Dondoor Ieka & Ors V. Ikyereve Tyo (2007)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.C.A.

In this case, the plaintiff (now the respondent) sued the three defendants (now the appellants) in the Grade II Area Court of Nyamtsor, sitting at Abwa, Benue State, claiming the ownership of a parcel of land on which the appellants were encroaching. He stated his case before the trial court concluding thus:-

“I am praying the court to declare me the owner of the land in dispute because it belongs to my fore-fathers. I also want the court to order the defendants and their agents to stop trespassing on the disputed land.”

The respondent’s case as gauged from the record is that his father was farming the land in dispute, sharing boundary with one Uta Agele at the southern part of the land and that the appellants were not sharing boundaries with his father. After his father’s death, his uncle, Iverper Anenge took possession of the land and was farming it. When Uta Agele left the disputed land to settle at the edge of Dura stream, the respondent came and settled at his ruin. As at 1995, the respondent had lived on the disputed land for 36 years and during this period, Gbo Asema, his uncle died and was buried on the disputed land.

Many relations of the respondent were buried there thereafter. These included his mother, two daughters, a son, a brother and a host of others. All these people were buried by the respondent on the disputed land. The appellant’s father was alive but he did not complain. It was in February, 1994 that the appellants came to construct a compound on the disputed land but the respondent refused.

On the part of the appellants, it is their case that the land in dispute was inherited from their father, leka. They farmed the land sharing boundaries with Shima Uba and Vembe Ayom at the eastern part of the land. They shared northern boundary with Yange Ugoh at achiha tree that is partly burnt. It was when their elder brother died in 1963 that their mother’s relations took them to Mbaade sub-kindred of Mbagen. They left the land under the care of one Ityoher Ugoh who gave the said land to Gbor Asema when the latter was appointed the kindred Head of Mbaakura in order to settle there. Gbor Asema is a relation of the respondent and he, it was who, asked the respondent to come and join him on the disputed land. According to the appellants, this arrangement was accepted by Ityoher Ugoh and the respondent came and settled on the disputed land in 1965. It was Ityoher Ugo who informed the appellants of this arrangement in 1965. He also told other settlers on the disputed land that the land belonged to the appellants and that no person should plant a tree on the land. Other people who had settled on the disputed land vacated the land leaving the respondent alone. When the 3rd appellant came unto the land in 1988 to settle, the respondent refused him entry. The 1st appellant also came in 1993 to dig a well at a place on the disputed land. He also sent one Nyamshar Agan to plant some palm trees but the respondent went and invited the elders telling them that he would leave the land for the appellants. When the 1st appellant came to build a compound on the disputed land, the respondent still told the elders and the District Head that he would vacate the land for the appellants. There were series of arbitration over the land and the respondent always indicated that he would leave the land for the appellants which he never did.

The respondent called two witnesses described in the records as PW2 and PW3 respectively. They will be referred to, by me as PW1 and PW2 respectively. The appellants called three witnesses as DW1, DW2 and DW3 respectively. No exhibits were tendered or admitted in evidence. At the end of the evidence, there was a visit to the locus-in-quo and judgment was delivered wherein the trial court alluded to the fact that the appellants had filed a counter-claim, claiming a declaration of title to the land in dispute and a perpetual restraint order. Throughout the appellants’ case, no mention was made of any counter-claim. The trial court concluded as follows:-

“Since the plaintiff (respondent) has radical title over the disputed land, we believe him that his land is as was shown at the locus. The claim of the plaintiff (respondent) succeeds in toto since he has proved his case on the balance of probability. The defendants’ (appellants’) counter-claim succeeds partly. The portion of land (sic) the plaintiff (respondent) is not disputing with his (sic) to our minds, is awarded to him (sic). That is from the locus (sic) bean tress on the Northern boundary following Upirkya stream to a road that starts from Tse-Ugoh to Anchiha Sokpo motorable road. The defendants (appellants) shall vacate the land for the plaintiff (respondent). The 1st defendant’s (1st appellant’s) compound be demolished after 30 days if there is no appeal.” (Brackets are by me).

