Eugene Nnaekwe Egesimba Vs Ezekiel Onuzuruike (2002)
LAWGLOBAL HUB Lead Judgment Report
O. AYOOLA, J.S.C.
In the High Court of Imo State, judgment was entered on 14th April, 1988, for the plaintiff on his claim against the defendant for declaration of title to land, damages for trespass and injunction. The defendant appealed to the Court of Appeal which on 20th November, 1996 allowed his appeal, set aside the judgment of the High Court and entered judgment dismissing the plaintiff’s claim in its entirety with costs. The plaintiff has appealed to this court.
The plaintiff’s case was that the land in dispute was owned and farmed by his ancestor, one Obom, from whom it descended to him by inheritance through several of Obom’s descendants. He relied on several acts of ownership and possession such as farming, building, raising families and burying their dead on the land, amongst other acts. The plaintiff alleged that he was still farming on the land when the defendant seized it from him sometime in 1976.
The defendant’s case on the other hand was that the land in dispute was his, also by inheritance, it having descended to him from one Okorie, through his father, one Onuzuruike. The kernel of his case was that his grandfather, one Egwim, gave the land to one Onyebueze, to build upon on condition that Onyebueze would pay tribute and that the land would revert to the owner in the event that Onyebueze vacated it. That event happened in 1938 when plaintiff’s family vacated the land and stopped paying tribute. Consequently, the defendant took possession of the land in 1938 and has since been using it for farming without interruption. The defendant relied on a previous arbitral settlement of the dispute between the parties over the land which went in his favour and pleaded that the plaintiff was estopped from relitigating the same question which had been resolved in his favour by arbitration. The trial Judge ruled in favour of the plaintiff on the several issues that arose in the case. He found that “the plaintiff and his forebears lived on the land in dispute and farmed on it, that his parents and his forebears died and were buried there, and that the family has moved out to another part of Obinaikpa Umuokwaraeke Umuobom to live in.” He held that “there was no credible evidence adduced by the defendant to support the arbitration he alleged.” He, therefore, found as a fact that there was no native arbitration of dispute over the land. Being of the view as above stated, it was inevitable that, as he did, he should enter judgment for the plaintiff. On the defendant’s appeal to the Court of Appeal the issues raised by counsel on behalf of the defendant were mainly of fact, concerning the correctness of the finding of the trial Judge that the plaintiff proved his title to the land and whether he was correct in holding that there was no arbitration in the dispute over the land. The Court of Appeal resolved the appeal on two grounds, one of which was purely procedural while the other was on the factual question whether or not there was arbitration. The procedural ground arose from the state of the pleadings. Katsina-Alu, JCA, (as he then was) who delivered the leading judgment of the court below was of the view that the crucial issue to be resolved in the case was whether there was a grant to the plaintiff’s ancestors. However, he held that since the defendant averred by his statement of defence that his ancestors made a grant of the land in dispute to the plaintiff’s ancestors upon condition, the plaintiff not having filed a reply to rebut the averment must be taken to have admitted the averment with the consequence that evidence adduced by him in denial of the averment went to no issue. In regard to the arbitration issue, the court below, after an extensive review of the printed evidence, disagreeing with the view of the trial court, came to the conclusion that the defendant “had called credible evidence to establish the fact that the elders mediated over the dispute and found in his favour.”
By the time the matter reached this court the issues have been considerably narrowed. They are formulated by the plaintiff’s in the appellant’s brief as follows:-
(1) Whether failure by the appellant to file a reply to the statement of defence amounted to an admission of a grant or relieved the respondent of his duty to prove a grant of the land (Ground three).
(2) Whether the respondent proved a binding customary arbitration in his favour as against the appellant assertion that there was no customary arbitration. (Grounds one & two).
(3) Whether the appellant proved the value of the iroko tree felled and sawed by the respondent (Ground four).”
It is not difficult to agree with Mr. Nnodum, counsel for the plaintiff, that the Court of Appeal was in error when it held that non filing of a reply to the statement of defence in the case was tantamount to an admission of a grant of the land to the plaintiff. The Court of Appeal relied on the cases of Joe Igah & Ors. v. Chief Ezekiel Amakiri (1976) 11 SC 1 and Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) 733 for a proposition that “failure to file a reply to rebut the far reaching averment that the land in dispute was granted to the ancestors of the respondent on payment of customary tributes is tantamount to an admission.” However, those two cases are not apt because the issues they dealt with are different from the present one. There is n general proposition of law that failure to file a reply to rebut an averment in a statement of defence which does not contain a counter claim is tantamount to an admission. Where the defendant by his pleading sets out a case which cannot be met by mere denial it is a matter of utmost prudence, if not necessity, to file a reply.
