Nwabueze Nwankwo & Anor V. Bernard Uguru Agwo & Anor (2016)

LawGlobal-Hub Lead Judgment Report

ITA GEORGE MBABA, J.C.A. 

 The Claimants, now Appellants, filed a suit in the High Court of Abia State in Suit No. HU/96/2013 against the Defendants, now Respondents, as per the writ of summons on 11/06/13 and the statement of claim filed on 7/12/13 seeking the following reliefs:
?(a) A declaration that the Claimants are entitled to the statutory right of occupancy of a piece or parcel of land known as and called ?ISI OBA UKORO? situate at Ofeke Ndume Ibeku Umuahia in Umuahia North Local Government Area, Abia State, within the jurisdiction of the Court, with an annual rent value of N10.00.
(b) The Sum of Nine hundred Thousand Naira being special and general damages for trespass to the aforesaid piece or parcel of land by the Defendants.
(c) An order of perpetual injunction permanently restraining the Defendants, servants, agents and/or work men from entering or interfering with the ISI OBA UKORO land in any manner whatsoever.?

The particulars of special damages were stated as follows:
(a) 320 Yam Plants at N250.00 each = N75,000.00
(b) 500 Cassava Stems at

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N200.00 each = N100,000.00
(c) 250 Maize Stands at N200.00 each = N50,000.00
Total Special Damages = 225,000.00
General Damages = 675,000.00

The above claims were also reflected on the amended Statement of Claim filed by the Appellant on page 204 of the Records of appeal. That was in reaction to the statement of defence by the Respondents, filed on 17/10/2013, and the subsequent replies filed by the parties.
?
Upon the hearing of the case and consideration of evidence and addresses of Counsel, the Learned trial Judge, Hon. Justice Agru Umah Kalu, on 12/6/14, rejected the evidence of ownership by the Appellants and the Exhibit C, the proceedings and decisions of native arbitration between one Nnomele Aboki Ekpo and the 1st Claimant over the land in dispute in 2009, and held;
I seem to believe that the Defendants are the people in possession of the land in dispute and have exercised acts of ownership on the land. Now to the several and various arbitrations or the awards flowing from each as the evidence suggests that the native arbitrations were all clearly tainted. It seemed that each partly simply got a group of

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Okonko Society members favourable to its cause and such group will conduct proceedings and make awards to favour the side it had sympathy for. I prefer not to accord, any respectability to any of the native arbitrations and of course, I will accord no probative value to the purported awards made by those native arbitrations.
? In sum I find no merit in the claimants? case, which I proceed to dismiss. Costs to the defendants? payable by the claimants fixed at #10,000.00? (See pages 379-380 of the Records).
?
That is the judgment Appellants appealed against, as per their Notice of Appeal, filed on 11/8/14. See pages 381 to 390 of the Records of Appeal. Appellant filed their Brief of argument on 18/12/2014 and distilled six (6) Issues for the determination of the appeal, namely:
(1) Whether the learned trial Judge was right when he rejected the uncontroverted and conclusive evidence of the traditional history of the land in dispute adduced by the Claimant through CW1 on the ground that the said evidence of traditional history was not corroborated by another witness (Grounds 1 and 2).
(2) Whether the trial Judge having

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rejected the evidence of the traditional history of the land in dispute adduced by the defendants for being inconclusive can turn round to rely on the same evidence of traditional history by the Defendants to come to a conclusion that the land in dispute was deforested by Eleazu or Elemnazu (Ground 3)
(3) Whether the Claimants proved acts of possession and ownership exercised on the land in dispute by Ijee, the father of the 1st Claimant?s family over a long period of time. (Grounds 4, 5 and 6)
(4) Whether the trial Judge was right when he said that the Defendants are in possession of the land in dispute and have exercised acts of possession over the land in dispute. (Ground 7)
(5) Whether the trial Judge was right by not according probative value to the verdict of native arbitration tendered by the Claimant, particularly the arbitration between Nnomete Aboki Ekpo and the 1st Claimant, tendered as Exhibit C (Ground 8)
(6) Whether the Claimants proved special damages by giving evidence of numbers and particulars of tones destroyed by the Defendants ? (Grounds 9).
?
The Respondents filed their brief on 16/6/15, which was deemed

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duly filed on 28/1/16 and adopted the issues for the determination of the appeal as distilled by the Appellants.

When the appeal came up for hearing on 17/5/15, Appellants? Counsel, C. N. Nwokorie Esq. who settled the brief, on Issue one, submitted that the trial Court was wrong when it rejected the uncontradicted and conclusive evidence of the traditional history of the land in dispute adduced by the Claimants through CW1, saying that the evidence was not corroborated by another witness. He argued that the trial Court did not find any defect or gap in the evidence of traditional history adduced by the Claimant, but rejected it on the sole ground that it was not corroborated by another witness. Counsel said what the trial Court said was not a true position of law on issue of evidence of traditional history; that such evidence requires no corroboration to be accepted; that there is no requirement of law either in Evidence Act or decided cases that evidence of traditional history should be corroborated. He relied on the case of Amadi vs. Amadi (2011)15 NWLR (Pt.1271) 437 at 460, wherein Eko JCA said:
?Now, to the tacit rejection of

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PW1?s evidence of the traditional history because it was not corroborated by the evidence of PW2 and PW3. There is no requirement of the law, either in Evidence Act or decided authorities, that evidence of traditional history must be corroborated The trial Court therefore was rather unreasonable in insisting that every iota of the evidence of the PW1 must be corroborated by PW2 and PW3 before the traditional history of the Plaintiffs could be accepted.?

Counsel also argued that the trial Court mixed up proof of native law and custom with proof of traditional history, when the Court said:
?I agree that it is not all about number of witnesses but like the proof of every custom or native law, where traditional history is in issue, it is not enough for only one witness to testify on it.?

Counsel argued that once evidence of traditional history by a party (claimant) is conclusive and does not conflict with the evidence by the other party, it is enough for the trial to declare title in favour of the Claimant. He relied on Okwaranonobi vs. Mbadugha (2013)17 NWLR (Pt.1383) 255 at 275.
?
This, he said, became

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more necessary, because the trial Court had declared the traditional history by the claimant to be conclusive as the 1st Claimant had given evidence of the genealogical tree and line of succession of the family, from the cradle of its founding fathers to him, whereas the Defendants? traditional history was adjudged inconclusive and confusing; that the trial Court had said:
?The defendants? traditional history was like looking for a needle in a haystack or finding white glove in the snow? The implication of all I have said above is that the traditional history relied upon by the Defendants suffers a disconnect and does not make consistent sense. I will therefore not accord it any probative value.?
?
Counsel wondered why the trial Court reached such conclusion it did, in the face of the flawless traditional evidence led by the Appellants as opposed to the flawed type made by the Respondents, and which the trial Court also rejected! He submitted that having adjudged the evidence of traditional history by the Appellants to be conclusive, and having found no defect in it, except the allegation of it not being corroborated, the

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trial Court had no need to resort to evidence of acts of possession and ownership; that the Court ought to have entered judgment in favour of the Appellants, having rejected the traditional evidence by Defendants. He relied on Shukka vs Abubakar (2012) 4 NWLR (PT.1291) 497 at 515.

