Uzor Idika & Ors. V. Ndukwe Erisi & Ors. (1988)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C. 

This appeal is against the order of retrial made by the Court of Appeal after hearing and allowing the appeal to it from the judgment of the High Court of Justice of Anambra State holden at Afikpo (Uche, J.) in suit HAF/2/78.

The claim before the High Court was for:

“(1) Declaration of title to all the piece or parcel of land known as and commonly called ‘Ogboi’ situate at Libolo Ekoli Edda in Afikpo Local Government Area within jurisdiction and more clearly shown in Plan to be produced at the hearing of the claim:

(2) N800.00 (Eight hundred Naira) damage for trespass committed by the defendants on the said land;

(3) Perpetual injunction restraining the defendants their agents or privies from entering or in any manner interfering with the land without the authority of the plaintiffs.”

The Plaintiffs sought and obtained the order of the court to sue in a representative capacity. Thereafter, the parties on the order of the court filed their pleadings and plans. At this stage, there were 10 Defendants. On the application of the Defendants, Efa Udo and Olugbu Nnachi, were joined as 11th and 12th Defendants representing themselves and members of Ibe Uma. Ibe Ekworo. Ihe Echawo. Ibe Enogu and Ibe Nwaeham matrilineal families of Eda. In other words. they constituted the second set of Defendants. The parties filed and exchanged pleadings and plans. The issues joined were settled by the court under Order 32 Rule 2 of the High Court Rules. It is necessary to reproduce these in full as set out in the record of proceedings page 39.

“Issues under Order 32 Rule 2 of the High Court Rules were settled by the court as follows:-

1. The Plaintiffs are suing in a representative capacity is admitted. Plaintiffs to give formal evidence of this;
2. Plan No. P.O./247/78 of the Plaintiffs and plan No. SE/MA.225/7S of the Defendants each showing the same land in dispute. “Ogboi” Land and its natural features and boundaries to be tendered in evidence;
3. Since both plans admit that the Plaintiffs have land south of the land in dispute separated from the land in dispute by Inyere Ogboi stream and the Defendants have land north of the land in dispute separated from the land in dispute by a foot path from Ogwuma and Okponta to…………..is the boundary between the Ogboi land of the Defendants the footpath from Ogwuma and Okponta to Erie down to where that foot path meets Inyere Ogboi stream as the plaintiffs assert or is Inyere Ogboi stream the boundary between the Plaintiffs and the Defendants as the Defendants assert
4. Is it Ogbo Uko or the Plaintiffs or Nna Kama Ukpai of the Defendants who founded the land in dispute and how has it descended on either side up to the present day
5. What acts of ownership and possession have either the Plaintiffs and their predecessors or the Defendants and their predecessors exercised over the land in dispute
6. When the Ekoli community on two occasions in 1973 and 1975 looked into the matter of dispute over Ogboi land between the Plaintiffs and the Defendants what was their decision on each occasion.
7. Can the decision of Ekoli community council on each of those occasions be regarded as attempt to reach a negotiated settlement or a decision operating as estoppel per rem judicatam
8. Since both parties have pleaded the decision of the chiefs and elders of Ekoli Edda in favour of their own side what was that decision
9. Are the chiefs and elders of Ekoli Edda a native customary body by tradition empowered to adjudicate upon land matters
10. If so, can’t their decision, if properly established, operate as res judicata
11. What do the Plaintiffs claim

Five witnesses testified at the instance of the Plaintiffs and 4 witnesses testified for the Defendants. The learned trial judge, after hearing the evidence and the addresses of counsel adjourned for judgment. He later delivered a considered judgment dismissing the claim in its entirety with N400.00 costs to the Respondents. The learned trial judge observed inter alia that:

“The evidence of Chief Ama Oti Oji (p.w.2) as to inspection of F the land in dispute prejudiced the Defendants’ case. The court cannot accept the decision of the chiefs and elders of Ekoli as one which properly concluded the matter in favour of the Plaintiffs.

According to him during the inspection of the land, it was the ancient foot path shown on both plans as the northern boundary of the land in dispute himself and other elders inspected. There was no going round the boundaries and noting the natural features and acts of possession like farming activities by either party…………… It is interesting to note that the dispute then was land dispute and not merely boundary dispute. This sort of inspection beats my imagination…………The court is inclined to believe the evidence of D.W.1 (Ndem Ukpai) that there was no inspection of the land in dispute by the chiefs and elders of Ekoli.”

