3PLR – OZOEMENA ANTHONY FRED AKPODIKE V. ALOYSIUS NWABUEZE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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OZOEMENA ANTHONY FRED AKPODIKE
V.
ALOYSIUS NWABUEZE
IN THE COURT OF APPEAL
[PORT HARCOURT]
3PLR/2001/41 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
JAMES OGENYI OGEBE, JCA (Presided)
MICHAEL EYARUOMA AKPIROROH, JCA (Delivered the leading judgment)
ABOYI JOHN IKONGBEH, JCA
REPRESENTATION
- O. Ogu Esq. for the appellant
- I. Anunihu Esq. for the respondent.
MAIN ISSUES
PRACTICE AND PROCEDURE – APPEAL – Errors involving questions of law – nature of complaints that constitutes same.
PRACTICE AND PROCEDURE – APPEAL – Party putting forward on appeal a case different from that canvassed in the trial court – whether proper.
CUSTOMARY LAW – Consultation of an oracle or a fortune teller – whether accepted as part of the custom of parties to a dispute.
CUSTOMARY LAW – Customary arbitration – where upheld by a superior native tribunal – whether binding on a party represented by his agent at the arbitral proceedings.
PRACTICE AND PROCEDURE – EVIDENCE – Admitted fact – whether evidence should be led to establish same.
PRACTICE AND PROCEDURE – EVIDENCE – Traditional history – conflicting evidence of same – how resolved.
PRACTICE AND PROCEDURE – Application for substitution not opposed – whether adversary can subsequently challenge legal capacity of party substituted to prosecute an appeal.
PRACTICE AND PROCEDURE – Party putting forward on appeal a case different from that canvassed in the trial court – whether proper.
PRACTICE AND PROCEDURE – Pleadings – averment in statement of claim – need to specifically deny same in the statement of defence.
MAIN JUDGMENT
MICHAEL EYARUOMA AKPIROROH, JCA (Delivering the leading judgment)
The appellant sued the respondent in Orlu High Court claiming per paragraph 14 of the statement of claim as follows:
“(a) A declaration by the honourable court that under the native law and custom of Okoroduruaka village, Umuchima town in the Orlu Judicial Division, the plaintiff is the rightful head of the Umuduruonyiriagha kindred who is entitled to all the rights, privileges and obligations pertaining thereto.
(b) A perpetual injunction restraining the defendant from parading himself or being paraded as the kindred held of Umuduruonyiriagha kindred in Okoroduruaka village, Umuchima town.
(c) A perpetual injunction restraining the defendant from tampering with all the property real or movable of the said Umuduruonyiriagha kindred Okoroduruaku village in Umuchima town without the authority or consent of the plaintiff.”
The plaintiff’s case In the Court below was that he is the head of Umuduruonyiriagha kindred which he inherited from his ancestors, Onyiriagha, Durunwaneri, Utojiuba Ezimoha, Okpodike and Fred his father who succeeded Okpodike in 1944 and acted as the head of Umuduruonyiriagha kindred from 1944 till 7th July, 1959 when he died. The plaintiff succeeded Fred, his father, but Alisigwe Ezimoha (PW1) acted for him till 1983 when he took over from him after retirement from the civil service.
In 1981, the defendant started to lay claim to the headship of the Umuduruonyiriagha kindred because Alisigwe Ezimoha, the regent of the plaintiff decided a land case against the defendant and in favour of his opponent, Isaac Alaekeka (PW2).
The plaintiff took the matter to Ndinze Okoroduruaka who decided that the defendant should take oath for him and the plaintiff chose Oranzu Okija juju and the delegates of parties were sent to take the defendant to Okija to take the Oath. When the delegation returned, they reported that they went to Umuaka to a fortune teller who declared the defendant as the head of Umuduruonyiriagha kindred which was rejected by Ndinze hence this action.
