Ikenye Dike & Ors V. Obi Nzeka II & Ors. (1986)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

Before the merits of this appeal were gone into learned counsel for the Appellants, Professor A. B. Kasunmu, S.A.N. argued his Motion praying the Court for the following Orders:-

“1. Extension of time within which to apply for leave to appeal against the judgment of the Court of Appeal holden at Benin and, given on the 29th of March. 1984.

2. Leave to appeal against the same judgment.
3. That the Notice of Appeal dated and filed on the 18th of June 1984 (pp.147-148 of the Record of Appeal) pursuant to the order of the Court of Appeal dated 18/6/84 be deemed to have been properly filed.
4. That the Briefs of argument already filed be deemed to have been properly filed”.

The prayers in the above motion became necessary (inspite of the fact that leave to appeal was sought and granted by the Court of Appeal on 18/6/84 and consequent to the grant of the leave the Appellants filed their Notice and Grounds and also their Brief of argument) because the Court of Appeal, when it sat on 18/6/84 (and granted the Appellants leave to appeal) that Court was not properly constituted as only two justices sat to hear and grant the Appellants’ prayers in the motion. In fact it was this Court that detected this lacuna on 24/2/86 and asked for confirmation that only two justices sat on 18/6/84. The confirmation came in a letter CA/C.S./11/413 of 2/4/86 signed by Omo-Eboh. J.C.A. enclosing certified true copies of the record of proceedings in respect of this appeal on the 12th day of June 1984 and on the 18th day of June 1984. On the 12th June 1984, the court below made the following note:-

“Court: There are only two Justices in Court Hon. Justice Abai Ikwechegh is unwell and so cannot attend court. In the circumstances this application…cannot proceed…This application is adjourned to Monday 18/6/84”.

If one may pause here for a while – it is clear from the above that the court below adverted to the fact that with only two justices of the Court of Appeal sitting, the Court was not properly constituted. And that is right.

On the 18/6/84, the Court of Appeal Benin Division sat and granted the Appellants the leave they sought. The certified true copy of what happened on 18/6/84 still shows that only Omoigberai Eboh and Sunday James Ete, J.J.C.A. sat. Abai Ikwechegh’s name was cancelled with the remark (“cancelled – not sitting”). In Madukolu & Ors. v. Nkemdilim (1962) 1 ALL N.L.R. 587 at p.595, this Court held inter alia, that a court is competent when –

it is properly constituted as regards numbers and qualifications of the members of the Bench, and no member is disqualified for one reason or another.

2. …
3. …

“By Section 226 of the Constitution of the Federal Republic of Nigeria 1979:-

“Section 226 – For the purpose of exercising any jurisdiction conferred upon it by this Constitution, or any other law, the Federal Court of Appeal (now the Court of Appeal) shall be duly constituted if it consists of not less than 3 justices of the Federal Court of Appeal.”

By Section 213(3) of the same 1979 Constitution, leave to appeal can be granted either by the Court of Appeal or by the Supreme Court. Relating Section 213(3) above to the present application, one soon finds out that “the subject-matter of the application, was within the jurisdiction of the Court of Appeal” as decided by Madukolu’s case supra but that notwithstanding a Court of 2 Justices was not properly constituted and therefore lacked the necessary competence to grant the leave sought by the Appellants/Applicants. I am not unaware of the fact that Section 10 of the Court of Appeal Act No. 43 of 1976 stipulated that “A single justice of the Court of Appeal may exercise any power vested in the Court other than the power of final determination of any cause or matter”. That may well be, before the coming into force of the 1979 Constitution. On the 18/6184, when leave was granted in this appeal, Section 1(1) of the Constitution (Suspension and Modification) Decree 1984 and Schedule 1 thereto had become operative. The result was that Section 226 of the Constitution would then prevail over Section 10 of the Court of Appeal Act No. 43 of 1976.

