UZIM & ANOR v. INSHIOGU
(2021)LCN/15862(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Thursday, May 20, 2021
CA/E/389/2018
Before Our Lordships:
Ahmad Olarewaju Belgore Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Between
1. MR. NWANGA UZIM 2. REV. EMMANUEL ALEYE (FOR THEMSELVES AND ON BEHALF OF UMUOROKE’S FAMILY OF OKALERU COMMUNITY, EZZA NORTH L.G.A) APPELANT(S)
And
MR NWOKPORO INSHIOGU (FOR HIMSELF AND ON BEHALF OF INSHIOGU FAMILY) RESPONDENT(S)
RATIO
WHETHER OR NOT ISSUES FOR DETERMINATION MUST BE DERIVED FROM THE GROUNDS OF APPEAL
Issues for determination derive their existence from the grounds of appeal. Any formulated issue for determination which is untraceable to any ground of appeal is lifeless and incompetent and shall be appropriately discountenanced. See OGBUANYINYA & ORS VS OKUDO & ORS (1990) LPELR-2294(SC), GIWA VS AJAYI & ORS (1992) LPELR-14922(CA), ODUSOTE VS ODUSOTE (2011) LPELR-9056(CA) and ARIOLE VS NWACHUKWU & ORS (2014) LPELR-24374(CA). PER OYEWOLE, J.C.A.
WHETHER OR NOT A PLEA OF ESTOPPEL PER REM JUDICATAM MUST BE SPECIFICALLY PLEADED
For a party to rely on a special defence of estoppel per rem judicatam, it must have been specifically pleaded, otherwise, he cannot raise it at trial. This is covered by Order 15, Rule 7 of the Ebonyi State High Court Civil Procedure Rules, 2008, and well stated in numerous judicial pronouncements. See OWONYIN VS OMOTOSHO (1961) LPELR-25055(SC), GBEMISOLA VS BOLARINWA & ANOR (2014) LPELR-22463(SC), ARO VS ARO & ANOR (2000) LPELR-6782(CA) and ABISI VS EKWEALOR & ANOR (1993) LPELR-44(SC). The position of the law was well captured by OGUNDARE, JSC thus:
“The law is that any party relying on estoppel must specifically plead it – See Odadhe v. Okujeni (1973) II SC. 343, 353 where Ibekwe, J.S.C (as he then was) delivering the judgment of this Court observed:
“It is relevant to observe that the plaintiff did not plead estoppel. It was, therefore, not open to him to raise it, either in the Court below or before us. Moreover, this point was never taken before the learned trial Judge. This Court has said over and over again that, where the plaintiff did not set up estoppel in the Court below as part of his case, it would, in our opinion, be wrong for this Court to allow such an issue to be raised as one of the issues in the case for the first time in this Court.” See ABISI VS EKWEALOR & ANOR (supra) at 49-50. PER OYEWOLE, J.C.A.
THE LEGAL PRINCIPLE OF ESTOPPEL PER REM JUDICATAM
The legal principle of estoppel per rem judicatam was outlined by COKER, JSC as follows:
“Estoppel per rem judicatam is a rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a competent Court between him and his opponent. If the evidence of the res was admissible and properly admitted it becomes judicata irrespective of the time the proceedings involving it were initiated. In Morrison Rose and Partners v. Hillman [1961] 2 Q.B. 266, a similar argument was addressed to the Court of Appeal and was rejected. In the course of his judgment Holroyd Pearce, L.J. observed at p.277 as follows:-
“I can find no ground for creating an artificial exception from the general rule of estoppel per rem judicatam by distinguishing res judicata that follow the issue of a writ from those which precede it. The principles which make the latter desirable have no less application to the former, and should be applied to both alike.” See ODUKA & ORS V. A. KASUMU & ANOR (1967) LPELR-25504(SC)at 15.