It is common ground that the High Court Rules of Eastern Nigeria (Cap. 61, Laws of Eastern Nigeria, 1963) (‘the Rules’), then applicable in Imo State, did not contain provisions as to filing of reply to a statement of defence. Counsel for the parties, however, adverted to O. 33, r. 16 of the rules which provided that:
“The court if it considers that the statements of claim and defence filed in any suit insufficiently disclose and fix the real issues between the parties may order such further pleadings to be filed as it may deem necessary for the purpose of bringing the parties to an issue.”
Mr. Nnodum, counsel for the plaintiff, argued that that rule applied only where the statements of claim and defence insufficiently disclosed and fixed the real issues between the parties and it was thereby, necessary to have further pleadings, including a reply, in order to bring the parties to an issue. Mr. Okoroafor, counsel for the defendant on the other hand referred to the same rule as foundation for the submission that failure to file a reply amounted to an admission. It is evident that O. 33, r. 16 is not relevant to the question whether or not failure to file a reply is tantamount to an admission of the material averments in the statement of defence. It is merely an enabling provision permitting the High Court to order service of pleadings subsequent to that last filed consequent upon an order made by the court pursuant to 0.33, r. I which provided that written pleadings shall be ordered by the court. Where the High Court did not order a reply to be filed when ordering pleadings pursuant to O. 33, r. 1, a plaintiff who considers that pleadings subsequent to the statement of defence is essential may apply for leave to file a reply. O. 33, r. 16 is not, in my opinion, intended to authorise the High Court to seize the initiative to order pleadings subsequent to a statement of defence where the plaintiff has not asked for such an order. Where the only pleading filed is the statement of claim absence of a statement of defence means that no issue is joined. That there is an implied joinder of issues on a defence which is unaccompanied by a counter claim if no reply is served appears to me to be a general principle of our procedural law which, for avoidance of doubt, is often incorporated in rules of civil procedure in many of our jurisdictions. Parties are brought to an issue where the last pleading is the statement of defence to which a counter claim had not been appended. In such a case it is assumed that the plaintiff does not intend to rely on any excuse or justification in answer to any allegation in the statement of defence or raise any fresh facts not already contained in the pleadings filed, but is content to traverse the allegations in the statement of defence and, thereby, challenge the defendant to prove the truth of those allegations. Where, of course, the plaintiff seeks to contradict the allegations in the statement of defence not merely by a traverse but by raising issues of fact which would take the defendant by surprise, he should raise such issues by a reply. But, even then, the consequence of his not so raising it is not that he is taken to have admitted the truth of the allegations of fact in the statement of defence so as to free the defendant from the obligation to lead evidence in proof of what he alleges, but to deprive the plaintiff from adducing evidence of facts not pleaded or already raised by the pleadings as they stand. In Alhaji Taofik Alao v. African Continental Bank Ltd. (1998) 56/57 LRCN 3209 (1998) 3 NWLR (Pt. 542) 339 at 370 this court said (per Iguh, JSC):
“Where, however, because of the nature of the averments in the statement of defence filed, the plaintiff proposes to lead evidence in rebuttal or to set up some affirmative case of his own in answer to the facts alleged by the defendant or raise issues of fact not arising out of two previous pleadings, the plaintiff as a matter of prudence and general practice shall put in a reply. See Bakare & Anor. v.Ibrahim (1973) 6 SC 205.”
I may further add, as held in a number of cases, that a plaintiff is entitled to lead evidence on a point raised in the defendant’s pleading. See Agu v. Ikewibe (1991) 1 NSCC 385, 400 (1991) 3 NWLR (Pt.180) 385. When a court is faced with the contention that the failure of the plaintiff to file a reply should affect the result of the case the proper approach is first, to enquire whether a reply was essential; and, secondly, if it was, whether evidence of facts which should have been pleaded in the reply had been adduced and admitted. It is a wrong approach, straightaway, as the court below did, to hold that failure to file a reply to a statement of defence not accompanied by a counter claim amounted to an admission. However, this will not affect the result of the case if the court below was right in its conclusion that the defendant’s plea of estoppel succeeded. The plea of estoppel was based on a decision of arbitration alleged by the defendant. In paragraph 10 of the statement of claim the plaintiff averred that the defendant entered the land and cut down an iroko tree, whereon the plaintiff took a civil action against him. In paragraph 12 of the statement of claim he averred that:
“The defendant refused to answer the plaintiffs (sic) call before the elders who according to Umuobom native law and custom, would have looked into the matter with a view to settling the same.”