The appellants were dissatisfied with this decision and appealed to the Customary Court of Appeal of Benue State. Three grounds of appeal were filed but by leave of the Customary Court of Appeal (now hereinafter referred to as “the lower court”), two additional grounds of appeal were filed. By yet another leave three further additional grounds of appeal were filed in that court. At the hearing of the appeal, the three original grounds of appeal were abandoned and struck out. That leaves the three additional grounds and the two further additional grounds of appeal to be argued by the appellants. These five grounds were treated as grounds one to five. These grounds shorn of their particulars are:-

1. The trial court erred in law by holding that the respondent acquired the disputed land by an absolute grant.
2. The trial court erred in law by basing its decision on an alleged customary arbitration.
3. The trial Area Court erred in Jaw when it held at page 26 of the printed record that the respondent succeeded in his claim since he “has proved his case on a balance of probability” and proceeded to declare title to the disputed land to him when he respondent) did not define the land he was claiming from appellants.
4. The Area court erred in law to have suo motu ordered the 1st defendant’s/appellant’s compound to be demolished when the respondent himself never prayed for its demolition.
5. The decision of the trial Area Court is against the weight of evidence.

The appeal was argued and dismissed on the 20th day of February, 1998. Being dissatisfied by this decision, the appellants have ex debito justitae further appealed to this court. The appellants filed their notice of appeal on the 9th day of March, 1998 consisting of only one ground of appeal. By the leave of the Court granted on the 1st day of November, 2000 the appellants were allowed to file and argue four additional grounds of appeal which were deemed filed and served on the same date. These additional grounds are reproduced hereunder:

1. The Customary Court of Appeal misdirected itself in law when it simply held that there was customary arbitration and parties submitted themselves to its decision without adverting its mind to the issues that arose out of it.

Particulars of Misdirection

(a) The issue(s) and arguments of parties on the customary arbitration went far beyond the mere fact of the existence or otherwise of customary arbitration and submission of parties to it or not.

(b) The learned Customary Court of Appeal failed to properly address the question of customary arbitration as canvassed before it with a view to resolving the issues arising or that arose from it.

2. The Customary Court of Appeal erred in law in holding that the respondent proved his root of title to the disputed land before the trial Area Court.

Particulars of Misdirection

(a) There is abundant contradictory or conflicting evidence of the respondent’s root of title to the disputed land.

(b) No proven evidence exists on record of the respondent’s title to the disputed land.

(c) The respondent had to rely on the strength of his own case and not on the weakness of the appellants’ case in proof of claim before the trial court.

3. The Customary Court of Appeal misdirected itself in law to hold that the real issue between the parties was merely boundary.

Particulars of Misdirection in Law

(a) The Customary Court of Appeal did not properly identify the issues that arose in the appeal between the pat1ies before it.

(b) The real issue was customary title to the disputed land which issue the trial court itself clearly identified.

4. The learned Customary Court of Appeal erred in law when it held that the respondent was not under duty to describe the land he was claiming to be entitled to judgment.

Particulars of Misdirection

(a) At the beginning of its judgment, the Customary Court of Appeal stated the respective claims of the parties before the trial court to be declarations of title to land and injunctions, which is correct.

(b)It is trite law that for every claimant for declaration of title to land to succeed in his claim, he must define the land he claims with precisive certainty.

(c) It is also trite law that for an order of injunction to issue, the area sought for its application must be clearly defined.”

The original ground of appeal filed with the notice of appeal is the omnibus ground stating that –

“The judgment is against the weight of evidence.”

Briefs of argument were filed and exchanged. In their brief of argument, the appellants distilled three issues for determination from their five grounds of appeal, namely:-

1. Did customary arbitration settle the dispute between the parties as submitted to them such that reliance could be placed on their resolution to find for either of the contending parties?
2. From the evidence adduced, did the respondent prove or establish his case before the trial Area Court to be entitled to the judgment he got.
3. Whether the real issue between the pat1ies at the trial was merely one of boundary.

The respondent on the other hand identified another set of three issues for determination in this appeal. The issues are –

1. Whether the Benue State Customary Court of Appeal was right to have upheld the decision of the trial Area Court that the real issue in dispute between the parties was the boundary between them.
2. Whether the Benue State Customary Court of Appeal was right to have upheld the decision of the trial Area Court that the respondent had proved his case to entitle him to judgment.
3. Whether the Benue State Customary Court of Appeal was right to have upheld the decision of the trial Area Court that the parties had submitted themselves to arbitration and were bound by its decision.

The issues identified by the parties seem to be similar but they are not similarly arranged and couched. I will treat this appeal based on the issues as formulated by the appellants.