Page 67The defendant’s case was that Utojiuba died before his father, Durunwaneri and the headship of Umuduruonyiriagha went to Duruchukwu, his immediate brother according to their custom. The defendant inherited the headship through his ancestors namely, Duruchukwu, Udungwo and Nwabueze, his father, Nwabueze was the head of Umuduruonyiriagha kindred till 1941 when he died. The defendant succeeded him but could not act as he was a minor of seven years of age. Alisigwe Ezimoha, the eldest member of the kindred acted for him until 1970 before he took over. In 1981, Alisigwe Ezimoha asked the defendant to vacate his premises which he claimed to be the “Ime Ufor” of the kindred and that the defendant was not the proper person to occupy it. This sparked off the dispute over the headship of Umuduruonyiriagha kindred between Aligsigwe Ezimoha and the defendant and later the plaintiff and the defendant. The members of Umuduruonyiriagha kindred looked into the disputes and decided in favour of the defendant as evidenced by exhibits A and D. The plaintiff appealed to the Eze of Umuchima and the people of Okoroduruaka who constituted a panel which looked into the dispute. The panel delegated Wilfred Odumegwu and James Izuagwu to take the parties to any place of their choice without telling them where they were taking them to. The delegates took them to an oracle at Umuaka which pronounced that Utojiuba died before his father and the plaintiff therefore lost the right of succession and the defendant was declared the head of Umuduruonyiriagha kindred by the Arbitration Panel. Dissatisfied with the judgment of the court, the appellant has appealed to this court on two grounds of appeal and formulated six issues for determination:
“(i) Whether the appellant was given a fair hearing in the course of trial (grounds 2, 3 and 4 of the amended and further grounds of appeal).
(ii) Whether the learned trial Judge was right in holding that it was Duruchukwu the great grandfather of the respondent and not Utojiuba the great grandfather of the appellant that survived Durunwaneri as the head of the Durunwaneri family and the Duruonyiriagha kindred (ground 5 of the amended and further grounds of appeal).
(iii) Whether the learned trial Judge was right in holding that the PW1 (Alisigwe Ezimoha who was admitted on both sides as having been exercising the functions of the head of the Umuduruonyiriagha kindred up to the time of this dispute did so for and on behalf of the respondent (ground 6 of the amended and further grounds of appeal)
(iv) Whether the learned trial Judge was right in holding that there was a binding arbitration by Umuduronyiriagha kindred and by the PW6 (The Traditional Ruler of Umuchima) and that the said arbitration created an estoppel by res judicata. (grounds 7 and 8 of the amended and further grounds of appeal.)
(v) Whether the learned trial Judge was correct in holding that the Duruchukwu family line was entitled to produce the head of the kindred since its name is prefixed with “Duru” (ground 9 of the amended and further grounds of appeal).
(vi) Whether the plaintiff/appellant was entitled to the judgment of the trial court (ground 10 of the amended and further grounds of appeal).
He also filed a reply brief on 3/2/99.
The respondent on the other hand identified three issues for determination:-
“2.1 Whether the appellant was given a fair hearing in the course of trial (grounds 2, 3 and 4 of the amended and additional grounds of appeal.
2.2 Whether the learned trial Judge was right in dismissing the plaintiff’s claim in its entirety, considering the pleadings and evidence tendered at the trial (grounds 1, 5, 6, and 9 of the amended and additional grounds of appeal).
2.3. Whether the learned trial Judge was right in holding that there was a binding arbitration by Umuduruonyiriagha and the arbitration headed by PW6 (The Traditional Ruler of Umuchima) and that the said arbitration headed by PW6 created an estoppel by res judicata (grounds 7 and 8 of the amended grounds of appeal).”
I will first of all deal with the preliminary objection raised by the respondent at page 25 of the brief of argument. They read as follows:
“(i) Grounds 2, 3 and 4 of the amended and additional grounds of appeal are incompetent being grounds that raised the issue of misdirection by non direction and not erred in law.
(ii) The appeal is incompetent as:
(a) The claims are for chieftaincy title which is a personal action and does not survive the claimant.
(b) The appellant is a minor of 16 years of age and lacks legal capacity to prosecute the appeal.”