We granted the Appellants all they asked for in their motion. There was no opposition from Dr. Odje, S.A.N. for the Respondent. But this notwithstanding, we thought it was wise to give a brief reserved ruling on the powers and jurisdiction of the Court of Appeal under Section 10 of the Court of Appeal Act No. 43 of 1976and under Section 226 0f the 1979 Constitution for the future guidance of the Court of Appeal. .

Now coming to the appeal itself, I will start by stating the policy of this Court on issues of fact and findings of fact. Generally, it is not the policy of this Court to interfere with the concurrent findings of two courts below. In the court of first instance, the Plaintiffs for themselves and on behalf of Obomkpa Community sued three named persons as Defendants and sued each Defendant in his personal capacity. There was no application by the Ugboba Village or Community to join. There was no application by the Defendants either jointly or individually to defend any family or community title. In their Writ and in paragraph 36 of their Statement of Claim, the Plaintiffs claimed as follows:-

“1. A Declaration that that piece or parcel of land lying and situate in Obomkpa,….and verged Pink on Plan No. LSU/I46 is the property of Obomkpa Community and not property of the defendants or any of them as individuals (Italics mine to focus attention on the distinction the Plaintiffs drew between Obomkpa title and the private, personal and individual titles of the defendants).

2. An Injunction restraining the defendants, their servants and/or agents from doing any act on or in respect of the said land in challenge of the Plaintiffs’ Community’s Title”

It is significant to note that no declaration and no injunction were claimed against the Ugboba Community as a community. The claims were against the 3 defendants as individuals and in their individual capacities. In his judgment, the learned trial Judge, A. J. Obi, J. at p.109 Lines 24-40 held as follows:-

“1. I have come to the conclusion in this case, that the plaintiffs’ action has succeeded and that they are entailed to the judgment of this Court in terms of their claim. It is accordingly declared that Ojiokpa land in dispute, particularly the area verged Pink in Exhibit 1 (the Plaintiffs’ Plan) is the communal property of Obomkpa Town or Community and in this respect Obomkpa includes both Ugboba and the defendants; the plaintiffs are therefore the persons entitled to a right of occupancy in respect of the land in dispute in accordance with the provisions of the Land Use Decree 1978.

2. The 1st and 2nd defendants by themselves, agents, servants and/or anyone whomsoever acting with their authority are hereby restrained by way of perpetual injunction from further or any acts in challenge of plaintiffs’ community title in the land verged Pink in Ex.1
3. The 3rd defendant is struck out from this suit.
4. Costs against the 1st and 2nd defendants, in favour of the plaintiffs is assessed at N500.00.”

It is here significant and relevant to observe that the trial court did not make any declaration against the Ugboba Community nor did it issue any injunction against the Ugboba Community. The declaration and the injunction were both directed against the 1st and 2nd defendants only as it was they who contested the plaintiffs’ claim. The 3rd defendant did not, as he filed no Statement of Defence nor did he take any part in the proceedings.

The position then was that the plaintiffs won in the Court of first instance and the Defendants lost. Aggrieved by the judgment of the Ogwaslti-Uku High Court, the defendants appealed to the Court of Appeal – Benin Division on grounds which included the following:-

“2. The learned trial Judge erred in law when he held that Ugboba is part and parcel of Obomkpa inspite of the series of legislations and evidence which made Ugboba a separate and independent town from Obomkpa with her traditional ruler not in any way subservient to any ruler in Obomkpa.”

The Court of Appeal (Nnaemeka-Agu, Dosunmu and Pepple, J.J.C.A.) in a unanimous and reserved judgment dismissed the appeal of the two defendants. In other words the Plaintiffs again won and the defendants lost a second time. I may here mention that the Supreme Court’s decision in Otuaha Akpapuna & Ors. v. Obi Nzeka II & Ors. (1983) 7 SC. 1 at p.21 was drawn as a red herring across the track of the Court of Appeal. The Court of Appeal refused to be diverted by the Akpapuna’ case from the live and relevant issues in the appeal- namely how the trial Judge dealt with the traditional evidence of the parties, the use he made of the two previous cases decided inter partes EX.2 and EX.3 and of the Intelligence Report of Odiani No. W. P. 13809A written ante motam litem (before the dispute arose).