On Issue 2, Counsel submitted that, having rejected the traditional history adduced by the Defendants, for being inconclusive, the trial Could not turn around to rely on the same, to come to a conclusion that the land was deforested by Eleazu or elemnazu. He argued that the Defendants had pleaded that the land in dispute was deforested by Elemnazu (page 84 of the Records), but that evidence on that was rejected when the trial Court said the traditional evidence by the Respondents was inconsistent and inconclusive.

Yet the same Court held:
?I am in agreement with the position of the Defendants that the ancestor of the 1st Claimant and the Defendants was Eleazu or Elemnazu and it was him who founded Umueleazu and also the land in dispute.?

Counsel said that was a grave error, He relied on the case of Morenikeji vs. Adegbosin (2003) 25 WRN 1 at 31.<br< p=””

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On Issue 3, whether the Claimants proved acts of possession and ownership exercised on the land, by the father of the 1st Claimant and other members of his family over a period of time, Counsel answered in the affirmative. He repeated that the trial Court was wrong to reject the evidence of traditional history by the Appellants on the ground that it was not corroborated by evidence of another witness.

Counsel submitted that the holding by the Court that ?the alleged acts of ownership exercised on the land in dispute by Ijee, the father of the 1st Claimant, were not proved by the Claimants? was perverse and wrong; he said that the Claimants gave unchallenged evidence of the aforesaid acts of possession and, ownership, in line with their pleadings. He referred us to the pleadings (pages 207 ? 211 of the Records) and the evidence of CW1 (Pages 279 to 281 of the Records). He also relied on Exhibit K, their survey plan and placed reliance on the ?Ugba? stump which he said the Respondents also indicated in their survey plan; that that strengthened and corroborated the evidence of the Appellants. He relied on the case of Sanya vs

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Sauman (2012) ALL FWLR (Pt.618) 917 at 941.

Counsel added that the trial Court was wrong to say that Appellants? survey plan did not indicate the oil bean tree or ugba tree said to have been harvested by the father of 1st Claimant, whereas the Claimant had stated in their evidence that the said tree had been sold to Ogbuneke, who cut same down, and that the two survey plans had indicated the stump of the tree, cut down by the said Ogbuneke. Counsel added, again, that the evidence of ownership and possession adduced by the Claimants was never challenged, that admitted facts need no proof. He relied on Elendu vs Ekwoaba (1995) 3 NWLR (Pt.386) 704. Counsel was surprised that the trial Court accepted that Claimants gave evidence of the sale of Iroko tree on the land in dispute but failed to accept that as evidence of acts of possession. He referred us to the holding of the trial Court, when it said:
?Except for the alleged sale of an iroko tree on the land in dispute by Ijee mentioned by CW1 and supported by CWS 2 and 3, it is noticeable that all the other activities purportedly carried out by Ijee on the land in dispute as stated by 1st

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Claimant were not corroborated by any other witness of the Claimants.? (Page 378 of the Records)

Counsel submitted that there is no requirement of law that evidence of acts of possession must be corroborated before it can be acted upon.

On Issue 4, whether the trial Court was right when he said the Defendants were in possession of the land in dispute and had exercised acts of possession over the land, Counsel said the findings of the trial Court thereof was not supported by evidence; he said that there was no evidence to support the belief of the trial Court, when he said;
?I seem to believe that the Defendants are the people in possession of the land in dispute and have exercised acts of ownership on the land? (Page 379 of the Records)

?Counsel said the Defendants did not plead or give evidence of any act of possession and ownership of the land in dispute to support the above view of the trial Court; he said that the Defendants did not plead or give evidence to show that any of their ancestors had ever farmed on the land in dispute or do any other thing on the land; he submitted that in the absence of any evidence to

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support that findings of the trial Court, the same was perverse. He relied on the case of Okafor vs. Ejiogu (2012) ALL FWLR (Pt.650) 1315 at 1335.

Counsel also referred us to paragraph 18 of the defendants? pleading and evidence on page 311 of the Records.
?
On Issue 5, whether the trial Court was right by not according probative value to the verdicts of native arbitrations tendered by the Claimant, particularly, the arbitration between Nnomele Aboki Ekpo and the 1st Claimant, tendered as Exhibit C, Counsel answered in the negative. He noted that it was Nnomele Aboki Ekpo who summoned the 1st Claimant before the Ibeku Egwu Asaa Okonko Society, which arbitrated over the matter and gave judgment to the 1st Claimant; that the Defendant admitted that judgment was given by the arbitration to the 1st Claimant; he referred us to paragraph 26 of Defendants pleadings. He noted that the 1st Defendant (1st Respondent) on 11/11/2009 and 30/3/2010 asked questions during the said arbitration between Nnomele and the 1st Claimant and that 1st Defendant never laid claims, to the land in dispute during the said arbitration. He referred us to Exhibit C ?

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pages 417 to 424 of the Records of Appeal.

Counsel submitted that since Respondent admitted taking part in the arbitration and asking questions thereat, and never claimed ownerships of the land then, the trial Court should have acted on that admission, in favour of the Appellant. He relied on Nwakonobi vs Udeorah (2012) MRSCJ Vol.3 134 to the effect that facts admitted need no proof and that the trial Court is bound to act on the admitted facts.
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On Issue 6, whether the Claimants proved special damages by giving evidence of numbers and particulars of items destroyed by the Defendants, Counsel answered in the affirmative. Counsel faulted the trial Court, when it said that ?items of special damages were pleaded by the Claimant but no effort was made to prove same? Counsel said the Appellant pleaded the special damages and proved same. He referred us to paragraph 25 of the Amended Statement of Claim, where they listed the items they said the Defendants destroyed and their unit costs and total amount. Counsel said the Appellants also stated the amount of each item destroyed by Defendant and the Defendants did not deny the fact that each of

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the items attracted to it by the Appellants; that having not joined issues with the prices for each of the items, there was no need for the Claimants to state how they arrived at the amounts.
He urged us to resolve the issues for the Appellants.
?
In their response, Counsel for the Respondents, Henrietta Kingsley Ogbodo, who settled their brief, on Issue one, whether the trial Court was right to reject the uncontradicted and conclusive evidence of traditional history adduced by Appellant, on the ground that same was not corroborated by another witness, submitted that the trial Court was right. He said that both parties placed reliance on evidence of traditional history to establish their title, but that the trial Court found as a fact that it was Eleazu who deforested the land. He argued that the evidence of CW1 and CW2 had some conflicts; he said that it is trite law, that evidence of all the witnesses may not be without mistake, but it is not when the mistake affects the root of Appellants trace of title, as in this case. He said that CW1?s evidence during Cross Examination was that ?Elemnazu did not beget only two sons namely Erowe and

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Ogbukpa? (page 279), but that he somersaulted, when he said ?There is no name like Okpugba in our linage and the said Okpugba did not beget Agwo? (Pagozoo) Counsel said that CW1 also testified on page 273, that the father of Erowe was Eleazu. Eleazu begot two sons, namely Erowe and Orji?

