Ezulumeri Ohiaeri & Ors. V. Adinnu Akabeze & Ors. (1992)

LawGlobal-Hub Lead Judgment Report

O. I. AKPATA, J.S.C

Does every decision of a customary arbitration create estoppel If not, what circumstances make it acceptable as an estoppel Where a trial High Court has held that there was an earlier decision of a Customary Arbitration on the same matter before it but failed to pronounce that the decision constituted an estoppel and also failed to treat it as an estoppel, will a defendant be heard to assert in the Court of Appeal that the decision raised an estoppel when he has not cross-appealed or filed a respondent’s notice in respect of the failure of the trial Court to so pronounce These are some of the vexed questions in this appeal.

The action, the subject matter of this appeal, was instituted at the Nnewi Judicial Division of Anambra State. The plaintiffs for themselves and on behalf of members of Otogbolu family sought an order of court against the defendants for themselves and on behalf of members of Ohiaeri family in the following terms:

“1. Declaration of title to the piece and parcel of land otherwise known as and called “Ude Omayi”, situate at Umuadobihi quarter in Amamu Village, Ihiala.

2. N200 damages for trespass in that the defendants acting in concert unlawfully broke and entered the land in dispute.
3. Perpetual injunction to restrain the defendants, their servants and/or agents from further acts of trespass on the said land.”

Pleadings were ordered, filed and exchanged. The plaintiffs called five witnesses, including the first plaintiff who testified as PW.l to establish their claim in support of their case. The defendants called four witnesses including the first defendant who testified as DW.3.

In his judgment, Uyanna, J., was of the view that in respect of traditional history pleaded and evidence adduced there was “no meeting point between the parties on the issue.” He then went on to say that “in the absence of an independent source by which to test the accuracy of these facts given in evidence this sort of traditional history usually affords no reliable basis for coming to a conclusion one way or the other.” He therefore indicated that on the authority of Ekpo v. Ita 11 NLR, 68 at 69, he would rely on other pieces of evidence to arrive at his decision.

After a detailed review and appraisal of the evidence adduced by both sides on acts of ownership, he was satisfied that the plaintiffs had not established their claim to the land in dispute. He also believed that the arbitration that earlier looked into the dispute between the parties adjudged defendants owners of the land. He accordingly dismissed the plaintiffs’ claim.

Aggrieved by this decision the plaintiffs appealed to the Court of Appeal filing six grounds of appeal. Before the Court of Appeal three issues were formulated for determination in the appellants’ brief. They read:

“(i) Whether the Respondents’ evidence in Court in support of their case was contrary to their pleadings.

(ii) Was the traditional evidence conflicting.

(iii) Whether the judgment of the Learned Trial Judge was perverse having regard to the evidence.”

In their brief the defendants as respondents adopted the three issues formulated by the appellants and identified a fourth issue as arising for determination. It reads:

“What is the effect of Native Arbitration which had determined the rights of the parties and to which the parties submitted voluntarily”‘

Oguntade, JCA., in his leading judgment was of the view that the said fourth issue was indeed necessary having regard to the fourth ground of appeal. He proceeded to deal with the said fourth issue first because if it turned out that the decision of the arbitration was final and binding on the parties it would bar the plaintiffs from relitigating the issues decided by the arbitration.

Oguntade, JCA., noted, and was concurred-in by Ikwechegh and Katsina-Alu, J.J.CA., that although the respondents pleaded that the matter had earlier gone to arbitration, they did not plead the incidents, of the custom of Ihiala governing the native arbitration in the area and did not plead the terms if any under which the parties submitted to arbitration. He stressed further that it was not enough to state that the parties went to arbitration and that a decision was given but that “the Court must know the effect ascribed by the native custom in question to the adjudication of the native arbitration.”

On this issue the learned Justice of the Court of Appeal concluded thus at page 155 of the record.

“In fairness to the trial Judge he did not anywhere in his judgment say that the decision on arbitration estopped the appellants from relitigating the land in dispute. He merely found that a decision was indeed given in favour of the respondents. He then stopped at that. He did not base his judgment upon his finding of fact that a decision was given in favour of respondents by the arbitration. Such finding would therefore be innocuous in its effect. It did not lead to a miscarriage of justice.

There is therefore nothing to complain about by the appellants. In the respondents’ brief, it was argued that the arbitration decision should operate as estoppel per rem judicatam. The respondents however did not file a respondents’ notice saying that the decision of the trial Judge should be sustained on other grounds than were stated in his judgment.”

In dealing with the question whether the respondents’ evidence in court in support of their case was contrary to the pleadings, the Court of Appeal drew attention to the fact that the plaintiffs pleaded in paragraph four of the statement of claim that “the land in dispute was originally the property of Dioha the plaintiffs’ ancestor” and that the defendants pleaded in paragraph four of the statement of defence that “in the distant past the piece of land in dispute was part of the land of Uli people which the people of lhiala acquired by conquest. Since then the land has been in the ownership and possession of the defendants’ ancestors from whom the defendants inherited the land.”