The defendants having lost in the Ogwashi-Uku High Court and in the Court of Appeal – Benin Division and having lost mainly on the facts have now finally appealed to this Court as a Court of last resort. As I mentioned earlier on, it is the policy of this Court not to interfere with concurrent findings of fact made by two courts below unless there is some major error in law or procedure leading to a miscarriage of justice. As Dr. Odje observed in his Brief, the authorities in support of this policy are “legion” for they are many. There is no need mentioning these authorities. I do not see here any of those special circumstances which will compel the court in the interest of justice to reopen issues and questions of fact decided by two courts below. I am tempted (like Lord Thankerton) to say that in my view this is one of the clearest cases of the type which justifies this Court’s policy in not hearing arguments seeking to disturb concurrent judgments of two courts below on pure questions of fact: Chief Kweku Serbeh v. Ohene Kobina Karikari (1938) 5 WACA 34.

Professor Kasunmu was thus faced with the rather tough and uphill task of trying to upset these two concurrent findings. He (Kasunmu. S.A.N.) therefore postulated three Issues:-

1. Does the Akpapuna case constitute a judgment in rem or a judgment in personam.
2. Can the case be used as evidence
3. Was Akpapuna case decided per incuriam as alleged in the respondents’ Brief

I will now consider the above postulates one by one –

1. Is a judgment in a land case a judgment in rem or a judgment in personam

This Court has of recent been called upon to determine whether a particular judgment in a land case was a judgment in rem or in personam. This same issue arose in Adesina Oke & Anor. v. Shittu Atoloye & Ors. (1986) 1 NWLR 241. The issue cropped up again in G. A. R. Sosan & Ors. v. Dr. M. B. Ademuyiwa (1986) 3 N.W.L.R. 241.

It is therefore necessary to have a clear idea of the distinction between a judgment in rem and a judgment in personam. A judgment is said to be in rem when it is an adjudication pronounced upon the Status of some particular thing or subject matter by a tribunal having the jurisdiction and the competence to pronounce on that Status. Such a judgment is usually and invariably founded on proceedings instituted against or on something or subject-matter whose status or condition is to be determined. It is thus a solemn declaration on the status of some persons or thing. It is therefore binding on all persons in so far as their interests in the status of the property or person are concerned. That is why a judgment in rem is a judgment contra mundum – binding on the whole world – parties as well as non-parties. A judgment in personam, on the other hand, is on an entirely different footing. It is a judgment against a particular person as distinguished from a judgment declaring the status of a particular person or thing. A judgment in personam will be more accurately called a judgment inter partes. A judgment in personam usually creates a personal obligation as it determines the rights of parties inter se to, or in the subject-matter in dispute whether it be land or other corporeal property or a liquidated or unliquidated demand, but does not affect the status of either the persons to the dispute or the thing in dispute. As I observed in Sosan’s case supra:-

“A judgment in a land case is sequel to an action filed not for the purpose of determining the status of the contesting parties (Plaintiffs and Defendants) nor for the purpose of determining the status of the land in dispute but for the purpose of determining the rights or interest of either the Plaintiffs or the Defendants in the land the subject-matter of the dispute. It simply decrees that as between the plaintiffs and the defendants then before the court the land belongs to one party or the other.”

I will now look at the Akpapuna case in the light of the distinction made above.

In Otuoha Akpapuna & Ors. v. Obi Nzeka II & Ors. (1983) 7 SC. 1 at p.2 of the Report the claim before the court is reproduced. It was a claim for:-

(i) Declaration of title to land in Asaba Division -land delineated on Plan No. LSU/145.

(ii) N10,000 damages for trespass.

(iii) An injunction restraining further trespass.

