various amounts to the plaintiff between 1963 and 1965 all making a total of £1,600 (N3,200).


..t. ..e…… e………..e .e


  1. The plaintiff entrusted the collection of rents from two houses which he built on the front part of the land to the defendant on an oral agreement that the defendant should reimburse himself in the sum of N3,200.


  1. The plaintiff had the conveyance of the landed property executed in his favour on 8th June 1964 through the assistance of the defendant. The deed of conveyance was registered as No. 7 at page 7 in volume 742 of the Land Registry at Ibadan (now Abeokuta).


  1. As the outstanding debt remained substantially unliquidated by the plaintiff the defendant urged the plaintiff to secure the debt with plaintiff’s deed of conveyance. The plaintiff handed over the conveyance to the defendant.


  1. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx


  1. In 1965 the defendant urged the plaintiff that if either party dies there could be difficulties in recovering the loan and this the defendant induced the plaintiff to execute deed dated 25th June, 1965 registered as No. 1 at page 1 in volume 867 of the Register of Deed at Ibadan (now Abeokuta) purporting the same to be a deed of mortgage of plaintiff’s property.


  1. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx


  1. In 1972 the plaintiff demanded return of his deed of conveyance and for an account of rents and payment over of any amount found due either way. The defendant said that all rents collected by him were used as profits or interests on the loan. The plaintiff agreed but insisted on having an account.


  1. By letter dated 9th May, 1973, the plaintiff’s solicitors demanded for clarification of the transaction from the defendant when it became apparent that defendant claimed ownership of the house and landed properties.”


In support of these averments, the appellant testified as follows:


“There was money transaction between self and the defendant.


The defendant loaned me N5,000.00. He loaned me this amount on about two (2) occasions. The defendant first of all loaned N1,200.00. He loaned me this money in bits, all totaling £1,600 pounds, that is N3,200.”




“I bought the land in dispute from Ijokun community. I got a conveyance in respect of the land. The conveyance was given to the defendant. I gave the conveyance to the defendant because he was my in-law and as a result of the loan he gave to me. This is the conveyance of the land in dispute, I gave to the defendant. Conveyance tendered without any objection and marked Exhibit ‘A’.

Since the defendant started collecting the rent on the houses, he has not accounted for the rent he had been collecting. I did ask him to account for these rents but he refused. The two houses on the land are built of cement and blocks and they are Storey buildings.”


“Later things fall apart. The defendant said that as a result of the polygamous marriage contacted by both parties, I should come and execute an agreement in respect of the loan he gave to me. Our relationship was cordial and I executed an agreement for him that I owed him the loan.


I executed the agreement in the Magistrate Court, Shagamu. This agreement tendered by Mr. Abudu without objection from Mr. Awoniyi and marked Exhibit ‘B’. The Exhibit was produced by Mr. Awoniyi. I did not sell the land and my houses to him. I only loaned money from the defendant. I did not sell my landed property to him. I cannot imagine how I could sell my landed property consisting of (2) two houses and portion of land for N4,800.00″




“I mortgaged my land for the loan I got from the defendant. I claim that the court should declare the conveyance dated June 25th, 1965 null and void and to order the defendant to render account for the rents he collected on my two houses.”


Under cross-examination, the appellant further testified as follows:


“It is a fact that I signed an agreement in the Magistrate Court. It is not an agreement for the sale of my landed property but an agreement to secure the loan.”






“I signed the document in respect of the loan. I do not know the contents. The defendant came to call me to follow him to make document in respect of the loan. I do not know if the Magistrate signed the document. I signed the document in the Magistrate’s chambers.”


The cumulative effect of the pieces of evidence supra leave no avenue of doubt that the appellant was conscious and aware that he was signing a document affecting his land. The learned trial judge after reviewing the evidence before him made the following observations:


“To come back to the main issue of non est factum, I hold the view that, in Nigeria the court should not absolutely adhere to the extension to this doctrine by the modern cases in Britain where enlightenment and education have reached its (sic) peak. In Nigeria, a wealthy person is not necessarily enlightened or educated. In Nigeria, also, the majority of people involved in land matters, as in this case, are illiterate. In respect of this, it is also my view that his plea which obviously applies when the person sought to be held liable did not in fact sign the document or in certain cases so as to enable a person who in fact signed a document to say that it is not his deed. But definitely, any such extension must be kept within habitually or rightly rely on signatories when there is no obvious reason to doubt their validity. For this plea to succeed, the burden as said earlier on is on the plaintiff. He is to prove that he did not sign the document. To put it in other words, he has to prove that there is a radical fundamental or serious or very substantial difference between what he signed and what he thought he signed. What amounts to radical difference must be in particular that which goes to the substance of the whole consideration or to the root of the matter.