It is also pertinent at this stage to reproduce the grounds of appeal complained of here without their particulars
- The learned trial Judge erred in law when he failed to consider and make a finding on all the right issues arising for determination in the suit and particularly i.e. whether Oguoguonu was the 1st son of Duruchukwu as pleaded and given in evidence by the appellant and his witnesses or a son of Durunwaneri as pleaded and given in evidence by the respondent.
- That the learned trial Judge erred in law when he failed to consider in his judgment the evidence of PW2 Isaac Alaekeka, who is an elder uterine brother of the defendant now respondent as well as the evidence of PW4 (Ubauau Duru) and that of PW5 (Eric Alaekeka) and thereby denied the appellant fair hearing.
- The learned trial Judge erred in law when he failed to hold that the averments of the plaintiff in paragraphs 6, 8, 11, 12 and 13 of the statement of claim were established since they were not specifically denied in the statement of defence and the plaintiff and his witnesses gave evidence of these facts.”
The principles of law governing whether a ground of appeal is one of law, or fact or mixed fact and law have been settled in a long line of decided cases. See Ogbechie v. Onochie (1986)2 NWLR (Pt. 23) 484, Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 and Ade Coker v. UBA Plc (1997) NWLR (Pt. 490) 641 at 658. Ground 2 complained about the refusal of the trial court to make findings on each of all the six issues formulated by the appellant while ground three complained about the failure of the learned trial Judge to consider the evidence of three key witnesses. Ground four complained about the failure of the trial Judge to consider the averments in various paragraphs in the statement of claim which were not specifically denied in the statement of defence. It is my view that these complaints constitute errors which involve questions of law. See Ade Coker v. United Bank of Africa Plc (supra). They are therefore competent grounds of appeal.
With respect to the second objection, the respondent contended that this action is a chieftaincy matter which died with the original plaintiff. There is no merit in this submission because the action is predicated on the head of their kindred family Umuduruonyiriagha and therefore not a chieftaincy matter. Both parties pleaded and led evidence to this effect and also that the title is hereditary. The application for substitution of the present plaintiff was not opposed by the respondent. This suit therefore survives the appellant.
With respect to the third objection, the respondent contended that the present appellant lacks the legal capacity to prosecute this appeal because he is a minor, in that he is sixteen years of age. There is no merit in this submission because the application for substitution filed on 16/10/96 was not opposed by the respondent as such it cannot lie in his mouth that the respondent is 16 years of age. Besides, there is no evidence that the respondent is 16 years of age. Suffice it therefore to say that there is no substance in the preliminary objection and it is hereby overruled.
I would like to resolve this appeal on the three issues formulated by the respondent instead of the six issues formulated by the appellant.
I would like to consider the first and the second issues formulated by the appellant with the first issue formulated by the respondent, together.
On the first and second issues, learned counsel for the appellant submitted that the appellant was not given a fair hearing because the learned trial Judge considered only one issue of the eight issues raised by the parties. It was also his contention that he also refused to hold that paragraphs 6, 7, 8, 12 and 13 of the statement of claim were proved because they were not specifically denied in the statement of defence and relied on the cases of Omorhirhi v. Enatewere (1988) 1 NWLR (Pt. 73) at 111; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1 and Ita v. Akhimien (1976) 1 All NLR (Pt. 1) 460. He also argued that the learned trial Judge did not consider the evidence of PW2, PW3, PW4 and PW5.
In reply, learned counsel for the respondent submitted that the trial Judge gave due consideration and determined the issues according to credible evidence led before him. Save the issue as to whether Oguezeonu was the son of Durunwaneri or the first son of Duruchukwu, stressing that a Judge is not bound by the issues raised in the addresses of counsel and that he reserves the right to modify the issues to enable him determine the real issue in controversy between the parties as was done in this case.
The contention of the appellant that Oguezuonu was the first son of Durunwaneri or the first son of Duruchukwu is misconceived because none of the parties, claimed the headship of Umuduruonyiriagha through Oguezuonu. The appellant claimed through Utojiuba while the respondent claimed through Duruchukwu and as such the issue is not relevant to the dispute between the appellant and the respondent and failure of the learned trial Judge to consider it did not occasion any miscarriage of justice. See the case of Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 28.