The above claim is a request to the court to declare as between the Plaintiffs and the Defendants who has the right of ownership to the disputed land. If the right of ownership is in the Plaintiffs then the Defendants will be adjudged trespassers and condemned to pay damages and restrained by an injunction otherwise the Plaintiffs’ action will fail. The above case merely sought to declare the rights of the parties in and over the land in dispute. That was the central issue before the court and a decision one way or the other binds the parties to the action. The Akpapuna case is clearly an action in personam or inter partes and the judgment thereon will ever remain a judgment in personam or inter partes. The judgment in the Akpapuna case being a judgment in personam or more appropriately inter partes cannot bind non-parties. The present Appellants not being parties to the Akpapuna case cannot now plead or use that case as Estoppel.

The first question for determination in Professor Kasunmu’s Brief at p.5 is:-

“Was the Court of Appeal correct in regarding the decision of the Supreme Court on the status of Ugboba as irrelevant in the instant case”

The ownership of a disputed land is one thing, the status of a village or community is an entirely different thing. The Plaintiffs in the Akpapuna case did not sue to establish or for the court to declare the status of Ugboba village or community. Professor Kasunmu at pp.5/6 of his Brief reproduced the claims before the court in the Akpapuna case. None of these three claims related to or directly called into question the status of Ugboba village. They were claims for declaration of title, damages for trespass and injunction. Thesewere the radical issues calling for a decision. Any other pronouncement by the courts will be but subsidiary only to the main claims before the court. The decision in a case and the factors that led to that decision must always be carefully kept apart. Also the expression of every Judge must be taken with reference to the case on which he decides. That is what we are to look at in all cases. The manner in which the Judge decides to argue the case is not the essential thing, rather it is the principle he is deciding. Judgments come with far more weight and gravity when they come upon points which the Judge is bound to decide, otherwise the observation will be obiter dictum, and obiter dicta like the proverbial chickens of destiny, come home to roost sooner or later in a very uncomfortable way and create much embarrassment in future cases. And that is the trouble we are in now. But the simple answer whether the Court of Appeal was right in regarding the Akpapuna case as irrelevant is yes. That case not being a judgment in rem is completely irrelevant to the present case now on appeal.

The finding of fact that Ugboba is classified as Odiani with an Obi of her own is a finding made in the Akpapuna case. One cannot transfer a finding of fact from one case to another for as Brett, F.J. observed in Adeola Odunsi v. Anthony George Boulos (1959) 4 F.S.C. 234 at p.237, findings of fact in one case are irrelevant if they are intended to be used as such in another case. Also questions of law and principles of law established in one case are helpful in another case only to the extent that they are based on facts indistinguishable in their legal consequences from those in the case in hand. Since I have held that the judgment in the Akpapuna case was a judgment in personam and inter partes, the Court of Appeal was right in coming to a decision in this appeal without bothering about the Akpapuna case.

The third question for determination ‘as formulated by Professor Kasunmu during his oral argument in court is:-

“Was the Akpapuna case decided per incuriam as alleged in the Brief of the Respondent”

Since the Akpapima case was a decision inter partes and since the parties in that case were I) or the same as the parties to the case now on appeal, it will be an exercise in futility to probe whether or not the Akpapuna case was decided per incuriam for either way, the result will not in the least affect the outcome of this appeal. The court has not the time to indulge in the diseassion of theories or principles however attractive, if they have no bearing with the case the Court is now called upon to decide.

Now I come to the second question – Can the Akpapuna case be used as evidence in this case What evidence to call or what will be used as evidence will naturally depend on the pleadings of the parties and the issues that arose from those pleadings. The Plaintiffs’ Statement of Claim will be found at pages 11 to 16 of the record. No where in all the paragraphs of that Statement of Claim was any mention made of the now famous Akpapuna case. The Defendants’ Statement of Defence will be found at pages 23 to 26 of the record. Again here no paragraph of the Original Statement of Defence mentioned the Akpapuna case. However by motion dated 12th June 1980, the Defendants now Appellants moved the court praying for an order granting them leave to amend their Statement of Defence by the addition of three new paragraphs, namely paragraphs 23, 24 and 25. It was the proposed paragraph 23 that pleaded the Akpapuna case. The motion is at page 50 of the record and the proposed new paragraphs 23, 24 and 25 are at pages 54 Lines 36-40; 55 and 56. The Plaintiffs swore a counter-affidavit copied at pages 57 to 58. In their paragraph II, they averred:-

“11. That the Defendants/Applicants were not parties nor was Ugbobo Quarters of Obomkpa a party to the Suit referred to in paragraph 23 of the Applicants’ proposed Amended Statement of Defence.