(see Lord Hodson in Gallie v. Lee (1971) A.C. 1071.)”


He then proceed to make the following findings:


“I believe that the contents of exhibits ‘B’ was (sic) read over to the plaintiff not because the defendant said so but because the plaintiff had not adduced sufficient evidence to dislodge the presumption to regularity as evidenced in Exhibit “B”



“From above, from the evidence before me, it is my view that the plea of non est factum, cannot be invoked by the plaintiff.”


The case of the appellant stands or fails on his own evidence and that of his other witnesses. On no reasonable consideration and evaluation of such evidence can the plea of non est factum succeed. In Igbinosa v. Cole Aiyobagbigbe (1969) 1 All N.L.R. 99, this court, while considering the applicability of the plea of non est factum held that –


“Where a person of full age and discretion executes a formal deed in the full knowledge of the nature of the document it will not avail him to seek to nullify the contract by complaining that he did not know the contents of the deed.”


What is emphasised in the paragraph above is the signatory’s knowledge of the nature of the document he has signed and not its contents. See also paragraph 222 of Chitty on Contract, Vol. 1 (23rd Edition) wherein the law is settled thus:


Mistake as to the contents of a deed or document is not sufficient. Where It is the terms of a deed or writing, and not its nature, which are the subject of mistake, the plea will not avail. The writing, deed or document may be voidable for fraud but the contract contained here is not void ab initio”.


The plea will not be available to a party who signs a document without inquiring to know Its precise effect, nor will it be available to whoever signs a document that contains a term to which he would have objected had he read and understood it. Before such a document is declared void, the element of consent must be completely lacking. See Saunders v. Anglia building Society (1970) 3 All E.R. 96, Gallie v. Lee (1971) A.C. 1004, Oluwo & Ors. v. Adebawole (1964) N.M.L.R. 17 and Egbase v. Orhareghan (1985) 2 N.W.L.R. (pt. 10) 884.

It is apparent on the face of Exhibit B that the intention expressed therein is the transfer of the legal estate in fee simple absolute to the respondent. This is evident from the following paragraphs of that Exhibit which recite that:


“THIS INDENTURE made the 25th day of June, 1965 BETWEEN EZEKIEL SOYEMI AWOSILE farmer of No. W1/30 Araromi Street Aiyegbami West Off in Shagamu Western Region hereinafter called the vendor (which expression shall wherever the context so admits include his heirs legal personal representatives and assigns) of the one part AND FEDERICK OLUSANYA DUNCAN SOTUBO school Master of the Hospital Road Shagamu Western Region of Nigeria hereinafter called the Purchaser (which expression shall wherever the context so admits include his heirs legal representatives and assigns) of the other part:


WHEREAS under and by virtue of a deed of conveyance dated the 8th day of June, 1964 and registered as No. 7 at page 7 in volume 742 of Register of deed kept at the Lands Registry in the Office at Ibadan the Vendor became seised of the hereditaments which is herein described and expressed to be hereby granted and conveyed for an estate of inheritance in fee simple:


AND WHEREAS the said vendor has agreed to an absolute sale of the said land and hereditaments and did sell by private treaty to the said purchaser for the like estate for the sum of Two Thousand and Four Hundred Pounds (2,400) Nigerian Currency:


NOW THIS INDENTURE WITNESSETH that in pursuance of the said agreement and in consideration of the sum of Two Thousand Four hundred Pounds (2,400) Nigerian Currency paid by the said purchaser to the vendor before the execution of these presents (the receipts whereof the vendor hereby acknowledges) the said vendor as beneficial owner hereby grants, conveys assures and confirms unto the said purchaser his heirs and assigns all that piece or parcel of land situate lying and being at Orile Ijokun (Sabo) Offin Shagamu Ijebu Remo Western Region of Nigeria and more particularly described and delineated with its dimensions and abuttals on the plan shown or attached at the foot of the above recited deed of conveyance dated the 8th day of June, 1964 and thereon edged red together with all the rights, easements and things appurtenant or reputed as appurtenant thereto:


TO HOLD the same unto and to the use of the purchaser his heirs legal representatives and assigns absolute in possession free and discharged from all incidents of customary laws or further claims and demands from any person or persons whatsoever. The vendor do hereby covenant with the purchaser that he (the vendor) will indemnify the purchaser against any loss or damage that may occur or be sustained consequent upon any adverse claim for the title from any person or persons in respect of the freehold land herein conveyed.”