The Court of Appeal then observed that the defendants did not state how the lands which Ihiala people acquired by conquest from Uli people came to be found in the hands of their ancestors to enable them inherit it. The court also made the point that whereas the case of the defendants on the pleadings was that Ihiala people acquired the land by conquest from the Uli people, they at the trial relied on the original ownership of the land by one Duru. It was thus the view of the Court of Appeal that the defendants’ evidence that the land in dispute belonged originally to their ancestor by name Duru, which was a clear departure from their pleadings, went to no issue and ought to have been discountenanced, and that the averment of the defendants on the pleadings concerning their source of title would stand unsupported by any evidence. Their acts of possession and ownership in respect of which they testified could not rest on any particular title. Turning to the plaintiffs’ case the Court of Appeal was of the view that the evidence of traditional history and descent as given by the plaintiffs in support of their pleadings remained unchallenged at the end of the case and that such unchallenged evidence ought to be accepted in the circumstance. The plaintiffs appeal was therefore allowed and judgment was accordingly entered in their favour as per their claim in the statement of claim.

Dissatisfied with the decision of the Court of Appeal the defendants have now appealed to this Court on five grounds of appeal. Arising from these grounds are three issues formulated in the appellants’ brief as follows:

1. Did the arbitration proceedings pleaded by the defendants/appellants create a valid estoppel in their favour- if answered in the affirmative, what is the effect of the said arbitration on the plaintiffs/respondents’ case
2. Were the defendants/appellants who were satisfied with-every aspect of the judgment of the trial court and also with the reasons for the conclusions reached therein required to file a respondent’s notice as required by Order 3 Rule 14(2) of the Court of Appeal Rules in order to be entitled to rely on a plea of estoppel If answered in the affirmative, was their failure to do so fatal to their case
3. Was the plaintiffs/respondents traditional evidence sufficient to ground a declaration of title to a customary right of occupancy in their favour”

The respondents framed the issues for determination thus:

“1. Whether in the Court of Appeal the Appellants (Respondents in that Court) wanted the judgment of the trial Judge to be retained on the ground of res judicata other than the grounds on which the trial Judge gave his judgment. If the answer is in the affirmative whether they should file a Respondents’ notice as required by Order 3 Rule 14(2) of the Court of Appeal Rules.

2. Whether the Appellants have pleaded enough facts and led sufficient evidence to prove that what took place before the Oluoha-in Council was a customary arbitration making as a judicial decision to create an estoppel per rem judicatam.
3. Whether the plaintiffs/respondents had proved their title to the land in dispute by sufficient evidence of traditional history.

Although couched differently the three issues are correctly stated in both briefs, except that issues I and 2 in the respondents’ brief are issues 2 and 1 respectively in the appellants’ brief. I find it convenient to deal with issue 3 first. It is whether the plaintiffs/respondents had proved their title to the land in dispute by sufficient evidence of traditional history. As the appellants put it, “was the plaintiffs/respondents’ traditional evidence sufficient to grant a declaration of title to customary right of occupancy”

In their statement of claim in respect of their traditional history, the plaintiffs pleaded at paragraphs 4 to 14 thus:

“4. The land in dispute was originally the property of Dioha the Plaintiffs’ ancestor.

5. Dioha had many children among whom was Adobihi who got the land in dispute including the area verged green as part of his share of Dioha’s land.
6. Adobihi had seven children among whom was Obidimalu.
7. The seven children of Adobihi shared Adobihi ‘s land and Obidimalu got the area verged green as his own share.
8. On the death of Obidimalu his land was inherited by his lone son Otogbolu.
9. Otogbolu had three children, namely, Achubie, Egwuim and Nwokeji.
10. On the death of Otogbolu his land, that is the area verged green, was inherited by his three children.
11. Achubie had one issue, Ohazulume.
12. Egwuim had three issues, Akabeze, Ohamobi and Ughelumba.
13. Nwokeji had one issue, Okafor.
14. When Achubie, Egwuim and Nwokeji died their land was inherited by the plaintiffs.

In their statement of defence the defendants in meeting the traditional history pleaded by the plaintiffs averred at paragraph 4 thus:

“The Defendants are not in a position to deny or admit paragraphs 4 – 14 inclusive, of the Statement of Claim and will put the Plaintiffs to strict proof of the allegations contained therein. In further reply, thereto the Defendants maintain that in the distant past the piece of land in dispute was part of the land of Uli people which the people of Ihiala acquired by conquest. Since then the land has been in the ownership and possession of the Defendants’ ancestors from whom the Defendants inherited the land.”

In effect the defendants were saying that the plaintiffs traditional history may be true as they “the defendants are not in a position to deny or admit paragraphs 4 to 14 inclusive of the statement of claim” but that “in the distant past the piece of land in dispute was part of the land of Uli people which the people of Ihiala acquired by conquest.” As rightly observed by the Court of Appeal, “whereas the case of the respondents on the pleadings was that Ihiala people got the land by conquest from the Uli people they at the trial relied on the original ownership of the land by one Duru. It was not pleaded nor given in evidence the connection of Duru with Ihiala people or how Duru could individually come to own some land which Ihiala people acquired by military conquest from the Uli people.” The Court also rightly pointed out that if the evidence relating to Duru founding the land is discountenanced as it should be, then the averment of the defendants on the pleading concerning their source of title would stand unsupported.

It is the complaint of the defendants in this appeal that the evidence adduced by the plaintiffs was not sufficient to ground a declaration of title. It is also of importance to note that the Court of Appeal was conscious of the fact that the collapse of the respondents’ case did not ipso facto relieve the plaintiffs of the burden of proving their case since they could not rely on the weakness of the case of the defence.

The question therefore is whether the plaintiffs adduced sufficient evidence in proof of their claim. It is the duty of the party who seeks a declaration of title to land to establish and prove his claim by credible evidence. The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. He must reply on the strength of his own case and not on the weakness of the defendant’s case.