12. That the Plaintiffs in the present Suit were the Plaintiffs in the Suit referred to in the said paragraph.”

After hearing oral argument by counsel on both sides, the learned trial judge granted the amendment sought at p.74 Lines 6 to 12 as follows:-

“This application therefore partially succeeds. Leave is accordingly granted to the Defendants/Applicants to amend their Statement of Defence by adding paragraphs 24 and 25 shown in the proposed amended Statement of Defence exhibit” A” which is also hereby deemed properly filed. The prayer in relation to the addition of paragraph 23 is refused and that prayer is struck out from the said amended Statement of Defence. ”

With the above ruling, the Akpapuna case did not form any part of the pleadings at all. The numerous decisions on this Court are clear on this point, namely that parties are bound by their pleadings and that any evidence at variance with those pleadings goes to no issue and should be disregarded. See Aniemeka Emegokwue v. James Okadigbo (1973) 4 S.C. 113 at p.117. From this, it follows that evidence of a fact not pleaded is inadmissible:- National Investment Properties Co. Ltd. v. Thompson Organisation Ltd. & Anor. (1969) N.M.L.R. 99 at p.I04; see also Ferdinand George v. The United Bank for Africa Ltd. (1972) 8/9 S.C. 264 at p.274; Metalimpex v. A. G. Leventis & Co. (Nig.) Ltd. (1976) 2 S.C. 91 at p.102: Lawal v. G.B. Ollivant (Nig.) Ltd. (1972) 1 All N.L.R. (Part 1) 207. Since it is a settled rule of practice that parties are bound by their pleadings and that such parties will not be allowed to set up at trial a case which was never pleaded, then my answer to the Appellants’ Question No.2 whether or not the Akpapuna case can be used as evidence in this case on appeal is No. It cannot be so used. In fact it was not used in the trial court and the Court of Appeal held that the Akpapuna case was irrelevant to the present proceedings. I agree entirely with the lead judgment of Nnaemeka-Agu, J.C.A on this point.

Now since we are dealing with the question of whether or not the Akpapuna case can be used as evidence, it may be convenient at this stage to consider Sections 49 and 50 of the Evidence Act which learned counsel for the Appellant submitted have not yet been interpreted by this Court. Section 49 of the Evidence Act Cap. 62 of 1958 Laws of the Federation of Nigeria stipulates as follows:-

“49(1) A final judgment, order or decree of a competent court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character or to be entitled to any specific thing, not against any specified person but absolutely, is relevant when the existence of any such legal character or title of any such person to any such thing is relevant. (2) Such judgment, order or decree is conclusive proof –

(a) that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;

(b) that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when the judgment, order or decree declares it to have accrued to that person;

(c) that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and

(d) that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property. (Italics above are mine)

From a cool and dispassionate consideration of Section 49 above, it is very clear that that section was dealing with judgments, orders or decrees conferring or removing status. In probate matters, matrimonial causes, admiralty cases and insolvency proceedings, the court is invariably called upon to declare or remove the status of the subject. In my humble view, section 49 of the Evidence Act Cap. 62 of 1958 is a statutory definition and exemplification of what amounts to a judgment in rem. The section continuously and repeatedly refers to “any legal character”. Now character is what a man is. His legal character will therefore imply and mean his status. In his “The Law of Evidence in Nigeria” 2nd edition, Dr. T. A. Aguda prefaced his consideration of Section 49 of the Evidence Act thus:-

“A previous judgment declaring a Special Status is relevant when the existence of such a special Status is relevant.” (Italics mine).