At the tail end of Exhibit B where the signatures of both the appellant as the vendor and the respondent as the purchaser appear, there is a jurat evidencing that Exhibit B was read and explained to the appellant in Yoruba language before affixing his signature thereto. It was executed before a Senior Magistrate Court. Both the Senior Magistrate and the Registrar signed Exhibit B, as witnesses to the execution and the interpretation and explanation of the contents of the documents respectively.

The respondent’s case is therefore supported, quite apart from his oral evidence, by Exhibit B which was duly executed by both the appellant and himself before the Senior Magistrate, Shagamu, in accordance with section 3(b) of the Illiterate Protection Act, See S.C.O.A. Zaria v. Okon (1959) 4 FS.C. 220. A complaint by a person of full age, sense knowledge and discretion that at the time he signed the document he did not know its contents without proving fraud, will not avail him a plea of non est factum to avoid the validity and legal effect of such a document, Sae Igbinosa v. Aiyobagbiegbe (1969) 1 All N.L.R. 99.


It is to be noted that illiteracy of the appellant was never pleaded, although the learned trial judge considered it in his judgment.


The learned justice of the Court of Appeal Ogundare, J.C.A. (as he then was) after considering the arguments of counsel on both sides and reviewing the relevant authorities applicable to the plea also came to the same conclusion as the learned trial judge wherein he said:


“Applying the law as earlier discussed by me to the facts as found by the learned trial judge and as deposed to in evidence by the plaintiff, it is not in dispute that when executing Exhibit ‘B’ plaintiff knew he was dealing with his property. According to him, he thought he was mortgaging his property to the defendant, but Exhibit B turned out to be a sale of the property. In this respect plaintiff’s case was in line with plaintiff’s case in Oluwo v. Adebowale (supra) where the Supreme Court, per Taylor F.J. held that as the misrepresentation was as to the contents and not the character and class of the deed’ the plea of non est factum did not avail the plaintiff. On the authorities, therefore, I must hold that the learned trial judge was right when he held that “[he plea of non est factum, cannot be invoked by the plaintiff.”


The plaintiff’s case is made worse –


(a)     by the fact that Exhibit ‘B’ was executed by the plaintiff before a Senior Magistrate and his clerk of court. The clerk signed the jurat on Exhibit B and the Senior Magistrate also signed the certificate to the effect that the deed was signed, sealed and delivered by the plaintiff before him. A presumption of regularity arose which was not rebutted by the plaintiff at the trial. See section 149(1) of the Evidence Act which provides:


‘When a judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.”


The learned trial judge also found that although the appellant mentioned fraud and deceit in his pleadings, he neither gave particulars of such fraud or deceit nor did he adduce evidence in proof of that. The learned trial judge observed that:


“An allegation of fraud or misrepresentation must be pleaded with utmost particularity. The pleader should accordingly set out the facts, matters, and circumstances relied upon to prove the fraud………..

The act alleged fraudulent must be set out and then it must be stated that these acts were done fraudulently otherwise no evidence in support of them would be received.”


The learned trial judge then made the following findings on the issue:


“In the case under consideration plaintiff has not alleged any fraud in the signing of Exhibit B apart from his evidence that the agreement he signed was to secure a loan and that the clerk did not read it over to him.”


The learned justice of the Court of Appeal in affirming the finding by the learned trial judge said:


“I only need to add that nowhere in the statement of claim were facts pleaded to support the allegation of fraud. From the totality of the evidence of the plaintiff, his claim was based on misrepresentation to him of the contents of Exhibit B. Had fraud been pleaded and found proved, it would vitiate Exhibit B but that is not the position here.”


The last issue to be dealt with is the question of application of Order 3 Rule 23 of the Court of Appeal Rules, 1981. I have perused through the nine grounds of appeal filed and argued before the Court of Appeal and none of them complained against the trial court’s order that the respondent should return to the appellant the N5,000.00 the latter paid to the former.


