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

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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.