Counsel also referred to the evidence of CW2, who said: ?that I am a descendant of Orji, the brother of Erowe, Erowe is the ancestor of the 1st claimant and the Defendant in this case.
Orji and Erowe are brothers. The father of Orji and Erowe is Eleazu. I am a member of Umueleazu family?
?
Counsel said CW2, who claimed to be a descendant of Orji, in another breath, in Exhibit F, averred that Dike and Orji were brothers and not Erowe and Orji, that CW2 made no mention of Erowe in his pleading. He submitted that the evidence of traditional history, adduced by CW1 and CW2 were a vital contradiction to the history of the genealogy, traced by the Appellants; that the evidence of CW2, elicited under cross examination, is clear indication that Eleazu deforested the land in dispute; but that the same CW1, who alleged that Eleazu had

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only 2 sons, in another breath mentioned different names under cross examination, from the one earlier made as the children of Eleazu.

Counsel argued that the weakness of the defence?s case does not aid the claimant in a case of title to land; that the Plaintiff swims and sinks by the case put forward by him. He relied on Animashaun vs Olojo (1991)10 SCNJ 143. He argued that the fact that the trial Court acknowledged that CW1 proved the traditional history from cradle of the founding fathers to himself, would not entitle him to judgment in the face of the contradictions by the CW2. He referred us to Obioha vs Duru (1994)8 NWLR (Pt.365) 631. He also relied on Nwokidu vs Okanu (2010)3 NWLR (Pt.1181) 362 to say that the burden of proof remains on the Plaintiff to establish declaratory reliefs to the satisfaction of the Court, and cannot rely on even admission by the Defendant.
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On Issue 2, whether the trial Court, having rejected the evidence of traditional history adduced by the Defendants for being inconclusive, can turn round to rely on the same, to come to conclusion that the land in dispute was deforested by Eleazu and Elemnazu, Counsel

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submitted that, though the trial Court held that it would not accord the traditional history relied upon by the Defendants any probative value, because it suffered a disconnect and did not make consistent sense, it did not mean that Appellant should have judgment in their favour, when the traditional history adduced by CW1 and his witnesses contradicted themselves, materially.

Counsel argued that the trial Court took judicial notice of Section 16 (1) and (2) of the Evidence Act, 2011. He queried: If the land was deforested by Eleazu, whom CW1 alleged lived and died in Ohokobe, how is it that the compound name is not Umuerowe, whom CW1 alleged deforested the land in dispute? Counsel answered by saying that the trial Court was right when it said:
?My take on it is that the Claimants were certainly running away from accepting that Eleazu, the parties common ancestor was the founder of the hamlet, known as Umudeazu?
?
He said that the trial Court held that in Igbo land families are named after their founders. Counsel argued that from Exhibit F, at page 465 of the Records, it was clear that ?Dike, Eleazu and Orji migrated from Oholobe

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Ndune to settle at Ofeke, as a result of a communal war in the olden days, between Ogbuagu and Abam?, the same Communal war, which CW1 alleged also on page 273 of the Records of Appeal. Counsel said, from the above evidence, the trial Court was right when it held that it was not Erowe that deforested the land; that the trial Court did not rely on the evidence of the Defendants, but drew inference and conclusion from the evidence presented by the Appellants. He relied on the case of Pius vs. State  NWLR (Pt.1459) 631.

On Issue 3, whether the Appellants proved acts of possession and ownership on the land, Counsel answered in the negative. He submitted that the identity of the land in Exhibit A (survey plan) is contrary to the identity of the land in the evidence of CW1. Thus, Counsel said CW1 did not prove the land with certainty. That Exhibit A contradicts the boundaries pleaded by the Appellants; that the description of the land in the amended statement of claim contradicted the survey plan (Exhibit A). Thus, he said Appellants did not prove the identity of the land. He relied on the case of Oke vs. Eke (1982) 12 SC 232; he said that the

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Plaintiff seeking title must prove the identity of the land, with certainty. He also relied on Egharevba vs. Osagie (2009) 18 NWLR (Pt.1173) 299.

Counsel further submitted that the assertion made by the Appellants? Counsel, that the acts of possession/ownership claimed by Appellants were not challenged or contradicted was misconceived, as the Respondents had joined issues with the Appellants on those claims. He referred us to the pleadings (pages 87 and 92 of the Records)

On Issue 4, Counsel said the trial Court was right to hold that Respondents were in possession of the land; he said that the Respondents had pleaded, succinctly, how their ancestors were in possession and use of the land until the CW1 trespass into it. He said that paragraph 18 of the claim could not be read in isolation, that when read in conjunction with other paragraphs, the Court will agree with the Respondents, that the word ?descendants? used instead of ?ancestors? was a mistake and that mistake, with respect to the Appellants Counsel made, it obvious that acts of possession were curiously, pleaded by the Respondents.
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On Issue 5, whether the

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trial Court was right by not according probative value to the verdict of the native arbitration, tendered by the claimant, particularly, Exhibit C, Counsel answered in the affirmative, that the trial Court was right in not according probative value to Exhibit C; that they (Respondents) had maintained that it was the portion of the 2nd Respondent, verged RED, that was the subject matter of the arbitration in Exhibit C. He referred us to page 90 of the Records and the evidence of DW1 on page 293; that 2nd Respondent did not take part in the arbitration in Exhibit C; that it was after the decision in Exhibit C, that DW1 and its panel proceeded to summon the 2nd Respondent and CW1 over the land verged RED, which the 2nd Respondent placed on injunction during the pendency of the arbitration between Aboki Ekpo and CW1.
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On Issue 6, whether the Claimants proved special damages by giving evidence of numbers and particulars of items destroyed by the Defendants, Counsel answered in the negative. He said that the 2nd Respondent gave evidence to the effect that he was in possession and use of the land and was in his farm land on the day the 2nd Claimant wanted to use

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the Police to force him out of the land of the 1st part before the intervention of the 1st Respondent.
He urged us to resolve the issues against the Appellants and to dismiss the appeal.

Appellants? arguments in the Reply brief, on Issues 1, 2 and 4 appear to be a rehearse and re-inforcement of their arguments in the Appellants? brief, when they talked about failure to join issues, and the Court not making findings on Exhibit F, which Appellant relied on, heavily. They also said we should discountenance the arguments of the Respondents on Issue 2, because it failed to proffer any valid argument.

We have stated, several times, that Reply brief is not an opportunity to re-argue appeal and/or fill in the gaps left in the main brief, to improve on direct the argument of Appellants See Musa vs. State (014) LPELR 22912; NNPC vs Aminu (2013) LPELR ? 21396 (CA).

On Issue 3, Appellants, said that identity of land was/is not an issue in the appeal or in the judgment appealed against.

RESOLUTION OF ISSUES
I shall consider this appeal on the six (6) Issues distilled by the parties, but in doing so, I shall take the issues 1,

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2, 3 and 4 together, as I think the appraisal of the competing evidence of traditional histories by the parties, which one could be deemed conclusive and/or satisfactory, should determine any further steps/direction of the Court in relation to the resort to evidence of who was in possession of the land and exercised acts of ownership.