On the submission of learned counsel for the appellant that the trial court refused to hold that paragraphs 6,7, 8, 12 and 13 of the statement of claim were not specifically denied by the respondent and as such they are deemed to be proved. Learned counsel for the respondent relied on paragraphs 7, 9 and 11(c-h) of the statement of defence which traversed paragraphs 6, 8, 11, 12 and 13 of the statement of claim and as such the argument of counsel to the appellant on that point is unfounded.
It is a cardinal rule of pleading that a defendant must specifically deny all the averments in the statement of claim which he does not admit. It is not even enough for a defendant to aver that he is not in a position to admit or deny an allegation in the statement of claim which he does not intend to admit. There is no doubt that paragraphs 7 and 9 of the statement of defence did not specifically deny paragraphs 6 and 8 of the statement of claim. That notwithstanding, it is my view that paragraphs 7, 9 and 11 (c-h) traversed paragraphs 6, 8, 11, 12 and 13 of the statement of claim by way of simple denial and reasonable inference.
At page 25 of the records lines 6-14 the defendant pleaded as follows:
“The defendant denied paragraph 6 of the plaintiff’s statement of claim and will at the trial put the plaintiff to the strictest proof. The defendant admits paragraph seven of the statement of claim in as it relates to the role and functions of the head of Umuduruonyiriagha kindred but deny that plaintiff’s uncle Alisigwe Ezimoha alias Okpodike performed such functions on behalf of the plaintiff. The defendant will at the trial put the plaintiff to the strictest proof thereof.”
In paragraph 9 of the statement of defence at page 26 of the record the defendant pleaded as follows:
“The defendant denies paragraph eight of the statement of claim and will put the plaintiff to the strictest proof thereof.”
Paragraph eight of the statement of claim relates to the movement of the plaintiff from place to place while his uncle, Alisigwe Ezimoha continued to act for him. This is specifically denied by the defendant in paragraph 8 of the statement of defence where he pleaded that the plaintiff’s uncle Alisigwe Ezimoha alias Alisigwe Okpodike did not perform such functions on behalf of the plaintiff. Paragraphs 11, 12 and 13 of the statement of claim are denied in paragraph 11(c ) (d) (f) and (g) of the statement of defence.
The argument of learned counsel for the appellant that as paragraphs 6, 8, 11, 12 and 13 of the statement of claim were not specifically denied in the statement of claim they are deemed to have been proved is therefore misconceived . These issues are resolved in favour of the respondent against the appellant because the appellant was given a fair hearing and paragraphs 6, 8, 11, 12 and 13 of the statement of claim are denied by the respondent in his statement of defence.
I will take issues three and four formulated by the appellant and issue 2 formulated by the respondent together. On issue three, learned counsel for the appellant submitted that the trial court was wrong in holding that it was Duruchukwu, the great grandfather of the respondent who survived Durunwaneri, the common ancestor of the parties as the head of the family and Duruonyiriagha kindred because there was no evidence before the trial court to justify the finding. He further argued that the parties admitted that Utojiuba the great grandfather of the appellant was the first son of Durunwaneri and that according to the custom of Umuchima autonomous community, the first son of the head of the family or kindred succeeds his father when he dies. It was also his submission that the respondent failed to prove his contention that Utojiuba died before Durunwaneri and that his own great grandfather succeeded him as the head of the family and the head of Duruonyiriagha kindred as none of the witnesses testified in support of it, stressing that the name of Durunwaneri and Utojiuba are not mentioned in exhibits A-C12 relied on by the learned trial Judge in arriving at his conclusion that Utojiuba died before his father Durunwaneri. It was also his submission that the learned trial Judge was wrong in holding that Utojiuba died before his father on the basis of the pronouncement of oracle stressing that oracle of a fortune teller and belief in juju is unreasonable. The alleged pronouncement of the oracle is at best hearsay evidence as the fortune teller whose name was given by DW4 as Ihezuo was not called to testify and no reason was given for not calling him to testify. He further contended that the evidence relating to the oracle was not pleaded and therefore goes to no issue and relied on the cases of George v. Dominion Flour Mill Ltd (1963) 1 SCNLR 117 at 123-124 and Idahosa v. Oronsaye (1959) SCNLR 407 at 414.
