by PaulPipar


RAPHAEL AGU – Appellant




(1991) 3 NWLR (Pt.180) 385
(1991) LPELR-SC.107/1988




In April, 1970, the defendant/appellant trespassed into the land in dispute and the respondent summoned him before the Chief and the Elders of the town. Neither of the parties objected to the proceedings on the ground of the number of Chiefs who signed or thumb-impressed the document, the interest they represented, or the authenticity of the document itself. They gave judgment in favour of the respondent and warned the appellant not to trespass again into the said land. The complaint in this instant appeal is against the judgment of the Court below which stated that “there was an arbitration and that the result was/is binding on the parties and consequently the respondent (Agu – at the Court of Appeal) is estopped from denying the appellant’s (Ikwibe – at the Court of Appeal) title.”


  1. Can the Appellant, without leave of the Court, be heard to argue a point of law in the Supreme Court which was neither raised in the High Court nor in the Court of Appeal?
  2. Could the plaintiffs pleading in paragraph 8 of the statement of claim properly be said to raise a plea of binding arbitration, against the defendant?
  3. Was the Court of Appeal right in holding on the evidence, that the defendant (appellant) was estopped from denying the Plaintiff’s title to the disputed land?
Available:  Branham-Paul C. “PipAr” Chima v NLBC & Anor. (2022) - LAWSAN

⦿ HOLDING (in seriatim with the issues)

  1. Issue one which was raised by the respondent was overruled on the grounds that there are exceptions in respect of matters which involved substantial points of law: substantive or procedural, where no further evidence could have been adduced which would affect the decision. Where the point of law taken for the first time on appeal involved a substantial and substantive or procedural point of law, and no further evidence could be adduced which would affect it, such point could be raised and entertained on appeal. This issue was resolved in favour of the appellant.
  2. The Court answered this in the affirmative by saying that there was an arbitration and that the result was/is binding on the parties and consequently the respondent is estopped from denying the appellant’s title.
  3. There is no doubt that: (i) there is evidence of voluntary submission of the parties to the authority of the Chiefs and Elders of the Community; (ii) initial willingness of the parties to be bound by the decision of the Chiefs and Elders of the Community; (iii) the Chiefs and Elders of the Community exercise judicial functions according to custom; (iv) the terms of the decision were known, final and unconditional.
    These characteristics satisfy the requisite of estoppel. The terms of the decision which awarded title to the land in dispute to the respondent having been known, the party in whose favour it was made is entitled to rely on the plea of res judicata in subsequent litigation in respect of the subject-matter or the issue. It further held that the Court of Appeal was in the circumstance right to hold that appellant were estopped by the decision of the customary arbitration from disputing the title of the respondents.
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Judgement was given in favour of the respondent.

Nnaemeka-Agu dissented.



The object of the formulation of issues is to consider together a number of associated and related grounds of appeal within the issues to which they are related in the determination of the appeal. This approach facilitates determination of the appeal before the court and renders the appeal more intelligible and comprehensible. – per Karibe-White, JSC. Agu v. Ikwibe (1991)

It is an elementary but fundamental rule of our civil procedure that parties are bound by their pleadings. A party will only be permitted to lead evidence in support of his pleadings. Evidence which is contrary to or not supported by the pleadings goes to no issue. – per Karibe-White, JSC. Agu v. Ikwibe (1991)

I think it is well settled and judicial authority is not lacking for the view that persons exercising judicial functions in accordance with native law and custom and are duly authorised to adjudicate upon disputes among their community have always been recognised as having such powers. – per Karibe-White, JSC. Agu v. Ikwibe (1991)

Available:  Alhaji Suara Yusuff v. Yetunde Dada (Mrs.) & Ors. (1990)

The principle of res judicata applies where a final judicial decision has been pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation, and over the parties thereto, disposes once and for all of the matters decided, so that they cannot afterwards be raised for re-litigation between the same parties or privies. This principle involves the judicial decision estopping or precluding, any party thereto in any later litigation the correctness of the earlier decision in law and fact. Also the same issue cannot be raised again between them – per Karibe-White, JSC. Agu v. Ikwibe (1991)

The legal basis of all arbitrations is voluntary agreement. If there is a distinct agreement to appoint an umpire to determine the difference between the parties and other conditions are present, there is an arbitration. – per Nnaemeka-Agu, JSC. Agu v. Ikwibe (1991)

The binding effect of their decisions derives from the fact that parties which have the right to resort to court for adjudication of their disputes have, with their eyes wide open, agreed to opt for a decision by a non-judicial body, the decision of which they have voluntarily agreed to be bound by. When a party to such a dispute has to be summoned before the arbitration body which proceeds to hear the dispute and thereafter pass a judgment in favour of one of the parties as if it were a judicial body, such cannot be said to be a valid arbitration. – Nnaemeka-Agu, JSC, Agu v. Ikwibe (1991)




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