Nelson Nwosu Onwugbufor & Ors. V. Herbert Okoye & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Enugu Division, which had on the 16th day of May, 1989 allowed the appeal by the defendants from the decision of Awogu, J. as he then was, sitting at Onitsha in the High Court of the former Anambra State.

The plaintiffs, for themselves and on behalf of the Uruokpala family of Amawa village, Ogbunike had instituted an action against the defendants claiming, as subsequently amended, as follows:-

“(a) Declaration that the plaintiffs are entitled to the Customary Right of Occupancy under Ogbunike Customary Law to the piece and parcel of land situate at Amawa in Anambra Local Government Area and commonly called Ubulu Land and shown on the plaintiffs’ plan and therein verged yellow.

(b) N1,000.00 damages for trespass.

(c) Injunction restraining the defendants, their servants and/or agents from further trespass on the said land.

(d) Forfeiture of the defendants’ tenancy on the land.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged. At the subsequent trial, both parties testified on their own behalf and called witnesses.

The plaintiffs case is that their family, known as and called the Uruokpala family of Amawa village, Ogbunike town in the Anambra State of Nigeria is the bona fide owner of the land in dispute verged yellow in their survey plan No. PO/E/116/78 dated the 31st December, 1978. The said plan was tendered and admitted in evidence at the hearing as Exhibit A. Whereas the plaintiffs are from the Amawa village, Ogbunike, the defendants come from a different village to wit, the Azu village of Ogbunike town. They claimed that the land in dispute known as and called “Ubulu” is situate in Amawa village and that it has been their property from time immemorial. In further support of their title to the said land, the plaintiffs claimed that they, and before them, their forefathers had exercised maximum and positive acts of ownership and possession over the same for a long period of time without any let or hinderance from the defendants or anyone else. They claimed that they, and before them, their fore-fathers farmed the land, reaped the fruits of their economic trees thereon and made customary grants of several portions thereof at various times to various tenants for residential and farming purposes on payment of annual tributes. These customary tributes comprise of 8 yams, 4 kolanuts and palm wine.

It is the plaintiffs case that the said tenants are mainly from the defendants Umuezemba family of Azu village, Ogbunike and included Okoye Oneze, the 1st defendant’s father, whose walled compound was granted to him by the plaintiffs several years ago.

On his death, his sons, the 1st and 2nd defendants continued to live on the said land let to their father by the plaintiffs. Other residential tenants such as the deceased John Ipim and Onyeagana lived on the land as plaintiffs tenants but later moved out and surrendered the reversion to the said plaintiffs. Their other residential tenants on the land included the late Agudosi, although his son, the 3rd defendant still lives on the portion granted to his late father. There are also P.W.3, Udenze Obeagha, the 4th defendant Clement Ikwuazom, Eziosa Nwafudalu and Humphrey Nwafudolu who are plaintiffs residential tenants on the land. They all paid customary tributes to the plaintiffs family. The land on which P.W. 3 lives was originally granted to his late father for residential purposes by the plaintiffs family. His father built a house and lived on the land on payment of tributes to the plaintiffs until his death some 30 years ago. Thereafter P.W. 3 continued to live on the premises and paid the same tributes to the plaintiffs as his late father. They asserted that the defendants’ ancestors who were granted parts of the land in dispute by the plaintiffs’ family duly paid their customary annual tributes all the time to the plaintiffs ancestors.

The plaintiffs sought to tender several agreements between them and some of their said customary tenants but these were rejected in evidence by the trial court for want of registration under the Land Instruments Registration Law and non-compliance with the provisions of the Illiterates Protection Law of Anambra State. They concluded by stating that despite repeated demands, the defendants had refused to pay their tributes as their fathers did and had infact denied their title to the land in dispute hence this action. They claimed as per their amended statement of claim.

The defendants, on the other hand, who are from the Azu village of Ogbunike claimed that the land in dispute as shown in their survey plan, Exhibit F, is their absolute property. They claimed that they inhabit the land in dispute in large numbers, cultivate crops and reap economic trees thereon. They exercise these acts of ownership and possession over the land from time immemorial without any disturbance from the plaintiffs family. They stated that they have an ancient footpath on the land. They denied being tenants of the plaintiffs family on the land in dispute or ever paying annual tributes to anybody in respect of their occupation of the land. They asserted that they live on the land in their own right as owners thereof. The 1st defendant agreed that one Obeagha who is related to his father begat P.W.3, Udenze Obeagha. He also admitted that the junior brother of P.W. 3 Daniel, resides where their father lived within the land in dispute. He could not however tell if P.W. 3 ever paid annual tributes to the plaintiffs family. He testified that if P.W. 3 paid tributes to the plaintiffs, the defendants did not authorise such payments. He claimed that the plaintiffs originally came from Isi-Uzo in Abatete to settle at Ogbunike. He agreed that P.W. 3 came from Umu-chiemesi sub-family to which he belonged. He admitted that P.W. 3, P.W. 6, P.W. 7 and P.W. 9 are all from their Azu village, Ogbunike.