On issue four, he submitted that the finding of the trial Judge that PW1 Alisigwe Okpodike acted for the respondent when PW1 was the kindred head is perverse because it was not pleaded and the respondent did not give such evidence. He further submitted that there was no basis for the finding of the learned trial Judge that PW1 (Alisigwe Okpodike) acted for the respondent as the head of the kindred family. Learned counsel further submitted that the trial Judge erred in law when he held that there was a binding native arbitration between the parties when there was no evidence led as to the ingredients of a valid customary arbitration. It was also his contention that the trial court was wrong in relying heavily on exhibits A and B in holding that there was a proper and binding native arbitration by Umuduruonyiriagha kindred because exhibits A and B showed that the contest was between Alisigwe Okpodike (PW1) and the respondent and as such, the decision of the arbitration was not binding on the appellant who was not a party to it. He further argued that the trial Judge erred in law when he held that the decision of the Arbitration Panel of Umuduruonyiriagha was binding on the parties when there was evidence that the decision was not accepted by the respondent and PW1 because PW1 appealed against it and the panel took a different decision from that of Umuduruonyiriagha . The learned trial Judge also erred when he held that the arbitration headed by PW6 created estoppel which was not pleaded by the respondent and relied on the case of Odadhe v. Okujeni (1973) 11 S.C 343 at 353. Learned trial Judge was also wrong when he held that the panel headed by PW6 adopted the pronouncement of the oracle as its decision and therefore binding on the parties and created estoppel res judicata.
In reply to issues three and four, learned counsel for the respondent referred to the contention of learned counsel for the appellant that the learned trial Judge was in error in holding that it was Duruchukwu of the respondent and not Utojiuba of the appellant who survived Durunwaneri as the head of the kindred based on exhibit A, C-C12 and D and the pronouncement of an oracle.
He also referred to the contention of counsel for the appellant that exhibits A, C-C12 and D do not contain, the names of Durunwaneri and Utojiuba and that the pronouncement of the oracle constituted juju practice which is unreasonable and not part of our law and also hearsay evidence which contradicted the pleading of the respondent is misconceived. Learned counsel for the respondent relied on exhibits A and D which proclaimed the respondent as the rightful head of the kindred and exhibits C1-C2, C4-C9 and C11 which were made between 1982 and 1983 before the action was commenced. He then submitted that exhibits A and C-11 are recent acts relevant to the dispute which guided the trial court in arriving at his decision on which of the conflicting evidence is more probable.
It was also his submission that the contention of the appellant that belief in juju is unreasonable and not part of our laws is untenable and relied on the case of Obaji v. Okpo AND Ors. (1978) IMSLR 238. He further argued that the pronouncement of the oracle that the defendant is the head of Umuduruonyiriagha having been admitted need no proof to require calling the fortune teller as a witness. On the submission of learned counsel to the appellant that the respondent did not plead that an oracle had pronounced that Utojiuba died before his father before this action was instituted, he relied on paragraph 11(f) and (g) at page 30 lines 1-4 and 9-13 of the statement of defence to show that it was copiously pleaded and as such it cannot be said that the respondent put up a new case during the trial outside the pleading or contradicted the pleading as contended by learned counsel for the appellant. Reliance was placed on the case of Okagbue v. Romaine (1982) 5 S.C 133 at 135, Mbionuwu v. Obi AND Ors (1997) 2 NWLR (Pt. 487) 298.
It is clear from the pleadings and the evidence led by the parties that the live and vital issue that will resolve this appeal is who among the appellant and the respondent is the head of Umuduruonyiriagha kindred. There is no dispute that both of them descended from a common ancestor, Durunwaneri. While the appellant claimed to have inherited the headship of the kindred through Utojiuba who succeeded Durunwaneri, their common ancestor, the respondent claimed to have inherited it from Duruchukwu because Utojiuba, the first son of Durunwaneri died before his father and according to their custom Duruchukwu becomes the first son of Durunwaneri.