Proof of title to land by resort to evidence of traditional history is one of the five main ways of establishing/proving ownership of land. See the case of Idundun vs Okumagba (1976) 9n -10 SC 227, But in relying on traditional history to establish title to land, a party must plead and lead credible evidence on the root of his title i.e. how, he came to own the land, linking himself right down to the original owner, and show how the said original owner acquired the land. Was it by deforestation, conquest, purchase, grant etc? See Awodi & Anor vs Ajagbe (2014) LPELR ? 24219 (SC); Akinloye vs Eyiyola (1968) 2 NMLR 92; Owoade vs Omitola (1988) 2 NWLR (Pt.77) 413. See also Mogaji vs Cadbury Nig Ltd (1985) 2 NWLR (Pt.7) 393, on the need for the claimant to trace the linking chain or line of succession in the traditional

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history of the land holding, from himself right down to the original owner.
In the case of Odumosu & Anor vs Oluwole & Anor (2002) LPELR -12307 (CA), this Court, relying on the Supreme Court case of Alli vs. Aleshinloye (2000) 6 NWLR (Pt.660) 117 at 201, said:
It is not sufficient for a party who relies for proof of title on traditional history, to merely prove that he or his predecessors owned and possessed the land from time immemorial. Such a party is bound to plead such facts as:
(a) Who founded the land
(b) In what manner was the land founded, and the circumstances leading to it;
(c) The names and particulars of the successive owners and trustees through whom the land devolved, from the founder to a living descendant or descendants, who most likely, will give oral history. The traditional evidence of the first settlement on or the founding of the land will not be admissible let alone accepted and acted upon, without the above pleading. ?Akinloye vs. Eyiyola (1968) NMLR 92; Mogaji vs Cadbury Nig (1985) 2 NWLR (Pt.7) 373; Adejumo vs Ayantegbe (1989) 3 NWLR (Pt.110 ) 417.
See also a recent decision of this Court in

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the case of Nmanumeihe vs Njamenze (2016) LPELR ? 40212 (CA) where the above principles were adopted and applied.
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Appellants in this appeal (as Claimants at the Court below) had relied on evidence of traditional history to prove their claims to the land in dispute. They had pleaded that the land in dispute was founded and deforested by 1st Claimant?s ancestor, called Erowe, whose father was Eleazu and the said Erowe became the owner of the land in line with native law and custom of Ofeke Ndume, Ibeku, Umuahia. The said Erowe had a brother called Orji who together, left Ohokobe Ndume and settled at Ofeke, and upon settling at Ofeke, Erowe deforested the land in dispute and took possession of it. See the Amended Statement of claim on page 208 of the Records where in Claimants also pleaded how the land devolved until the turn of the 1st Claimant. The claimants led evidence on the pleading and the trial Court found, as follows, about the traditional history of CW1:
?It is interesting that it was only the 1st Claimant who testified as CW1 that gave evidence of the genealogical tree and line of succession of the family, from the cradle of

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its founding fathers to him. No other Claimant?s witness testified to support the Claimant?s traditional history. Not even the full brothers of the 1st Claimant, including his eldest brother, Promise Nwankwo. To succeed on the plea of traditional history, the law requires that same must be pleaded and very reliable and credible evidence must be led to support it? We have already noted that the Claimants are relying on the 1st Claimant?s traditional history as to how the 1st Claimants Nwankwo (Ijee) family came to own the land in dispute, but it was only the 1st Claimant who testified as to that traditional history. None of the CWs 2 ? 4 supported the 1st Claimant?s traditional history. How on earth can the traditional history relied upon by a party in proof of his title be regarded as proved, based only on its recital by the very witness relying on it. I agree that it is not all about the number of witnesses, but like the proof of every custom or native law, where traditional history is in issue, it is not enough for only one witness to testify on it. It is important and critical that at least another witness who claims to

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be versed in the alleged traditional history, should testify on it also. In my humble opinion, the claimants failed to lead credible and convincing evidence to prove the facts relating to traditional history they were relying upon See pages 373 to 374 of the Records of Appeal.
?
While appraising the evidence, of traditional history as led by the defendants (Respondents in this appeal), the trial Court said:
?What of the traditional history relied upon by the defence. I had stated it in another part of this judgment that it was a nightmare getting out the facts the Defendants pleaded in support of their traditional history. The facts seemed buried in a lot of irrelevances that organizing what could be said to be the facts in support of the Defendants? traditional history was like looking for a needle in a haystack or finding a white glove in the snow. In a very confusing manner the Defendants pleaded and the DW4 testified that the land in dispute was deforested by Elemnazu. Elemnazu begat Erowe and Okpu Ugba? In the typically dizzying manner, the DW4 said that all the children of Okpu Ugba died ?remaining

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Agwo For the Erowe lineage, the Defendants said that Erowe begat Nwankwo and Ibeleme who shared the estate of Erowe on the latters death. Ibeleme got the part of the land in dispute, Ibeleme begat Ugbogu and Agbara who shared his estate on his death. Ugbogu got the part of the land in dispute. Ugbogu begat the 2nd Defendant and Kanayo who inherited the estate of Ugbogu on his death. The 2nd defendant inherited the part of the land in dispute. The much sense one gets from the amazing story of the Defendants is that the land in dispute has two parts one part came down to the 1st Defendant from the lineage of OKPU Ugba while the other part of the land in dispute came down to the 2nd Defendant from the lineage of Erowe. It was through much effort that I was able to figure out all the above as the traditional history of the Defendants, but still one critical point was missing and that destroyed what the defence may regard as their traditional history!” (See pages 374 to 375 of the Records)
?
The trial judge also said on pages 376 -377 of the Records
?It is also important to note that only the 2nd Defendant who testified as the DW6

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testified that Elemnazu deforested the land in dispute. No other defence witness did, not even the 1st defendant who testified as the DW4. The meaning of the above is that the averment of the defence that Elemnazu deforested the land in dispute was supported in evidence by the DW6. I had earlier in the case of the Claimants made it clear that there is no way we can regard the evidence of one witness as sufficient to prove the traditional history of a party. I may also note that, like the lapse noticed in the statement of defence, none of the defence witnesses told us if and how Erowe and Okpu Ugba came to own the land in dispute

I think, like learned Counsel for the Appellants rightly argued, the trial Court?s requirement for the traditional history presented by the CW1 to be corroborated by another witness, was strange, lacking a basis in law and practice. The trial Court appeared to fall into grave error, which misled and misled him, when he compared evidence of traditional history with proof of custom or native law, which he said required corroboration.
?
I do not think evidence of traditional history requires any corroboration,