I have already reproduced paragraphs 4 to 14 of the statement of claim. In support of the averments contained in those paragraphs the first plaintiff as PW.1 testified thus:

“This land originally belonged to our great ancestor Dioha. Dioha had 7 issues. After his death his land was shared among his 7 issues. Of the 7 issues Adobihi got the land in dispute and he was the 1st son. Adobihi had also 7 issues. Following his death his 7 children shared his land. It was Obidumalu 1st son of Adobihi who got the land now in dispute. Obidumalu had one issue called Ologbolu. Following his death Otogbolu’s son owned the land. Otogbolu had 3 male issues. Among his sons was Egwim; Nwokeji was also one of his sons so also was Achubie. After the death of Otogbolu, his 3 sons inherited the land; they did not share the land.”

This piece of evidence clearly supports the averments of the traditional history pleaded. It is however the complaint of Mr. Ofodile, SAN, that the plaintiffs F did not plead how Dioha, the plaintiffs’ ancestor came to own the land. As stated by this court in Woluchem v. Kalio (1985) 1 NWLR. (Pt. 4) 610 “the pleadings should aver facts relating to the founding of the land in dispute, the person who founded the land, exercised original acts of ownership and the person on whom title in respect of the land had devolved since its first founding.”

Firstly, having regard to the state of the pleadings and the evidence led in support, the traditional history of the plaintiffs that the land in dispute was “originally) the property of Dioha” seems to me incontrovertible. The plaintiffs pleaded that the land in dispute was originally the propeny of Dioha, the plaintiffs ancestor. P.W.I testified that “this land originally belonged to our great ancestor Dioha.” Then DW. 1., Ikeasomba Asoegwu, a member of the cabinet of the Oluoha the traditional ruler of Ihiala, testified in pan thus:

“I know a village called Amamu. It belonged to Dioha.

The disputed land is situate in Amamu……… ”

Where a plaintiff pleads in terms of traditional history that a parcel of land was originally the property of his ancestors and pleads that line of descent, he is saying in effect that his ancestors were the founders of the land, the first persons to own the land. The word “originally” or “original” is used in contradistinction to ownership by inheritance, grant or conquest. “Originally” original” pertains to the origin of something; that existed at first or has existed from the first. (See Shorter Oxford Dictionary. Volume II, 3rd edition page 1464). Law reports are replete with instances where the phrase “original owner of property” or a similar phrase or expression is used interchangeably with the phrase “the founder of the land”.

In the instant case any doubt or ambiguity as to the sense “originally” was used was cleared by the first plaintiff under cross-examination when he answered:

“My great ancestor was Dioha – the disputed land is part of his land.

I can say how he acquired it. He acquired it by clearing.”

I therefore do not agree with the learned Senior Advocate that the plaintiffs did not plead how their ancestors came to own the land.

There is also the evidence of DW.1., Ikeasombi Asoegwu a member (an Ichie) of the cabinet of the traditional ruler of Ihiala under cross-examination admitting thus:

“I know the village called Amamu. It belonged to Dioha (ancestor of the plaintiffs). The disputed land is situate in Amamu ……”(words in parenthesis are mine).

It is the submission of the learned Senior Advocate that this piece of the evidence has not in any way strengthened the plaintiffs/respondents’ case. This is so, according to him, because “those facts were not pleaded and evidence given on an issue not pleaded goes to no issue.” With due respect I find it difficult to appreciate this submission. In their statement of claim at paragraph 19. the plaintiffs sought (1) declaration of title to the piece and parcel of land otherwise known and called “Ude Omayi” situate at Umuadobihi quarter in Amamu village. Ihiala. Here is a clear admission by DW. 1 that the land in dispute which situate in Amamu village belonged to Dioha the ancestor of the plaintiffs. This is the case of the plaintiffs and this piece of evidence from DW. I supports and goes to strengthen their case.

The learned trial Judge obviously went wrong in not upholding the traditional history pleaded in the statement of claim and in respect of which evidence was fully adduced in support by the plaintiffs, as the averments of the defendants in their statement of defence and the contrary evidence adduced by them went to no issue. The error of the learned trial Judge was brought about no doubt because he erroneously treated the evidence adduced by the defendants as if it was in consonance with the material facts of the traditional history pleaded by them.

The learned trial Judge in considering the traditional history given by both sides commented thus:

“The plaintiffs pleaded and gave in evidence that they derived their title from their great grand father Obidimalu who got the piece of land in dispute as part of his share from their first great ancestor Dioha, who was the founder of Ihiala. On the other hand the defendants stated that the land formed part of their ancestors’ share of land which they got by conquest. In the absence of an independent source by which to test the accuracy of those facts given in evidence, this sort of traditional history usually affords no reliable basis for coming to a conclusion one way or the other. The court will therefore rely on other pieces of evidence to arrive at its decision other than traditional history.”

Although the defendants stated in their statement of defence that the land formed part of their ancestor’s share of land which they got by conquest, there was no evidence in support of such averment. It is now trite rule of law that where a party projects two competing histories of his ownership in support of his claim he has failed to make out a case he set out to make. If he is the plaintiff his claim must be dismissed. If he is the defendant, he would have made out no defence against the traditional history of the plaintiff. It is only where the conflict arises between the traditional history given by one side and the traditional history given by the other side that the test in Kojo III v. Bonsie (1957) 1 WLR. 1223 or Ekpo v. Ita (1932-34) 11 NLR 68 at 69 is applicable in determining the true history. (See Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR. (Pt.7) 393 at 430).