Issue No. 1

Arguing the appeal, A. A. Ijohor, Esq., learned counsel for the appellants, drew attention to the fact that from evidence, it is clear that several customary arbitration panels sat to decide the dispute between the parties. He then submitted that customary arbitration is one of the recognised and accepted ways or modes of resolving disputes between parties who willingly submit themselves before it. He cited Agu v. Ikewibe (1991) 4 SCNJ 56, 73; (1991) 3 NWLR (Pt. 180) 385. He submitted that the resolution by the customary arbitration could at times operate as estoppel against the parties, especially where the arbitration finally settles the matter between the contending parties. He referred to Awosile v. Sotunbo (1992) 6 SCNJ (Pt. 11) 182, 200; (1992) 5 NWLR (Pt. 243) 514.

In relation to the instant case, learned counsel for the appellants submitted that the customary arbitrators did not finally settle the dispute between the parties because they gave the disputed land to the appellants but failed to divest the respondent of his possessive rights over same and allowed him to stay thereon concurrently with the appellants. Learned counsel submitted further that the lower court was wrong in affirming the decision of the trial court that the customary arbitration gave the disputed land to the respondent and that the boundary was created on Anchiha to Sokpo road. He submitted that the new boundary did away with the old one of Anchiha to Sokpo road and the new one created by the elders runs from achiha tree up to Anchiha to Sokpo road of which the respondent was dissatisfied and hence the institution of the court action leading to the present appeal. He urged that the issue should be resolved in the negative.

For the respondent, Gabriel Jande Esq., learned counsel, submitted that both parties submitted themselves to a group of elders for settlement of the dispute through customary arbitration. He submitted also that it was the appellants who introduced the issue of arbitration in the proceedings at the trial Area Court through the cross-examination of the respondent. He cited Okere v. Nwoke (1991) 8 NWLR (Pt. 209) 317 in submitting that it is the law that where a body of men, be they chiefs or otherwise, act as arbitrators over a dispute between two parties, their decision shall have binding effect if it is shown that both parties submitted to the arbitration. He submitted that from the testimonies of the witnesses in this case, there is no gainsaying that there was an arbitration constituted by elders and that all the parties herein submitted themselves to the arbitration by appearing and testifying before the elders who came to the conclusion which was accepted by all. He submitted that the trial Area Court found to that effect and advanced same as reasons for coming to its decision. He further submitted that these reasons were reviewed and upheld by the lower court stating that the trial court was right. Learned counsel for the respondent then urged that this issue be resolved in the positive.

The complaint in this issue is that the trial court found for the respondent on the basis of customary arbitration and the lower court affirmed the finding. It is instructive to note that the issue of customary arbitration was introduced into the proceedings before the trial Area Court by the appellants themselves. This started during the cross-examination of respondent by the 1st appellant. The cross-examination runs thus: –

“XX By 1st defendant to plaintiff: – It is true that I have lived on the disputed land for 36 years. You did not start digging the well you have on the disputed land in 1993 but it was in 1994. It is true that I invited elders and they stopped you from digging the well. I did not tell the elders who included Shuur Apecha that I will vacate the place I settled. I never told the elders I will vacate the place I settled because the land belongs to your father.

The district head of Mbaakura came and asked you people to vacate the land but you refused. I have no record of their solution that was passed by the district head of Mbaakura. It is true that Shuur Apecha later came to the place but asked you to vacate the place.

The place I am presently residing belongs to Mbakwan sub-kindred and not Mbagajir sub-kindred of Mbaakura. Orga Asema is not a relation from the mother side as have alleged.

Tim Anduur did not ask elders to order me to leave the disputed land. Mbagajir sub-kindred did not ask me not to plant any trees at the disputed land. It was not Hyoche Ugo your relation that asked Gbor Asema my relation to settle on the disputed land.”

From this cross-examination, it is evident that the issue of customary arbitration was raised by the appellant. The appellants are now complaining that the records of the customary arbitration were not tendered and that none of those who arbitrated was called to testify. Learned counsel for the appellants strenuously argued, before the lower court, that the parties never agreed on the resolution of the customary arbitration (See page 82 of the printed record.)

