OHIAERI V. AKABEZE
| Pages | 139-160 |
OHIAERI V. AKABEZE
139
OHIAERI V. AKABEZE
1.
EZULUMERI OHIAERI
2.
CHUKWU OHIAERI
APPELLANTS
(For themselves and on behalf
of members of Ohiaeri family)
V.
1.
ADINNU AKABEZE
2.
LAWRENCE AKABEZE
3.
GREGORY OHAZULUME
4.
CYPRIAN AKABEZE
RESPONDENTS
(For themselves and on behalf
of the members of Otogbolu
family).
APPEAL No. 109/89.
SUPREME COURT OF NIGERIA
UWAIS,
J.S.C.
KARIBI-WHYTE,
J.S.C.
BELGORE,
J.S.C.
NNAEMEKA-AGU, J.S.C.
A K PATA ,
J.S.C.
7th February, 1992.
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Appeal - Order 3, rule
.
23 court of Appeal Rules - Power of court thereunder - A
discretionary one - To be exercised with caution.
Customary Law - Native arbitration - Effect of - When may it he binding on parties.
35
Estoppel - Customary arbitration - To amount to estoppel - Must be pleaded - Essential
ingredients of customary arbitration - What are - Party relying on an award as Estoppel
- To plead essential ingredients of binding arbitration.
Evidence - Declaration of title - Evidence adduced in proof of title - w be credible - Plaintiff
not to rely on weakness of defendant's case - Pleadings - Facts not pleaded - Not
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admissible evidence - Unchallenged evidence - To he accepted.
Land Law -
Proof of ownership - Traditional history- Projection of two competing histories
- Effect of - Evidence of traditional history - Accepted method of establishing title to
land.
45
Practice and Procedure - Pleadings - Facts not pleaded go to no issue - Parties bound by
their pleadings - Lack of jurisdiction by court - Action to be struck out - Respondent's
notice and cross-appeal - Failure of court to pronounce on a matter - Party aggrieved
by such failure - To come by way of cross appeal.
Words and Phrases -
Original - Meaning of
5
10
15
20
25
50
140
NIGERIAN SUPREME COURT CASES [1992] 1 N.S.C.C.
ISSUES:
1.
What is the duty of a party seeking a declaration of title to land?
2.
What in terms of traditional history is the meaning of original as regards
ownership of land?
5
3.
What is the effect of a party projecting two competing histories of ownership of
land?
4.
What is the attitude of the court where it has no jurisdiction to entertain an
action?
5.
What is the duty on an aggrieved party to the conclusion of a trial judge?
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6.
What is the power of the Court of Appeal under Order 3 Rule 23 of the Court of
Appeal Rules and how may it be exercised?
7.
What must the court do before deciding that a customary arbitration creates
an estoppel?
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8.
What must a party relying on previous binding arbitration as estoppel plead?
9.
What may be pleaded in order to make a decision of a customary arbitration
acceptable as estoppel?
FACTS:
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The plaintiffs instituted the action at the Nnewi Judicial Division of Anambra
State. The plaintiffs for themselves and on behalf of members of Otobolu family
sought an order of court against the defendants for themselves arid on behalf of
members of Ohiaeri family in the following terms:
"1.
Declaration of title to the piece and parcel of land otherwise known as and
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called "UDE OMAYI
-
, situate at Umuadobihi quarter in Amamu village,
lhiala.
2.
N200 damages for trespass in that the defendants acting in concert
unlawfully broke and entered the land in dispute.
3.
Perpetual injunction to restrain the defendants their servants and/or
agents from further acts of trespass on the said land."
Pleadings were ordered. filed and exchanged. In his judgment the trial judge
was of the view that in respect of traditional history pleaded and evidence adduced
there was "no meeting point between the parties on the issue". After a detailed
review and appraisal of the evidence adduced by both sides on acts of ownership,
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he was satisfied that the plaintiffs had not established their claim to the land in
dispute. He also believed that the arbitration that earlier looked into the dispute
between the parties adjudged defendants owners of the land. He accordingly
dismissed the plaintiffs' claim.
Aggrieved by this decision the plaintiffs appealed to the Court of Appeal. It was
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the view of the Court of Appeal that the defendant's evidence that the land in
dispute belonged originally to their ancestor by name Duru. which was a clear
departure from their pleadings went to no issue and ought to have been discoun-
tenanced. Turning to the plaintiffs' case the Court of Appeal was of the view that
the evidence of traditional history and descent as given by the plaintiffs in support
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of their pleadings remained unchallenged at the end of the case and that such
unchallenged evidence ought to be accepted in the circumstance. The plaintiffs
appeal was therefore allowed and judgment was accordingly entered in their
favour as per their claim in the statement of claim.
Dissatisfied with the decision of the Court of Appeal the defendants have now
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appealed to the Supreme Court.
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