It was thus the plaintiff who first pleaded his willingness to have the dispute submitted to customary arbitration. For his part the defendant averred in paragraph 11 of his statement of defence that:
“The entire Umuobom representatives have handled this matter and decided that the land in dispute belongs to the defendant. The defendant pleads estoppel and res judicata.”
It was thus clear that at the close of pleadings the only question as regards arbitration was whether there was an arbitration or not. That was the issue of fact which the trial Judge resolved when he held that:
”There is no credible evidence adduced by the defendant to support that arbitration he alleged ….” The Court of Appeal disagreed with this view of the trial Judge. It reviewed the printed evidence and came to its own conclusion, as it was entitled to do, that the defendant called “credible evidence to establish the fact that the elders mediated over the dispute and found in his favour.” The evidence that there was no arbitration was that of the plaintiff and the hearsay evidence of his second and fourth witnesses. The plaintiff said that he reported the defendant before the ‘Amala of Umuobom’ “in our customary way but he refused to answer the native summons.” His second witness said: “plaintiff told me that he made complaint against the defendant about this land in dispute. Plaintiff told me that he reported the matter to Eugene Ezeroha our leader but he did not tell me the outcome.” The evidence that there was such arbitration was that of the defendant and several of his witnesses.
The trial Judge found that there was no arbitration for two principal reasons which were the focus of challenge in the court below. First, he did not find the evidence adduced by the defendant on the issue reliable because of inconsistencies and contradictions in the evidence of two of the defence witnesses which he found, and were made the butt of criticism in the court below, as follows:
(i) DW1 said that the arbitration took place about 1957 whereas DW2 said it was in 1976; and
(ii) DW2 said that the decision of the arbitration was oral whereas DW1 said it was in writing.
Secondly, although the defendant had averred in paragraph 13 of the amended statement of defence that paragraph 12 of the statement of claim was a “complete fabrication and utter falsehood”, he had said in his evidence-in-chief that: “It is true that the plaintiff sued me before the elders of Umuobom.” He held that he thus “contradicts his pleading in paragraph 13 but supports plaintiff’s pleading and evidence.” It may well be noted that the averment in paragraph 12 of the statement of claim was that the defendant refused to answer the plaintiff’s call before the elders. Denial of that fact both in the statement of defence and in the defendant’s evidence could not at all have been a contradiction.
The Court of Appeal did not consider that the plaintiff’s evidence denying arbitration amounted to much. The court below was of the opinion, correctly in my view, that the plaintiff’s evidence was a mere repetition of his paragraph 12 of the statement of claim and that the testimony of his PW. 2 did not support the averment in paragraph 12. That the plaintiff submitted the dispute to customary arbitration by lodging a complaint before the customary arbitral body, the Amala Umuobom, was not in dispute. What was in issue was whether the defendant submitted to arbitration by honouring the summons to appear before the arbitral body so as to make the arbitral proceedings take of. On that issue the evidence of PW.2 was silent. The plaintiff said he reported the defendant before the Amala of Umuobom which, obviously, was a body and not an individual, but there was no member of that body called to testify in favour of what the plaintiff alleged, that is to say, that the defendant refused to answer the summons of that body. In these circumstances, the plaintiff’s evidence repetitive of the averment in paragraph 12 of the statement of claim became a mere assertion without proof. However, counsel for the plaintiff relied on Debs and Anor. v. Cenico (Nig.) Ltd. (1986) 3 NWLR (Pt. 32) 846; (1986) NSCC 837 in his criticism of the view of the court below that the plaintiff’s evidence was a mere repetition of paragraph 12 of the claim. Deb’s case dealt with the weight to be given to the mere ipse dixit of party. In that case Oputa, JSC, at p. 843 said:
“Now ipse dixit literally means he himself said it. It is thus a bare assertion resting on the authority of an individual. There can be no question that ‘a mere ipse dixit’ is admissible evidence but it is evidence resting on the assertion of the one who made it. Where there is need for further proof a mere ipse dixit may not be enough.” (Italics mine)
Then, further, he said:
A mere ipse dixit is in any event evidence. The weight to be attached to such evidence is an entirely different matter.”