This is a very strange stand going by the fact that the same counsel on behalf of his clients has submitted that an earlier boundary created by the customary arbitrators was later modified and a new one (apparently favorable to the appellants) has been created. With respect, learned counsel’s submission has turned a blind eye to the fact that several arbitration sessions were held because of the persistent encroachment on the disputed land by the appellants. This is crystal clear from the record of appeal. It is not good blowing hot and cools at the same time. No party should be allowed to approbate and reprobate at the same time. Conscience is an open wound only the truth can heal it.

The law is well settled on the issue of customary arbitration or any arbitration for that matter. Where a body of men, be they Chiefs or otherwise, sat as arbitrators over a dispute between two parties, their decision shall have binding effect if it is shown that both parties submitted to the arbitration. It is said that where two parties to a dispute voluntarily submit the issue in controversy between them to arbitration according to customary law and agree expressly or by implication that the decision of such arbitration would be accepted as final and binding on them, once the arbitrators reach a decision, it would no longer be open to either party to subsequently back out of or resile from the decision so pronounced. See Iguh, JSC at page 304 in Oparaji v. Ohanu (1999) 9 NWLR (Pt. 618) 290. By submission to arbitration, the general rule is that, as the parties choose their own arbitrator to be the Judge in the dispute between them, they cannot when the award is good or otherwise, object to its decision, either upon the law or the fact.

In the instant case, it is not open to the appellants to pick and choose as far as the decisions of the arbitral proceedings are concerned. If the appellants had abided by the decision of the customary arbitration fixing the boundary between the parties at the road from Anchiha to Sokpo, and had not further encroached on the disputed land, there would have been no need for the elders to meet again and alter the boundary earlier fixed by them. The implication of this is that the appellants, after having voluntarily submitted to customary arbitration, have refused to be bound by its decision. In Okere v. Nwoke (1991) 8 NWLR (Pt. 209) 317, 342, it was held by this court, that where matters in difference between two parties are investigated at a meeting and in accordance with customary law and general usage and a decision is given, it is binding on the parties.

That is exactly what the trial court and the lower court were saying. The appellants submitted themselves to customary arbitration over the land in dispute and a boundary was created between them and the respondent. They could not come out when the decision was handed down that it was not acceptable to them. They could only demonstrate their non-acceptance of the decision by subterranean acts of encroachment on the area outside their own side of the boundary created by the arbitrators. The appellants are bound by the decision of the arbitral session which fixed the boundary as the road from Anchiha to Sokpo.

In the light of the foregoing, the appellants have failed woefully to show how the decision of the lower court is wrong on this point. The first issue is resolved in the positive. The customary arbitration settled the dispute between the parties as submitted to them by fixing a boundary between the appellants and the respondent as the road from Anchiha to Sokpo and reliance could be place on the resolution of the customary arbitrators as binding on the parties thereto.

Issue No.2 and 3

Learned counsel for the appellants took issues Nos. 2 and 3 together.

It was submitted for the appellants that the lower court failed to properly identify the real issues between the parties at the trial court and that the respondent woefully failed to prove or establish his case before the trial Court. Learned counsel submitted that since the respondent’s claim before the trial court was that of ownership of, or title to the disputed land, he was duty bound to satisfy the court that he and not the appellants owned the land, especially, in the face of the appellants’ counter-claim. He submitted that the respondent failed to state how his father or forefather came to acquire the land before it devolved on him. He cited Ogunleye v. Oni (1990) 4 SCNJ 65, 92-93; (1990) 2 NWLR (Pt. 135) 745; and Anyanwu v. Mbara (1992) 6 SCNJ (Pt.1) 22, 31; (1992) 5 NWLR (Pt. 242) 386. He wondered how the court would be able to determine whether it was the respondent’s or the appellant’s father who first worked on the land. He relied on Bamgbose v. Oshoko (1988) 5 SCNJ 116, 122; (1988) 2 NWLR (Pt. 78) 509. He submitted that the respondent’s evidence that it was when Uta Agela left the place that he moved in is contrary and contradictory to his assertion that he inherited the disputed land from his father. It was his submission that the respondent came to settle on the disputed land from Uprikya Streams and that it was at that place he had spent the first 39 years of his 75 years. He submitted further that the fact that the respondent has stayed on the land for over 36 years does not confer ownership on him, citing Mogaji v. Cadbury (Nig.) Ltd. (1988) 7 SC 59, 69; (1985) 2 NWLR (Pt.7) 695. Learned counsel for the appellants submitted that, although, it was the 1st appellant who stated that the disputed land was granted to the respondent; he did not state that the grant was absolute as found by the lower court. Learned counsel also submitted that the respondent did not define the land he was claiming and it was only during cross-examination by the 2nd appellant that he mentioned Anchiha to Sokpo road as being his boundary with the appellants. He submitted further that it was at the locus-in-quo that the respondent started mentioning the features he never mentioned in the court when the purpose of locus-in-quo is to see and confirm or otherwise, on the ground, what features parties mentioned in the court. He cited Awoyegbe v. Ogbeide (1988) 3 SCNJ (Pt.1) 99,106; (1988) 1 NWLR (Pt. 73) 695. He submitted that the description of the disputed land and the features mentioned at the locus-in-quo by the respondent was clearly at variance with his evidence in court. On this point, he urged that the proper order open to the trial court was that of the dismissal of the respondent’s case on the authority of Udeze v. Chidebe (1990) 1 SCNJ 104,117; (1990) 1 NWLR (Pt. 125) 141. He submitted that the lower court was in error to have held that the respondent was able to point clearly, at the locus-in-quo, the features he had mentioned at the court. He also submitted that the lower court erred by holding that the real issue in dispute between the parties was that of the boundary between them. On assumption that the real issue is that of the boundary between the parties, he submitted that the respondent was unable to establish his claim before the trial court. He submitted that in comparison, the appellants presented a better case than the respondent and as such their counter-claim ought to have succeeded in toto and not merely in part as was held by the trial court and affirmed by the lower court.

