Eugene Nnaekwe Egesimba v. Ezekiel Onuzuruike

In the High Court of Orlu, late Nnaekwe Egesimba and his brother instituted an action against the defendant who is the respondent in this appeal claiming three reliefs: declaration of title to land, general damages of N100.00 for trespass and perpetual injunction. The learned trial Judge gave judgment to the plaintiff. The defendant appealed. The lower court allowed the appeal. Judgment was given to the defendant who was the appellant in that court. While the appeal was pending at the lower court, Nnaekwe Egesimba died. Eugene Nnaekwe Egesimba, the present appellant, was substituted in the place of the deceased. This was by an order of the lower court made on 12th January, 1994. Dissatisfied with the judgment of the lower court, the defendant as appellant appealed to this court.
The case of the plaintiff, who is the appellant, is that he owned  the land in dispute known as and called “Ala Ihu Okpanku” situate at Obinaikpa, Umuokwaraeke, Umuobom, within the Orlu Judicial Division, through inheritance from his ancestors. He itemised acts of ownership and possession of the land exercised by his ancestors and himself which included habitation, farming, harvesting and reaping of economic crops and trees. Exhibit A, the survey plan, indicated the ruins of the buildings of the appellant and his forebears, and the graves of the appellant’s forebears.

P.24

The case of the respondent is that the land in dispute belonged to him, having inherited it from his ancestors. He claimed that his forefather made a grant of the land to the appellant’s forebear on payment of tributes and that it was on the basis of the grant that the appellant’s family lived on the land and vacated. Exhibit B is the survey plan of the respondent. As it is, both parties claimed that they inherited the land from their ancestors.
Briefs were filed and exchanged. The appellant formulated the following issues for determination:
“(1) Whether failure by the appellant to file a reply to the statement of defence amounted to an admission of a grant or relieved the respondent of his duty to prove a grant of the land. (Ground three).
(2) Whether the respondent proved a binding customary arbitration in his favour as against the appellant’s assertion that there was no customary arbitration. (Grounds one & two).
(3) Whether the appellant proved the value of the iroko tree felled and sawed by the respondent. (Ground four).”
The respondent formulated the following issues for determination:
“1. Whether in view of the state of pleadings and evidence adduced at the trial, the respondent proved a binding traditional arbitration. (Ground 1).
2. Whether the contradictions noticed in the evidence of D.W.1 and D.W.2, are sufficient to disregard their testimonies on traditional arbitration on the disputed land. (Ground 2).
3. Whether failure by the plaintiff/appellant to file a reply to the new issue, raised in the defence, that the appellant’s ancestors were granted the land in dispute by the grandfather of the defendant/respondent for residential purpose on payment of tributes, that as was the custom when the appellant’s people vacated the land in 1937, the land reverted to the respondent, did not amount to an admission? (Ground 3).

P.25

4. Whether the applicant proved the value of the Iroko tree specifically and strictly as required by law to entitle him to judgment. (Ground 4).”
   On Issue No.1, learned counsel for the appellant, Mr. J.T.U. Nnodum submitted that having regard to the state of the pleadings, it was the duty of the defendant to prove the allegation of a grant to the appellant’s father or forefather positively alleged by him. He cited Messrs Lewis and Peat (NRI) Ltd. v.Akhimien (1976) 7 SC 157.
   Attacking the decision of the court below on the non filing of a reply to the allegation of a grant as tantamount to an admission of the allegation, learned counsel examined the cases cited by the lower court and contended that they did not support the conclusion reached by the court. He referred us to Order XXXII rule 16 of the High Court Rules, Cap. 61, Laws of Eastern Nigeria, 1963, Bullen and Jacob’s Precedents of Pleadings; 12th edition, page 106, and the following cases: Akeredolu v.Akinremi (No.3) (1989) 3 NWLR (pt.108) 164 andAlhaji Alao v. African Continental Bank Ltd. (1998) 56-57 LRCN 3209 (1998) 3 NWLR (Pt. 542) 339.
   On Issue No.2, learned counsel submitted that the contradictions between the evidence of DW1 and DW2 are material and the lower court was wrong in coming to the conclusion that the contradictions are not material. He specifically highlighted the evidence in respect of the year the arbitration was held and whether the decision of the arbitration was made orally or in writing. He cited Debs v. Cenico (Nig.) Ltd. (1986) 3 NWLR (Pt.32) 846; (1986) 6 SC 179 at pages 180, 192-194.

P.26

Learned counsel also submitted that failure on the part of the defence to plead any fact or evidence to show that the parties in dispute accepted the decision of the arbitration body or undertook in advance to be bound by the decision, goes against the case of the respondent. He cited Ohiaeri v.Akabeze (1992) 1 NWLR (Pt. 221) 1 at pages 24-25 and Agu v.lkewibe (1991) 3 NWLR (Pt.180) 385 at page 407. Counsel urged the court to hold that there was no proof of any customary arbitration involving the parties over the land in dispute.
On Issue No.3, learned counsel submitted that the appellant proved the value of the iroko tree felled and sawed by the respondent. He referred to paragraph 13 of the statement of claim of the appellant and that of the respondent and submitted that contrary to the decision of the lower court, expert evidence was not necessary in the circumstances of the case. He cited Omoregbe v. Lawani (1980) 3-4 SC 108 at page 117; Debs v. Cenico (Nig.) Ltd. (1986) 6 SC 179 at pages 80, 192-194 (1986) 3 NWLR (Pt. 32) 846; West African Shipping Agency v. Affaii Kala (1978) 3 SC 21 at page 31; Imana v. Robinson (1979) 3-4 SC 1. Learned counsel urged the court to allow the appeal.
On Issue No.1, learned counsel for the respondent, Mr. Ikechukwu Okoroafor, submitted that based on the pleadings of the parties the onus of proof that the defendant/respondent was called by the Amala of Umuobom in respect of his complaint but he refused to answer to the call and that there was no decision reached by the Amala Umuobom lies on the plaintiff/appellant. Examining the evidence of PW2, DW1, and DW2 in the light of paragraph 12 of the statement of claim and paragraph 11 of the statement of defence, learned counsel argued that the burden of proof rests on the party whether plaintiff or defendant who substantially asserts the affirmation of the issue. He cited Messrs Lewis and Peat (NRI) Ltd. v. Akhimien (1976) 7 SC 157 at page 169.