From what I have said above, it is quite clear that the parties relied on traditional history as none of them saw their ancestors. Their traditional history as to who succeeded Durunwaneri as between Utojiuba and Duruchukwu, his children is in conflict. It is well settled law that where there is a conflict of traditional history, demeanour of the witnesses is of little guide. The best way of resolving such conflict is to test the traditional history by reference to acts in recent years established by evidence and by seeing which of the two competing traditional history is more probable.
In considering the evidence led before him, the learned trial Judge said at page 112 of the records lines 6-19:
“The case is therefore based partly on traditional history and on which traditional history is more preferable to the other having regard to other facts relevant to the facts in issue from the evidence before me – exhibits A, C-C12 and D, and the pronouncement of the oracle to which parties submitted, I hold the view that there is sufficient evidence which established that the defendant and his witnesses spoke the truth when they asserted that Utojiuba predeceased his father Durunwaneri. I am inclined to believe that after the death of Utojiuba, Duruchukwu took over as the first son of Durunwaneri and took his father’s Ozo title.”
Learned counsel for the appellant submitted forcefully that the learned trial Judge was wrong in relying on exhibits A, C-C12 and D to arrive at his conclusion that it was Duruchukwu, the ancestor of the respondent and not Utojiuba, the ancestor of the appellant who succeed Durunwaneri. Exhibits A and D are written decisions of the members of Umuduruonyiriagha kindred who arbitrated over the headship at their kindred between the parties.
A look at exhibit A and D shows that they were delivered on 8/11/81and 14/11/81 respectively before this action was instituted. While it is true that none of the exhibits mentioned the names of the ancestor 14/11/81 respectively before this action was instituted . While it is true that one of the exhibits mentioned the names of the ancestors of the parties, I agree with learned counsel for the respondent that they were tendered to show that the disputes was the subject matter of a customary arbitration by the kindred, the headship which was in dispute before this action was commenced. Exhibits A, C-C12 and D are recent acts relevant to the dispute between the parties and which will guide the court in reaching a decision on which of the conflicting evidence is more probable.
It was the contention of learned counsel for the appellant that the pronouncement of the oracle amounted to juju practice which is unreasonable and not part of our law. PW6, the traditional ruler and custodian of the custom and tradition of Umuchima Community of the parties said at page 82 lines 9-13.
“We looked into the matter but would not reach any final conclusion because there was no living witnesses to testify that Utojiuba predeceased his father. We decided on the traditional way of settling dispute.”
This piece of evidence shows that consultation of an oracle of a fortune teller is part of the custom of the parties.
In Obaji v. Okpo AND Ors. (supra) Uche J (as he then was) held.
“In this part of the country, swearing on juju to assert a right is very much in vogue even in this modern days among native population. This native jurisdiction showing a belief which regulates the jural life of the people.”
The contention of the appellant that belief in a juju is unreasonable and not part of our laws is therefore untenable.
As the appellant admitted that the delegation reported that the oracle declared the respondent the head of the kindred, there is no need to call the fortune teller to testify. It was also, the contention of learned counsel for the appellant that the respondent never pleaded that before the parties came to court, an oracle had pronounced that Utojiuba predeceased his father and as such the learned trial Judge was wrong to have acted on evidence which was not pleaded. This submission is misconceived because it was copiously pleaded in paragraph 11(g) of the statement of defence as follows:
“After consultation, oracle pronounced defendant the rightful head of Umuduruonyiriagha kindred.”
From the totality of the evidence led before the court below, the learned trial Judge was in my view right in holding that it was Duruchukwu and not Utojiuba who survived Durunwaneri as the head of Umuduruonyiriagha kindred.
On the contention of learned counsel for the appellant that none of the persons mentioned by the respondent has his name prefixed by “Duru” or “Okwara” or “Eze”, he submitted that none of the parties pleaded it and as such it goes to no issue stressing that the learned trial Judge could have discountenanced it. I agree entirely with the submission of learned counsel for the appellant that it was not pleaded and the learned trial Judge could have discountenanced that piece of evidence in holding that it was Duruchukwu and not Utojiuba who survived Durunwaneri as the head of family of Durunwaneri and the kindred of Duruonyiriagha. That notwithstanding, he came to the right conclusion on the evidence led before him. These issues are resolved in favour of the respondent against the appellant.