Responding to the submissions on behalf of the appellants, learned counsel for the respondent, Gabriel Jande, Esq. submitted that although the respondent took out a writ at the trial Area Court claiming a declaration of title over a piece of land from the appellants, from the evidence led by both parties, it turned out that the real issue in dispute between them was that of boundary. He referred to the cross-examination of the respondent by the 2nd appellant from which he said the issue was clearly brought out. He submitted that the trial Area Court based its decision on the evidence brought out by the appellant that the real issue between the parties was that of boundary as fixed between the parties by the elders. He cited Ikpang v. Edoho (1978) 2 LRN 29, 36 in submitting that in order to correctly appreciate the nature of a dispute before an Area Court, the entire evidence, and not only the claim, should be considered because pleadings are never filed before that court. He submitted that if the approach suggested by the Supreme Court in Ikpang (supra) is adopted in the instant case, it will be appreciated that the real issue that arose between the parties before the trial court, even though framed by the respondent as a claim for declaration of title, was the determination of the correct boundary between the parties. He submitted that the lower court was correct to have upheld the decision of the trial court. Learned counsel for the respondent submitted that the respondent has led credible evidence to establish the boundary between him and the appellants as required by the law. He submitted that the evidence of PW 1 (who was one of the elders that arbitrated between the parties) brought out the fact that the elders had created a boundary between the parties at Anchiha to Sokpo road which the parties accepted. He submitted that the evidence of PW 1 was corroborated by the evidence of Yange Ugo who testified for the appellants as DW 11. He further submitted that it is the law that even though a plaintiff should not rely on the weakness of the case of the defence where a witness called by the defence testifies in favour of the plaintiff, he can rely on such evidence to prove his case. He relied on Awote v. Owodunni (1987) 5 SCNJ 1, 7; (1987) 2 NWLR (Pt. 57) 366. He submitted that on the authority of the Supreme Court, the respondent can rely on the evidence of the appellants’ witness to prove the boundary between him and the appellants. He submitted that the respondent clearly showed the area in dispute at the locus-in-quo and that as a trial in an Area Court there is no strict application of the rules of evidence, so it cannot be argued that the respondent raised a different case at the locus-in-quo. He submitted that the respondent explained how he acquired the land by inheritance from his father by acts of first settlement. He submitted that the respondent settled at the disputed land with the knowledge and consent of Ityoher Ugo who was in charge of the appellants’ land at the time. He further submitted that the case of the respondent was supported, in this regard, by the evidence of the 1st appellant. He submitted that the respondent was in adverse possession of the land in dispute to the knowledge of the appellants who did not, either by themselves or through Ityoher Ugo who was overseeing their interest, oppose the respondent’s claim to the disputed land. He submitted that it was based on this fact that the trial court found, which was upheld by the lower court, that the appellants were caught by the doctrine of laches and acquiescence and that their case was statute barred. Learned counsel submitted that since the appellants did not appeal against this particular finding, this court will not disturb such finding. He relied on Green v. Green (1987) 7 SCNJ 255, 266; (1987) 3 NWLR (Pt. 61) 480. Learned counsel for the respondent finally submitted that the respondent’s evidence was complemented by the numerous and positive acts of ownership spanning over a long period of time.