OKORO, JSC followed the same line of reasoning thus:
“Stating the meaning of estoppel per rem judicata His Lordship, Uwais, JSC (as he then was) in Adigun & Ors v Governor of Osun State & Ors (1995) 3 NWLR (pt 385) 513 (1995) LPELR 178 (SC) at pages 24-25 paragraphs C – A said as follows:-
“I think it is relevant to quote here the statement of the principle of estoppel, per rem judicatam as contained in the book – res judicata by Spencer – Bower and Turner, 2nd Edition, Chapter 1 paragraph 9:- The Rule of estoppels by res judicata, which, like that of estoppels by representation, is a rule of evidence, may thus be stated; where a final judicial decision has been pronounced by either an English or (with certain exceptions) a foreign, judicial Tribunal of competent jurisdiction over the parties to, and the subject matter of the litigation, any party or privy to such litigation, as against any other party or privy thereto, and, in the case of a decision in rem, any person whatsoever as against any other person, is estopped in any subsequent litigation from disputing or questioning such decision on the merits, whether it be used as the foundation of an action, or relied upon as a bar to any claim, indictment or complaint, or to any affirmative defence, case, or allegation, if; but not less the party interest raises the point of estoppel at the proper time and in the proper manner.” In other words, Estoppel per rem judicata is a rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a competent Court between him and his opponent. See Hameed A. Toriola & Anor v Mrs. Olusola Williams (1982) 7 SC page 27 (1982) LPELR-3258 (SC), Morinatu Oduka & Ors v Kasumu & Anor (1968) NWLR 281. See EZIKE & ANOR VS. EGBUABA (2019) LPELR-46526(SC) at 15-16. PER OYEWOLE, J.C.A.
WHETHER OR NOT CUSTOMARY ARBITRATION CAN CREATE ESTOPPEL BETWEEN PARTIES
For a customary arbitration to create estoppel between parties they must not only have voluntarily submitted to it but they must equally have accepted the verdict as binding on them. See RAPHAEL AGU VS. CHRISTIAN IKEWIBE (1991) 3 NWLR (PT 180) 385 at 407 where KARIBI-WHYTE, JSC stated thus:
“What then is a customary arbitration? I venture to regard customary law 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 bound by such decision or freedom to resile where unfavourable.”
The position of the law in this regard was further expounded by AKPATA, JSC, as follows:
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 and had immediately after the pronouncement of the decision, unequivocally accepted the award. See OHIAERI & ANOR VS. AKABEZE & ORS (1992) LPELR-2360(SC). See also EKE & ORS VS. OKWARANYIA & ORS (2001) LPELR-1074 (SC). PER OYEWOLE, J.C.A.
THE PRIMARY DUTY OF THE TRIAL JUDGE
The position of the law is that, evaluation of evidence and ascription of evidential value thereto is the exclusive preserve of the trial Judge who had the opportunity of seeing, hearing and observing the demeanors of the witnesses. An appellate Court will only interfere with the findings if the evaluation were perverse or where there was no evaluation at all. See ATOLAGBE VS SHORUN (1985) LPELR-592(SC), OYEWOLE VS AKANDE & ANOR (2009) LPELR-2879(SC), OJOKOLOBO VS ALAMU (1998) 9 NWLR (PT 565) 226 and MILITARY GOV OF LAGOS STATE & ORS VS ADEYIGA & ORS (2012) LPELR-7836(SC).
It is also no longer in contention that to establish title to land, a Plaintiff has to prove his case through just one of the five methods set out as follows; by traditional evidence, by production of documents of title, by acts of ownership over sufficient length of time, numerous and positive enough to warrant the inference that the person is the owner, by proof of ownership of connected or adjacent land would be the true owner of the land and by acts of long possession and enjoyment of the land. See IDUNDUN & ORS VS OKUMAGBA (1976) LPELR-1431(SC). PER OYEWOLE, J.C.A.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Ebonyi State, Onueke Judicial Division, holden at Onueke, delivered on the 19th February, 2018 by NJOKU, J.
The parties who were members of neighbouring communities in Ezza North Local Government Area of Ebonyi State had a dispute which culminated in the Appellants taking out a writ of summons against the Respondent’s family at the trial Court wherein they sought the following reliefs:
a. A declaration that by virtue of joint inheritance, long possession and occupation from time immemorial, the plaintiffs are entitled to the customary Right of Occupancy deemed granted and interest therein in respect of all that piece or parcel of land known as “Ochuwu Ijeogu” the subject-matter of this suit lying, being and situate at Onu Nworie Okaleru bounded by Eze Ngwuta Nzogbu land, Onya Uloka’s land, Nwonu Aye’s land, Ede Oruna’s land, Nome Nwite’s land, Nwite Egwu’s land and Utobo Aguta’s land all in Okaleru community in Ezza North L.G.A. of Ebonyi State.
b. A declaration that the land with its appurtenances, the subject matter of this suit (now in dispute) which from time immemorial has been in the exclusive possession and ownership of Umuoroke family with the boundary neighbours described above remains the land of the Umuoroke family.
c. An order of perpetual injunction restraining the defendant whether by himself, agents, servants and/or privies from entering upon (as it were working or doing any act, whatsoever and howsoever; and/or interfering or interrupting the possession of the Umuoroke family with respect to the land whatsoever pending the final determination of this suit.
d. The sum of Two Million Naira (2,000,000.00) only as damages for trespass or attempt thereof.