P.27

It was the submission of learned counsel that the appellant failed totally to establish the fact he pleaded by his failure to call any of the elders that he reported the matter to them. Counsel recalled the evidence of PW2 and submitted that the evidence conflicted with the pleadings of the appellant. He contended that such evidence was valueless and ought to be disregarded. He cited Emegokwue v. Okadigbo (1973) 4 SC 113; George v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 at 78 (1963) 1 SCNLR 17; Overseas Construction Ltd. v. Creek Enterprises Ltd. (1985) 3 NWLR (Pt. 13) 407. To learned counsel, finding of fact or decision on issues neither raised nor canvassed in the pleadings would be perverse and would naturally occasion a grave miscarriage of justice hence the Court of Appeal did not hesitate in disregarding the piece of evidence.
Learned counsel attacked the decision of the learned trial Judge on the issue of arbitration, submitting that he was in great error in not deciding the suit based on the preponderance of evidence before him in favour of the defendant/respondent which the Court of Appeal rightly did. Justifying the right of the Court of Appeal to interfere with the findings of fact and evaluation of evidence of the trial court, counsel cited Fatoyinbo v. Williams (1956) 1 FSC 87 at page 89 (1956) SCNLR 274 and Balogun v.Akanji (1988) 1 NWLR (Pt.70) 301 at page 315. Counsel urged the court to hold that it was the plaintiff/appellant who summoned the defendant/respondent before the Amala Umuobom, a body which gave a binding decision in favour of the defendant/respondent. He cited Chief Assampong v.Amuaku (1932) 1 WACA 192 at page 196 and Nwoti v. Chidozie, FCA/E/82 decided on 30/11/87 (unreported).
On Issue No.2, learned counsel submitted that the learned trial Judge erred in law when he discredited the evidence of DW1 and DW2 with respect to the traditional evidence based solely on the inconsistence or contradiction regarding to date and mode of the arbitration.

P.28

He contended that where there are minor or insignificant inconsistencies in the evidence of a party, the court is entitled to ignore such inconsistencies. He cited Chief Odumesi v. Oyenola (1998) 8 NWLR (Pt. 563) 601 at pages 616 and 617 and Chief Whyte v. Chief Jack (1996) 2 NWLR (Pt. 431) 407 at page 447. Counsel urged the court to hold that the learned trial Judge was in error in disregarding the entire testimonies of DW1, DW2, DW3, DW4 and DW5. He urged the court to uphold the decision of the Court of Appeal that the contradictions were minor and immaterial.
On Issue No.3, learned counsel submitted that the failure of the plaintiff/respondent to file a reply to the fresh issues raised in the defendant/respondent’s statement of defence which goes to the bottom of the entire dispute as to reversionary nature of the grant of land for residential purposes to the ancestors of the plaintiff/appellant, amounted to an admission. He cited Order XXXII rule 16 of the High Court Rules Cap. 61, Laws of Eastern Nigeria, 1963 and the following cases: Iga v. Chief Amakiri (1976) 11 SC 1 at page 12; Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773 at page 774 and 777; Ejimofor v. Monier Construction Co. (Nig.) Ltd. (1978) I MSLR 100 at page 108; Alhaji Alao v. African Continental Bank Ltd. (1998) 3 NWLR (Pt. 542) 339 at page 370 and Habib Nigeria Bank Ltd. v. Koya (1992) 7 NWLR (Pt. 251) 43.
On Issue No.4, learned counsel submitted that the plaintiff/appellant did not prove his entitlement to the sum of N600.00 being general damages for the value of iroko tree cut down by the defendant/respondent in accordance with law and rules governing same. Counsel referred to paragraph 13 of the statement of claim and the evidence of the appellant and submitted that the appellant did not state how he came about the N600.00 value of the iroko tree.

P.29

He submitted that in law special damages must be specifically and strictly proved. He cited Odiba v. Azege (1991) 7 NWLR (Pt. 206) 724; Strabag Construction Nigeria Ltd. v. Ogatekpe (1991) 1 NWLR (Pt. 170) 733 and Kalu v. Mbuko (1988) 3 NWLR (Pt. 80) 86. Counsel urged the court to dismiss the appeal.
Let me take the issue of reply first. The appellant’s 15 paragraph statement of claim was filed on 22nd February, 1978. The respondent’s 15 paragraph statement of defence was filed on 10th July, 1978. It would appear from issue No.3 of the respondent that the new issue he claimed to have raised is in paragraph 7 of the statement of defence. The paragraph averred as follows:
“The defendant’s forefathers then granted the area shown on the aforementioned plan to the plaintiff’s father to live and pay tribute and whenever the defendant’s forefathers wanted they could have the land. ” The above is the new issue which the respondent claimed that a reply was needed.
A new issue to attract a reply must in law be really new in the sense of being brand and fresh. The issue must be really new to the statement of claim in that it was not existing therein and was therefore brought into existence or introduced for the first time in the statement of defence by the defendant. The new issue, both in its content and materiality, must be further and additional to the statement of claim. The mere fact that a defendant states his own side of the case does not necessarily make it new, particularly when the plaintiff has told a contrary story in his statement of claim. In such a situation, the case stated by the defendant amounts to joining issues with the plaintiff and that does not wear the name of a new issue in law. A new issue in my humble view, arises where the plaintiff did not advert to or touch the content of the defendant’s averments in anticipation, and the defendant’s averment was introduced to the pleadings for the first time and therefore unique and novel to his pleadings.