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once the evidence is credible, probable and satisfactorily traces the root of title to the founder or original owner of the land in dispute, linking and tracing the Claimant, properly, in the chain of succeeding persons, upon which the ownership of the land devolved. That bit is history, and it requires the person who knows or keeps the record to present. And, in my opinion, such or his history should not be left for every Tom Dick and Harry to present as witness to elicit evidence on, to avoid conflict or error in the presentation, as it is not everybody that is good in giving accounts of facts or events, clearly, and correctly.
?
In the case of Amadi Vs Amadi (2011) 15 NWLR (pt. 1271) 437 at 460 (cited by Appellant) this Court, per Eko JCA said:
?Now, to the tacit rejection of PW1?s evidence of traditional history because it was not corroborated by the evidence of PW2 and PW3. There is no requirement of the law, either in Evidence Act or decided authorities, that evidence of traditional history must be corroborated ? The trial Court therefore was rather unreasonable in inisisting that every iota of the evidence of the PW1 must be

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corroborated by PW2 and PW3 before the traditional history of the Plaintiffs could be accepted.?
I am in total agreement with the above decision of that the Court, as I am not also aware of any law or rule that requires a credible evidence of traditional history by a party to be re-stated by another witness in a case, or corroborated before it could be accorded probative value or accepted and acted upon by a Court of law. What rather appears to be the law and practice, is that, once an evidence of traditional history adduced by a Claimant is probable, conclusive and satisfactory, as opposed to that of the defence, the trial Court can act on it, See the case of Okwaranonobi Vs Mbadugha (2013) 17 NWLR (pt.1383) 255 at 275.
In the recent case of Nmanumeihe Vs Njamanze (2016) LPERL 40212 decided by this Court on 18/03/16, it was held:
?I think the trial Court handled the evaluation of the evidence of the two sides, properly, when in the circumstance of competing versions of traditional histories of the parties to the land, it sought to find out which one was more credible, probable and convincing? A party relying on traditional

30

history to prove his title to land, must plead and lead evidence on the root of the title i.e. how he become the orginal owner. Was it by deforestation, conquest, purchase, grant etc?… The Respondent, therefore, appeared to have been more firm and credible in his traditional evidence, when he traced the root of title to the land to the deforestation of the land by his great grandfather? and the subsequent gift of same to his son?and occupation and use of the lands by said son? and how the same devolved, right down to the Respondent. The evidence of the surrounding land belonging to the relations of the Respondent? also tend to register the strong presumption that the land in dispute is part of the adjoining or adjacent lands, which belong to members of the family of the Respondent.” (See pages 19 ? 20 thereof).

In this case, at hand, the trial Court had found as a fact that the Claimants, through CW1, gave ?interesting evidence of the genealogical tree and the line of succession of the family from the cradle of its founding fathers to him”. But the Court erroneously added that no other Claimants?

31

witness testified to support the 1st Claimant?s traditional history! (See page 373 of the Records). I have already said that the trial Court said that, wrongly, and therefore misdirected himself when he needed that evidence of traditional history by CW1 to be corroborated by other witness(es) of the Claimants before he could act on it.

Good enough, the trial Court did not say that the evidence of traditional history by CW1 was contradicted by the evidence of the other witnesses of the Claimant! The Respondent?s Counsel had tried to allege possible conflict or contradictions or inconsistencies in the evidence of CW1 and CW2, when Counsel submitted in paragraph 4.10 of the Respondents? Brief:
?I submit that though the trial Court rejected the evidence adduced by the Respondents on traditional history, yet the evidence by CW1 and CW2 were a vital contradiction to the history of genealogy traced by the Appellants.?
?
The Respondents? Counsel was far from being convincing, and I think, he was swimming against the torrents/waves, as there was no such finding by the trial Court and no ground of appeal or issue of

32

conflicting or contradictory evidence by the Claimants. Of course, the Respondents did not cross appeal or raise a Respondents? Notice to raise that point as a fresh issue.

The findings of the trial Court on the traditional evidence led by Respondents was that the facts pleaded thereto was a ?nightmare?. It also said that ?the traditional history relied upon by the Defendants suffers a disconnect and does not make consistent sense. I will therefore not accord it any probative value!?
?
Having made such findings, that the Respondents? evidence of traditional history was not worthy of any probative value, and their pleading thereto was a nightmare, one then wonders why and how the trial Court decided to saddle itself with the duty of trying to make meaning out of the confused pleading and traditional evidence of the Respondents, and, therefore, delved into unnecessary speculations and wrong deductions, which led to it making, what I consider, to be perverse findings on pages 372 ? 373 of the Records, thus:
The Claimants aver that Eleazu begat two Sons, Erowe and Oriji. Erowe and his brother

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Oriji were living at Ohokobe Ndume with their father Eleazu, and because of communal war between Ogbagu and Abam in the old days, Erowe and his brother Oriji left Ohokobe Ndume and settled at Ofeke. Upon settling at Ofeke, Erowe deforested the land in dispute and took possession of the land in dispute until his death.?
From the above pleading, the Claimants are saying that the father of Erowe lived and died at Ohokobe Ndume Community and did not leave Ohokobe Ndume Community wth his sons as a result of the alleged communal war. A compound is clearly named after the founder. If Eleazu did not move to Ofeke Ndume Ibeku, who was the founder of the compound or kindred or hamlet known as Umueleazu at Ofeke Ndume My take on it is that the Claimants were certainly running away from accepting that Eleazu, the parties? common ancestor was founder of the known as Umuekazu and the land in dispute, simply to eliminate the lineage of the defendants from inheriting the land in dispute. I am in agreement with the position of the defendants, that the ancestor of the 1st Claimant and the defendants was Eleazu or Elemnazu and it was him who founded the

34

Umueleazu and also the land in dispute

With due respect to the learned trial Judge, after properly stating the facts of the traditional history by Claimants, he somerssaulted to the above findings, a dangerous brain wave in the realm of speculation without any iota of evidence to support his conclusion. After the trial Court had rejected the traditional history by the Respondents that it ?suffers a disconnect and did not make consistent sense? and was unworthy of any probative value, he went back to rely on it! See page 374 of the Records. The somerssault by the trial Court, in agreeing with the defendants, over the very evidence he earlier rejected, as suffering from a disconnect and for being senseless, smacked of double speak, approbating and reprobating! No Court is allowed to do that, or to abandon the evidence before him and embark on a voyage of discovery, to imagine or conjecture and invent evidence to base its decision. See the case of Nobis-Elendu Vs INEC (2015) LPELR ? 25127 SC; In the case of Suberu Vs State (2010) 8 NWLR (pt.1197) 586 (2010) LPELR ? 3120 SC:
?A Court should not set up for

35

parties a case different from the one set up by the parties themselves. See Oniah Vs Onyiah (1989) 1 NWLR (pt.99) 131? A Judge should not descend into the arena. A Court has no duty to bridge the yawning gap in the case of a party
See also Ajakaiye Vs The State (2015) 5 WRN 64; and Asaa Vs Ojah (2015) LPELR ? 24278 CA where it was held:
?The role of a trial Court is to hear evidence, to evaluate that evidence to believe witnesses who testified and to decide the merit of the case based on the finding, when a trial Court acts on speculations rather than on the evidence, then it has abandoned its proper role. No trial Court has a right to draw conclusion of fact outside the available evidence. Such conclusion will be regarded as perverse.?