On being served, the Respondent as Defendant entered appearance through counsel and joined issues with the Appellants through his pleadings. He further counter-claimed against the Appellants and sought the following reliefs:
a. A declaration that by virtue of joint inheritance, the defendant been the descendant, great-grand child or family of the original owner of land Mr. Aleke Chukwuegbe and who the award of the customary arbitrators were in favour of and who took rightful possession thereof are entitled to the customary right of occupancy deemed granted and interest therein in respect of all that piece or parcel of land known as “Ochuwu Nshiogu” the subject matter of this suit lying, being and situate at Onunworie Okaleru bounded by Eze Ngwuta land, Onya Uloka’s land, Nwonu Aye’s land, Ede Oruna’s land, Nome Nwite’s land, Nwite Egwu’s land and Utobo Aguta’s land all in Okaleru community in Ezza North L.G.A. of Ebonyi State. (sic)
b. A declaration that the land with its appurtenances, subject-matter of this suit (now in dispute) which from time immemorial has been in exclusive possession and ownership of Nshiogu Chukwu-Egbe’s family with the boundary neighbours described above remains the land of Nshiogu family.
c. An order of perpetual injunction restraining the plaintiffs whether by themselves, agents, servants and/or privies from entering upon (as it were) working or doing any act, whatsoever and howsoever; and/or interrupting the possession of the Nshiogu family with respect to the land whatsoever.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”> </br<>
d. The sum of three million (3,000,000.00) been special damages for the destroyed crops as viz;
i. Cassava plantation of 48 hips worth N500,000
ii. Yam plantation of 76 hips worth N500,000 (sic)
e. The sum of one million Naira (N1,000,000.00) as damages for trespass and the cost of litigation.
At trial, both sides called witnesses in support of their pleadings at the end of which the learned trial Judge took the final addresses of counsel for the two sides. In a considered judgment delivered as aforesaid on the 19th February, 2018 the trial Court dismissed the claims for declaration of title on both sides but awarded possession of the said land to the Respondent based on an earlier customary arbitration.
Dissatisfied, the Appellants invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 15th March, 2018 containing 5 grounds.
At the hearing of the appeal, Mr. Nwonyi adopted the Appellants’ brief filed on the 4th July, 2018 as well as the reply brief filed on the 28th November, 2018 but deemed properly filed and served on the 13th January, 2021 as the arguments of the Appellants in this appeal. Although, the Respondent was put on notice of the hearing date for the appeal, his learned counsel was absent upon which the Respondent’s brief filed on the 5th November, 2018 but equally deemed properly filed and served on the 13th January, 2021 was deemed adopted.
Both sides failed to relate their issues for determination with the grounds of appeal. The issues formulated by the Appellants are as follows:
1. Whether from the circumstances and facts of this suit vis-à-vis the evidence before it, the lower Court properly evaluated the evidence led before it at trial.
2. Whether the trial Court sitting at Onueke Judicial Division Ebonyi State was right when it relied on the purported inconclusive customary arbitration that was not based on the custom and tradition of the parties as an estoppel res judicatam.
3. Whether it is proper in law for the lower Court to rely on undated photocopied document that was not tendered before it and gave judgment against the Appellants.
4. Whether the unchallenged, uncontroverted and uncontradictory affidavit evidence need further proof.
The two issues of the Respondent were formulated thus:
1. Whether the customary arbitration award relied upon by the trial Court is not valid and conclusive as to create estoppel rem judicata, in the face of the written and signed resolution of the arbitral panel.