The learned trial Judge then lashed out at P.W.2 when he said:

“In the witness box, Chief Ama Oti Oji (P.W.2) impressed me as one of those chiefs in the community, who, when there is land dispute between two villages or families easily sell their position and lean heavily on one side. He told the court that they first inspected the land in dispute before hearing the parties.”

He then commented:

“By so doing, the benefit of inspection which is to reconcile natural features; other things found on the land and the boundaries as given in evidence is lost. This court usually does not hesitate to apply the decision of elders in land matters as res judicata provided it is properly proved to have satisfied not only the principles of natural justice but also that justice did not only appear to have been done but was in actual fact done. This cannot be said of the decision of the chiefs and elders of Ekoli in the dispute between Libolo and Oguma over harvest of oil palm fruits in Ogboi. I therefore decline to hold that the decision operates as res judicata. The settlement of the dispute by Mr. Eme Udo Oji and his councilors is not satisfactorily established since Mr. Eme Udo was not called as a witness to tell the court what this decision was and what sparked off the dispute.”

Continuing his attack on the arbitration, the learned trial Judge said:

“All it means is that the Plaintiffs are not telling the court the truth about this land in dispute. The Court is of the impression that the Plaintiffs got over their difficulties of establishing title to the land in dispute by obtaining the decisions of the councilors and that of the chiefs and elders of Ekoli to enable them embellish their claim in this Court. The Court has rejected these decisions as operating as res judicata. The Plaintiffs are thrown back to square one to establish their claim.”

The learned trial Judge then went on to hold as follows:

“I hold that the Plaintiffs have not discharged the onus on them to prove that title should be declared in their favour.”

Dissatisfied with the judgment, the Plaintiffs appealed to the Court of Appeal. Five grounds of appeal were argued in the brief filed by the Appellants and in oral argument before the Court of Appeal. The Respondents also filed a reply brief and their counsel was heard in oral argument. In a reserved judgment, the Court of Appeal allowed the appeal, set aside the decision of the High Court and remitted the case to the High Court for trial de novo. In the judgment of Phil-Ebosie, J.C.A. concurred in by Olatawura and Ogundere, JJ .C.A., the learned justice said inter alia:

“In this case, it is not a question of any of the parties rejecting the decision of the arbitration but of the real nature of the decision which the arbitration found. The lower court, he said, ought to have made a finding from the evidence before it in whose favour the decision was made. I think there is merit in the argument. It is my opinion that it was an error for the Judge to say that the arbitration was not satisfactorily proved……………..It is my view that the observation of the Judge set out above was wrong and ground one seems to succeed.

The question now is whether this Court can determine from the evidence the nature of the decision of the arbitration. From the evidence, it is difficult, in my opinion, to make a finding on the point. The evidence is conflicting and it is for the lower court to resolve the conflict.”

Dissatisfied, the Defendants have brought this appeal to this Court. Three grounds of appeal were filed along with the notice of appeal. Without the particulars, the three grounds of appeal read:

“1. The Court of Appeal erred in law in not dismissing the Plaintiffs/Respondents’ appeal when the Plaintiffs’ case was dismissed by the trial Court on other grounds and not only on the grounds or question of the decision of the arbitrators pleaded and given in evidence by the parties.

2. The Court of Appeal erred in law in sending the case back for retrial by the lower Court, in spite of the fact that the trial Court rejected the evidence of the of the Plaintiffs’/Respondents’ as regards the decision of the arbitration and held that the evidence in respect thereof by the Plaintiffs/Respondents, was unsatisfactory.
3. The Court of Appeal erred in law and in fact in remitting the case back for retrial when it could not by itself make any finding on the question of what the decision of the arbitration was.
4. The judgment of the Court of Appeal is against the weight of evidence.

Three questions were formulated by the Defendants/Appellants for determination in this appeal. These questions are:

(1) was the Court of Appeal in error or not when it remitted the case back for retrial, firstly on the ground that it could not by itself make any finding on the question of what the decision of the arbitration was and secondly for the High Court ‘to make a finding as to the terms of the arbitration, when what was the terms of arbitration, was not the issue and was never in issue before the trial court

(2) was the Court of Appeal in error or not when it sent the case back for retrial instead of dismissing the appeal in spite of the fact that the High Court (trial court) disposed of all the issues before it and among other things rejected the evidence of the Plaintiffs/Respondents as regards the decision of the arbitration and held that the evidence in respect thereof by the Plaintiffs/Respondents was unsatisfactory

(3) was the question or issue as to the arbitration the only ground for dismissing the Respondents’ claim by the High Court or were there other grounds or reasons for doing so having regard to the totality of the evidence before it”