As already pointed out the learned trial Judge found as a fact that “the Plaintiffs pleaded and gave evidence that they derived their title from their great grand father Obidimalu who got the piece of land in dispute as port of his share from their great grand ancestor, Dioha, who was the founder of Ihiala”. This finding made in favour of the plaintiffs was sufficient to sustain in the trial court the claim of the plaintiffs. As already noted the trial Judge fell into error by his misconception or wrong appraisal of the evidence of the defendants vis-a-vis their pleading. It is of interest to note that the trial Judge made no mistake in regarding the averment “the land in dispute was originally the property of Dioha” as amounting to saying that Dioha was the founder of the land. This finding was not questioned by the defendants by way of an appeal.

I now turn to issues 1 and 2 which I intend to consider together. The apparently valid claim of the plaintiffs would come to nought if the decision of the Oluoha and his cabinet in favour of the defendants was sufficient in the circumstances of this case to estop the plaintiffs from relitigating the question of the ownership of the land in dispute.

After PW.1 had testified on 10/3/83 the plaintiffs closed their case and further hearing was adjourned to 4/5/83. In the interim the defendants sought and obtained leave to amend their statement of defence by introducing paragraph 11A. This paragraph reads:

“The Defendants state when the Plaintiffs soon after the civil war stated laying claims to the land in dispute, the matter was referred to the Igwe Udoji Oluoha of Ihiala and his cabinet members (Ndichies) who arbitrated over the matter and found in favour of the Defendants. “‘

The plaintiffs then filed a reply which reads:

“‘The plaintiffs in reply to paragraph 11A of the Amended Statement of Defence state that the matter went to arbitration before Igwe Udoji Oluoha of Ihiala but that was before the war and also includes earlier part of the war.

Further the plaintiffs aver that when the defendants were summoned along with the plaintiffs to come for a decision the defendants refused to turn up.”

DW.1 testified to the effect that the Oluoha and his cabinet, among whom he was one, decided that the first defendant owned the land in dispute. The first defendant who testified as DW.3 stated that immediately after the civil war he was served with a writ of summons by the first plaintiff. Before then, according to him, the dispute had been settled by the Oluoha and his cabinet. It was adjudged by them that the land in dispute was his.

PW.5 who also claimed to be a member of the cabinet of the Oluoha adduced additional evidence on behalf of the plaintiffs since the plaintiffs had closed their case before the defendants introduced paragraph 11 A to their statement of defence. According to him the matter was looked into but no decision was given because it was during the war. He then said “the reason for not pronouncing any decision was that on the date of this the first plaintiff attended but not one person from defendants showed up.”

In his judgment the trial Judge believed DW.I that both parties turned up for the verdict and that the arbitration adjudged defendants owners of the disputed land. In the Court of Appeal, the fourth issue for determination which was raised by the defendants and accepted by the Court was the effect of native arbitration “which had determined the rights of the parties and to which the parties submitted voluntarily.” Put briefly, the Court of Appeal held that the pleading relating to the arbitration was bereft of essential facts that could sustain the decision of the native tribunal as a defence of estoppel per rem judicata and that the trial court itself did not base its judgment in favour of the defendants on the said decision of the native tribunal.

In his submission the learned Senior Advocate rightly made the point that the finding of the learned trial Judge to the effect that the land in dispute had been adjudged by the customary arbitration was not specifically challenged by the plaintiffs as appellants in the Court of Appeal. He submitted that the Court of Appeal was wrong in holding that the defendants did not make out a case of estoppel merely because they did not plead the incidents of customary arbitration under Ihiala customary law. According to learned counsel, on the state of the pleadings the incidents of customary arbitration under Ihiala native law and custom was not in issue and that it was not the case of the plaintiffs/respondents that under Ihiala customary law native arbitration cannot ground a plea of estoppel. Learned Senior Advocate submitted that where a fact is not in issue it is not necessary to lead evidence in proof of that fact. He relied on Olufosoye and 2 Ors. v. Olorunfemi (1989) 1 NWLR (Pt. 96) 26. He also made the point that it is not within the office of a court to enter any inquiry outside the pleadings and speculate on matters neither pleaded nor proved in evidence. His authority is Overseas Construction Limited v. Creek Enterprises v. Limited (1985) 3 NWLR (Pt.13), 427.

What calls for consideration first and foremost is whether the defendants proffered the decision of the Oluoha and his cabinet as an estoppel and whether the trial Judge in fact regarded it as such. It is necessary to resolve this issue before considering the question whether the Court of Appeal was wrong or right in holding that the defendants had not made out a case of estoppel. The position is that a party should not be seen to put forward in the Court of Appeal a case different from what he canvassed in the trial court.

A defendant who intends to rely on a previous judgment as a plea of estoppel should normally use such words, not necessarily “estoppel” or “res judicata”, which suggest that he is relying on the judgment as barring the plaintiff from relitigating the matter in controversy. It was in the past not sufficient simply to refer to a previous judgment between the parties in respect of the matter in controversy without averring the legal effect. In the case of Chinwendu v. Mbamali (1980) 3 to 4 Sc. 31 at pages 80 to 81, cited by the learned Senior Advocate, this Court per Kayode Eso, JSC., observed thus:

“I also agree with the learned trial Judge on this issue that a Court notwithstanding inelegant pleading has power to give effect to a judgment. Care should be taken by the Court always not to sacrifice justice on the altar of technicalities. The time is no more when disputes are dealt with rather on technicalities and not on the merit. The courts now show reluctance in disallowing estoppel though it has not been specifically pleaded, see Hamam Singh v. Jamal Pirbhai 1951 A.C. 688 as per Lord Radcliffe at p.699.”