2. Whether the said resolution is not properly placed before the trial Court.
Apart from failing to relate his issues to the grounds of appeal, the Respondent also left out a number of the grounds of appeal from the issues put forward. While a Respondent may choose not to join arguments on issues of the Appellant at his own risk, it is however beyond him to leave out grounds of appeal in his formulated issues. When no issue for determination is formulated from a ground of appeal, such a ground of appeal is deemed abandoned. It therefore goes without saying that the Appellant is the only party to an appeal who may abandon his grounds of appeal. It also follows that where a Respondent is cross-appealing and has filed a cross-appeal, he may also abandon grounds of his cross-appeal. Where however, a Respondent in a bid to formulate different issues for determination from those of the Appellant leaves out certain grounds from which the Appellants had formulated issues and fails to canvass arguments on those issues of the Appellants, he will be shortchanging himself as the arguments of the Appellants on such issues would be before the Court unchallenged and he would be deemed to have been conceded. See AKANBI & ANOR VS ALATEDE (NIG.) LTD & ANOR (1999) LPELR-8108 (CA), NWANKWO VS YAR’ADUA (2010) 12 NWLR (PT 1209) 518 at 586, ELEPHANT GROUP PLC VS. NATIONAL SECURITY ADVISER & ANOR (2018) LPELR-45528(CA) and FULANI M VS THE STATE (2018) LPELR-45195(SC).
An examination of the four issues put forward by the Appellants discloses that issues 3 and 4 have no bearing with any of the grounds of appeal. This is not acceptable. Issues for determination derive their existence from the grounds of appeal. Any formulated issue for determination which is untraceable to any ground of appeal is lifeless and incompetent and shall be appropriately discountenanced. See OGBUANYINYA & ORS VS OKUDO & ORS (1990) LPELR-2294(SC), GIWA VS AJAYI & ORS (1992) LPELR-14922(CA), ODUSOTE VS ODUSOTE (2011) LPELR-9056(CA) and ARIOLE VS NWACHUKWU & ORS (2014) LPELR-24374(CA). The Appellants’ issues 3 and 4 are therefore incompetent and are accordingly struck out alongside the arguments canvassed thereon.
The remaining valid issues in this appeal are issues 1 and 2 of the Appellants which I hereby adopt. At the risk of repetition, the said issues are set out as follows:
1. Whether from the circumstances and facts of this suit vis-a-vis the evidence before it, the lower Court properly evaluated the evidence led before it at trial.
2. Whether the trial Court sitting at Onueke Judicial Division Ebonyi State was right when it relied on the purported inconclusive customary arbitration that was not based on the custom and tradition of the parties as an estoppel res judicatam.
I shall start with the second issue in view of its jurisdictional implications.
Mr. Nwonyi submitted that the learned trial Judge erroneously relied on the customary arbitration which did not satisfy the extant legal conditions that could make it binding. He outlined these legal conditions and referred to portions of the adduced evidence at trial showing the inconclusiveness of the said arbitration. He referred to OKEREKE VS NWANKWO (2003) 9 NWLR (PT 8 826) 592 and EGESIMBA VS ONUZURUIKE (2002) 9-10 SC 1 at 48.
Learned counsel contended that apart from the position that an inconclusive customary arbitration cannot constitute estoppel, the party relying on it must plead it and properly tender it at trial which according to him, was not done by the Respondent. He referred to AGBOGUNLERI VS DEPO (2008) ALL FWLR (PT 408) SC at 257 and ANN OKWUCHUKWU MENAKAYA VS DR TIMOTHY MENAKAYA (1996) 9 NWLR (PT 472) Ratio 4.
The contrary argument of the Respondent in his brief settled by Mr. Samuel Onyema Igboke was that both parties submitted to the customary arbitration and that the rejection of the outcome by the Appellants was not sufficient to render the decision not binding on them. He referred to the testimony of DW1 and submitted that the Appellants were bound by the decision of the customary arbitrators. Learned counsel referred to the conditions to be met for customary arbitrations to be binding and referred to NZOMAH VS UGOCHI (2002) FWLR (PT 135) 694 at 702, IGWEGO VS EZEUGO (1992) 6 NWLR (PT 249) 561, ANYABUNSI VS UGWUNZE (1995) 6 NWLR (PT 401) 255, EGESIMBA VS ONUZURUIKE (supra) and NNADI & ANOR VS ODIKA & ORS (2017) LPELR-43448(CA).