At the conclusion of hearing, the learned trial Judge, Awogu, J., as he then was, after a careful review of all the evidence led before him preferred the testimony of the plaintiffs and their witnesses to those of the defendants. He described the evidence of the defence as unreliable and he proceeded to grant customary right of occupancy in respect of the land in dispute to the plaintiffs. He however dismissed the plaintiffs claims in damages for trespass, perpetual injunction and forfeiture.

Dissatisfied with this decision of the trial court, both parties lodged appeals to the Court of Appeal, Enugu Division. The defendants appealed against the order for declaration of customary right of occupancy in favour of the plaintiffs whilst the plaintiffs cross-appealed against the dismissal of their claims for trespass, perpetual injunction and forfeiture. The Court of Appeal in a considered judgment dismissed the plaintiffs cross-appeal in respect of trespass, injunction and forfeiture but allowed the appeal of the defendants against the declaratory relief awarded to the plaintiffs.

Aggrieved by this decision of the Court of Appeal, the plaintiffs have further appealed to this Court. I shall hereinafter refer to the plaintiffs and the defendants in this judgment as the appellants and the respondents respectively.

Altogether, five grounds of appeal were filed by the appellants. These grounds of appeal are as follows:-

“(1) The Court of Appeal erred and/or misdirected itself in law in holding as follows:-

“From the passage quoted from the judgment, the learned Judge seemed to have failed:

(a) to adequately determine whether the plaintiffs discharged the burden on them to entitle them to the declaration of title he made in their favour;

(b) to appreciate that since the plaintiffs relied on acts of possession, the principles to be applied cannot be substituted by evidence of witnesses who merely testified that the plaintiffs own the land; and

(c) to realise that a case is not proved by the number of witnesses called by a party but by the quality of the evidence led.”

Particulars of Error and Misdirection

(a) It is patent from the passage in question and from other parts of his judgment that the learned Judge was satisfied that the appellants have discharged the burden of proof on them.

(b) It is an established proposition of law that ownership of land carries with it the right to possession. In any event in the con of the evidence given in this case the plaintiffs have proved their possessory rights over the land in dispute to the satisfaction of the learned trial Judge.

(c) No where in his judgment can it reasonably be said that the learned trial Judge relied on the number of witnesses rather than the quality of their evidence.

(ii) The Court of Appeal further erred and misdirected itself in law and on the facts when he held as follows:-

“From the manner the trial Judge considered this case, first, he did not seem to bear in mind what the plaintiffs were expected to prove, secondly, he did not evaluate the evidence before him; and thirdly, which was a consequence of the foregoing two factors, he gave undue probative value to the evidence of P.W. 3,P.W. 6,P.W. 7 and P.W. 9. He relied strongly on the evidence of those witnesses whom he regarded as members of “the family of the defendants” and that “their evidence was to the effect that the plaintiffs of Amawa owned the land in dispute. This, in effect, was evidence against interest.” He held that it was not enough for the defendants to say they lied. He also thought it was a decisive factor that the plaintiffs called boundary witnesses, namely, P.W. 2, P.W. 4, P.W. 5 and P.W. 8, and that the defendants called none.

With due respect, I think the learned Judge considered the case from obviously wrong factors.”

Particulars of Error and Misdirection

(a) It is incorrect to say that the learned trial Judge “did not seem to bear in mind what the plaintiffs were expected to prove” or that he did not evaluate the evidence before him.

(b) There are no rational grounds for attacking the value placed by the learned trial Judge (who saw and heard the witnesses) on the evidence of P.W. 3, P.W. 6, P.W. 7 and P.W.8).

(iii) The Court of Appeal was wrong in law and on the facts in failing to appreciate the relevance of the evidence of those whom it described as “boundary witnesses.”

(iv) The Court of Appeal erred in law and on the facts in refusing to make the order for forfeiture.

(v) Judgment is against the weight of evidence.”

Pursuant to the rules of this court, the parties through their respective counsel filed and exchanged their written briefs of argument. In the appellants brief, the following seven issues are set out as arising for determination in this appeal, namely:-

“1. Whether the court below was right in holding that the high Court did not appreciate or pay regard to what the plaintiffs must prove in support of their claim for a declaration of title to the said land.

