1. EMMANUEL OKPALA IGWEGO
2. OKEKE ONYENOPUECHI
3. OKAFOR OGBUGBO OGU
4. STEPHEN EZENNAKA
5. ANUTA-UBA OKPALA

v. 

1. FIDELIS OJUKWU EZEUGO
2. IKEDIOBI ASIEGBU EZEUGO
(FOR THEMSELVES AND ON BEHALF OF THE MEMBERS OF EZEUGO FAMILY) 

 1992-LD-SC-436

Supreme Court 

17th July, 1992. 

Justices: 

Adolphus Godwin Karibi-Whyte, J.S.C

Saidu Kawu, J.S.C

Philip Nnaemeka-Agu, J.S.C

Michael Ekundayo Ogundare, J.S.C

Emmanuel Obioma Ogwuegbu, J.S.C., (Read The Leading Judgment) 

Subject Matter(s): 

Customary Arbitration  

Final Order: 

Appeal Dismissed.

RATIO DECIDENDI
INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S) – Attitude of the appellate Court to concurrent findings of fact(s) by Lower Courts

“This court will not in the circumstances of this case interfere with the concurrent judgments of the High Court and the Court of Appeal on essentially issues of fact there being no established miscarriage of Justice or violation of some principle of law or procedure. See National Insurance Corporation of Nigeria v. Power & Industrial Engineering Co. Ltd. (1986) 1 NWLR (Pt.14) 1 at 36. Enang v. Adu (1981) 11-12 S.C. 25 at 42, Nwagwu v. Okonkwo & Ors (1987) 3 NWLR (Pt.60) 314 at 321.“

ESTOPPEL PER REM JUDICATAM/RES JUDICATA – Doctrine of res judicata

“Estoppel per rem judicatam or estoppel of record or quasi of record arises “where an issue of fact has been judicially determined in a final manner between the parties by a tribunal having jurisdiction concurrent or exclusive, in the matter, and the same issue comes directly in question in subsequent proceedings between the same parties.” (or their privies).”

ESTOPPEL PER REM JUDICATAM/RES JUDICATA – Implication of the plea of estoppel by way of res judicata; and the conditions for successful plea of res judicata

“Where res judicata is pleaded by way of estoppel to an entire cause of action, it amounts to an allegation that the whole legal rights and obligations of the parties are concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact. For the plea to succeed therefore, the following must be established – 1. that the issues and subject-matter were the same in the earlier as in the second action or that the plaintiff has had an opportunity of recovering and, but for his own fault, might have recovered in the first action that which he seeks to recover in the second action. The cause of action must have been determined on the merits. This is so because the plea has for its rationale the two legal maxims: interest reipublicae ut sit finis litium and nemo debet bis vexari pro una et eadem causa. 2. the parties must be the same. Parties include their privies either in blood, law or estate. 3. the judgment in the earlier action must be a final one.”

ESTOPPEL PER REM JUDICATAM/RES JUDICATA – Nature of res judicata; and whether a plaintiff can plead estoppel per rem judicatam in his statement of claim

“The plea of res judicata is a shield rather than a sword; it is not open to a plaintiff in his statement of claim as he would thereby be impugning the jurisdiction of the court to which he has brought his action. A successful plea of estoppel per rem judicatam ousts the jurisdiction of the court before which it is raised – see Yoye v. Olubode (1974) 1 All NLR (Pt.2) 118, 126-127.”