The fact that both counsel argued the issue in their briefs would not confer jurisdiction on the appellate Court to entertain any argument which is not hinged to any ground of appeal. The learned justice of the Court of Appeal therefore lacked jurisdiction to set aside the order aforesaid it is not solely an issue of making a consequential order, thus falling within the discretionary powers of the Court of Appeal exercisable under Order 3 Rule 23 of the Court of Appeal Rules, 1981. The court has no power to grant a substantial relief not specifically sought by a party – See Raufu Owe & Ors. v. Mohammed K. Owe – an unreported judgment of the court in SC 397/1967 delivered on 4th July 1969 and Nigerian Housing Development Society Ltd. v. Yaya Mumuni (1977) 2 S.C. 57 at 81.


Save for this issue of setting aside the order of refund of N5,000.00 by 1st respondent to the appellant made by the Court of Appeal which in my view, has been wrongly made and which I also hereby set aside. I find no merit in the appeal. Both the trial court and the Court of Appeal have carefully considered the why of the evidence adduced on each side and have arrived at the correct conclusion that the appellant has not made a case for interfering with the findings by the courts. See Okolo v. Uzoka (1978) 2 S.C. 77, Fashanu v. Ukonu (1986) 4 N.W.L.R (pt. 35) 505.


The judgment of the trial court as affirmed by the Court of Appeal is hereby further confirmed. The appeal is dismissed. There will be no order as to costs since the appeal has partially succeeded.

UWAIS, J.S.C. I have had the opportunity of reading in draft the judgment read by my learned brother, Wali, J.S.C. I agree that the appeal be dismissed and I abide by the order made by him.


BELGORE, J.S.C. The concurrent findings of fact of the lower courts will not be interfered by this court once such findings are on evidence legally admissible, the instance appeal, I find no reasons to interfere with the decision of the Court. Appeal upholding the verdict of the trial court. For the reasons ably advance judgment of my learned brother, Wali J.S.C., which I adopt as mine, I also dismiss this appeal.


NNAEMEKA-AGU, J.S.C. This is a further appeal by the plaintiff in this case against the judgment of the Court of Appeal, Ibadan Division, dismissing his appeal against the judgment of Delano, J., sitting in a Shagamu High Court. The plaintiff has claimed for an order setting aside a deed of conveyance, Exhibit’B’ dated the 25th of March, 1965, and for an account of all rents collected on all the buildings on plaintiff’s piece or parcel of land situate and lying at Shagamu.


The facts established by evidence are rather short. The plaintiff bought the parcel of land from Ijokun Community in 1964, as pera deed of conveyance, Exhibit A, and built two houses on it. As a result of his indebtedness to the respondent to the tune of £1,600.00 the plaintiff entrusted the collection of rents from the house to him and handed Exhibit A to him. In 1965, the plaintiff executed a conveyancy. Exhibit B, in favour of the defendant conveying the whole plot to him in the sum N4,800. In 1969 the defendant built five more houses on the land.


Dispute arose between the parties in 1973 when the plaintiff demanded from the defendant return of Exhibits A and B, an account of the rents collected and payment over of the sum to be found due to the plaintiff. The matter was referred by the plaintiff to His Highness, the Akarigbo of Ijebu Remo for settlement. Both parties gave conflicting versions of the decision of the Akarigbo. It was common ground that it was decided that the plaintiff would refund to the defendant the sum of N5,000.00 and the defendant reconvey some land to the plaintiff. But while the plaintiff stated that the defendant was to convey to him his whole land with the seven buildings on it, the defendant maintained that he was to reconvey to the plaintiff only the portion of the land upon which the two buildings erected by the plaintiff stood. Hence the plaintiff went to court and claimed, as I have stated.


Evidence of the Akarigbo (PWA) and Lawal Olanipekun Makanjuola, Chief Balogun of Shagamu (PW.2) supported the plaintiff’s case that the decision was that the whole land was to be reconveyed to the plaintiff.


But at the end of the day, the case was decided on the strength and effect of the deed of conveyance, Exhibit B. Plaintiff’s case was that of non est factum that although he executed Exhibit “B” before a Magistrate and knew that it related to the property in dispute what he thought he was executing was a security for the loan which the defendant gave to him, and not a deed of conveyance. Learned trial judge held:


That evidence of one Mr. Sowobi, the learned counsel who prepared Exhibit B would have cleared the air in view of the controversy about the nature of Exhibit B, that as the onus of proof was on the plaintiff, it was his duty to have called him. Having failed to call him, the presumption that Sowobi’s evidence would have been against the plaintiff would be drawn against the plaintiff under section 148(d) of the Evidence Act;


That non est factum was not established, on the evidence in view of decided cases: Foster v. Mackinno (1869) L.R. 4 C.P 704 and Diab Nasr & Anor. v. Ariloine Roossek (1973) E.C.S.C.R. (pt. 1) 438, Gallie v. Lee (1971) A.C.1071.