P.30

Let me pause here to examine a bit of the case law. In Obot  v. Central Bank of Nigeria (1993) 8 NWLR (Pt. 310) 140, the Supreme Court held as follows:
(i) In general, it is not necessary for a plaintiff to file a reply if his only intention in doing so is to deny any allegations that the defendant may have made in the statement of defence.
(ii) A reply to merely join issues is not permissible. If no reply is filed, all material facts alleged in the statement of defence are put in issue.
(iii) The proper function of a reply is to raise, in answer to the defence, any matter which must be specifically pleaded, which makes the defence not maintainable or which otherwise might take the defence by surprise or which raised issues of fact not arising out of the defence. Also a reply is the proper place for meeting the defence by confession and avoidance.
(iv) In order to allow a party to file a reply the trial court must be satisfied that both the statement of claim and the statement of defence filed by the parties have not, when read together, sufficiently disclosed and fixed the real issues between the parties and that further pleadings in the reply to be filed will achieve the purpose of bringing the parties to an Issue.
In his judgment, Uwais, JSC (as he then was) said at page 160:
“It is clear from the foregoing that the purpose of filing the reply is to join issue on the allegations made in the statement of defence. As pointed out above issues are deemed to have been joined in respect of allegations made in the statement of defence even where no reply is filed.”
See also Akeredolu v. Akinremi (1989) 3 NWLR (Pt. 108) 164. Where no counterclaim is filed, a reply is generally unnecessary if its sole object is to deny allegations contained in the statement of defence. See Akeredolu v. Akinremi (supra); Alhaji Ishola v. Societe Generale Bank (Nigeria) Limited (1997) 2 NWLR (Pt. 488) 405.

P.31

Learned counsel took us to the mainstream of the law of pleadings, particularly the law of traverse and the consequences of failure of the adverse party to deny averments. He cited three cases.  With respect, the cases are in apposite as they deal with the rule that an adverse party will be deemed to have admitted an averment in pleading which is not denied. The case here is not one of non denial of an averment but rather one in which the appellant, as plaintiff, clearly covered the ground walked over by the respondent, who was the defendant in the High Court. I do not seem to sound clear. Perhaps I will sound clearer if I take the “almighty” paragraph 7 of the statement of defence in the light of some of the averments in the statement of claim. The fulcrum of paragraph 7 is that of ownership of the land in dispute. The paragraph averred that the land in dispute was granted by the forefathers of the defendant to the plaintiff’s father.
This is against the averments in paragraphs 4 to 8 of the statement of claim. For ease of reference, I produce the ipsi ssima verba of the paragraphs:
“4. The land in dispute belongs absolutely to the plaintiff since very many years as an estate of inheritance.
5. The land in dispute was a part of the land inherited by Egesimba Agbarapuruonu when Agbarapuruonu’s lands were shared or portioned among his sons.
6. On the death of Egesimba the plaintiff inherited the land in dispute and have not partitioned or shared the said land.
7. Ever since this succession the plaintiff and before then their ancestors have been in exclusive possession and ownership of the land in dispute.

P.32

8. The plaintiff and their said ancestors had exercised and still exercise maximum acts of possession and the ownership over the said land by farming on the land, harvesting and reaping all manner of economic crops and trees without let and hindrance from the defendant. The ruins of the buildings of the plaintiffs and their ancestors are shown on the land in dispute. The graves of the parents and ancestors of the plaintiffs are shown on the said plan as well as Urasi and Agwujuju shrines near Ama Onyemaere. The plaintiffs and their ancestors had permitted their relations to live and farm thereon.”
   Such was their claim of allodial right of ownership to the land, as told by the plaintiffs. In the light of the above comprehensive story of ownership, it is not, with the greatest respect, well thought out to contend that since the appellant did not specifically deny paragraph 7 of the statement of defence, he must be deemed to have admitted the paragraph. That looks to me like children’s kindergarten play of hide and seek to outsmart or cleverly overrun one another. Litigation is not a game of smartness but one in which the parties must not cunningly but decently and overtly place their cards on the table of justice for purposes of measuring where the pendulum really tilts. Justice in its total practical content is truth in action. And the court has a duty to search for the truth and find it. Justice is not built on technicalities or caricatures. It is clear from the submission of learned counsel to the respondent that all he wanted the appellant to do was mainly deny and possibly admit the averment in paragraph 7 of the statement of defence. The cases I have examined above do not agree with his submission. I therefore reject it. In other words, I am of the firm view that a reply was not at all necessary in this matter, and I so hold. After all, filing of a reply to a statement of defence is not automatic as the day follows the night or vice versa.

P.33

As indicated above, learned counsel cited Order 33 rule 16 of the High Court Rules of Eastern Nigeria, 1963 to buttress his argument that a reply was necessary. The rule reads:
“The court if it considers that the statements of claim and defence filed in any suit insufficiently disclose and fix real issues between the parties may order such further pleadings to be filed as it may deem necessary for the purpose of bringing the parties to an issue.”
The rule does not specifically provide for filing of a reply. By the rule, the court is enjoined to ask for further pleadings from either of the parties or from both parties if the court is of the view that the pleadings filed insufficiently disclose and fix the real issues between the parties. By the rule, an order to file further pleadings is not automatic. Where in the view of the court, the pleadings sufficiently disclose and fix the real issues in controversy, filing of further pleadings will not be ordered. In this case, I am of the view that the pleadings sufficiently disclosed and fixed the real issues between the parties and it is the ownership of the land in dispute. The lower court was therefore wrong in coming to the conclusion that a reply was necessary. And that takes me to the big issue of arbitration under customary law. Arbitration under customary law is recognised in Nigerian jurisprudence, therefore any decision to the contrary is bad law. See Okpuruwu v. Okpokam (1988) 2 NWLR (Pt. 90) 554. In Idika v. Erisi (1988) 2 NWLR (Pt. 78) at page 573, the Supreme Court recognized and accepted arbitration under customary law. See also Njoku  v. Ekeocha (1972) 2 ECSLR 199; Mbagbu v. Agochukwu (1973) 3 ECSLR (Pt. 1) 90. The main issue for determination is whether there was arbitration by the Ndi Amala or Amala Umuobom. There are two clearly diametrically opposed versions.