There is this Rule, popularly known as Rule in Kojo II Vs Bonsie (1957) 1 WLR 1223; (2001) Vol. 86 LRCN 1492, propounded by Denning M.R ?where there is conflicts in traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way to test the traditional history is

36

by reference to the facts in recent years, as established by evidence, by seeing which of the competing histories is the more probable.?
Of course, the above principle is only applicable in a situation in which the two traditional histories, recounted by the two sides, are both probable, or are conflicting and inconclusive; that then a recourse is had to other means of establishing the truth, like resort to acts of ownership and/or possession, to determine which party has a better title. See the case of Enyinnaya Vs Otikpo & Anor. (2015) LPELR ? 25529; Etim & Ors Vs Umoh & Anor (2014) LPELR ? 22730; Ukachukwu Vs Ihejirika (2014) LPELR ? 24102 CA.
Of course, in that case of Enyinnaya Vs Otikpo (Supra), it was held that resort to the Rule of Kojo II Vs Bonsie does not apply, where one of the traditional histories is inconclusive, while the other is conclusive and cogent. It was stated:
?What the above implies is that, where a Plaintiff relies on traditional evidence to prove his root of title to the land, but fails to establish his claims by that means, he cannot resort to the fact that he is in

37

possession or that he has exercised various acts of ownership over the land, to succeed, as his said acts of ownership/possession would simply evident his trepass to the land, having failed to establish his title, as alleged. See Oyadare Vs Keji (2005) ALL FWLR (pt.247) 1583, where the Supreme Court said:
?It is settled by a chain of authorities that where the pleaded title to land has not been proved, as in this case, it will be unnecessary to consider acts of ownership and possession which are no longer acts of possession but acts of trepass. See Balogun Vs Akanji (1988) 1 NWLR (pt.70) 301.”

In this case, at hand, it was the traditional history by the Respondent that the trial Court found inconclusive; that it suffered a disconnect and did not make consistent sense, hence it lacked probative value. But the trial Court found the evidence of traditional history given by CW1 (the Appellants) interesting; “that he gave evidence of the genealogical tree and line of succession of the family, from the cradle of its founding fathers to him.?
?
It was unfair and improper in my opinion, for the trial judge to turn a blind eye to such applauded

38

evidence of traditional history and rather gamble into seeking or resorting to evidence of recent history, like acts of ownership and possession, which, in my view, would still be in favour of the Appellants, since the trial Court had found, as a fact, that CW1 ?gave evidence of the genealogical tree and line of succession of the family, from the cradle of its founding fathers to him.?

The trial Court also said:
?Except for the alleged sale of an Iroko tree on the land in dispute by Ijee, mentioned by the CW1 and supported by CW2 and CW3, it is noticeable that all the other activities purportedly carried out by Ijee on the land in dispute, stated by 1st Claimant, were not corroborated by any other witness of the Claimants.? See page 378 of the Records of Appeal.

Obviously, the trial Court was still under the illusion that CW1?s evidence required corroboration, to be accepted. Even then, the learned trial Court had also acknowledged that the evidence of sale of the Iroko tree by Ijee, the father of 1st Claimant, given by the CW1 was supported by CW2 and CW3. The trial Court also acknowledged that ?the action of

39

the Claimants, to farm on the land post (sic) (plus) the purported sale of the land in dispute by the 1st Claimant to the 2nd Claimant in 2011, triggered off the chain of events that culminated in this suit.? (Page 378 of the Records).
?
A close perusal of the statements on oath which the CW1, CW2 and CW3 adopted, as well as their cross examinations on pages 270 to 281, 282 to 286 and 286 to 290, respectively, do not appear to agree with the above findings of the trial Court about the evidence of the CW1 not supported by those of CW2 and CW3. I rather noted consistency and agreement in their evidence both on the traditional history account by the CW1 and the fact of their effective possession of the land and exercise of acts of ownership.

On pages 283 to 284, CW2 said in paragraphs 1 to 7 as follows:
(1) That I know both the Claimants and Defendants in this case. The 1st Claimant and the Defendants are related to me.
(2) That I am a descendant of Oriji, the brother to Erowe. Erowe is the ancestor of the 1st Claimant and the Defendants in this case. Oriji and Erowe are brothers. The father of Oriji and Erowe is Eleazu. I am a member of

40

Umueleazu family.
(3) That I know the land in dispute. The land in dispute is called ?Isi Oba Ukoro.? The land in dispute is owned by the Claimants in this suit.
(4) The land in dispute was once used as Oba by Ofeke Community. It was Nwankwo, who gave the land in dispute to Ofeke Community for the purpose of using same as a yam barn.
(5) That when the Ofeke Community stopped using the land in dispute for stalking their yams, Ijee the son of Nwankwo and the father of the 1st Claimant took back the land in dispute.
(6) The Defendants has their own land within Ukoro land area but outside the land in dispute. The land in dispute specifically belongs to the 1st Claimant?s family.
(7) That there was a big Iroko tree on the land in dispute. The said Iroko tree was sold by Ijee. Ijee was never challenged by any person, including the Defendant.
Under cross examination he said:
The claimant?s father for a long time had exercised acts of ownership over the land in dispute before he died. Yes the defendants have their own land near the one in dispute as those ones came to them just like the land in

41

dispute came to the Claimants father when that estate was shared or partitioned? The land in dispute is only one portion of land not two. The cassava plants on the land were planted by the Claimants Pages 285 ? 286.
?
The CW3 in his evidence on oath said on page 287:
(1) That I know the land in dispute in this case. The land in dispute is known as and called ?Iso Oba Ukoro? situate at Ofeke Ndume Ibeku in Umuahia North Local Government Area Abia State.
(2) The land in dispute is owned by the Claimants.
(3) That my own land shares boundary with the land in dispute. When I was a young boy, I usually follow my father to farm our own land which shares boundary with the land in dispute and I normally see the father of the 1st Claimant, Ijee and Ijee?s sister (1st Claimant?s aunt) called Danjiola farm the land in dispute. I have never seen the Defendants or their fathers farm the land in dispute.
(4) That there was an Iroko (Orji) tree on the land in dispute. The said Iroko tree was sold by the father of the 1st Claimant.
(5) That a new road was recently constructed on part of my said

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land which shares boundary with the land in dispute. The said new road which passes through my land now shares boundary with the land in dispute. After the said new road was constructed through my own land, I still farm my remaining land which was not affected by the new road.
Under cross examination he said:
?The defendants have nothing on the land? The Claimants farmed on the land in dispute and harvested the crops. It was when the defendants attempted to harvest crops on the land in dispute along with the Claimants that the Claimants sued the defendants? I have my land on the north of the land in dispute. The defendants do not harvest the economic trees on the land in dispute? I know a lot about this case.? (Page 289)
?
It is therefore difficult to appreciate how the learned trial Court came by the findings that:
?Except for the alleged sale of Iroko tree on the land in dispute by Ijee mentioned by CW1 and supported by CW2 and 3, it is noticeable that all the other activities purportedly carried out by Ijee on land in dispute stated by the 1st Claimant were not corroborated by any other witness of

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the Claimants.?