Now in the Akpapuna case, the main claim before the court was a declaration of title to land, damages for trespass and injunction. There was no claim before the court to declare the Status of Ugboba or its Obi. There might have been a finding of fact to that effect but we cannot elevate a mere finding of fact to a declaration. There must be some fundamental difference between a finding of fact on an issue in the case and a declaration made at the end after considering that finding of fact along with other findings of fact in the case as a whole. There is no doubt that Section 49 of the Evidence Act Cap. 62 of 1958 Laws of the Federation of Nigeria stipulate that a previous judgment is relevant. But that section also spelt out what types of previous judgments that are relevant in other proceedings, namely – probate judgments, decrees in matrimonial cases, orders made in insolvency cases or in admiralty causes. The next question is – For what purpose are these previous judgments relevant The section again answers the question. These previous judgments are relevant “when the existence of any such legal character or the title of any such person to any such thing is relevant.” Before and during the Intelligence Report, EX4, Obomkpa and Ugboba were regarded as one community. But recently, very recently and for administrative purposes Ugboba was “classified as Odiani with an Obi.” The question now is – What was the position before Ihis classification There is no doubt that classification for purely administrative purposes cannot affect ownership of land – communal ownership which existed before the classification was made.

The Court was also invited to consider Section 50 of the Evidence Act Cap 62 of 1958 Laws of the Federation of Nigeria which stipulates:-

“50. Judgments, orders or decrees other than those mentioned in section 49 are relevant if they relate to matters of a public nature relevant to the inquiry, but such judgments, orders and decrees are not conclusive proof of that which they state.”

I must confess to an inability to comprehend the relevance of Section 50 to the appeal before the court. The Akpapuna case cannot by any stretch of the imagination be equaled to “matters of a public nature”. If it is the finding that “Ugboba is now classified as a separate community with its own Obi” that is now referred to as “matter of a public nature” then the answer is that Section 50 above will apply to judgments, orders or decrees but definitely not to findings offact made in the process of resolving an issue in dispute. To conclude the issue whether or not the Akpapuna case has any effect on the outcome of the present appeal, I will emphasise that since that case was not pleaded, it cannot even be tendered in evidence in the case on appeal. The reality is that the Akpapuna case was not so tendered. That case must first and foremost be in evidence before its effect can be ascertained. I have earlier on held that the Akpapuna case is not a judgment in rem but a judgment inter partes. As the Appellants were not parties to the Akpapuna case, they cannot use that judgment either for offence or defence.

Still on the evidence, I will refer to the submission of learned counsel for the Plaintiffs (now Respondents in this Court) when the Defendants sought to amend their Statement of Defence by pleading the Akpapuna case at p. 72 lines 16-27 as follows:-

“The learned Counsel for the Plaintiffs/Respondents in his arguments in Court, relied, in the main, on the issues in the said counter-affidavit. He pointed out further that the main issue for determination in the suit is ownership of the land in dispute against the Defendants who have been sued and in fact are prosecuting the action in their personal capacities. He was of the view that the documents sought to be introduced by the proposed amendment are irrelevant to the issues in controversy in this case. This is so because the defendants who are sued in their personal capacities cannot rely on the title which they say rest with Ugboba as a community which is not a party to the action. ”

The above submission of learned counsel for the Plaintiffs in the Court of first instance raises a very crucial and radical question which was not given the weight it deserved by the trial court who went on at pages 89-91 to consider the traditional history of the Defendants. What then is traditional history or traditional evidence When is such evidence relevant Traditional evidence is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land as theirs or who defend a claim to such land. Traditional evidence is a bit of ancient history. It is hearsay evidence only elevated to the status of admissible evidence by the Statutory provision of Section 44 of the Evidence Act Cap 62 of 1958 Laws of the Federation of Nigeria. This section provides:-

“S.44: When the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.”

In this case, the Plaintiffs sued 3 defendants, each in his personal capacity. In paragraph 2 of the Statement of Claim, the Plaintiffs pleaded that:-

“The Defendants belong to Ugboba Village of the same Obomkpa and ere sued personally.”