P.34

The appellant stated in evidence that there was no arbitration. The respondent stated in evidence that there was arbitration which was in his favour. DW1 and DW2 gave evidence in support of the respondent. DW1 and DW2 gave contradictory evidence on the issue of arbitration. Although both witnesses said in evidence at the trial court that there was arbitration which went in favour of the respondent, they did not agree as to the year of the arbitration and whether it was oral or in writing. It is convenient at this stage to hear them.
DW1 said under cross examination at page 72 of the record:
“The Amala decision was put down in writing. I cannot remember the date the decision we took was put into writing. The decision was made about 1957.”
DW2, the person who claimed to be the chairman of the arbitration panel, in his evidence-in-chief said, at page 75:
“The Amala panel decided in favour of the defendant, Ezekiel Onuzuruike. We gave oral decision in the matter. The said decision or verdict was given in 1976.”
Under cross examination, witness said at page 78 of the record:
“I do not know about any arbitration in respect of the land in dispute in 1957 but I know of the 1976 arbitration in which I took part. Our decision was oral. We do not put Amala Umuobom decisions in writing.”
The learned trial Judge, Ugoagwu, J., held that the contradictions in the evidence of DW1 and DW2 were material. He therefore rejected their evidence. I will quote him in some material detail from page 131 of the record:
“This finding ordinarily disposes of the issue of ownership of the land in dispute. Nevertheless, the defendant made such fuss about native arbitration over the land in dispute … The two witnesses contradicted themselves as to the manner of the decision. DW1 said it was in writing while the chairman DW2 said it was oral. Again DW1 said the decision took place in 1957 while DW2 said it was in 1976.

P.35

The two contradictory pieces of evidence cancel themselves out. I reject their evidence as manifestly unreliable. Having called the DW1 and DW2 as his witnesses the defendant is bound by their discredited evidence. There is no credible evidence adduced by the defendant to support the arbitration he alleged as those he referred court to as having taken active part as member and chairman – DW1 and DW2 – respectively have been discredited. I am satisfied and find as a fact from the pleadings and evidence before me that there was no native arbitration by the elders of Amala Umuobom or Umuobom representatives of dispute over the land in dispute between plaintiff and defendant.”
The lower court did not accept the above findings of fact.
The court overturned the findings. Again, I will quote the court in some material detail at pages 243 and 244 of the record:
“Next, how did the appellant fare in this connection. DW1 and DW2 testified that they were members of the panel that mediated in the dispute. DW2 was in fact the chairman of the panel. The learned trial Judge, as I have already shown, held that their evidence was contradictory and accordingly rejected same. The contradictions are said to be twofold. Firstly DW1 said that the decision of the elders was reduced into writing. On the other hand DW2 who was the chairman of the panel said it was oral. Although there would appear to be a contradiction, it is not in my view material. This is because the real issue is whether the elders looked into the dispute and handed down a decision. Moreover it is not uncommon that decisions of native arbitration although given orally are later reduced in writing for record purposes. A closer look at the evidence of DW 1 would suggest that the decision was oral but later reduced into writing.

P.36

In his evidence-in-chief this witness testified that ‘we inspected the land and thereafter decided the matter before we decided in favour of the defendant.’ When he was cross examined this witness said: ‘The Amala decision was put down in writing. I cannot remember the date the decision we took was put into writing.’ My  understanding of this piece of evidence is that an oral decision was given which was later reduced into writing. There is therefore no contradiction between the evidence of DW 1 and the testimony of DW2 who said that they gave an oral decision after the inspection of the land.”
On the contradictions as to the year of the arbitration the lower court said at page 245:
“In the second place it was said that there was contradiction in the evidence of DW1 and DW2 with respect to the date the decision was made … Again I do not think that this is material. This is so because the respondent himself pleaded and gave evidence to the effect that the cause of action arose early in 1976 and that he reported to the elders. The correct date cannot be anything else but 1976. It could not be 1957 when no wrong had been committed. It was simply a case of a witness who did not know his dates especially having regard to the date the cause of action arose, I think the learned trial Judge was in error when he read it against the appellant. On the state of the evidence, I hold that the appellant had called credible evidence to establish the fact that the elders mediated over the dispute and found in his favour.”
The question before me is whether the lower court was right in the conclusion reached above. It is elementary law that an appellate court can only interfere with the findings of a trial court if it correctly comes to the conclusion that the findings are perverse. See Ajadi v. Okenihun (1985) 1 NWLR (Pt. 3) 484; Balogun v. Labiran (1988) 3 NWLR (Pt. 80) 66; Narumal and Sons Ltd. v. NBTC Ltd. (1989) 2 NWLR (Pt. 106) 730; Ejabulor v. Osha (1990) 5 NWLR (Pt. 148) 1.

P.37

An appellate court has not the eagle eyes of the trial court and so must walk on the line of evaluating and overturning the findings of the trial court with utmost caution. This is because the appellate court was not there. It deals with the cold records before it. On the contrary, the trial court was there and saw it all, including the demeanour, and to a restricted extent, the mannerisms and habits of witnesses in the box. Appellate courts should not play or toy with the findings of trial courts just like that. There must be valid legal reason for interference. I do not see the legal basis for interfering with the findings of the trial Judge in respect of the evidence of DW 1 and DW2 relating to the contradictions in their evidence. While DW1 gave the 1957 year, DW2 gave the 1976 year as the year the arbitration was held. Between 1957 and 1976 is quite an age. It is an age of 19 years, one year behind or below a score. To say that such an age in the adolescent bracket is not material beats me hollow, and almost hands down. The lower court held that since the appellant admitted the 1976 date in the statement of claim, the contradiction as to whether it was 1957 or 1976 is not material. That may well be so, but the contradiction must certainly shake the authenticity or veracity of the evidence of DW 1. That is one vital area that the lower court did not consider, which the trial Judge considered; and properly too. It is in that circumstance that I agree with the learned trial Judge who rejected the evidence of the two witnesses. He did so because he had no jurisdiction to repair their evidence. I am rather surprised that the lower court described the evidence of the witnesses as “credible”.