In the same vein, Eso, JSC., agreeing, said:
“With respect, there is nothing ‘mere’ about any evidence just because it was given by a person interested. It is still evidence. Whether it would be accepted or not depends on other circumstances and not on its being ‘mere ipse dixit’.”
A court reviewing and evaluating evidence given at a trial acts within its responsibilities if it attaches little or no weight to bare assertions of a party. It all depends on the circumstances. A statement becomes a “bare assertion” or a “mere ipse dixit” when other evidence in proof of the fact stated can be, but was not, adduced in support of the statement. Thus, in this case the members, or any member, of the body to which the plaintiff lodged a complaint could have been called to testify to that fact and to the fact that the body summoned the defendant who refused to honour the summons. In the circumstances of this case I cannot see anything objectionable in the opinion of the court below that the plaintiff’s evidence on the issue of arbitration was a repetition of paragraph 12 of the statement of claim. It is evident that the court below did not agree with the reasons given by the trial Judge for rejecting in support of the fact that there was an arbitration. It is true that the first defence witness (“DW1”) said that the arbitration was in 1957 while (“DW2”) said it was in 1976. However, there was no inconsistency in the evidence of those two witnesses that they were members of the arbitral panel which heard the dispute between the parties. There was only one dispute and that occurred in 1976. DW1 testified that he was a member of the body called Amala Umuobom to whom the plaintiff made a complaint. To that extent his evidence supports that of the plaintiff that the plaintiff lodged a complaint to that body. The divergence in the evidence of DW1 and the plaintiff was on the question whether the defendant answered the complaint. The witness said that he did and proceeded to narrate what transpired at the ensuing arbitral proceedings, including the visit by the panel to the land in dispute and the participation of the plaintiff in the proceedings. Although DW1 said in cross examination that the arbitral decision was made in 1957, it seems clear that he must have been mistaken as to date. Such mistakes about dates by illiterate witnesses are not unusual. There was no dispute in 1957 and the complaint lodged by the plaintiff was not in 1957. When a person of such circumstances as the DW1, a farmer, gives evidence, description of events are of more significance than dates not fixed by reference to any public event in the locality of the person giving evidence. I think the trial Judge attributed undue significance to the mention of “1957” without having any regard to the rest of the witnesse’s evidence which clearly fixed the date of the event he was testifying about. The second appellant contradiction pointed out was the evidence about whether the decision of the arbitration was in writing or oral. DW1 said that the decision was reduced into writing, but he did not say who did, while DW2 said that they gave an oral decision. I agree with the court below that since an oral decision can be reduced into writing, there is no obvious contradiction. DW1 said in cross examination:
“The Amala decision was put down in writing. I cannot remember the date the decision we took was put into writing.”
DW2, who was the chairman of the arbitral panel said that the decision of the panel was oral and that “we do not put’ Amala Umuobom’ decisions in writing”. The evidence given was clear as to a decision of the arbitration. Much consequence cannot be placed on the evidence that Amala decision was put down in writing without stating who did. Any member of the body could have put the decision in writing. When the question is that the decision of a body is in a particular form more particularity is required than the incomplete statement of a witness who was not asked who had reduced the decision he spoke about into writing. Contradictions are not founded on vague statements. The evidence by the DW2 that the decision was oral was unambiguous. The evidence that it was reduced into writing cannot be contradictory without further evidence that it was reduced into writing as representing the arbitral decision by someone designated to reduce it into writing by the body. The court below was correct in not agreeing with the trial Judge on this score. Confining myself to the points raised in argument concerning the appreciation of the evidence concerning the fact of arbitration, I hold that there is no reasonable cause to disagree with the conclusion of the court below that there was such arbitration and that it decided in favour of the defendant.