The entire pleadings of the defendants show that they were relying on the Ugboba community title. Ugboba did not join as a party. In his lead judgment at p.136 lines 4-10 of the record Nnaemeka Agu, J.C.A. observed:-

“As for the role played by Ugboba Community in this case, it is well for them to remember that it has been established by a long line of cases that as they are obviously cognisant of the court’s proceedings but decided rather not to intervene, they will be bound by the results and cannot at a later date spring up to assert their rights …. if the appellants should lose.”

I agree. This is the substance of estoppel by mere standing-by when a matter concerning one’s interest in land or other property is being litigated.

But the issue in this case is – On a proper interpretation and a critical examination of Section 44 of Evidence Law – can a party who has not been authorised to represent a community plead and rely on that community family title If the family title of Ugboba has not been called into question by the Plaintiffs suing Ugboba or the defendants applying that Ugboba be joined in the action, can the defendants invoke Section 44 of the Evidence Act Laws of the Federation of Nigeria Cap 62 of 1958 and rely on a title that has not been put in issue My answer is No. The three defendants were sued personally and not in any representative capacity. To avail themselves of the umbrella of the Ugboba community title, they should have taken the necessary steps to make Ugboba village or community a party. May be they tried and failed for at 1′.58 of his judgment, the learned trial judge observed:-

“At the institution of this action, a community meeting of the two towns was held in which 3rd defendant attended. He at that meeting, acknowledged the fact that all Obomkpa land is communal land and the fact that all through the ages, the community had been doing things in common. He pledged not to interfere with the land in dispute in a manner which provoked the present action. It would appear that it was on account of this reconciliation that the 3rd defendant did not bother to file any defence to the action and had in fact, made no appearance throughout the hearing of the action before me.”

It is now relevant to find out what it was that provoked the present action and the reply of the two Appellants thereto. In paragraphs 29 and 30 of their Statement of Claim, the Plaintiffs complained that the three defendants “cut a long path within the land in dispute” and claimed “that the land belonged to them€¢ ” What was the reply of the two defendants now Appellants to paragraphs 29 and 30 of the Statement of Claim In paragraph 19, the two defendants simply denied paragraphs 26, 27, 28, 29 and 30 of the Statement of Claim. In paragraph 20 of their Statement of Defence, the two defendants pleaded that they “will contend that the land in dispute is the property of the defendants’ people from time immemorial”. It is my humble view that where defendants are sued personally, they can defend the action in their personal capacities. But where such defendants want to depend on the communal title of their village or community, Section 44 of the Evidence Act Cap. 62 of 1958 compel them to make the community a party in order to enable them give traditional evidence of community title. It is neater that way.

In conclusion and as I observed earlier on, the onus lies rather heavily on a party trying to set aside the concurrent findings of two courts below. Here the main weapon in the armoury of Professor Kasunmu for the Appellants, to achieve this herculean feat was the plea that the Akpapuna case was a judgment in rem. That weapon has proved most ineffective. As there are no other grounds on which the concurrent findings of Ogwashi- Uku High Court and the Court of Appeal Benin Division can be faulted, this appeal is bound to fail. For all the reasons given above, I dismiss this appeal as wholly lacking in merit. There will be costs to the Plaintiff/Respondents which I assess at N300.00.

ESO, J.S.C. (Presiding): I have had the advantage of a preview of the judgment which has just been delivered by my learned brother Oputa, J.S.C. and I agree with his reasoning and conclusion and will also dismiss the appeal which is hereby dismissed with costs as set out in the lead judgment of my C learned brother Oputa J.S.C.

UWAIS, J.S.C.: For the reasons given and conclusion reached by my learned brother, Oputa J.S.C. in the judgment just read by him, the draft of which I had a preview of, I too will dismiss this appeal and confirm the concurrent decisions of the High Court and the Court of Appeal. Accordingly the appeal is hereby dismissed with N300.00 costs to the respondents.

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SC.172/1984