P.38

The English word “credible” means deserving to be believed, trusted or taken seriously. Does this really portray the evidence of DW1 and DW2 ? While I entirely agree with the lower court that the real issue was whether the elders looked into the dispute, the fact that contradictory evidence in respect of the real issue was given certainly destroys the claim that an arbitration was conducted at the instance of the appellant. And it is unfortunate that the lower court described the evidence of DW1 and DW2 as credible in the light of the contradictions. The other contradiction is in respect of the mode of the arbitration. Dealing with this area, the lower court, as indicated above, came to the conclusion that “decisions of native arbitration although given orally are later reduced into writing for record purposes.”
Where is that evidence in the record? Where did the lower court get that evidence? I did not see it and there is no such evidence. It is a speculation or conjecture on the part of the lower court and courts of law have no jurisdiction to speculate or conjecture. An appellate court must not introduce into a record evidence that is not there and construe the record as if it is there. That will be most unfair to the trial court because it did not see such “evidence” in the record and therefore did not have the opportunity to evaluate “it”. That will be tantamount to stabbing the trial court through the  back door. Appellate courts should not do that. The above apart, I cannot see how the conclusion of the lower court can fly over and above the very dogmatic evidence of DW2 that Amala Umuobom decisions are not put into writing. And that was the chairman speaking. And yet the lower court held that the decision was first made orally and thereafter reduced into writing. There is yet another related aspect.

P.39

While the lower court concluded in one breath that “there would appear to be a contradiction”; it held in another breath that “there is therefore no contradiction between the evidence of DW1 and the testimony of DW2”. I am at a loss of what conclusion I should take and I must not guess. Matters of such nature do not lie in an appellate court picking or choosing which version it likes. What this court should do is to reject the entire conclusion as another material contradiction. I so reject the conclusion. The lower court interpreted the evidence of DW 1 to the effect that an oral decision was given which was reduced into writing. The evidence which led to the interpretation by the lower court is as follows:
“The Amala decision was put down in writing. I cannot remember the date the decision we took was put into writing.”
With respect, I do not agree with the interpretation the lower court gave to the above sentences. There are two sentences in the evidence given by DW1. The first sentence is very clear and dogmatic. It is that the decision was in writing. The second sentence follows the first sentence and it is that he could not remember the date the decision was put into writing. There is nothing in that sentence to suggest in the remotest sense the interpretation the lower court gave to it. In other words, the second sentence does not mean that the decision was earlier made orally, and the sentence cannot be so read or construed in the light of the first clear, exact and unambiguous sentence. All that the witness did not remember was the date the decision was made in writing. The sentence has not the slightest connection or nexus with oral decision. I should pause here to say that learned counsel for the respondent did not touch the material issue of whether the arbitration was made orally or in writing. Did he forget such a material issue or is it a matter of counsel not staking his head and brain on a matter which is indefensible. I do not want to speculate. I leave that.

P.40

The lower court would appear to have found contradiction in the evidence of PW 1 and PW2 and came to the conclusion that the evidence of PW2 was at variance with the statement of claim and therefore went to no issue. The court cited Agu v. lkewibe (1991) 3 NWLR (Pt. 180) 385 and Nwaocha v. Odoemelam (1995) 1 NWLR (Pt. 369) 43. The court said:
“The evidence of the respondent (PW1) is a mere repetition of his paragraph 12 of the statement of claim. The testimony of PW2 does not support the averment in paragraph 12 of the plaintiff’s/respondent’s pleadings. This is because in the pleadings the respondent pleaded that he reported the dispute between himself and the appellant to the elders of Umuobom for adjudication. Whereas in his evidence PW2 disclosed that the respondent told him (PW2) that he reported the matter to Eugene Ezerioha. It seems to be particularly plain that this evidence is at variance with the pleadings … In other words parties are bound by their pleadings.”
What the appellant told PW2, in my view, is not that material to the live issue whether there was an arbitration or not. And what is more, the lower court would appear to have preferred hearsay evidence to direct primary evidence. I say this because what PW2 alleged that PWI told him is hearsay evidence, which cannot on the face of it have precedence over the direct evidence of the appellant. In my humble view, the lower court was wrong in believing hearsay evidence to dislodge direct evidence.
Flowing from the finding the court arrived at in respect of the evidence of PW2, the court concluded:
“The consequence of this is that there is no evidence which supports the respondent’s assertion that there was no arbitration by elders with respect to the land in dispute. That being so, it cannot be said that the respondent proved the averment in paragraph 12 of his pleadings.

P.41

In my judgment therefore, the learned trial Judge was in error to hold that the respondent proved that there was no arbitration.”
With the greatest respect, it is the lower court and not the learned trial Judge that was in error. The appellant in his evidence as PW1, said under cross examination:
“It is not true that at some time past some selected umuobom people had arbitrated dispute over this land in dispute. It is not true that in February 1976 some influential people including Ndi Eze from umuobom looked into the dispute over this land and decided in favour of the defendant. There was no such arbitration. It is not true that I lied to the court when I said the defendant did not answer my native summons (itummanya) before Amala Umuobom.”
It is clear that the lower court did not believe the above evidence of the appellant, evidence that the learned trial Judge believed. While I do not see any justification for the lower court not believing the above evidence, that court, with respect, wrongly came to the conclusion that no evidence supported the evidence of the appellant (PWI) that there was no arbitration conducted by the elders. In the first place, this is not an area of law where corroboration of evidence is necessary and so the search for supporting evidence is neither here nor there. The issue does not need a carton full of evidence.
Above all, the supporting evidence the lower court was looking for and did not find is in the record. Let me quote part of the evidence of PW2 at page S3 of the record:
“I know nothing about any native arbitration in respect of the land in dispute between the plaintiff and the defendant.”