Learned counsel for the plaintiff finally raised the last resort argument that there was no averment that the parties to the alleged arbitration submitted themselves to the jurisdiction of the arbitral body and undertook to be bound by the decision of the body. He relied on Ohiaeri v. Akabeze (1992) 23 NSCC (Pt.1) 139; (1992) 2 NWLR (Pt. 221) 1 and Agu v.Ikewibe (1991) 22 NSCC (Pt.1) 385; (1991) 3 NWLR (Pt.180) 385 for his submission that the court below overlooked the fact that the defendant did not plead the ingredients of a conclusive customary arbitration. Although in Agu v. lkewibe there was an opinion expressed by Nnaemeka-Agu, JSC (at Pt. 408), in the dissenting judgment delivered by him, that before a party in a case in the High Court can defeat the right of his adversary to have his case adjudicated upon by the courts on the ground that there has been a previous binding arbitration which raises an estoppel between them four ingredients of a binding customary arbitration must be pleaded and established, the opinion of the majority, as expressed in the leading judgment delivered by Karibi-Whyte, JSC, that prevailed was not that the ingredients should be pleaded but that such ingredients should be established by evidence. The view implied in the majority judgment in Agu’s case was expressly put by Akpata, JSC, in Ohiaeri v. Akabeze at pp 153-4 that:
” ….. where it is clearly averred by a party that there was a previous customary arbitration which was in his favour and that he (will rely on it,) will not be necessary for him to plead the ingredients establishing the estoppel. The party will have to adduce credible evidence of the relevant ingredients or incidents necessary to sustain the material plea of estoppel by customary arbitration.”
The four ingredients usually accepted as constituting the essential characteristics of a binding customary arbitration are:
(i) voluntary submission of the dispute to the arbitration of the individual or body;
(ii) agreement by the parties either expressly or by implication that the decision of the arbitrators will be accepted and binding;
(iii) that the arbitration was in accordance with the custom of the parties and
(iv) that the arbitrators reached a decision and published their award.
It was not the case of the plaintiff at the trial or in the court below that these ingredients were not established, nor, indeed, that the pleading was in any way deficient to raise the issue of estoppel. No issue as to the validity of the arbitration was raised at any stage of the proceedings in the High Court or in the court below. It is now belated for the plaintiff to attempt to raise these issues at this stage without the leave of the court. It is no wonder, therefore, that counsel for the defendant had on this appeal appealed to have chosen to ignore the submission of counsel for the plaintiff on the points, even though it would have been more appropriate for the defendant to have objected to the raising of the issues without leave of the court. Be that as it may, the arguments on the points of inadequacy of the defendant’s pleadings or of validity or bindingness of the arbitral proceedings should be discountenanced. However, even if the points were proper to be considered I would have held that they are lacking in merit. Once it was found, as the court below the defendant established that he submitted to such proceedings, the issue of voluntariness is established. Neither the plaintiff who, as found by the court below, initiated the arbitration by lodging complaint, nor the defendant who submitted to proceedings has denied the bindingness of the decision. There is ample evidence that the arbitration was in accordance with the custom of the parties and that the arbitrators reached a decision and published their award. The truth of the matter, it seems to me, is that the plaintiff having nailed his case to the mast of a denial of arbitration, without giving himself the leeway of contending by any alternative, without giving himself the leeway of contending by any alternative averment, that even if there was one it was not valid, left himself with no latitude to contend as vigorously as he may have wanted to, that the arbitration was not binding. Once there was the slightest evidence of the probability of a valid arbitration the point must go in favour of the defendant.
The upshot of all I have said is that the decision of the court below on the issue of estoppel must be upheld. There is therefore no cause to consider the third issue relating to the felling of an iroko tree. The plaintiff’s appeal fails and I would dismiss it. Accordingly, I dismiss the appeal. As the defendant, the respondent, was neither present nor represented by counsel at the hearing of the appeal, I make no order as to costs.M. E. OGUNDARE, J.S.C.: I agree entirely with the conclusion and the reasoning leading thereto of the judgment of my learned brother Ayoola, JSC a preview of which I had before now. I too dismiss the appeal and make no order as to costs. Going by the pleadings of the parties at the trial the paramount issue to be decided in this appeal is whether the trial court was right in holding that there was no arbitration involving the parties or whether it was the court below that was right in holding that there was an arbitration resulting in defendant’s favour. The plaintiff pleaded that he reported the dispute over the land in controversy between the parties to the Amala Umuobom of their community who were the elders and empowered by the custom of the community to settle the dispute. He further pleaded that the defendant refused to attend to the invitation of the Amala to look into the matter with a view to a settlement. In effect the plaintiff was saying that although he reported the matter to the Amala for settlement, the defendant refused the invitation of the Amala, consequent upon which there was no arbitration in the matter. The defendant on the other hand pleaded that it was true the plaintiff reported the dispute to the Amala and that the Amala invited him for a settlement, he went further to say that he accepted the invitation of the Amala and that the parties led evidence before the Amala who went into the matter and resolved the dispute in his (defendant’s) favour. Thus the issue is was there any arbitration If there was no arbitration, there would be no justification for setting aside the judgment of the trial court which so held. If however, there was arbitration which resulted in defendant’s favour, the plaintiff would be bound by it and his case ought to have been dismissed by the trial Judge on the ground of estoppel.