I will now take issues five and six identified by the appellant and issue three identified by the respondents together.
Learned counsel for the appellant submitted that the learned trial Judge erred in law when he held that there was a binding native arbitration because the ingredients of a valid arbitration was not proved by the respondent and relied on the cases of Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385 and Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221). He further argued that the name of the appellant is not mentioned in exhibits A and B relied on by the trial court in arriving at its decision that there was a binding arbitration between the parties, stressing that they only show that it was a contest between Alisigwe and the respondent and as such, the decision of the arbitration of which the appellant was not a party cannot bind him. It was also his contention that on the evidence led before the trial court, the learned trial Judge erred in law when he held that the decision of the Arbitration Panel of Umuduruonyiriagha was binding on the appellant and the respondent did not accept its decision and appealed against it to another panel which gave a decision quite different from the panel of Umuduruonyiriagha. He further contended that decision of an inferior native tribunal against which an appeal had been successfully lodged to a superior native tribunal, cannot be binding side by side with that of a superior native tribunal.
It was also his contention that the arbitration headed by PW6 created estoppel but estoppel was not pleaded by the respondent and relied on the case of Odadhe v. Okujeni (1973) 11 S.C 343 at 353.
In reply, learned counsel for the respondent submitted that the contentions of learned counsel for the appellant that the arbitration did not satisfy the prerequisites of a valid customary arbitration and that the appellant was not a party to the arbitration and that the arbitration being an inferior native tribunal cannot bind side by side with a contrary decision of superior native tribunal is misplaced, because the case of the appellant in the lower court was that there was no arbitration by Umuduruonyiriagha kindred and as such he cannot raise the issue on appeal.
I agree entirely with the submission of learned counsel or the respondent that the case of the appellant at the court below was that there was no arbitration by Umuduruonyiriagha kindred. The appellant having not raised these issues at the trial court cannot do so on appeal as this is different from his case in the trial court. It is well settled that a party should not be allowed to put forward In the Court of Appeal a case different from what he canvassed in the trial court. See the case of Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1 at 20.
It was the contention of learned counsel for the respondent that the arbitration of Umuduruonyiriagha as given in evidence by the respondent and accepted by the trial court satisfied all the prerequisite of a valid arbitration.
In the instant case, the appellant initiated the arbitration of Umuduruonyiriagha kindred through his representative PW1 who appeared before the arbitration and stated his case as well as the respondent. The arbitration reached a decision appealed to the Eze of Umuchima and the Ndi Nze Okoroduruaka who according to him has final say as contained in exhibit A. It is therefore my view that the said arbitration satisfied the prerequisites of a valid customary arbitration.
On the contention of the appellant that as he was not a party to the arbitration he is not bound by its decision. Learned counsel for the respondent submitted that the appellant was bound by the decision of the arbitration of Umuduruonyiriagha notwithstanding that his name was not specifically mentioned in exhibit A. While it is true that the name of the appellant was not mentioned in exhibit A, he admitted that PW1 was acting for him from 1959 till 1981 when the dispute started. There is therefore no doubt that during the series of arbitration on the dispute, PW1 acted as his agent and as such, the appellant is bound by the decision of the arbitration on the principle that one who acts through another acts for himself.
On the contention of learned counsel for the appellant that the decision of an inferior native tribunal cannot bind side by side with a contrary decision of a superior native tribunal, learned counsel for the respondent submitted that the decision of an inferior native tribunal against which an appeal has been successfully lodged to a superior native tribunal can be binding side by side with that of the superior native tribunal. In the instant case the decision of the inferior native tribunal was confirmed by the superior native tribunal. It is quite clear from the evidence on record that following the decision of Umuduruonyiriagha declaring the respondent as the head of the kindred, the appellant appealed to the Eze of Umuchima and Ndinze of Okoroduruaka Appeal Panel who looked into the matter and decided that the respondent is the head of Umuduruonyiriagha kindred. I am therefore of the clear and firm view that there was no contrary decision by a superior native tribunal i.e. Eze and Ndinze Okoroduruaka as argued by the appellant. The learned trial Judge was therefore right in holding that there was binding arbitration by Umuduruonyiriagha.