It was further submitted for the Respondent that the Appellants having submitted themselves to the customary arbitration and having given evidence before the arbitral panel, cannot thereafter resile from the decision. Learned counsel submitted that the decision in this instance was clear, final and conclusive and constituted estoppel rem judicatam. He referred to OPARAJI VS OHANU (1999) 9 NWLR (PT 618) 290.
It was also submitted that the resolution of the said arbitral panel was properly placed before the Court as exhibit in the notice of preliminary objection and was properly appraised by the learned trial Judge in the final judgment as constituting res judicata in this case even if the said document was not tendered as exhibit at trial especially as witnesses had given evidence in respect thereof. Learned counsel referred to AGUBUCHIE VS ONWUDINJO & ORS (2017)-42720 (CA) and CHIEF KWEKU ASSAMPONG VS KWEKU AMUAKU MUSAH OKYIR & ANOR (1932) 1 WACA 192.
In his reply brief, Mr. Nwonyi reiterated for the Appellants that the adduced evidence at trial showed that the customary arbitration was inconclusive and was therefore unenforceable.
In the course of the vexed judgment, the learned trial Judge stated on pages 252-253 of the record of appeal as follows:
“On issue four, the Court duly considered the resolution of the customary arbitrators which was raised as in the Defendant’s preliminary objection as estoppel res judicata, and having considered that, the customary arbitrators had earlier awarded the land in dispute to the Defendant as the rightful owner of the said land and that the said award is not in this Court as a subject of appeal (sic). I had no hesitation in holding that the decision of the said customary arbitrators could serve in the absence of any appeal thereto as an estoppel res judicatim. (sic). This Court therefore resolved the said issue four in favour of the Defendant relying on the award of the customary arbitrators in that regard.”
For a party to rely on a special defence of estoppel per rem judicatam, it must have been specifically pleaded, otherwise, he cannot raise it at trial. This is covered by Order 15, Rule 7 of the Ebonyi State High Court Civil Procedure Rules, 2008, and well stated in numerous judicial pronouncements. See OWONYIN VS OMOTOSHO (1961) LPELR-25055(SC), GBEMISOLA VS BOLARINWA & ANOR (2014) LPELR-22463(SC), ARO VS ARO & ANOR (2000) LPELR-6782(CA) and ABISI VS EKWEALOR & ANOR (1993) LPELR-44(SC). The position of the law was well captured by OGUNDARE, JSC thus:
“The law is that any party relying on estoppel must specifically plead it – See Odadhe v. Okujeni (1973) II SC. 343, 353 where Ibekwe, J.S.C (as he then was) delivering the judgment of this Court observed:
“It is relevant to observe that the plaintiff did not plead estoppel. It was, therefore, not open to him to raise it, either in the Court below or before us. Moreover, this point was never taken before the learned trial Judge. This Court has said over and over again that, where the plaintiff did not set up estoppel in the Court below as part of his case, it would, in our opinion, be wrong for this Court to allow such an issue to be raised as one of the issues in the case for the first time in this Court.” See ABISI VS EKWEALOR & ANOR (supra) at 49-50.
An examination of the Statement of Defence of the Respondent fails to disclose any challenge to the jurisdiction of the Court on grounds of estoppel per res judicatam or on any other ground. The Respondent pleaded his defence to the claim of the Appellants and counter-claimed for the land in dispute. The challenge to the jurisdiction of the Court emanated from the Notice of Preliminary Objection filed on the 9th May, 2017 wherein, the Respondent sought the following reliefs:
1. An order striking out Suit No: HNK/9/2016 on the ground that the Court lacks jurisdiction to entertain same as the arbitration panel award creates an estoppel res judicatam.
2. And for such further order or orders as the Court may deem fit to make in the circumstance.
The resolution said to constitute the customary arbitration which was the basis for the move to summarily terminate the litigation on the grounds of estoppel per rem judicatam, was exhibited to the said Notice of Preliminary objection. This same document was pleaded but not tendered at trial. Not only that, the parties had joined issues on the proceedings and outcome of the said customary arbitration including an allegation that the signature of PW2 on the said document was forged. The Respondent failed to tender this document or confront the said PW2 with it under cross-examination in the witness box.