Dealing with the third issue first, learned counsel for the Appellants submitted that It was on the totality of the evidence adduced before it that the trial court held that the Plaintiffs failed to prove their case. He cited the ease of Nasr v. Barini Bank Ltd. SC.313/68 of 25/10/68 to support his argument that the Defendants are entitled, in law, to rely on the evidence called by the Plaintiffs which support Defendants’ case. He contended that some of the evidence adduced at the instance of the Plaintiff supported the defence. He complained of serious contradictions in the evidence of Plaintiffs’ witnesses and submitted that this was fatal to the Plaintiffs’ case. He finally submitted that the issue of arbitration or its decision was considered along with the other evidence by the trial court. It is to be observed that the learned trial Judge attacked the procedure adopted by the arbitrators because he found that their decision was in favour of the Plaintiffs/Respondents.

On the 2nd question for determination, learned counsel for the Appellants submitted that the trial court having rejected the evidence of the Plaintiffs/Respondents as regards the decision of the arbitration was right in dismissing the claim. The parties disagreed on what the decision of the arbitration was and each party claimed that the arbitrators found in their favour. Learned counsel observed that the learned trial Judge commented on the failure of Mr. Ene Oji to testify as follows:

“The settlement of the dispute by Mr. Eme Udo Oji and his councillors is not satisfactorily established since Mr. Erne Oji was not called as a witness to tell the Court what the decision was and what sparked off the dispute.”

I think this observation is very material as the decision of the arbitration would have enabled the Court to resolve the dispute effectively if it had been ascertained accepted and applied. Learned counsel for the Appellants went on to submit that it was the duty of the Plaintiffs to establish it by acceptable evidence and cited in support:

Kodilinye v. Odu (1935) 3 W.A.C.A. 336 at 337

Nwokafo, & Ors. v. Udegbe (1963) 1 All N.L.R. 104

Ajagbe v. Akani (1973) 1 N.M.L.R. 437 at 441 & 442

Chief Olaiye & Ors. v. Alli Balogun (1965) 2 All N.L.R. 204

He submitted that they should have called the chairman of the arbitration panel Erne Udo Oji. He then referred to:

Ekwueme v. Mohammed Zakari (1972) 2 E.C.S.L.R. 631.

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

It is settled law that where there are divergent evidence of customary law arbitration, the court should make specific finding of fact on whether there was properly constituted arbitration since the arbitration would be binding on the parties. The decision arrived at is of particular importance in enabling the court to arrive at a just decision.

On the 1st issue, learned counsel submitted that since the Court of Appeal could not itself ascertain the decision of the arbitration, it should not have ordered a retrial. With the greatest respect to the learned counsel for the Appellants, I think that it is this very compelling reason that supports the order of retrial.

The Court of Appeal should not tread on areas for which a trial Judge is better suited. The learned trial Judge failed to discharge his duty of ascertaining what the arbitration decision which both parties relied heavily on was. It was his duty to make a finding. See;

Omoregbe v. Edo (1971) 1 NLR. 282, 289; Odutola v. Aileru & Ors. (1985) 1 NWLR. (Part) 92 at 96

The learned counsel for the Respondents. Mr. A. O. Mogboh, S.A.N. was not called on to elaborate on his brief by the Court as we saw no need. The submissions in the Respondents’ brief are all before us. In the Respondents’ brief, the issues for determination in this appeal were given a different formulation.

Five issues were set out as follows:

(a) where the parties to a case agreed in their pleadings and evidence that their case went to arbitration and have not complained about the procedure adopted for the arbitration and accepted the (decision of the arbitration) validity of the said arbitration, is a court entitled to disregard what the parties had agreed in their pleadings and question the validity of the arbitration

(b) where the parties to a case who agree that their dispute had been duly submitted to arbitration disagree on the outcome of the submission and give conflicting evidence of what the decision of the arbitrators was, is the Court not obliged to make a specific finding on it

(c) whether the learned trial Judge was right to have dismissed the Respondents’ case when there was abundant evidence by the Appellants that the Respondents are members of the matrilineal land owning group which occupy, possess and own the land in dispute.

(d) whether the trial Court was entitled to formulate new issues for the parties different from the one pleaded by the parties and on which evidence is given and proceed to make findings on the new issues as postulated by the Court.

(e) whether the trial court was right in not properly evaluating the evidence and in not giving consideration to each item on the issues as settled by him and giving his decision on each such item.

These issues are more relevant to the judgment of the Court of Appeal under consideration.

It appears to me that the issue of the decision the arbitration arrived at is paramount among the questions for determination in this appeal. This is more so as both parties claimed that the decision was in their favour.