The difference between the decision in the case under reference and the instant case is that while the trial Court in that case held that estoppel had been established because a previous judgment was pleaded and proved, although not specifically pleaded as an estoppel, in the present case the trial Judge did not hold that the decision of the Oluoha and his cabinet created an estoppel. Another difference is that while in Mbamal’s ease the judgment said to have created estoppel was a judgment of the Supreme Court. in the present case it is a decision of a customary arbitration that is the subject of controversy.

In the case in hand counsel submitted written addresses in the trial Court. The addresses of learned counsel for the defendants can be found at pages 74 to 83 of the records. The issue of the customary arbitration was briefly adverted to from the last line of page 81 to line 27 of page 82. Counsel made no submission, and did not urge the court to hold, that the decision created estoppel per rem judicatam. All he did was to “pray my lord to make a specific finding on this fact”, that is, whether a decision was pronounced by the customary arbitration, and not whether the decision estopped the plaintiffs from relitigating the question of the ownership of the land.

In confining himself to the issue raised before him the learned trial Judge held at page 96 lines 12 to I5:

“I believe the DW.1 that both parties turned up for the verdict. I also believe him that the arbitration adjudged defendants owners of the disputed land.”

The learned trial Judge in his judgment concluded thus:

“I have given careful thought to the case of both sides. Where a plaintiff fails to adduce satisfactory evidence in support of his claim for a declaration of title then judgment should be in defendant’s favour because the plaintiffs have failed to prove what they claim. See Frempong v. Brempong 14 WACA 13. Accordingly I dismiss the plaintiffs’ claim.”

The conclusion clearly puts it beyond question that the case of the plaintiffs was dismissed not because they were estopped from litigating the issue, a situation that would deprive the court of jurisdiction, but because, according to the learned trial Judge, the plaintiffs did not adduce satisfactory evidence to establish their claim for a declaration of title. Where a Court has no jurisdiction to entertain an action the question of dismissing the action for failure to adduce satisfactory evidence would not arise. The action would simply be struck out.

I have earlier in this judgment referred to the observation of the Court of Appeal on this issue. I will again reproduce relevant portions of the observation. It reads:

“….In fairness to the trial Judge, he did not any where in his judgment say that the decision or. arbitration estopped the appellant from relitigating the land in dispute. He merely found that a decision was indeed given in favour of the respondents. He then stopped at that. He did not base his judgment upon his finding of fact that a decision was given in favour of the respondents by the arbitration. Such finding would therefore be innocuous in its effect…….. In the respondents’ (defendants) brief, it was argued that the arbitration decision should operate as estoppel per rem judicatam. The respondents however did not tile a respondent’s notice saying that the decision of the trial Judge should be sustained on other grounds than were stated in his judgment.”

I agree with the above observation of the Court of Appeal. Although a party may not plead legal consequences that should now from facts pleaded, such legal consequences should be proffered by counsel and the Court has a duty to draw the relevant legal consequences if it is basing its decision on them. Failure of the court to draw the necessary legal result and base its decision on it may amount to an error or misdirection in law which should form the basis of an appeal. A respondent’s notice may in fact not meet the situation. A defendant who is aggrieved in circumstances such as this should cross-appeal because the failure of the Court to pronounce on it is a rejection sub-silento of one of the arms of the defendants’ defence.

Learned counsel conceded in his brief that “it is true that the Court of trial did not specifically hold that the arbitration pleaded in paragraph 11A of the statement of defence estopped the plaintiffs from asserting any right of ownership over the property in dispute. It is equally true that the defendants did not specifically plead estoppel as one of their defences to this action.” He however submitted on the authority of Chinwendu v. Mbamali (1980) 3 to 4 sc. 31 at page 81 that once there are facts and evidence from the record sufficient to ground a plea of estoppel, effect must be given to such evidence.

The position is that it is the trial Judge that ought to have given effect to it if in fact there was sufficient evidence to ground a plea of estoppel. As he failed to do so the defendant ought to have appealed against the failure.

Learned Senior Advocate also submitted, relying on Fatoyinho v. Williams (1956) 1 FSC. 87; (1956) SCNLR 274, that where the issue to be determined on appeal is the inference or legal conclusion to be drawn from proved or admitted facts, the Court of Appeal is in a good position as the trial court. This no doubt is a correct statement of the law. The position again is that an aggrieved party who is not satisfied with the conclusion or inference drawn by the trial Court has to appeal before he can urge the Court of Appeal to draw the correct inference or legal conclusion. He cannot as a respondent in an appeal by his opponent urge the Appeal Court to correct an error or a misdirection by the trial court.

The power of the Court of Appeal by virtue of Order 3, Rule 23 of the Court of Appeal Rules 1981 to give any judgment or make any order that ought to have been made in favour of a respondent who has not appealed from the decision of a trial court is a discretionary one to be exercised with great caution. It is not open to a party who was the respondent in the Court of Appeal to complain in this court against the non-exercise of the discretion by the Court of Appeal. If he could complain, the need for him to cross-appeal if he is dissatisfied with a portion of the judgment of the trial court by filing a notice of appeal, and the essence of the imperative provision of Order 3, Rule 14(2) that he must give notice if he desires to contend that the decision of the trial co un be affirmed on grounds other than those relied upon by that court would become meaningless.