Adversarial civil litigation commenced via writ of summons is fought on the basis of the pleadings of parties. The learned trial Judge allowed an application that had no foundation in the pleadings and evaluated documents contained in an affidavit to the said application in resolving issues joined in the pleadings in the main trial. The strange procedure allowed oil to be badly mixed with water. The adulterated and contaminated product of such an exercise is incapable of attaining the purity expected from a well conducted adjudicatory process and cannot be expected to stand. PW2 maintained under oath that the arbitration was inconclusive while DW1 stated to the contrary. Both were the traditional rulers who jointly presided over the traditional arbitration in contention. With respect to the notice of preliminary objection, the parties maintained their divergent positions in their respective affidavits. Conflicts in affidavits of such fundamental nature ought to be resolved through oral evidence. See AKINSETE VS AKINDUTIRE (1966) LPELR-25416(SC), FALOBI VS FALOBI (1976) LPELR-1236(SC) and EZE VS UNIJOS (2017) LPELR-42345(SC).
The strange thing here is that, the learned trial Judge employed a document introduced through affidavit evidence to resolve issues contested by pleadings without the document passing through the furnace of cross-examination despite the abundant opportunities available. This is most improper and shortchanges the justice of the case.
The legal principle of estoppel per rem judicatam was outlined by COKER, JSC as follows:
“Estoppel per rem judicatam is a rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a competent Court between him and his opponent. If the evidence of the res was admissible and properly admitted it becomes judicata irrespective of the time the proceedings involving it were initiated. In Morrison Rose and Partners v. Hillman [1961] 2 Q.B. 266, a similar argument was addressed to the Court of Appeal and was rejected. In the course of his judgment Holroyd Pearce, L.J. observed at p.277 as follows:-
“I can find no ground for creating an artificial exception from the general rule of estoppel per rem judicatam by distinguishing res judicata that follow the issue of a writ from those which precede it. The principles which make the latter desirable have no less application to the former, and should be applied to both alike.” See ODUKA & ORS V. A. KASUMU & ANOR (1967) LPELR-25504(SC)at 15.
OKORO, JSC followed the same line of reasoning thus:
“Stating the meaning of estoppel per rem judicata His Lordship, Uwais, JSC (as he then was) in Adigun & Ors v Governor of Osun State & Ors (1995) 3 NWLR (pt 385) 513 (1995) LPELR 178 (SC) at pages 24-25 paragraphs C – A said as follows:-
“I think it is relevant to quote here the statement of the principle of estoppel, per rem judicatam as contained in the book – res judicata by Spencer – Bower and Turner, 2nd Edition, Chapter 1 paragraph 9:- The Rule of estoppels by res judicata, which, like that of estoppels by representation, is a rule of evidence, may thus be stated; where a final judicial decision has been pronounced by either an English or (with certain exceptions) a foreign, judicial Tribunal of competent jurisdiction over the parties to, and the subject matter of the litigation, any party or privy to such litigation, as against any other party or privy thereto, and, in the case of a decision in rem, any person whatsoever as against any other person, is estopped in any subsequent litigation from disputing or questioning such decision on the merits, whether it be used as the foundation of an action, or relied upon as a bar to any claim, indictment or complaint, or to any affirmative defence, case, or allegation, if; but not less the party interest raises the point of estoppel at the proper time and in the proper manner.” In other words, Estoppel per rem judicata is a rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a competent Court between him and his opponent. See Hameed A. Toriola & Anor v Mrs. Olusola Williams (1982) 7 SC page 27 (1982) LPELR-3258 (SC), Morinatu Oduka & Ors v Kasumu & Anor (1968) NWLR 281. See EZIKE & ANOR VS. EGBUABA (2019) LPELR-46526(SC) at 15-16.
It was therefore incumbent on the Respondent to plead and subsequently tender the decision said to constitute estoppel per res judicatam between the parties during the trial. Pursuant to Order 17, Rule 1 of the High Court Rules of Ebonyi State (supra) the statement of defence shall be supported by copies of documentary evidence, list of witnesses and their written statements on oath. On page 42 of the record of appeal is the memorandum of appearance of the Respondent as Defendant at trial. The said document was filed on the 27th September, 2016. On the same date, the Respondent filed a counter-affidavit to the Appellants’ motion for interlocutory injunction and attached as exhibit to the said counter-affidavit was the document titled “RESOLUTION ON A LAND DISPUTE BETWEEN ALEKE NSHIOGU’S FAMILY AND NWOKPOKU OROKE UNA’S FAMILY BY THEIR ROYAL HIGHNESSES EZE C.I. EWA (JP) AND H.R.H EZE BASIL NWAFOR (JP) IN-COUNCIL”. This same document formed the basis of the later preliminary objection upon which the learned trial Judge acted to award the land in dispute to the Respondent. Strangely, this document was never listed as a document to be relied on at the trial by the Respondent as evident on page 66 of the record of appeal. The said document was equally never tendered at trial despite the contestations with respect to its authenticity and as regards the proceedings and conclusions of the customary arbitration it purports to speak to.