He urged that the appeal be dismissed for being lacking in merit.

Earlier on, learned counsel for the appellants had urged that the appeal be allowed. He prayed also, for certain other relief not being part of the relief in the notice of appeal.

Let me observe light from the onset that almost all the authorities relied upon by learned counsel on both sides in respect of these two issues were decided at the first instance on the basis of pleadings before the various courts seised of those cases. That makes those cases to be radically different from the instant case which was tried at an Area Court without pleadings. The practice in our Area Courts is such that even after filing a writ, the plaintiff or claimant will still have to state his case at the trial to enable the court determines the nature of the claim before it. Often, more than, the plaintiff/claimant is hardly treated as a witness. If it is an Area Court that applies Islamic Law, the plaintiff cannot be a witness in his own case. In the instant case, even though an oath was administered before the respondent stated his case; the trial Area Court did not treat him as a witness. He was not even so described. His first witness was described as PW 1. The implication of all this is that appellate courts always treat the proceedings of the Area Courts with caution and allow for great latitude by not insisting on strict compliance with the rules of evidence and procedure. The standard normally applied is that of substantial justice. Once the proceedings are found to have been conducted in a manner leading to substantial justice, the appellate courts hardly interfere.

That is exactly the very import of the Supreme Court decision in Ikpang v. Edoho (1978) 2 LRN 29, 35- 36 when it held that –

“… great latitude must be given to, and a broad interpretation placed upon, native court cases-and one may add customary court cases-so that the entire proceedings, the evidence of the parties and the judgment must be examined in order to determine what the native court or customary court case was all about.

The whole conception and the result of the proceedings will show what the parties were fighting for, matters upon which the issues were joined, even if technically framed in an inappropriate language from the stand point of legal technocrats, and the decision of the native court or customary court on those issues.”

The native courts of Northern Nigeria are now known as the Area Courts.

In the light of the foregoing, the entire proceedings before the trial Area Court and the evidence of the parties will have to be carefully examined in order to determine the nature of the respondent’s claim before that court. Both parties have stated their respective cases and called witnesses in support therefor. One has to look at the key issues put forward by each side in order to see where issues were joined.

There is no doubt that the respondent believed that the land belongs to him based on various acts of ownership exercised by him over the land for over 36 years without challenge or complaint from either the appellant or any body else claiming under, or for them. He mentioned many of his relations who died and were buried on the disputed land including his brother, mother, two sons and a daughter. Nobody objected to the respondent burying any of his relations on the disputed land. The most striking and compelling reason for his belief is his statement at page 8, lines 26-28 where he stated thus:

“There was no dispute over the land. The father to the defendants was alive but did not complain.”

(Italics by me).

This key point remains unchallenged and uncontroverted by the appellants. Also unchallenged is the evidence of PW 1 (PW2) under cross-examination that the ruin of the respondent’s father is on the disputed land. I have gone through the entire record but cannot find any statement which could be construed to contradict this salient point that the father of the appellants was alive and did not complain. Instead of contradicting this very serious point, the appellants engaged themselves in proving that the land in dispute was granted to the respondent by their own agent, Ityoher Ugo. Where evidence given by a party to any proceeding is not challenged, controverted or discredited by the opposite party who had the opportunity to do so, it is open to the court seised of the matter to act on such unchallenged evidence before it. See Ayinke v. Lawal (1994) 7 NWLR (Pt. 356) 263, 275; and Obembe v. Wemabod (1977) 5 S.C. 115, 140. That point alone was enough for the trial court to have found for the respondent against the appellants if the ownerships of the land in dispute were the claim before it. On the issue of the title to, or ownership of the land in dispute, the statement of the respondent and the evidence of his two witnesses, PW1 and PW2, both during examination-in-chief and under cross-examination, established the ownership of the land to the respondent as found by the trial Area Court and upheld by the lower court. His narration was that it was his father who was farming on the land and after his father’s death, his uncle took over the land farming on it. His uncle’s name is Ivekper Anenge. It was when Uto Agele, who was also farming on the land, left the place that the respondent moved into his place. He was there for over 36 years before the appellants came and started disputing the land with him. Under cross-examination by the 1st appellant, the respondent stated, in part –