Was the Court of Appeal right in holding that, even granted that the defendants filed a notice pursuant to Order 3, Rule 14(2), the defendants had not made out a case of estoppel since they did not plead the incidents of customary arbitration under Ihiala customary law According to learned counsel for the defendants/appellants, on the state of the pleadings the incidents of customary arbitration under Ihiala native law and custom was not an issue and that it was not the case of the plaintiffs that under Ihiala customary law native arbitration cannot ground a plea of estoppel. Going by the submission of learned Senior Advocate, the Court of Appeal was wrong to venture outside the pleadings and speculate on matters neither pleaded nor proved in evidence.

It seems to me that learned Senior Advocate viewed from a wrong perspective the import of the observation of the Court of Appeal on the necessity to plead the incidents of customary arbitration of Ihiala. The defendants having claimed that the Oluoha and his cabinet “arbitrated over the matter and found in favour of the defendants” the onus to establish that the decision created an estoppel rested on them. The argument of learned counsel would have been impregnable if every decision of a customary arbitration would automatically create an estoppel whether or not the party submitted to it and whether or not they agreed to be bound by it.

In the case of Raphael Agu v. Christian Ikewibe (1991) 3 NWLR (Part 180) 385 at page 407, Karibi-Whyte, JSC., in his leading judgment defined customary arbitration as an arbitration in dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either the chiefs or elders of their community, and the agreement to be hound by such decision or freedom to resile where unfavourable.” Further on the same page he had this to say:

“It is well accepted that one of the many African customary modes of settling disputes is to refer the dispute to the family head or an elder or elders of the community for a compromise solution based upon the subsequent acceptance by both parties of the suggested award, which becomes binding only after such signification of its acceptance, and from which either party is free to resile at any stage of the proceedings up to that point… ..” (Italics mine for emphasis).

The above observation is in essence the opinion of T.O. Elias in his Nature of African Customary Law (1956) page 212. Karibi-Whyte, JSC, made this plain at page 414 in the case under reference.

In this case there is no scintilla of evidence that the parties indicated their willingness to be bound by the decision of the customary arbitrators and that they accepted the decision after it had been pronounced. For a party to be deprived of his right to seek redress in the regular court where he can appeal, if dissatisfied, up to the Supreme Court, and for customary arbitrators to be vested with jurisdiction of having the final say in the subject-matter placed before them, the opposing party relying on the decision of the customary arbitrators as an estoppel must adduce sufficient evidence showing that the decision has the essential elements to raise an estoppel.

It is a common feature of customary arbitration in a closely knit community that some of the arbitrators if not all, not only have prior knowledge of the facts of the dispute, but also have their prejudices and varying interests in the matter, and are therefore sometimes judges in their own cause and are likely to pre-judge the issue. Prior knowledge and pre-judging issues are more pronounced in land disputes having bearing with the founding of the village and how families migrated to the village and come to occupy parcels of land. The arbitrators are well informed on these matters. The position however is that traditional history is sometimes transmitted received or construed with a slant by the person using it for a purpose. Hence it is essential before applying the decision of a customary arbitration as an estoppel for the court to ensure that parties had voluntarily submitted to the arbitration, consciously indicated their willingness to be bound by the decision arm had immediately after the pronouncement of the decision unequivocally accepted the award. It seems to me that what the Court of Appeal regarded as “incidents of customary arbitration under Ihiala customary law” not pleaded are the requirements which I have stated above that would successfully establish estoppel.

In the case of Agu v. Ikewibe (supra), in his dissenting judgment Nnaemeka-Agu, JSC, firmly held at page 418 that “before a party to a case in the High Court, which has unlimited jurisdiction under the Constitution 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 must be pleaded and established, namely:

i. that there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons:

ii. that it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding;

iii. that the said arbitration was in accordance with the custom of the parties or of their trade or business; and

iv. that the arbitrators reached a decision and published their award.”

I will like to add a fifth ingredient, and that is, that the decision or award was accepted at the time it was made.

I have already referred to the opinion of Karibi-Whyte, JSC. in his leading judgment in the case on the issue which is not quite dissimilar to the views of Nnaemeka-Agu, J.S.C., although they arrived at different conclusions, Indeed, Nnaemeka-Agu, JSC. at page 417 said that he had enjoyed the analysis of decided cases on arbitration under customary law which had been made by his learned brother, Karibi-Whyte, JSC” in his judgment and that he entirely agreed with him in that part of his judgment. Admittedly, Karibi-Whyte, J.S.C. did not say that the ingredients should be pleaded. He was however of the view in that case that there was evidence that the ingredients had been satisfied.

While it may be sufficient to simply plead the fact of a previous judgment by a regular court as the basis of an estoppel, merely pleading such a decision in respect of a customary arbitration without pleading the ingredients that project it as creating an estoppel, will not be proper pleading because not every decision of a customary arbitration, unlike that of a regular court, can create an estoppel. On the other hand, where it is clearly averred by a party that there was a previous customary arbitration which was in his favour and that he will be relying on it as creating estoppel, 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.

In the instant case the defendants merely pleaded in paragraph 11A that the Oluoha and his cabinet arbitrated over the matter and found in favour of the defendants without pleading the ingredients or incidents of a customary arbitration or that they would be relying on the arbitration as creating estoppel. In a sense therefore the Court of Appeal was in order in holding that it was not enough to state that the parties went to arbitration and that a decision was given and that it was important that the incidents of the relevant custom of the area in respect of customary arbitration be fully pleaded and given in evidence. I do not think however that these ingredients or incidents vary from one community to another. Three of them which are permanent features of and are regarded as sine qua non to a valid estoppel of customary arbitration are: (1) the fact of submissions: (ii) the agreement to be bound and (iii) the acceptance of the decision at the time of pronouncement or publication.