For a customary arbitration to create estoppel between parties they must not only have voluntarily submitted to it but they must equally have accepted the verdict as binding on them. See RAPHAEL AGU VS. CHRISTIAN IKEWIBE (1991) 3 NWLR (PT 180) 385 at 407 where KARIBI-WHYTE, JSC stated thus:
“What then is a customary arbitration? I venture to regard customary law 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 bound by such decision or freedom to resile where unfavourable.”
The position of the law in this regard was further expounded by AKPATA, JSC, as follows:
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 and had immediately after the pronouncement of the decision, unequivocally accepted the award. See OHIAERI & ANOR VS. AKABEZE & ORS (1992) LPELR-2360(SC). See also EKE & ORS VS. OKWARANYIA & ORS (2001) LPELR-1074 (SC).
The parties contested the conclusiveness of the customary arbitration and even contested the authenticity of the resolution thereof even without the said resolution being tendered in evidence. The two arbitrators were physically in Court with each of them testifying for the opposite side thereby clearly evidencing their partisanship. DW2, the major proponent of the said customary arbitration stuttered and faltered under cross-examination when taken up on the extant Ezza peoples’ custom with regards to the right party to be administered oath in land dispute. The learned trial Judge erroneously permitted a copy of the said resolution to get into the arena through a back channel and committed a faux pax in evaluating the said document as if it was part of the evidence adduced at trial. To make matters worse, the said document was canonized and its contested pronouncement cleansed of all infirmities.
I am in total agreement with the learned counsel for the Appellants that the learned trial Judge was in error in relying on the said customary arbitration and I therefore resolve this issue in favour of the Appellants and against the Respondent.
The remaining issue is:
Whether from the circumstances and facts of this suit vis-a-vis the evidence before it, the lower Court properly evaluated the evidence led before it at trial.
On this issue, it was submitted for the Appellants that the evaluation exercise of the trial Court did not take cognizance of the testimonies of PW1 and PW3 especially PW1 a neutral witness whose testimony was not discredited. Learned counsel for the Appellant pointed out that the said PW1 testified that the Catholic Church which occupies part of the land in dispute was given its location by the Appellants and that the said church had been there unchallenged since 1954.
Learned counsel submitted that where traditional evidence failed, the Court would revert to evidence of ownership and exclusive possession in awarding title. He referred to BALOGUN VS AKANJI (1988) 1 NWLR (PT 70) 301 at 323 and ELEGUSHI VS OSENI (2005) 14 NWLR (PT 945) 348 at 366.
He submitted that this was an appropriate case for this appellate Court to embark on a fresh evaluation and referred to BASSIL & ANOR VS FAJEBE & ANOR (2001) 6 NSCQR 269.
The Respondent failed to canvass an argument on this issue and would be ordinarily deemed to have conceded it. The reason for this becomes apparent on examining the judgment of the trial Court. Having found that the traditional history propounded by each of the combatants could not be sustained, the learned trial Judge did not consider whether the Appellants had favourable acts of ownership and possession but solely considered the case of the Respondent on the basis of the so called customary arbitration and found in his favour. The award to the Respondent on this basis has earlier in this judgment been found untenable.
The position of the law is that, evaluation of evidence and ascription of evidential value thereto is the exclusive preserve of the trial Judge who had the opportunity of seeing, hearing and observing the demeanors of the witnesses. An appellate Court will only interfere with the findings if the evaluation were perverse or where there was no evaluation at all. See ATOLAGBE VS SHORUN (1985) LPELR-592(SC), OYEWOLE VS AKANDE & ANOR (2009) LPELR-2879(SC), OJOKOLOBO VS ALAMU (1998) 9 NWLR (PT 565) 226 and MILITARY GOV OF LAGOS STATE & ORS VS ADEYIGA & ORS (2012) LPELR-7836(SC).