“It is true that I have lived on the disputed land for 36 years. You did not start digging the well you have on the disputed land in 1993 but it was in 1994. It is true that I invited elders and they stopped you from digging the well. I did not tell the elders who included Shuur Apecha that I will vacate the place I settled…

The district head of Mbaakuna came to the place and asked you people to vacate the land but you refused… It is true that Shuur Apecha later came to the place but ask you to vacate the place …”

Under cross-examination by the 2nd appellant, the respondent had this to say-

“The feature on the boundary of the land in dispute is the motorable road from Anchiha to Sokpo. I am living on the Northern part of the land while the defendants reside on the Southern part of the land. I buried my relations at the very compounds they settled …”

When cross-examined by the 3rd appellant, this is how the respondent responded-

“The road is our present boundary because elders intervened. I never asked you to come and settle at the place 1st defendant has settled now.

The wife to Orga, my relation was buried at the Disputed land without begging any person … I never asked Orhena your brother permission to bury my mother at the disputed place before I did. Ityoher Ugo your relation did not ask me to vacate the disputed area for you.”

In his own narration, the 1st appellant stated that they (appellants) inherited the land in dispute from their father Ieka. He stated that they have been farming on the disputed land having boundaries with Dhima Uba at the eastern pat1 of the land; with Vembe Ayau, a relation of Shima Uba, at a Chiha tree on the same side (eastern); with Yauge Ugo at a party burnt Chiha tree at the Northern part. He was emphatic that they shared no boundaries with the respondent. He further stated how they left the area and left one Ityoher Ugo in charge of the disputed land in 1963. It was this Ityoher Ugo who asked Gbor Asema to come and settle on the land while Gbor Asema, in turn, asked the respondent along with elders and all people of Mbagbaaba to come and settle around him and Ityoher agreed/accepted that the respondent should come and settle on the disputed land. In his own words, see page 6 of the printed record –

“In 1988, I was transferred from Lagos to Aliade and 3rd defendant/3rd appellant) who was at Tombo came and requested for a place to settle and our elder brother Orhena lieke who is our elder brother (sic) went and showed him a place to settle on the disputed land.

The 3rd defendant planted 15 stands of orange at the place but the plaintiff (respondent) went and removed it. The matter was reported to Orheha our elder brother but the matter was referred to me to handle. I directed the matter to our kindred head but did not come until in 1993. I came and started digging a well at the disputed land but the plaintiff came and sent me away. I went and reported the (sic) Iorgoga Ukpo who was our eldest person but he told me to go and settle at the place I planted some mariva and palm trees.”

The 1st appellant then stated how elders were invited to the disputed land on several different occasions and how the elder’s resolution always favoured him.

The statement made by the 2nd appellant was very short. He was 45 years old when the case came up for trial before the Area Court and did not seem to have much personal knowledge of the issues at state.

The 3rd appellant, a 39 years old teacher stated that he left the place when he was young and on his return, he met Orheha leka and asked him for a place to settle and was shown a place. He planted 15 stands of orange at the place shown to him in 1988 and these were removed by unknown persons. He reported the case to Azue Igba.

He also informed Orheha Ieka about it and the latter told him to leave the issue. A woman was brought to the disputed land for burial. Orheha told them to leave but the woman was buried there. He was shown the place where Gbor earlier on settled and to leave the other side of Anchiha-Sokpo road. In his words at page 20 of the record –

“The 1st defendant who is my brother later came back and had wanted to settle at the disputed place, but the plaintiff refused. Elders were invited but they resolved in favour of the 1st defendant.”

From the statements of the parties as quoted here above, it is clear that the respondent’s claim before the trial Area Court was for the determination of the correct boundary between him and the appellants. The claim of the appellants is the title or ownership of the disputed land. While the respondent claims that the correct boundary between him and the appellants is the road from Anchiha to Sokpo, the appellants insist that the entire land in dispute belongs to them. The evidence of the respondent’s witnesses supports his case. The PW1 said he could show the ruins of Haanongau Akundo who is the same grand father with the respondent on the disputed land. He was one of the elders who sat as arbitrators. He has this to say: –

“The disputed land belongs to the plaintiff because he settled between the two branches of Orpiikaa Stream and I share boundaries with the plaintiff I was sharing boundaries with the defendants’ father in front. The defendant later came back last year and started disputing the land. Elders were invited and I was amongst them.