It is very sad that a judge could make such findings, in the face of the overwhelming evidence before him, to the contrary. That cannot be correct, and it is not also correct to say that the traditional history account by CW1 was not supported by the CW2 and CW3.

I therefore resolve the issues 1, 2, 3 and 4 for the Appellants.

ISSUE 5 was:
?Whether the trial Judge was right by not according probative value to the verdict of Native Arbitration tendered by the Claimant, particularly the arbitration between Nnomele Aboki Ekpo and the 1st Claimant, tendered as Exhibit C.?
?
Appellant had given evidence to the effect that the Defendants were those who sponsored the Nnomele Aboki Ekpo to summon him (1st Claimant) before the Ibeku Egwu Asaa Okonko Society which arbitrated in the matter relating to the land in dispute; that the 1st Defendant had testified at the said arbitration, initiated by the said Nnomele Aboki Ekpo; that at the end of the arbitration judgment was awarded to him (1st Claimant); that the Defendants acknowledged this in paragraph 26 of their pleadings, when they said:
?The Okonko

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decided the case against the Aboki Ekpo, because he is a stranger and had no lands therein and gave their decision in favour of the 1st Claimant.?

Counsel said the 1st Defendant, on 11/11/2009 and 30/3/10 asked questions during the said arbitration over the land in dispute, and at that time never laid claims to this land.

He referred us to pages 417 ? 424 of the Records of Appeal. He submitted that the decision of the Arbitration panel, in Exhibit C was, therefore, binding on the Defendants, and so the trial Judge was wrong in failing to place value on the Exhibit. He argued that Nnomele Aboki Ekpo sued the 1st Claimant before the Arbitration panel, because the latter was seen on the land as the owner thereof, and that too established the evidence of 1st Claimant?s possession and occupation of the land; that that fact had even been admitted by the Respondents.
?
The Respondents? reaction to the above was that the 2nd Defendant was aware of the case between Nnomele Aboki Ekpo and the 1st Claimant over a part of the land in dispute and that he 2nd Defendant had applied for injunction before the Arbitration Panel, telling

45

them the land belonged to him and had paid N6,500.00 for the injunction, but the Arbitration Panel received the letter of injunction from the 2nd Defendant and continued to hear the case, saying that their procedure did not allow them to stop a case midway and look into the complaint of a 3rd party; that they promised to look into the complaint of 2nd Defendant after the case of Nnomele Aboki Ekpo and 1st Claimant.

But the reasons the trial Court gave for rejecting the arbitration decisions, particularly, that of Exhibits C and D in the case of Nnomele Aboki Ekpo Vs 1st Claimant and Respondents Vs 1st Claimant, respectively were:
?Now to the several and various native arbitrations or the awards flowing from each as the evidence suggests that (sic) the native arbitrations were all clearly tainted. It seemed that each party simply got a group of Okonko Society members favourable to its cause and such group will conduct proceedings and make awards to favour the side it had sympathy for. I prefer not to accord any respectability to any of the native arbitrations and, of course, I will accord no probative value to the purported awards made by those

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native arbitrations.?
See page 379 of the Records of Appeal.

I think that was a very rash, incorrect and unkind statement by the learned trial Court, which rather condemned the arbitration reports including Exhibits C and D, without any evidence on the records to support the wishful thinking of the trial Court. It is sad that a Judge can make such reckless generalization about and condemnation of arbitration reports, produced before him and malign the integrity of the panel members and those who appeared before them, even without looking at the contents and substance of the reports and without any evidence to support its position!
?
The arbitration report decision of Ibeku Egwu Asaa Okonko Society in Exhibit C was fully reproduced in the Records of Appeal from pages 399 to 429. A close study of it, shows that the 1st Claimant (Mr Nwabueze Nwankwo) was dragged to the arbitration Panel by Nnomele Aboki Ekpo, who claimed that the land in dispute (the same as this land in dispute) belonged to him. He had claimed the same as ?our fathers land, called oba? He said:
“We are four fathers that is alife, out of the four

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fathers is Ibeleme Erowe, Uguru, Ekpo Oleforo and Ijeh Nwankwo. The land is our four fathers land. The family gave it to Ofeke people for Oba, after some years no more yam for the Oba and Ofeke people are not using it again. And to (sic) come to a big bush and after some years, Bob Onyebuchi went into it and said it is his own land. After, we Umueleazu come together and then write to Ofeke people through their Chairman about Bob Onyebuchi. After Ofeke people read out letter the told him to go out of the land, that is Umueleazu?s land. By 1979, I Mr. Nnomele Aboki Ekpo went into the land and cleared it. After I cleared, it by 1979 Abara Ibeleme and Ijeh Nwankwo went to the land and put Omo Okonko See pages 399 to 400.
?
The arbitration in Exhibit D was initiated by the 1st Respondent in this case following earlier complaint to stall the deliberation of the panel in Exhibit C. In the 2nd panel to the parties had witnesses, and DW6, Benjamin Onwunatamba Ibeleme (2nd Respondent) had testified for the 1st Defendant, (1st Respondent in this case). See page 334 of the Records, where he (DW6) said, under cross examination:
?Yes, I

48

testified for the 1st defendant during the native Okonko Society arbitration. Yes, I did not initially know of the native arbitration over the land. When I got wind of it, I put in the native injunction refer to the Exhibition A?. I never gave support to Aboki Ekpo during their arbitration. In the arbitration between Aboki Ekpo and the 1st claimant, the 1st Claimant came out vitorious? Aboki Ekpo never summoned me and the 1st defendant before the Okonko Society for arbitration

The decision of the Okonko Society in Exhibit C is recorded on page 428 of the Records, as verdict, thus:
?Based on the facts and findings of this case, this panel has no other alternative than to AWARD this case in favour of Mr. Nwabueze Nwaknkwo on 20th September, 2010.?

Exhibit D, on pages 430 to 448 of the Records, caries the Report of Arbitration by another Panel of Ibeku Egwu Assa Okonko Society, over land matter between Benard Agwo of Umueleazu Ofeke Ndume Vs Mr. Nwabueze Nwankwo of Umueleazu Ofeke Ndume Ibeku in Umuahia North Local Government, Area of Abia State.
?
The document shows that it was the 1st Respondent in this

49

case (who was the plaintiff) that dragged the 1st Appellant, again, before the said Okonko Society, as defendant, alleging that this was not the same case that was heard before by the panel, that it was a fresh case. The decision of the 2nd Panel is on page 448 of the Records titled, VERDICT, thus:
?We have strictly and carefully looked into this case. And uphold the verdict of Ibeku Egwu Asaa Okonko Society arbitration Panel ruling on this case therefore we award the Oba Ukoro land to Nwabueze Nwankwo who will make use of the land for farm purpose and building on its (sic) as the case maybe. Mr. Benard and (sic) Agwo Mr. Onwunatamba Ibeleme and their brothers, children and agents are strictly asked to stay (sic) clear of the land Oba Ukoro, hence it has been awarded to Nwabueze Nwankwo this day 17th October 2010.?
?
I cannot see any reason for which the learned trial Court refused to accord probative value to the Arbitration reports, particularly Exhibits C and D, where-in 1st Appellant was dragged to the Arbitrators, and in Exhibit D, the 1st Respondent in this case was the one that summoned the 1st claimant and the 2nd Respondent

50

testified for the 1st Respondent! By law, the Respondents where bound by the decisions of the Arbitration in Exhibits C and D, especially as they had accepted that same, and never approached the Court to set it aside.