As rightly contended by the learned counsel to the Respondents in their brief, there was no issue raised as to the competence of the arbitrators or as to the validity of the arbitration. Neither the Defendants/Appellants nor the Plaintiffs/Respondents challenged or rejected the arbitration’s decision. Since each party claimed that the decision was in their favour, the question of rejecting the decision did not arise even though it is hard to imagine how the decision can be in favour of the two contesting parties claiming opposing interests in the land. But that is what was pleaded by the two parties although each denied that the decision was in favour of the other party.

The crucial question is therefore the terms of the decision. The attitude of the learned trial Judge did not allow him to see the light into this problem and ascertain the truth. What was the state of the pleadings on this issue I have to turn to paragraphs 19 to 27 of the statement of claim and paragraphs 13 and 14 of the statement of defence. Paragraphs 19 to 27 of the statement of claim read:

“19. The Ogwuma community (the defendants’ village) recently in 1973 being envious of all the benefits accruing to the Plaintiffs from the Ogboi (Ogboyi) land now in dispute, namely the increase in the price of palm oil in Nigeria and the amount of money which the Plaintiffs got as a result of the palm fruits harvested from the palm groves on the land in dispute, the palm kernel from the palm fruits, the timber growing on the land and so on, broke and entered the land in dispute and harvested the palm fruits without the consent nor the permission of the Plaintiffs;

20. The Plaintiffs reported the matter to the police at Afikpo after seizing the palm fruits from the Defendants;
21. The then Chairman of Ekoli community council, Mr. E. U. Oji heard of the dispute and intervened and begged the police to allow him and his councilors to arbitrate into the land dispute between the Plaintiffs and the Defendants. The Afikpo police allowed him to arbitrate into the dispute and as such the case was withdrawn from the police.
22. The Plaintiffs and the Ogwuma people (the Defendants village) submitted to the arbitration of the Ekoli community councilors. The Plaintiffs were represented by the 1st Plaintiff (Ndukwe Erisi) while the Ogwuma Community was represented by Uzor Idika (the 1st Defendant);
23. Each side stated their case and called witnesses. The councilors after hearing from both sides went into consultation and finally decided in favour of the Plaintiffs, The councilors documented their decision and the following councilors signed the document: I. I. Chima, E.E. Irem, K.E. Okporie, Ibom Uka and A. A. Kama. The Plaintiffs plead the decision and will at the hearing call some councilors to back up their claim;
24. That because of this ‘decision’ the Ogwuma community including the Defendants, did not again trespass into Ogboi (Ogboyi) land in 1974 and 1975 because they openly accepted the decision.
25. That surprisingly, the Defendants who are from Ogwuma community broke and entered the land in dispute and harvested palm fruits from the palm grove on the land in dispute, without the consent or permission of the Plaintiffs. The Plaintiffs reported the matter to the police at Owutu Edda.
26. The then chairman of Afikpo Divisional Council Mr. E.U. Oji again intervened and both the Plaintiffs and the Defendants agreed that the chairman and some of his councilors should go into the dispute. The chairman, Mr. E.U. Oji and the councilors heard from both sides and after finding out that it was the same Ogboi land which the whole Ogwuma community in 1973 disputed with the Plaintiffs warned the Defendants to refrain from trespassing on the land;
27. The Defendants later summoned the Plaintiffs before the whole of Ekoli chiefs and elders over the same Ogboi land in dispute. The chiefs and elders went into the dispute and after hearing from the Defendants and the Plaintiffs, went into consultation and finally decided in favour of the Plaintiffs. The Defendants were ordered by the chiefs and elders to return the palm fruits they harvested from Ogboi land but they failed to do so, hence this action was taken against them.”

Paragraphs 13 and 14 of the statement of defence read:

“13. Paragraphs 19, 20, 21, 22 and 23 of the statement of claim are not true. The Defendants put the Plaintiffs to the strictest proof of them.

14. The Defendants deny paragraphs 24, 25, 26 and 27 of the statement of claim. In a further reply thereto, the Defendants state that when they leased their Ogboi palm grove to Abel Ikwor Ele in 1975 for one year, the Plaintiffs accused him of crossing the boundary. As a result both councilors and elders of Ekoli community intervened in the matter. Both parties submitted to the arbitration and stated their case. After deliberating on the matter they found in favour of the Defendants and fined the Plaintiffs N20.00 which they paid. Later, the Plaintiffs trespassed upon the land and the Defendants sued them in suit No. MAF/44/76 still pending in the Chief Magistrates Court, Afikpo.”