The classical case on the effect of customary arbitration is Agu v.Ikewibe (1991) 3 NWLR (Pt. 180) 385 where this court laid down the attributes of a valid customary arbitration. This court per Karibi Whyte, JSC cited with approval the dictum of Ikpeazu, J., in Njoku v. Ikeocha (1972) 2 ECSLR 199 where the learned Judge said:
“Where a body of men, be they Chiefs or otherwise, act as arbitrators over a dispute between two parties, their decision shall have a binding effect, if it is shown firstly that both parties submitted to the arbitration. Secondly that the parties accepted the terms of the arbitration, and thirdly, that they agreed to be bound by the decision, such decision has the same authority as the judgement of a judicial body and will be binding on the parties and thus create an estoppel.”
This dictum was accepted by this court as a good definition of customary arbitration. For a customary arbitration to be valid, it must be shown:
(a) that parties voluntarily submit their disputes to a non judicial body, to wit, their elders or chiefs as the case may be for determination; and
(b) the indication of the willingness of the parties to be bound by the decision of the non judicial body or freedom to reject the decision were not satisfied .
(c) that neither of the parties has resiled from the decision so pronounced.
See: Agu v. Ikewibe (supra) and the cases cited therein.
It must be observed that in the case on hand the plaintiff admitted that he submitted the dispute between him and the defendant to arbitration but that the defendant refused to attend to the call of the arbitrators. The defendant on the other hand maintained that at the instance of the plaintiff both parties voluntarily submitted their dispute to the Amala, that the Amala arbitrated between the parties and both of them accepted the decision of the Amala in his favour. So the narrow issue is as to whether the defendant submitted to arbitration by the Amala and that the Amala did arbitrate between the parties. The reasons given by the learned trial Judge for rejecting the defendant’s version and accepting the plaintiff’s version are the contradictions in the evidence of DW1 and DW2 members of the Amala Omuobom who testified to the effect that there was arbitration between the parties over the land in dispute and that the arbitration was resolved in favour of the defendant. For the reason that there were contradictions in the evidence of these two witnesses the learned trial Judge held that there was no arbitration. The Court of Appeal faulted the reason given by the learned trial Judge and found that there was arbitration. It is now contended before us in this appeal that the Court of Appeal was wrong to disturb the finding of fact of the learned trial Judge on the issue. The attitude of an appellate court to findings of fact made by a trial court has been stated in a number of decisions both of this court and of the Court of Appeal. It is now well settled that an appellate court will not lightly set aside findings of fact made by a trial court unless such findings are perverse. Okpiri v. Jonah (1961) All NLR 102; (1961) 1 SCNLR 174; Akinyemi v. Akinyemi (1963) 2 SCNLR 303; (1963) All NLR 340; Ebba v. Ogodo (1984) 1 SCNLR 322. With this general principle at the back of my mind, I now approach the issue before us. DW I testified that the arbitration between the parties was held in 1957 and the decision was reduced into writing. DW2 testified to the contrary. He said the arbitration was held in 1976 and that an oral decision was given in the matter. The learned trial Judge in treating the seeming contradictions in the evidence of these two witnesses said:
” the defendant made such fuss about native arbitration over the land in dispute …. The two witnesses contradicted themselves as to the manner of the decision. DW1 said it was in writing while the chairman DW2 said it was oral. Again DW1 said the decision took place in 1957 while DW2 said it was in 1976. The two contradictory pieces of evidence cancel themselves out. I reject their evidence as manifestly unreliable. Having called the DWI and DW2 as his witnesses the defendant is bound by their discredited evidence …. There is no credible evidence adduced by the defendant to support the arbitration he alleged as those he referred court to as having taken active part as member and chairman – DW 1 and DW2 – respectively have been discredited. I am satisfied and find as a fact from the pleadings and evidence before me that there was no native arbitration by the elders of Amala Umuobom or Umuobom representatives of dispute over the land in dispute between plaintiff and defendant.”