In sum therefore the appeal fails. It is dismissed on the ground that:

1. The traditional history pleaded by the plaintiffs and adduced in evidence having remained unchallenged the trial Judge ought to have granted the declaration sought and damages for trespass claimed .
2. The judgment of the trial Judge was not based on the alleged decision given in favour of the defendants by customary arbitration, but on the erroneous ground that the plaintiffs failed to adduce satisfactory evidence in support of their claim. Since the defendants did not cross-appeal against the failure of the trial Judge to find in their favour on the basis of the decision of the customary arbitration or file a respondent’s notice, the Court of Appeal was right in not affirming the decision of the trial Judge on the ground that the decision of the customary arbitration was in their favour.
3. The defendants failed to establish that the decision of the customary arbitration made in their favour constituted an estoppel against the plaintiffs since the defendants had not shown on the pleadings and/or by evidence that they agreed to be bound by the decision and that they accepted the award.

The costs of this appeal are assessed at N1,000.00 in favour of the plaintiffs/respondents.M. L. UWAIS, J.S.C.: I have had the privilege of reading in draft the judgment read by my learned brother Akpata, J.S.C. I entirely agree with the judgment.

There is no doubt that the learned trial Judge was in error when he rejected the traditional history adduced by the plaintiffs (now respondents) because both the evidence called by them and their averments in the pleadings with regard to the traditional history were consistent and dovetailed. The plaintiffs averments were not traversed by the defendants now appellants) who averred in their Statement of defence that they could neither admit nor deny the traditional history. The defendants’ evidence on their own additional history was not consistent with their pleadings because the facts pleaded by them were incomplete. As a result the defendants’ evidence which challenged the plaintiffs’ traditional history was in fact inadmissible since no issue was accordingly joined in the parties pleadings. As it were the plaintiffs’ evidence on their traditional history was unchallenged and the learned trial Judge should have accepted it.

The result of the customary arbitration relied upon by the defendants could not have constituted estoppel against the plaintiffs because estoppel was not pleaded and there was no proof that the arbitration was accepted by the plaintiffs as binding on them.

It is for these and the fuller reasons contained in the judgment of my learned brother Akpata, J.S.C, that I too will dismiss the appeal with N1,000.00 to the respondents.A. G. KARIBI-WHYTE, J.S.C.: This appeal raises two issues of importance and frequent occurrence in our Courts. These are (1) the problems of deciding when evidence of traditional history, are in conflict and what the Judge confronted with such a situation should do in the circumstance. (2) The value to the parries in litigation of an earlier customary arbitration between them in respect of the subject matter of the litigation.

I have read the judgment of my learned brother Akpata JSC. I entirely agree with the decision and the costs awarded. I only wish to comment on the two issues I have referred to.

These two issues arise from the formulation of the issues for determination in both Appellants and Respondents briefs of argument. I shall begin with the question of determining conflicting traditional evidence which is issue 3 in both formulations.

The traditional evidence relating to Plaintiffs’ claim to the land in dispute was pleaded in paragraphs4-14 of the statement of claim. The averments in these paragraphs trace the root of title to the land in dispute to Dioha, the Plaintiffs’ ancestor. The land in dispute was part of the land inherited from Dioha by Adobihi, who was one of the many children of Dioha.

Otogbolu, the only son of Obidimalu, was the grandson of Adobihi. Otogbolu inherited the land of Obidimalu. Otogbolu’s land was inherited by his three sons, who were Achubie, Egwuim and Nwokeji. On the death of Achubie, Egwuim and Nwokeji, their land was inherited by the Plaintiffs.

It was averred in paragraphs 11-13 that Achubie had one issue, Ohazulume, Egwuim had Akabeze, Ohamobi and Ughelumba, and Nwokeji had Okafor, who are the Plaintiffs before the Court.

The Defendants on their part, pleaded at paragraph 4 of the statement of defence as follows –

“4. The Defendants are not in a position to deny or admit paragraphs 4-14, inclusive of the statement of claim and will put the Plaintiffs to strict proof of the allegations contained therein. In further reply thereto the Defendants maintain that in the distant past the piece of land in dispute was part of the land of Uli people which the people of Ihiala acquired by conquest. Since then the land has been in the ownership and possession of the defendants’ ancestors from whom the Defendants’ inherited the land.”

Apart from the averment that “in the distant past the piece of land in dispute was part of the land (of) Uli people which the people of !hiala acquired by conquest” there was no other averment of the root of title through which Defendants relied. However in paragraph 6, the Defendants claim to have exercised acts of recent possession by granting the piece of land east of part of the land in dispute to the Roman Catholic mission who have now built a school on it. They claim in paragraph 7 that they farm and have their juju shrine on the land in dispute. Defendants granted the Ministry of Works to build a concrete hut on the land in dispute. Defendants averred that they own and occupy with their tenants the lands north and north west of the land in dispute.