It was also the contention of learned counsel for the appellant that the learned trial Judge erred in law when he held that the arbitration of PW6 created estoppel because none of the parties pleaded estoppel, stressing that a party who relies on estoppel must plead it specifically. A look through the statement of defence shows clearly that the respondent did not plead estoppel. Besides, PW6 who presided over the dispute said that as they could not reach any final decision, they agreed that the parties should go to Oranzu at Okija where the respondent should swear for PW1, but when they returned, PW5 who was nominated by the panel reported that they went to a fortune teller in Umuaka instead of Oranzu at Okija.
The arbitration of PW6 is therefore not binding on the parties and the learned trial Judge was wrong in relying on it as an estoppel.
With regards to the arbitration by Umuduruonyiriagha family members initiated by PW1 whose decision was in favour of the respondent , the appellant denied outright that the said kindred looked into the matter and found in favour of the respondent. At page 77, lines 16-21 of the records, PW2 said under cross examination that he learnt that the kindred looked into the matter.
At page 67 lines 14-17 of the records, PW1 said that they appealed to the Eze of Umuchima with regards to the respondent’s claim to the headship of the kindred but the appeal was not heard. He did not go further to show which decision gave rise to the appeal which was not heard so as to distinguish it from the arbitration by the Umuduruonyiriagha kindred.
The only sensible inference one can draw from the evidence of the appellant is that he did not appeal against the decision of the arbitration by Umuduruonyiriagha kindred as contained in exhibit A and D.
At page 113 of the records, the learned trial Judge held:
“On the issue of arbitration, I am satisfied there was proper and binding arbitration by Umuduonyiriagha kindred which I believe. Both exhibits A and D speak very eloquently on this. It is wrong in law and in fact for the plaintiff and his witnesses to deny there was an arbitration. Why then did PW1 and the supposed chairman of Umuduruonyiriagha write exhibit B in protest to exhibit A?”
I am of the view that the learned trial Judge was right in holding that there was proper and binding arbitration by Umuduruonyiriagha kindred. This is more so in the absence of any evidence that the appellant appealed against the decision of the Umuduruonyiriagha kindred.
In conclusion, I am of the view that the traditional evidence of the respondent as to the head of the Umuduruonyiriagha kindred as between the appellant and the respondent as held by the learned trial Judge based on exhibits A-C11 is more probable than the evidence of the appellant.
The arbitration of the kindred as held by the learned trial Judge in my view is binding on the appellant having not appealed against it.
This appeal therefore lacks merit and it is hereby dismissed. The judgment of the lower court is hereby affirmed. The appellant is to pay the respondent N5,000.00.
JAMES OGENYI OGEBE, JCA:I read in advance the lead judgment of my learned brother Akpiroroh, JCA just delivered and I agree with his reasoning and conclusion. He has painstakingly resolved all the issues, and I have nothing useful to add. I too dismiss the appeal and affirm the decision of the trial court. I award costs of N5,000.00 in favour of the respondent.
ABOYI JOHN IKONGBEH, J.C.A:I agree.
Cases referred to in the judgment
Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1.
Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385.
Coker v. UBA Plc (1997) NWLR (Pt. 490) 641.
George v. Dominion Flour Mills Ltd (1963) 1 SCNLR 117.
Idahosa v. Oronsaye (1959) SCNLR 407.
Ita v. Akhimien (1976) 1 All NLR (Pt. 1) 460.
Mbionuwu v. Obi (1997) 2 NWLR (Pt. 487) 298.
Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718.
Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221).
Odadhe v. Okujeni (1973) 11 S.C 343.
Ogbechie v. Onochie (1986)2 NWLR (Pt. 23) 484.
Okagbue v. Romaine (1982) 5 S.C 133.
Omorhirhi v. Enatewere (1988) 1 NWLR (Pt. 73).
Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141.