The Court of Appeal was of a different view. The court found:
“Next, how did the appellant fare in this connection. DW1 and DW2 testified that they were members of the panel that mediated in the dispute. DW2 was in fact the chairman of the panel. The learned trial Judge, as I have already shown, held that their evidence was contradictory and accordingly rejected same. The contradictions are said to be twofold. Firstly DW1 said that the decision of the elders was reduced into writing. On the other hand DW2 who was the chairman of the panel said it was oral. Although there would appear to be a contradiction, it is not in my view material. This is because the real issue is whether the elders looked into the dispute and handed down a decision. Moreover it is not uncommon that decisions of native arbitration although given orally are later reduced in writing for record purposes. A closer look at the evidence of DW I would suggest that the decision was oral but later reduced into writing. In his evidence-in-chief this witness testified that ‘we inspected the land and thereafter decided the matter before we decided in favour of the defendant.’ When he was cross examined this witness said: ‘The Amala decision was put down in writing. I cannot remember the date the decision we look was put into writing.’ My understanding of this piece of evidence is that an oral decision was given which was later reduced into writing. There is, therefore, no contradiction between the evidence of DW1 and the testimony of DW2 who said that they gave an oral decision after the inspection of the land.”
On the contradiction as to the year the arbitration was held the court observed:
“In the second place it was said that there was contradiction in the evidence of DW1 and DW2 with respect to the date the decision was made ….. Again I do not think that this is material. This is so because the respondent himself pleaded and gave evidence to the effect that the cause of action arose early in 1976 and that he reported to the elders. The correct date cannot be anything else but 1976. It could not be 1957 when no wrong had been committed. It was simply a case of a witness who did not know his dates especially having regard to the date the cause of action arose, I think the learned trial Judge was in error when he read it against the appellant. On the state of the evidence, I hold that the appellant had called credible evidence to establish the fact that the elders mediated over the dispute and found in his favour.”
It is evident in the judgment of the learned trial Judge that his view of the credibility of the evidence of DW1 and DW2 was not based on the demeanour of these witnesses but rather on the contradictions in their evidence. Thus the Court of Appeal was in a good position to examine the reason given by the learned trial Judge for rejecting the evidence of the two witnesses and if it found the reason given not substantial, it was in a position to set aside that finding. I have examined the evidence of these two witnesses along with the other evidence led at the trial by both parties and I am satisfied that the court below was right in coming to the conclusion that the evidence of these two witnesses was not discredited by the seeming contradictions. That a report was made by the plaintiff in 1976 was not in dispute. This was generally accepted by both sides. If, therefore, DWI spoke of arbitration in 1957 he must have been mistaken as to the year. Neither party talked of two arbitrations. As to whether the decision of the Amala was given orally or reduced to writing, I cannot see any contradiction in the evidence of these two witnesses. DW2 said the decision was given orally, he was not asked whether it was reduced to writing and gave no evidence as to that. DW1 said it was reduced to writing. Whether the decision was given orally and or reduced to writing was not the issue in controversy between the parties. The issue between them was as to whether there was an arbitration. On this point the two witnesses were agreed that there was such an arbitration at the instance of the plaintiff. Had the plaintiff’s case being that there was an arbitration as a result of his complaint to the Amala and that the arbitration ended in his favour rather than in favour of the defendant, the other consideration on which the learned trial Judge based his findings would have become relevant. Having admitted that he laid a complaint before the Amala, and leading members of the Amala having given evidence that the complaint led to an arbitration between the plaintiff and the defendant which ended in the defendant’s favour as pleaded by him, I think the court below was right in holding as it did. Not all contradictions result in the rejection of the evidence of a witness but only those that are material and result in a miscarriage of justice. I do not see how the seeming contradictions highlighted by the learned trial Judge could be said to result in a miscarriage of justice in the circumstances of this case. For the reasons given herein and those of my learned brother Ayoola, JSC, in affirming the decision of the Court of Appeal, I too come to the conclusion that that court was right in reversing the finding of fact made by the learned trial Judge. As there was arbitration between the parties which ended in defendant’s favour that arbitration decision estops the plaintiff from further litigating on the matter. His action was rightly dismissed by their Lordships of the court below.
SC.118/1998