Appellants were those who approached the High Court, since the Respondents, despite the decisions of the Arbitration Panels, still caused trouble in the land. It is very sad that the learned trial Judge appeared to close his eyes to the truth, and to fundamental decisions about the effect of arbitration decisions. He rather black-mailed the decisions, to clear the way for his perverse findings and decision.
?
The Supreme Court, in the case of Agu Vs Ikewibe (1991) 3 NWLR (Pt.180) 385; (1991) 4 SCNJ 56; (1991) LPELR ? 253 (SC), said:
?Where a body of men, be they chiefs or otherwise, act as arbitrators over a dispute between two parties, their decision shall have a binding effect, if it is first shown firstly that both submitted to the arbitration. Secondly, that the parties accepted the terms of the abitration, and thirdly, that they agreed to be bound by the decision, such decision has the same authority as the judgment

51

of a judicial body and will be binding on the parties and thus create an estoppel?. Per Karibi Whyte JSC.
And in Oparaji Vs Ohanu (1999 )9 NWLR (Pt.618) 290; (1999) LPELR ? 2747 (SC), my Lord, Iguh JSC, added:
?I should also observe that where an arbitration under customary law is pronounced valid and binding, it would be repugnant to good sense and equity to allow the losing party to reject or resile from the decision of the arbitrators to which he had previously agreed.?
See also the case of Ugela Vs Tarvenda & Ors (2013) LPELR ? 2132 on the ingredients which must be satisfied before a decision of an arbitration can be enforced, namely:
(1) Voluntary submission of the parties to the arbitration.
(2) That the parties agreed to be bound by the decision of thee arbitration.
(3) That the said arbitration was in accordance with the custom of the parties.
(4) That the arbitrators reached a decision and published their award.
(5) That the decision was accepted by the parties at the time of the award. See Awosile vs Sotunbo (1992) 3 NWLR (Pt.243) 514; Oparaji v. Ohanu (supra); Ezeanoikwa vs

52

Mouneke (2005) ALL FWLR (Pt.256) 1327.

It can be seen from the above cases, that the decision of the Native Arbitrations, as per Exhibits C and D, were binding on the parties, particular, Exhibit D, where-of the parties in this case were also parties at the Native Arbitration and the land in dispute in this case was the land in contention at the arbitration. The Respondent were, therefore, estopped from going against the decision of the arbitrators, which they earlier approached to resolve the dispute, especially as they never objected to or rejected that decision.

?I resolve this issue for the Appellants.

On Issue 6, whether Appellants proved special damages by giving evidence of the numbers and particulars of items damaged by the Respondents, the answer to this is simple, that special damages, by law, must be proved strictly. It is not enough to plead and lead evidence to recount the number items and their particulars damaged by the Defendants in a suit, the Plaintiff must go further to prove the costs of the damaged items, as per the prices or costs of each of the items, by production of the receipts, or acceptable costs of the items as

53

pleaded, where the same had not been admitted by the defence. See Iroaganachi vs Madubuko & Anor. (2016) LPELR ? 40048 CA; Iwuagwu & Ors. vs. Osigwe (2014) LPELR ? 23781 CA.
In the case of Udeagha vs Nwogwugwu (2013) LPELR ? 21819 (CA) this Court held:
?The determination of what constitutes special damages is therefore not a matter of conjecture, assessment or estimation by the Court and can therefore not be considered in the con of nominal award
It was further held in that case that:
Where the Respondent failed to allocate costs to the items claimed in special damages, after he had, duly documented and pleaded the damaged items? he should at least load evidence at the trial to prove the value of the damaged items, to be able to win the discretion of the Court in his favour. He should produce the receipts or documents, showing when and where he bought those items, their costs? That, I believe, would have presented some basis for evaluating the claims of the Respondent under the special damage and how to arrive at the amount awarded.”

?In this case, at hand,

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Appellant had dutifully pleaded the items of special damages thus (in their pleadings and 1st Claimants Statement on Oath):
(a) 320 yam plants at N250.00 each = N75,000.00
(b) 500 cassava stems at N200.00 each N100.000.00
(c) 250 maize stands at N200.00 each N50,000.00
TOTAL = N225,000.00
(See paragraph 25 of the statement on of 1st Claimant.

In paragraphs 24 of the statement on oath (which 1st Claimant adopted at the trial) he said:
The Defendants trespassed into the land in dispute and destroyed the yams, cassava and maize planted by me and the 2nd Claimant. The Defendants trespassed into both the portion sold to the 2nd Claimant and the remaining portion in my possession. The 2nd Defendant also threatened to kill the Claimants over the land in dispute. The 2nd Claimant reported the matter to the Police.? (See page 275 of the Records of Appeal)
?
I have not seen, anywhere, in the Records of appeal, how Appellants came by the unit costs of the plants (yam – N250 each, cassava N200.00 per stem and maize N200.00 per stand). Meanwhile, Respondents had put the Appellants to the strictest proof of their

55

claims and had denied destroying the said crops of the Appellants. See paragraphs 37 and 38 of 1st Respondents statement on Oath, on page 315 of the Records.

Though the fact of trespass by the Respondents into the land in dispute is not in doubt, as Respondents had admitted the same, claiming right thereto, despite the decisions, of the Native arbitrations, the fact of the special damages, as per the unit costs of the items damaged was not established by the Appellants.

I therefore resolve the issue 6 against the Appellants. But because, trespass is proved, as per the other issues in this appeal, resolved for the Appellants, damages for trespass automatically accrued. See Ogbonna vs Ogbonna (2014) 23 WRN 48; Harsaalic Ind. Ltd vs Nsang (2003) FWLR (Pt.149) 1563
?
I therefore find merit in this appeal and the same is allowed. I set aside the decision of the trial Court in this case (Suit No.HU/96/2013) delivered on 12/6/14. In its place, I enter judgment for the Claimants in the suit, as per the reliefs in paragraph 25 of their Amended Statement of Claim, on page 211 of the Records of Appeal, except the claims for special damages. Accordingly, I

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hereby order for:
(a) A declaration that the Claimants are entitled to the statutory right of occupancy of the piece or parcel of land known as and called ?ISI OBA UKORO?, situate at Ofeke Ndume, Ibeku, Umuahia in Umuahia North Local Government Area, Abia State, within the jurisdiction of the Court, with an annual rent value of N10,000
(b) The sum of Six hundred and seventy five thousand Naira (N675,000.00), being general damages for trespass.
(c) Perpetual injunction, restraining the Defendants, their servants, agents or privies from further trespass into the said land, ISI OBA UKORO, of the Claimants, in any manner whatsoever.

Respondents shall pay the cost of this appeal assessed at One Hundred Thousand naira (N100,000.00) only to the Appellants.

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Other Citations: (2016)LCN/8791(CA)