It is also no longer in contention that to establish title to land, a Plaintiff has to prove his case through just one of the five methods set out as follows; by traditional evidence, by production of documents of title, by acts of ownership over sufficient length of time, numerous and positive enough to warrant the inference that the person is the owner, by proof of ownership of connected or adjacent land would be the true owner of the land and by acts of long possession and enjoyment of the land. See IDUNDUN & ORS VS OKUMAGBA (1976) LPELR-1431(SC).
As earlier stated, the learned trial Judge found the evidence of traditional history adduced by both sides inconclusive which thereby necessitates a resort to evidence of acts of ownership extending over sufficient length of time numerous and positive enough to warrant the inference of exclusive owner of the land. See BALOGUN & ORS VS AKANJI & ANOR (1988) LPELR-720 (SC), ODOFIN VS AYOOLA (1984) 11 SC 72 and FALEYE & ORS VS DADA & ORS (2016) LPELR-40297(SC).
In addition to the averments on traditional history, both sides averred that they farmed on the land in dispute and both sides equally confirmed that a Catholic church occupied a portion of the said land. Interestingly, while the Appellant pleaded that they gave out the land occupied by the said church building, the Respondent on his part pleaded that the said Church pays tribute to their family. The Appellants called 3 witnesses at trial while the Respondent called 4. Of the entire seven witnesses, only PW1 came from the said St. Francis Catholic Church and testified as the then Vice Chairman of the said Church. His testimony was that the said Church had existed on the land in dispute since 1954 and that the Church pays tributes to the Appellants. He testified further that the Appellants farmed on the land in dispute and maintained his testimony under cross-examination. This piece of evidence in addition to the testimony of PW3, the 2nd Appellant did not attract the judicial attention of the learned trial Judge in the course of evaluation.
An appellate Court will ordinarily shy away from interfering with the evaluation exercise carried out by the trial Court but it must not shirk its responsibility to do so where the evaluation done leaves out credible evidence and has resulted in miscarriage of justice as in the present instance. See IRIRI & ORS VS. ERHURHOBARA & ANOR (1991) LPELR-1536(SC).
Civil cases are decided on preponderance of evidence with the adduced evidence placed on an imaginary evidential scale which tilts in favour of the party with the more credible evidence. See A.R. MOGAJI & ORS VS MADAM RABIATU ODOFIN & ANOR (1978) 4 SC 91 at 94.
Having failed to establish the party entitled to ownership of the land in dispute through traditional evidence, the testimony of PW1 was of the quality that should have tilted the balance of the evidential scale in favour of the Appellants, had the learned trial Judge considered it instead of the wrongful consideration given to the customary arbitration.
In the circumstances therefore, I also resolve this issue in favour of the Appellants and against the Respondent.
I therefore find merit in this appeal and I hereby allow it. Consequently;
i. The judgment of the trial Court delivered on the 19th February, 2018 in Suit No. HNK/9/2016 is hereby set aside.
ii. It is hereby declared that the Appellants are entitled to the Customary Right of Occupancy deemed granted and interest therein in respect of all that piece or parcel of land known as “Ochuwu Ijeogu” the subject-matter of this suit lying, being and situate at Onu Nworie Okaleru bounded by Eze Ngwuta Nzogbu land, Onya Uloka’s land, Nwonu Aye’s land, Ede Oruna’s land, Nome Nwite’s land, Nwite Egwu’s land and Utobo Aguta’s land all in Okaleru community in Ezza North L.G.A. of Ebonyi State.
iii. It is hereby declared that the said land with its appurtenances, the subject matter of this suit with the boundary neighbours described above remains the land of the Umuoroke family.
iv. An order of perpetual injunction is hereby made restraining the Respondent whether by himself, agents, servants and/or privies from entering upon, working or doing any act, whatsoever and howsoever; and/or interfering or interrupting the possession of the Umuoroke family with respect to the said land.
Cost of this action is assessed at N100,000.00 and awarded in favour of the Appellants and against the Respondent.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had read before now, the judgment just delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I agree that the appeal is meritorious and I allow it.
ITA GEORGE MBABA, J.C.A.: I agree with the position of my learned brother, Oyewole, JCA. that this appeal is meritorious. I allow it and abide by the consequential orders in the lead judgment.
Appearances:
MR. O. F. NWONYI For Appellant(s)
…For Respondent(s)