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The above sentence is so clear. PW2 said that he knew nothing about any native arbitration in respect of the land in dispute between the appellant and the respondent. Is the above not evidence in support of the appellant’s case since the lower court needed that evidence to enable paragraph 12 of the statement of claim “talk”. I should concede the point that the sentence is capable of a hybrid interpretation and it is that the witness did not know anything about the arbitration thus giving rise to the possibility of whether the arbitration was held or not. Are the contradictions material to destroy the case of the respondent? A contradiction is material if it relates or affects the live issue or issues in the matter to the extent that, but for the contradiction, judgment should have been given in favour of the party who called the contradictory evidence. Negatively, contradiction is not material when the contradictory evidence does not affect the live  issue or issues in the matter to the extent that judgment would be given in favour of the party who called the contradictory evidence. In my humble view, the contradictions are material. I have held above that although appellant averred that the wrong was committed by the respondent in 1976, the 1957 year of DW1 destroyed the totality of his evidence. He could not be believed and that was the correct conclusion of the trial Judge. From the totality of the evidence before the learned trial Judge, I am of the firm view that he was correct when he held that there was no arbitration in respect of the land in dispute. I accept the decision of the learned trial Judge. I reject the decision of the lower court. In the most unlikely event that I am wrong, I want to deal with the requirements of a valid arbitration under customary law and see how they apply in this case, on the assumption that there was an arbitration. For the avoidance of doubt, I repeat my decision that there was no arbitration. And so I take this aspect in the alternative.

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In Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385, the Supreme Court defined 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 the elders of their community and the agreement to be bound by such decision or freedom to resile where unfavourable. The Supreme Court cited with approval the decision of Ikpeazu, J. in Njoku v. Ekeocha (1972) 2 ECSLR 199 where the learned Judge said:
“Where a body of men, be they chiefs or otherwise, act as arbitrators over a dispute between two parties, their decision should have binding effect; if it is shown firstly that both parties submitted to the arbitration. Secondly that the parties accepted the terms of the arbitration and thirdly, that they agreed to be bound by the decision. Such decision has the same authority as the judgment of a judicial body and will be binding on the parties and thus create an estoppel.”
In Okere v.Nwoke (1991) 8 NWLR (pt. 209) 317, Ogundare, JCA, (as he then was) quoted with approval the above two decisions. In Ohiaeri v. Akabueze (1992) 2 NWLR (Pt. 221) 1, the Supreme Court relied on its earlier decision in Agu v. Ikewibe (supra) and held 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 court on the ground that there has been a previous binding arbitration which raises an estoppel between them, five ingredients must be pleaded and established by the party relying on the decision. These are,
(a) that there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons; (b) 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;

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(c) that the said arbitration was in accordance with the action of the parties or their trade or business;
(d) that the arbitrators reached a decision and published their award;
(e) that the decision or award was accepted at the time it was made.
See also Awosile v. Chief Sotunbo (1992) 5 NWLR (pt. 243) 514; Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561; Onwuanumkpe v. Onwuanwnkpe (1993) 8 NWLR (Pt. 310) 186; Anyabunsi v. Ugwunze (1995) 6 NWLR (Pt. 401) 255; Ume v. Okoronkwo (1996) 10 NWLR (Pt. 477) 133; Oparaji v. Ohanu (1999) 9 NWLR (Pt. 618) 290.
I have searched in vain in the averments in the statement of defence and the totality of the record for evidence as decided in Ohiaeri v.Akabeze and the group of cases. Ohiaeri gave five ingredients of a valid customary law arbitration. Not even one of the ingredients was established by the respondent, and the burden was on him to so establish. It is almost a recitation in the judicial system that a plaintiff cannot rely on the weakness of a defendant’s case. With respect, that is talking half law; not full law. While a plaintiff will not rely on the weakness of the case of a defendant in most cases, there are instances when he can so rely. One clear instance is when, by the nature of the pleadings, the burden of proof is on the defendant. In such a situation, where the defendant has not discharged the burden of proof, the ultimate or evidential burden is not shifted on the plaintiff. The best strategy of the plaintiff is to keep quiet and submit at the end of the day that the defendant did not lead evidence to prove the averment in the statement of defence. What the above comes to in practical terms is that the respondent, who is the defendant, did not lead any evidence as to the five ingredients of valid customary law arbitration as decided in Ohiaeri v. Akabeze and the group of cases.

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Accordingly, the appellant who is the plaintiff, has no legal duty to give contrary evidence. After all, there is nothing to counter in law. Although DW1 and DW2 gave evidence in respect of the customary arbitration, the statement of defence did not plead the relevant customs of the Amala Umuobom as required in law. After all by the Evidence Act, customary law is a fact which must be proved in evidence. See section 14 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria. See also Ekpan v. Uyo (1986) 2 NWLR (Pt. 26) 63; Oyewunmi v. Ogunesan (1990) 3 NWLR (Pt. 137) 182; Oladele v. Aromolaran II (1996) 6 NWLR (Pt. 453) 180.
And that takes me to the pleas of estoppel and res judicata. The second sentence of paragraph 11 of the statement of defence averred as follows:
“The defendant pleads estoppel and res judicata. ”
Estoppel and res judicata do not mean the same thing. In Ukaegbu v. Ugoji (1991) 6 NWR (Pt. 196) 127 the Supreme Court held that when a party pleads a judgment as estoppel what he is telling the court is that the court should take that judgment into consideration in considering the totality of his present case before the court. Whereas when he pleads res judicata he is saying that although he has already got judgment on say a piece or parcel of land he wants the court to adjudicate on the matter that has already been adjudicated in his favour. This, the court held, is contradiction in terms because he is asking the court to judge what has already been judged, hence it is said that res judicata ousts the jurisdiction of the court. The plea of res judicata, the court held, will arise where the plaintiff who is pleading the previous judgment was the plaintiff in the said previous judgment or his privy in title was the plaintiff in the previous judgment reached upon. On the other hand, the pleading will be estoppel where the plaintiff or his privy in title was defendant in the case pleaded as estoppel. Estoppel is an admission or something which the law views as equivalent to an admission.