CUSTOMARY ARBITRATION – Binding effect of a customary arbitration

“Objection by the losing party to the decision of the arbitrators will not prevent the Court giving effect to a proper and valid arbitration. The trial High Court found that the parties voluntarily submitted their dispute to arbitration by the Peace Committee, they participated in the Committee’s proceedings; the Committee reached a decision embodied in Exhibit B. These findings were affirmed, by the Court of Appeal. In my respectful view, the trial High Court and the Court of Appeal were right in giving effect to the decision of the Peace Committee. See: Ojibah v. Ojibah (1991) 5 NWLR (Pt.191) p.296, 314 where Nnaemeka-Agu, J.S.C. in his lead judgment said: “In my view, the law is pretty well settled that where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to customary law and agreed expressly or by implication that the decision of the arbitrators would be accepted as final and binding, then once the arbitrators reach a decision; it is no longer open to either party to subsequently back out of such a decision. See on this: Ozo Ezejiofor Oline & Ors v. Jacob Obodo & Ors (1958) 3 F.S.C. 84 p.86; (1958) SCLNR 298: Opanin Asong Kwasi & Ors v. Larbe 13 WACA 7; Philip Njoku v. Felix Ekeocha (1972) 2 ECSLR 199; Omanhene Kobina v. Akese 1 WACA 1, at p.2 .”

INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S) – Attitude of the appellate Court to concurrent findings of fact(s) by Lower Courts

“The law is that where there are such concurrent findings, then unless those findings are found to be perverse, not supported by the evidence, or reached as a result of a wrong approach to the evidence, or as a result of a wrong application of a wrong principle of substantive law or procedure, this Court, even if disposed to come to a different conclusion upon the printed evidence, cannot do so. See The Stool of Abinabina v. Enyimadu (1953) 12 WACA 171 Enang v. Adu (1981) 11-12 S.C. 25, p.42. Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718.”

CUSTOMARY ARBITRATION – Binding effect of a customary arbitration

“Where parties to a dispute voluntarily submit their dispute to a customary body of persons such as the Peace Committee in this case for adjudication and agree to be bound by the decision of the body on the issues in controversy between them. If the body goes into the matter, hears both sides and reaches a decision, the law takes the view that the parties to the dispute had chosen their own forum rather than the Courts. None of the parties will be allowed later to back out of the decision if it does not favour it. It will be bound thereby and the successful party can plead the decision as estoppel. This is the result of a long line of decided cases: Larbi v. Kwesi (1950) 13 WACA 81, p.82. Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385.”

ESTOPPEL PER REM JUDICATAM/RES JUDICATA – Whether a plaintiff may plead previous judgment not as estoppel per rem judicata but as fact in issue

“A Plaintiff may however plead the previous judgment in his favour not as res judicata but as a relevant fact to the issue in his present action – Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. I96) p.127; Section 54(1) (now Section 55(1) of the Evidence Act, and that judgment will be conclusive of the facts which it decided – Esan v.Olowa (1974) 3 S.C. 125; Section 54(2) (now Section 55(2) of the Evidence Act.”

CUSTOMARY ARBITRATION – Binding effect of a customary arbitration

“Now, the general principle governing arbitrations is well known, and it is set out, inter alia, in the case of Omanhene Kobina Foli v. Ohene Obeng Akese (1930) 1 WACA 1. In that case Deane, C.J. said: “………in submission to arbitration, the general rule is that as the parties choose their own arbitrator to be the Judge in the disputes between them, they cannot when the award is good on its face, object to this decision, either upon the law or the facts.” I might also refer to the case of Ekua Ayafie v. Kwamina Banyea 2 Ed. p.8 Sarbah’s Fanti L.R., where it was held that where matters in difference between two parties are investigated at a meeting, and in accordance with customary law and general usage a decision is given, it is binding on the parties and the Supreme Court will enforce such decision. In that case Bailey, C.J. said: ‘………after the arbitration was concluded, Defendant objected to the award, because it was against him. The Plaintiff, no doubt, would have objected had the award been but this way.’ But notwithstanding that object (sic) the Court held the award was a good one. Mr. Akufo-Addo suggests that this case is distinguishable from the present one because the Fanti law does not exactly agree in detail with Akan law. That is no doubt true, but the general principles of native customary law are based on reason and good sense and it would take a lot to convince me that Akan customary law is so repugnant to good sense as to allow the losing party to reject the decision of arbitrators to whom he had previously agreed.”