We resolved that the defendant should stop the other side of Anchiha- Sokpo Road while the plaintiff should farm this other side. Part of the plaintiff’s land was given to the defendants during the settlement.”

This witness went on to give evidence of the respondent’s relations that were buried on the disputed land upon their death. Under cross-examination by the 2nd appellant, PW 1 stated that the ruin of the respondent’s father is on the disputed land. When cross-examined by the 3rd appellant the witness said thus: –

“We divided the land on Anchiha – Sokpo Road because you people are disturbing too much.”

PW2 on his own part testified thus:

“The disputed land belongs to Ikyereve because his fore-father settled on it… It was last year that the 1st defendant came and started disputing the land. Elders were invited and they resolved that the defendants and the plaintiffs should use Anchiha Sokpo Road as their boundary. ”

Under cross-examination by the 1st appellant, the witness responded that –

“I use to share boundaries with your father at Ityoade Osu’s present compound and he is your brother. I was among the elders that resolved the issue in favour of the plaintiff on the other side of Anchiha-Sokpo Road…

Your father was sharing boundaries with my father before I was even born. I never saw your farm on the disputed land before. Your father never shares boundaries with Shima Ugba Ayom Kyorbo, and Ugo.”

Cross-examined by the 2nd appellant, PW2 said –

“It is true that the place Iorhain your relation is settling now is your old ruin and it is not in dispute.”

The scenario unfolding from the totality of the evidence for the respondent points vividly to the fact that his claim is in respect of boundary. His evidence was further fortified by the evidence of the defence witnesses. For instance, the DW2 in his examination-in-chief has this to say –

“When the 3rd plaintiff (sic) insisted to settle on the land, the plaintiff invited elders in the place and they came and resolved that the motorable road from Anchiha to Sokpo should be their boundary.”

This witness went on to show how the elders met, at another insistence on the part of the appellant and the boundary was adjusted. Under cross-examination by the respondent, DW2 said –

“I don’t know whether you farmed the place before Ieka died. No one complained when you came and settled on the disputed land.”

The evidence is very overwhelming in support of the trial court’s finding, which was upheld by the lower court, that the real issue between the parties was that of the boundary between them and I so hold. An appellate court will not normally interfere with concurrent findings by the courts below, unless found to be perverse or that the lower courts raised wrong inference upon accepted facts or applied wrong principles to such facts. See Adeyemi v. The State (1991) 6 NWLR (Pt. 195) 1, 22; Igodo v. Owulo (1999) 5 NWLR (Pt. 601) 70; and Sakare v. Bello (2003) 17 NWLR (Pt. 848) 154, 171-172. In the instant case, the finding by the trial court as upheld by the lower court is unassailable. The respondent’s case was not fought on the basis of a claim of ownership and the submissions to the effect that he has not established his case are misconceived. The sophistication introduced into the case by learned counsel for the appellant is uncalled for.

Both issue No.2 and issue No.3 are therefore resolved in the positive.

As stated earlier in this judgment, there was no mention throughout the proceedings before the trial court concerning a counter-claim except the mention of it made at the opening of the judgment of the trial Area Court.

The learned appellants’ counsel has also made a big weather of the fact that the trial court has ordered for the demolition of the structure put up by the appellant on the disputed land when there was no such prayer before the court. This submission is not borne out of the record before me. After the cross-examination of his last witness by the 3rd appellant, the respondent stated as follows at page 14 of the record –

“That is the case and I have no re-examination. I am therefore urging the court to order for the demolition of the 1st defendant compound on the disputed land and also restrain him and his privies from further acts of trespass on the land.”

That prayer puts PAID to the submission on that point.

Finally, I find nothing perverse in the concurrent findings of fact made by the trial Area Court and the Lower Court and I see no reason why this court should interfere.

This appeal fails in its entirety and it is accordingly hereby dismissed. The decision of the lower court affirming the decision of the trial Area Court is hereby affirmed.

The respondent shall have the cost of this appeal which I assessed at N10, 000.00 against the appellants.

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Other Citations: (2007)LCN/2235(CA)