(iii)    That as Exhibit B was executed before a Magistrate and it recite that is was read over to the plaintiff, there is a presumption under section 149(1) of the Evidence Act that everything thereto was properly and validly done. The presumption, though rebuttable, was not rebutted;


(iv)    That in view of the fact that the five new houses which the defendant erected on the land in dispute were completed in 1969 but the plaintiff did not stop their construction when it was in progress or do anything about them till 1976; the defence of laches was available to the defendant.


On the above findings, plaintiff’s case was dismissed.


Also defendant’s counter-claim to have his conveyance of the part of the land on which two of the houses which were erected by the plaintiff stood set aside was also dismissed. It was, however, decided that the plaintiff should be refunded the sum of N5,000.00 which he had paid to the defendant to have the land on which the two houses stood refunded to him.


On the plaintiff’s appeal to the Court Appeal, that court, coram: Ogundare and Omo JJ.C.A. (as they then were) and Onu J.C.A. dismissed the appeal but the order for the refund of N5,000.00 was set aside.


On further appeal to this court, learned Senior Advocate for the plaintiff in the formulation of the issues for determination focused on two questions, namely () the effect of the reference of the dispute to His Highness the Akarigbo of Ijebu Remo and what order the court before ought to have made in view of the findings thereon and (i) whether the Court of Appeal rightly invoked the provisions or Order 3 Rule 23 of the Court of Appeal Rules to set aside the order of the plaintiff refunding the N5,000.00 paid to him by the defendant. The defendant in his own formulation attacked the propriety of raising the reference to the Akarigbo in this court in view of the concurrent findings by the two lower courts on the validity of Exhibit B. He focused on what order the court could have made, and the propriety of invoking Order 3 rule 23.


In my view the result of this appeal largely depends on the nature and effect of the intervention of the Akarigbo. I believe that the law Is that If it was a customary arbitration and was pleaded and proved as such it was binding upon the parties and capable of constituting as estoppel: see on this:-


Raphael Agu v. Christian Ozurumba Ikewibe (1991) 3 N.W L.R. 385; Assampong v. Amuaku (1932) 1 W.A.C.A. 192;


Ofomata v. Anoka (1974) 4 E.C.S.L.R. 251.


But where the Intervention was merely an attempt at settlement of the dispute between the parties, no such consequence follows. These principles are based on the fact that under section 6 of the Constitution of the Federation of Nigeria, 1979, it is to courts and not to non-judicial bodies that judicial powers of the Federal Republic of Nigeria are vested. So, the Courts take the view that it Is open to the parties to choose whether to follow the normal channel for determination of controversy through the machinery of the courts or to submit the matter voluntarily to the non-judicial body for a decision. If they chose the former, the decision of a court of competent jurisdiction on such a matter would constitute an estoppel per rent judicatam. Where they chose the latter and there was an Intervention by a non-judicial body, then the court ought to be satisfied that a number of conditions precedent were satisfied before It could hold that the decision constitutes estoppel. Those conditions are that:


(i)      there must have been a voluntary submission of the dispute by the parties to the non-judicial body.


(ii)     the parties must have agreed to be bound by the decision of the non-judicial body as final.


(iii)    that the decision was in accordance with custom of the people or of their trade or business; and


(iv)    that the arbitrators reached a decision and published their award. For these, see

Njoku v. Ekeocha (1972) 2 E.C.S.L.R. 99; inyang v. Essien (1957) S.C. N.L.R. 112; Idika v. Erisi (1988) 2 N.W. L.R. (pt. 78) 563 Agu v. Ikewibe (supra)


In the instant case, the intervention of the Akarigbo was pleaded by the plaintiff in paragraphs 14, 15, 16, 17 and 20 of the statement of claim as follows:


“14.   The dispute was tabled before His Highness Oba M.S. Awolesi the Akarigbo of Ijebu Remo and the defendant claimed N5,000.00 in consideration of his reconveying the property to the plaintiff.


  1. In July, 1976 the plaintiff paid N5,000.00 into defendant’s account. By letter dated 15th August, 1976 the plaintiff through his solicitor informed the defendant of the payment and requested the defendant to execute deed of conveyance in plaintiff’s favour.


  1. The defendant sent a cheque No. SE/1 182432 to the plaintiff with a covering letter dated 12th August, 1976 demanding N160,0000.00 before the defendant will reconvey the property to the plaintiff.