Learned counsel for the Respondents submitted that having taken pains to settle the issues joined on the pleadings pursuant to Order 32 Rule 2 of the High Court Rules and set out as one of the issues “since both parties have pleaded the decision of the chiefs and elders of Ekoli Edda in favour of their own side what was that decision”

the learned trial Judge failed to ascertain and make a finding of what the decision was hut instead proceeded to attack the competence of the arbitrators and the procedure they adopted. That issue of competence or irregular procedure never arose from the proceedings. Learned counsel then contended that there was abundant evidence and I agree with him from which the findings as to what the decision was could have been made.

The Court of Appeal was therefore right in confining its decision to that very narrow compass of absence of that relevant finding of what the decision was. This is more so as both parties rehed heavily on the decision of the arbitrators. As the duty of making findings of fact is pre-eminently the function of a trial Judge, the Court of Appeal was justified in not embarking on the task but instead made an order of retrial by the High Court. Whether the decision will operate as estoppel per rem judicatam or issue estoppel can only be decided when the terms of the decision is known and ascertained. If it qualifies to operate as res judicata both parties will be entitled to that plea. Similarly, if it qualifies as issue estoppel each party will be entitled to the plea. Larbi v. Kwesi (1950) 13 W.A.C.A. 81; Mogo Chikwendu v. Mbamali & Anor. (1980) 3-4 SC. 31 at 48. Any decision based on issues not raised by the parties will not be allowed to stand, Adeniji and Adeniji (1972) SC. 10 at 17. The learned trial Judge having questioned the capacity and the competence of the arbitrators their procedure went outside the issues before him and his mind was affected by such considerations and occasioned a miscarriage of justice. It is not open to the Court to introduce new issues which do not arise from the pleadings. Yakassai v. Incar Motors Ltd. (1975) 5 SC.107.

Since there are contradictory claims of what the decision is a finding properly arrived at by the learned trial Judge of what the decision made is, will lead to a just decision in this matter.

Where there is a failure by the trial court to make findings of a fact on crucial issues raised in the pleadings, the proper order a Court of Appeal should make is one of retrial.

There was enough evidence which would have enabled the trial Court to make findings on issue numbers 6 and 8 of the issues settled by him but he failed to discharge his duty to do so.

I therefore find no merit in this appeal and I hereby dismiss it and affirm the decision of the Court of Appeal.

The Respondents are entitled to costs in this appeal assessed at N500.00.

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

The only point was infact whether the learned trial Judge made a finding on “the central issue of who was successful in the Arbitration to which both parties agree the dispute was taken. Each party claims to have been successful.

In formulating the issues for determination in this appeal, learned counsel, Chief Mogboh, S.A.N. set down issue (b) in his brief of argument as, “Where the parties to a case who agree that their dispute had been duly. submitted to arbitration disagree on the outcome of the submission and give conflicting evidence of what the decision of the arbitrators was, is the Court not obliged to make a specific finding on it”

It became necessary that the issue who succeeded in the arbitration be resolved because it was at the core of the issues the parties, pursuant to order XXXII, Rule 2 of the High Court Rules, agreed arose for determination in the High Court. Issues 6, 7 and 8 are very relevant. There were as follows:-

“6. When the Ekoli Community Council on two occasions looked into the matter of dispute over OGBOI Land between the Plaintiffs and the Defendants, what was their decision on each occasion

7. Can the decision of Ekoli Community Council on each of those occasions be regarded as attempt to reach a negotiated settlement or a decision operating as estoppel per rem judicatam
8. Since both parties have pleaded the decision of the Chiefs and Elders of Ekoli Edda in favour of their own side what was that decision”

From these three issues the importance of knowing in whose favour the arbitrators decided becomes clear. As my learned brother has pointed out, it would certainly assist the Court in deciding whether any estoppel – issue or per rem judicatam – arises here.

The learned trial Judge made no finding on this crucial issue. It seems to me too that it is not the function of the Court of Appeal to undertake to make such a finding as such an inquiry will involve the taking of evidence. I cannot therefore see the basis of the Appellant’s contest of the Court of Appeal’s decision that there ought to be a retrial in the High Court. The principles on which a retrial can properly be made have been settled by this Court and I think this case is well within the principles. See Williams vs Williams (1987) 2 N.W.L.R. pt 54 66; Awore vs Owodunni (No.2) (1987) 2 N.W.L.R. pt,57 367; Omoregie v Idugiemwanye (1985) 2 N.W.L.R. pt.541.

For these reasons and for the fuller reasons in the lead judgment, I too dismiss this appeal. I endorse the order for costs made by my learned brother. Obaseki, J.S.C.

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SC.95/1987