Although, not pleaded, DW3 in his testimony in Court stated that the Defendants derived their title from Duru, their great ancestor. The court below rightly observed that if this evidence is discountenanced as it should be, then the averments of the defendants on the pleading concerning their root of title would remain unsupported. Defendants, it could be seen, did not join issue with the averments in paragraphs 4-14 of the statement of claim, but that in the distant past the piece of land in dispute was part of the land of Uli people which the people of lhiala acquired by conquest.” This is clearly different from the evidence that they were claiming through Duru, the original owner of the land. The relationship of Ihiala people and Duru or how Duru came to own the land Ihiala people acquired by conquest, has not been pleaded. This evidence is indeed not admissible Total Nigeria Ltd. v. Nwako (1978) 5 S.C.1. All the evidence go to no issue. – See Emegokwue v. Okadigbo (1973) 4 S.C. 113 at p.117. Defendants’ having not established their own root of title have not joined issues with plaintiffs. In effect the pleading in paragraph 4 of the statement of defence concedes the correctness of the plaintiffs claim of their root of title. – see Lewis & Petl (N.R.I.) Ltd. v. A.E. Akhimien (1976) 1 All NLR. 460 at p.465. It is pertinent to observe that there was no averment in the statement of defence which denied specifically and unequivocally the averments in paragraphs 4-14 of the statement of claim. In the instant case therefore we have the Plaintiffs’ traditional evidence of their root of title which was pleaded and supported by oral testimony. It remained uncontroverted. As against this Defendants did not have any admissible evidence before the Court as to their root of title. See Woluchem v. Kalio (1985) 1 NWLR (Pt.4) 610. This is therefore not a case of conflicting traditional evidence in respect of the claim to the land in dispute. In the instant case, the defendants did nut join issues with the averments in paragraphs 4-14 of the statement of claim. Those averments remain unanswered, and are admitted. Accordingly the traditional history of the Plaintiffs that the land in dispute was originally the property of Dioha remains uncontroverted

It is well settled that evidence of traditional history is one of the accepted methods of establishing title to land – See Alade v. Awo (1975) 4 SC. 215. Idundun v. Okumagbu (1976) 1 NMLR 200. Where there are two competing traditional histories with respect to the title to land in dispute, and the two are equally credible, our courts have relied on acts of recent possession within living memory on the part of the parties as a test of which of the stories is more probable – See Kojo II v/ Bonsie (1957) 1 WLR 1223, Agedeguda v. Ajenifuja (1963) 1 All NLR 109; (1963) 1 SCNLR 205. The application of this test is predicated on the exisKojo II v Bpmsoetence of competing credible traditional history with respect to the land. It is only then that the rule in (supra) applies. In such a case where the only evidence on the imaginary scale is that of the Plaintiff, the Court is bound to accept his claim. The evidence of recent acts of possession by the defendant, cannot in this circumstance be related to the title to the land in respect of which no evidence of traditional history has been led. As was enunciated in Ekpo v. Ita 11 NLR 68, evidence of positive and numerous acts of possession is only relevant in the absence of traditional evidence. In the instant case there was no basis for considering the evidence of recent acts of possession by the defendants which evidence was inadmissible. I now turn to the second issue of the value of an earlier customary law arbitration between the parties in respect of the subject matter of the litigation. I accept the treatment of the issue of the arbitration relied upon. This Court has in Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385, defined customary arbitration. The essential ingredients of customary arbitration were spell out in that case and other cases. It is now accepted that where parties to a customary arbitration have voluntarily submitted to the arbitration, and signified intention to be bound by the award, and accepted the award thereafter it had been pronounced, they will be bound by such arbitration.

However, a party relying on the award of a customary arbitration is required to plead the fact of submission, agreement to be bound and acceptance of the award at the time of pronouncement or publication. In the instant case the ingredients of a binding arbitration were not pleaded. There was therefore, no evidence that the parties indicated their willingness to be bound and that they accepted the decision after it had been pronounced. Accordingly the question of the customary arbitration barring plaintiffs from asserting their ownership of the land in dispute, can only operate as a relevant fact. In such a ease it can only be conclusive proof of the facts which it decided if the defendants had no opportunity of pleading it as estoppel.

The contention that the Court of Appeal was in error that the piece of evidence on the customary arbitration was admitted may have some force. But this is short lived. Since the traditional history of the ownership of the land in dispute is uncontradicted, and the contention that the evidence ought to have been accepted by the learned Judge was rightly accepted by the Court below, the opinion of the customary arbitration cannot in the situation avail the defendants.

For the above reasons, and the much fuller reasons in the judgment of my learned brother Akpata JSC which I adopt. I also will, and hereby dismiss the appeal.

S. M. A. BELGORE, J.S.C.: I had the privilege of reading in advance the judgment of my learned brother, Akpata, J.S.C. with which I am in full agreement. Parties are bound by their pleadings. The defendants could not prove the averment in their pleadings based on a purported conquest. Rather they gave evidence of a new set of facts not pleaded as fully explained in the judgment of my learned brother. As matters not pleaded will go to no issue the evidence of defendants on their ancestry and their deviation from facts pleaded to give evidence on unpleaded facts had no bearing, no relevance, on their case in court. (Igbodim v. Obianike (1976) 9 and 10 SC, 179 – 190; Emcgwokue vs. Okadigbo (1973) 4 SC. 113, 117.

As for the alleged arbitration there is hardly any proof. Arbitration, to be valid, involves submission to it by both parties and agreement with its award. These simple ingredients were not even pleaded; neither was there evidence of submission to the traditional peace-making effort which the defendants attempted to upgrade to arbitration. As it is on the record this effort called arbitration could not form basis for estoppel. As found in the judgment of Akpata J.S.C. I have no reason to disturb the decision of the Court of Appeal and for the fuller reasons in the lead judgment which I adopt as mine I dismiss this appeal with N1, 000.00 costs to respondents.

---

SC.109/1989