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By its very nature, it is so important, so conclusive that the party whom it affects is not allowed to plead against it or adduce evidence to contradict it. Res judicata on the other hand, operates not only against the party whom it affects but also against the jurisdiction of the court itself. The party affected is estopped per rem judicatam from bringing a fresh claim before the court and at the same time the jurisdiction of the court to hear such claim is ousted. See Alhaji Ladimeji v. Salami (1998) 5 NWLR (Pt. 548) 1. While I am familiar with the plea of estoppel per rem judicata, I am not familiar with the pleas of both estoppel and res judicata in one paragraph. And so I ask: What does the respondent mean by the two pleas put together in one paragraph? As it is, the two pleas lumped in paragraph 11, if anything, will certainly increase the burden of proof placed upon the respondent. Is the plea in paragraph 11 enough to sustain a customary law arbitration, if any? In Ohiaeri v.Akabeze (supra), Akpata, JSC said at pages 24 and 25:
“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 after the pronouncement of the decision unequivocally accepted the award … 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 estoppel, will not be proper pleading because not every decision of a customary arbitration, unlike that of a regular court, can create an estoppel.

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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 necessary to sustain the material plea of estoppel by customary arbitration.”
A customary law arbitration must be specifically pleaded. See Awosile v. Chief Sotunbo (1992) 5 NWLR (Pt. 243) 514. It is trite law that for a plea of res judicata to succeed, the parties, the subject matter and the issues in the two cases must be shown to be the same. See Kuusu v. Udom (1990) 1 NWLR (Pt. 127) 421; Chinwendu v. Mbamali (1980) 3-4 SC 31; Yoye v. Olubode (1974) 10 SC 209; Ige v. Faride (1994) 7 NWLR (Pt.354) 42; Chief Balogun v. Adejobi (1995) 2 NWLR (Pt. 376) 131.
For estoppel per rem judicata to apply the court should know  the exact terms of the judgment or decision. In ldika v. Erisi (1988) 2 NWLR (Pt. 78) 563, Obaseki, JSC said:
“Whether the decision will operate as estoppel per rem judicatam or issue estoppel can only be decided when the terms of the decision are known and ascertained.”
What is the evidence on the record? DW1 said at page 71:
“I know the land in dispute … We the Amala visited the land in dispute and the parties were present. We inspected the land and thereafter decided the matter. We decided in favour of the defendant.”
DW2 said at page 75:
“I know the land in dispute between the parties … After the parties had stated their cases we visited the land concerned in order to find out the owner and those that have land sharing common boundary with it. .. The Amala panel decided in favour of the defendant.”

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And that is the evidence closest to the plea of estoppel per rem judicata. Can the above evidence really sustain the plea? I think not. In order to put the plaintiff on proper and adequate notice, a  plea of estoppel per rem judicata must be precise, specific as to the description of the land in dispute which forms the basis of the plea. In this respect, the party should be able to describe the beacons of the land including other peculiar features.
In customary law arbitration the defendant need not give evidence as to the beacons as known in english property law because they are not available most of the time, if not all the time. But the defendant should be able to lead evidence as to the traditional name of the land, the owners of land adjacent to the land in dispute or appurtenant to the land in dispute and whether it was an agrarian land and if so who was farming on it at the material time; and the material time for this purpose is the time the dispute arose. The point should be conceded however that an owner of a farm may not always be the owner of the farmland.
In the light of the contradictory evidence of DW1 and DW2, I am not in a position to say whether the arbitration, if held, (and I have held that there was no arbitration) was oral or in writing. If it was made in writing, the defendant ought to plead the decision citing the specific date the decision was given. Where however the plea is based or predicated on oral arbitration, the burden is on the defendant to lead precise and specific evidence on the decision of the arbitration panel to enable the plea to apply. The burden is so much on the defendant in an oral arbitration in terms of probative value of the evidence, as it is not available to the court to see and determine, as in the case of arbitration in writing.

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In the latter case, the court sees the wordings of the decision and this makes the evaluation of the evidence easier in terms of the parties, the subject matter and the issues involved in the dispute. In this appeal, I am in a dilemma as to whether the arbitration was oral or in writing, In the light of the contradictory evidence, I am not in a position to make any further progress on the issue and this goes against the respondent because the burden of proof is on him. It is said that because the deficiency in respect of the estoppel was not raised by the appellant at the trial court, he cannot raise it on appeal. I am in grave difficulty to agree with this view. It was not the case of the appellant at the trial court that an arbitration was held. Accordingly, he could not have contended that the pleading of estoppel was deficient. His case was that there was no arbitration and he could not have with the same breath contended that the pleading of estoppel was deficient. That, in my humble view, should have amounted to talking from one side of the mouth two different matters or things of opposing dimension. I do not think the principles of equity will allow him do so. And what is more, the deficiency in the pleading of estoppel was not an issue at the trial court because judgment was given in favour of the appellant on the basis that there was no arbitration. The plea of estoppel therefore did not arise. It became an issue for the first time at the Court of  Appeal when the judgment of the trial court was, in my view, wrongly overturned and when that court wrongly invoked the plea of estoppel against the appellant, despite the deficiency in the pleading.
It was in that circumstance that the appellant rightly raised the issue in this court. It is not the province of the law to expect a party to unnecessarily anticipate the adverse party in litigation to the extent that it borders on ridiculous speculation or conjecture. An issue on appeal arises from the judgment of a lower court and it is only when the issue arises that an appellant can procedurally raise it on appeal.

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Where an applicable issue does not arise from a judgment, there cannot be a ground of appeal. Therefore in the circumstances of this appeal, the law did not expect the appellant to  raise the deficiency of the pleading of estoppel at the trial court because there was no issue at that stage of the proceedings. I have sounded prolix but I have no choice. It is also said that since the appellant denied any arbitration, he was no longer in a position to contend that the arbitration was not binding. Can the law so gag him? I do not think so. Such a contention, with respect, has the clear implication of shifting the burden of proof that the arbitration, if held, was not binding, on the appellant, who is the plaintiff. That will be against the law on the burden of proof as it relates or affects the law of pleadings. Although the burden of proof is generally on the plaintiff, there are other equally competing principles of law. One of such principles of law is that the burden of proof is on the party who alleges the affirmative. Putting it another way, the burden of proof is on the party who will fail if the burden is not discharged. And who is that party in this appeal? He is the respondent, the defendant who alleged that there was arbitration. He must lead evidence to show that the arbitration which he claimed was held was binding on the appellant. There was no such evidence.
Assuming that I am wrong, and I think not, I should take an alternative position and it is the position that this court should do substantial justice in this appeal. Should this court, the highest court of the land, sound so hopeless or helpless in a matter such as this?  Can this court not invoke its equitable jurisdiction to do substantial justice in this matter? Should this court hide under legal technicalities and leave the appellant in a state of limbo and complete helplessness?