  1. The defendant did not act and as a result the parties went back to His Highness, the Akarigbo of Ijebu Remo who intervened once again.


  1. By letters dated 31 at January, 1977 addressed to the Akarigbo the defendant submitted list of tenants to the front houses and also signed a conveyance involving only 2(two) houses and thus retained the larger portion of plaintiff’s land.”


On the other hand the defendant while denying paragraph 14 of the statement of claim and traversing other averments, pleaded in paragraph 5(1) of the statement of defence thus:


that at the intervention of other highly placed people in Remo Community including His Highness Oba Awolesi the Akarigbo of Ijebu-Remo, and his Chiefs, the defendant, after seriously considering the financial resources of the plaintiff at the material time reluctantly agreed to convey the two houses built by the plaintiff on a portion of the land in dispute (before the sale of the same to the defendant) to him (plaintiff) on purely humanitarian basis and in view of the relationship of the plaintiff as father-in-law to the defendant. The plaintiff paid to the defendant, a nominal sum of Five Thousand Naira (N5,000.00) as price of the property sold and conveyed to him.”


The judge did not find there was a voluntary submission. It is clear that having regard to the established ingredients of a binding customary arbitration stated above, what was pleaded could not amount to an arbitration. At best it was an attempt at a settlement. So learned counsel for the respondent was right. Parties to dispute will do well to remember that such persons or bodies as the Akarigbo of Ijebu-Remo or the Akarigbo and his Chiefs, though highly placed and respected in his/their own rights, are not judicial bodies. Before their decision on any matter in dispute between parties can be relied upon as estoppel, all the above requirements of a binding customary arbitration must have shown to have been observed. The pleading and evidence in this case fail far short of those requirements. Once such is the position, the case must be decided on the relative strength of other facts established by an evidence.


Learned counsel for the respondent was also right that the plaintiff by his conduct did not regard what transpired before the Akarigbo as a binding arbitration. It was he who referred the matter to the Akarigbo and it was he who later filed an action in court. There is force in the argument of learned counsel that his filing of a writ of summons in the High Court was a positive demonstration that he never believed there was a binding arbitration and of his abandonment of the “gentlemen’s agreement” reached between them. I must observed in this respect that the result of the fact that customary arbitration duly pleaded and proved can operate as estoppel is that, like that arising from a valid judicial decision, it deprives the court of jurisdiction to adjudicate in the matter again. It is, in my view, a contradiction for the plaintiff to say that the matter had been validly and finally determined in an arbitration by the Akarigbo and yet submitted in to court for adjudication.


As for the other facts of the case, I am of the firm view that on the concurrent findings of the two courts below, the plaintiff had no case to urge in his favour. Exhibit “B” is a valid and subsisting deed of conveyance executed by him in favour of the defendant. He failed to prove fraud. As it was executed before a Magistrate and carries illiterate jurat duly signed by the clerk of court as interpreter, I must presume that its execution was valid and regular and this presumption of regularity has not been rebutted. His admission that he knew that the document related to his property but that he thought it had a different effect completely put paid to his plea of non est factum. For the law Is that a would be dangerous to allow a man over the age of legal infancy to escape from the legal effect of a document which he has, after reading It, signed, in the absence of proof of fraud or positive misrepresentation by the other party who would take advantage of the due execution of the document. For this see Blay v. Pollard Morri (1930) 1 K.B. 692; Gillman v. Gillman 174 L.T 272. The Court of Appeal was right in its interpretation and application for the law.


I, however, agree that in the circumstances of this case, it was not right for the court to have invoked the provisions of Order 3 Rule 23 of the Court of Appeal Rules, 1984, to make the order that the sum of N5,000.00 be refunded to the defendant. It was a matter for a substantive appeal, not for respondent’s notice. Having failed to appeal thereon, Order 3 Rule 23 could not have been validly invoked to support the order. See Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 N.W L.R. 47Agbonifo v. Aiwereoba (1988) 1 N.W.L.R. (pt.70) 325.


For the above reasons and the fuller reasons contained in the judgment of my learned brother, Wall, J.S.C. I agree that apart from the question of N5,000.00, the appeal has no merit. it is dismissed. I subscribe to the orders made by my learned brother in the lead judgment.


KUTIGI, J.S.C. I read in advance the judgment of my learned brother Wall, J.S.C. just delivered. I agree with him that this appeal should be dismissed. No Order as to costs.


Appeal dismissed.


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