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Should this court rest on abstract legalism in the face of the clear procedural deficiency in paragraph 11 of the statement of defence, which at the expense of prolixity is repeated here for ease  of reference:
“The defendant pleads estoppel and res judicata. ”
It is clear that the above averment does not satisfy the rules of pleading estoppel and this court has a duty to so hold notwithstanding any apparent technical constraint. If this court is miserly in doing justice and therefore closes our doors to doing substantial justice in relevant cases, the lower courts will follow and the administration of justice will run into serious problem. We should open our doors of doing substantial justice so that the lower courts can enter and do similar justice. That is the only way the administration of justice will triumph in our democracy.
The learned trial Judge disbelieved the evidence of DW3, DW4, DW5 and DW6. He said at page 133 of the record:
“I also reject the evidence of DW3 to DW6 on the issue of arbitration. Each of them DW3, DW4, DW5, DW6 testified that his land shares common boundary with the land in dispute. DW6 at a stage testified that his land shares common boundary with the defendant’s land but not the one in dispute. Under cross examination defendant said: ‘It is true that the land of the witnesses from DW3 to DW6 do not share common boundary with the land in dispute. By that answer he discredited the said witnesses. Exhibit B supports the answer of defendant and contradicts DW3, DW4, DW5 and DW6. By Exhibit B, only the defendant has land that shares common boundary with the land in dispute, I do not believe the evidence of DW3, DW4, DW5 and DW6 … It is superfluous, in my view, going into the evidence of boundary men. I only did that to show that the witnesses called by the defendant are shameless liars who were brought to come and support the defendant’s speculative claim to ownership of the land in dispute.”

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The lower court did not agree with the above. That court, with the greatest respect, from nowhere, accepted the evidence of the witnesses. The court said at page 241:
“DW3 Bennet Ibe, DW4 Odoemene Ideato, DW5 Mishack Ekpunobi and DW6 Lewis Obiagwu were in unison that they were present during the arbitration by the elders of Umuobom and that they acted as boundary men. It was also their evidence that the elders found in favour of the appellant.”
It is rather sad that the lower court believed the evidence of witnesses that the learned trial Judge saw and rightly disbelieved in disbelieving the evidence of the witnesses, the learned trial Judge went into specifics which the lower court ignored. An appellate court has no jurisdiction to supplant its own views in the place of the trial court to arrive at a desired conclusion, outside the record. In my humble view, the findings of the learned trial Judge are clearly supported by the evidence and the lower court had no business to interfere. The lower court, in my humble view, was clearly in error in believing the evidence of DW3, DW4, DW5 and DW6.
I now take the issue of the iroko tree. Appellant averred to the cutting down of the iroko tree (oji) in paragraphs 10 and 11. Although the respondent denied paragraphs 10 and 11 “as complete fabrication and utter falsehood”, the respondent, as DW7 said in evidence, and I quote him at page 101:
“In 1973 I felled an iroko tree on the land in dispute, because of it the plaintiff sued me in the native way (itummanya) before representatives of umuobom community.I also sued plaintiff before the said elders. It is not true that I did not allow the elders of Umuobom to look into the complaint according to our native law and custom.”
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Where then lies the denial in paragraph 13 of the statement of defence? Only the respondent and probably his counsel can answer the question.
Let me go to a more fundamental issue and it is the claim of N600.00 being value of the iroko tree. Appellant as PW1, said in examination-in-chief at pages 47 and 48:
“The defendant trespassed upon the land in dispute ten years ago. The defendant entered the land in dispute when he felled my iroko tree thereon. When defendant felled the said iroko tree I reported him before the ‘Amala’ of Umuobom in our customary way but he refused to answer the native summons … The defendant sawed the iroko tree he felled on the land in dispute and sold the timber. He made use of the proceeds from the sale of the timber from the iroko tree. The value of the iroko tree at that time was N600.00.”
In his evidence, respondent as DW7 said at page 102:
“I will not pay plaintiff N100.00 damages for trespass because the land is mine, nor will I pay him N600.00 value of iroko tree which has been declared to be my own,”
Rejecting the award of N600.00 damages by the learned trial Judge, the lower court said:
“The law with respect to special damages has long been settled. Because special damages are exceptional in character, the law requires that they must be claimed  specifically and proved strictly. Although the respondent claimed specially the N600.00 he certainly did not prove it strictly as required by our law… What the respondent said in his evidence was a mere repetition of the averment in his pleadings … The value of the iroko tree being special damages must be strictly proved with the evidence of an expert in the trade.”
The evidence given by the respondent is relevant here. He did not deny that the value of the iroko tree was N600.00.

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All he said was that he would not pay the value because he was the owner of the land in dispute. Respondent agreed that he cut down the iroko tree on the land in dispute. He recognised the N600.00 value of the iroko tree when he said “nor will I pay him N600.00 value of iroko tree.” The law is elementary that a party has no legal duty to prove what is admitted. The court takes an admitted fact as a fact and uses it in the judgment.
There is yet another aspect. The lower court talked about evidence of an expert in the trade. Did the lower court expect evidence from a forest guard, a forester, a joiner or a carpenter? The law does not require expert evidence in all cases for the proof of special damages. An expert witness is only necessary if by the nature of the evidence, scientific or other technical information, which is outside the experience and daily common knowledge of the trial Judge as Judge of fact, is required. In the light of the admission by the respondent, there was no need on the part of the appellant to prove further the N600.00 claim beyond his ipse dixit. It is in the light of the foregoing (Issue No. I not included) that I am unable to convince myself to go along with the majority judgment. I therefore dissent. I hereby set aside the judgment of the lower court and allow the appeal. I uphold the judgment of the learned trial Judge, Ogbuagwu, J. It is a very brilliant one. I award N10,000.00 cost in favour of the appellant.

Appeal dismissed.

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