2. Whether the Court below was right in holding that the High Court failed to determine whether the plaintiffs have discharged the burden of proof which lay on them in this action.
3. Whether the Court below was right in holding that the plaintiffs did not prove acts of ownership and possession over the land in dispute.
4. Whether the court below was right in dismissing the appellant’s case in the light of the evidence led and the findings of fact of the learned trial Judge. Put the other way – Is the Court below competent to substitute the findings of the trial court with its own findings when the findings of the trial court accurately reflect the evidence before it.
5. Whether the Court below was right in holding that the boundary witnesses are unnecessary having regard to the value attached in law to boundary witnesses. Put the other way, are boundary witnesses necessary only where the boundary is in dispute.
6. Whether the Court below was right in holding that the High Court gave undue weight to the number (i.e. quantity) rather than credibility (i.e. quality) of witnesses who testified before it or did it give undue weight to certain witnesses.
7. Was the High Court right in refusing to make an order for forfeiture when the defendants were sued not in a representative capacity but in their personal capacities.”

The respondents, on the other hand, submitted four issues in their brief of argument as arising for determination in this appeal. These are:-

“1. Whether the Court of Appeal was right in its decision, based on the pleadings and evidence before the trial court, in holding that the plaintiffs did not make out a case of declaration of title based on (a) the principle decided in Ekpo v. Ita (1932) II NLR 68 and (b) long possession and enjoyment of land envisaged by section 46 of the Evidence Act.

2. Whether the Court of Appeal was right to re-evaluate the evidence before the trial court and to come to a different conclusion by acting under well settled principle of law to effect that when the findings of fact of the trial Judge do not flow from the evidence before him and therefore perverse, or, when, the findings are not based on the trial Judge having seen or heard the witnesses and watched their demeanour, then the Court of Appeal is at liberty to make its own findings.
3. Whether the decision of the Justices of Appeal was against the weight of evidence having regard to the evidence of P.W. 3, P.W. 6, P.W. 7 and P.W. 9 described as witnesses from the defendants family, and the evidence of P.W. 2, P.W. 4, P.W. 5 and P.W. 8 described as boundary witnesses at the trial.
4. Whether the Court of Appeal was wrong “in law and in the facts” in refusing to make the order for forfeiture.”

I have closely examined the two sets of issues identified in the respective briefs of the parties and it seems to me clear that the seven issues raised in the appellants brief are adequately covered by the issues set out in the respondents brief which I find sufficiently comprehensive for the determination of this appeal. I shall therefore adopt, in this judgment, the set of questions formulated in the respondents brief for my consideration of this appeal.

At the hearing of the appeal, learned counsel for the appellant, Chief F.R.A. Williams, SAN adopted the briefs filed on behalf of the appellants and proffered additional arguments in further elucidation of the written submissions therein contained. Learned respondents counsel, for his own part, also adopted respondents brief.

The first question raised by issues 1 and 2 of the appellants brief is, firstly, whether the court below was right in holding that the trial court failed to appreciate what the appellants were expected to prove in support of their claim for a declaration of title to the land in dispute. The second question is whether the court below was right in holding that the trial court failed to determine whether the appellants discharged the burden of proof on them in this action. These questions are related to the respondents first issue which poses the question whether the court below from the pleadings and evidence was right in holding that the appellants did not make out a case of declaration of title from acts of ownership and possession over a long period of time to warrant the inference that they are the owners of the land in dispute.

Learned appellants counsel, Chief F.R.A. Williams, SAN submitted that the criticism of the trial court by the court below to the effect that the learned trial Judge did not bear in mind what the appellants were expected to prove is, with respect completely wrong. He argued that the trial court clearly set out what the appellants pleaded and proved in support of their claim. He contended that the court below was in gross error also when it held that the learned trial Judge failed to determine whether the appellants had discharged the burden of proof on them in this action. He pointed at the various evidence of positive and numerous acts of ownership established by the appellants on the land in dispute over an extensive period of time. In this regard, he referred in particular to the evidence of the 1st appellant and those of P.W. 3, P.W. 7 and P.W. 9 of which the last three are some of the customary tenants of the plaintiffs family on the land. Attention was drawn to the fact that P.W.3 is a blood relation of the 1st respondent and to the evidence of P.W. 6, P.W. 7 and P.W. 9, all of whom are from the respondents Azu village but testified in favour of the appellants of Amawa village at the trial. He further referred to the evidence of P.W. 2, P.W. 4, P.W. 5 and P.W. 8 the appellants boundary witnesses on the land in dispute. He stressed that the testimony of the 1st appellant together with those of the appellants witnesses were fully accepted by the learned trial Judge. He pointed out that the learned trial Judge after a careful evaluation of the evidence preferred the appellants testimony and those of their witnesses to that of the respondents. He submitted that the overwhelming evidence adduced by the appellants and their witnesses were more than sufficient to justify the declaration of title awarded in favour of the appellants.

Learned respondents counsel, B.C. Ogbuli, Esq. for his own part, submitted that the appellants pleaded ownership of the land in dispute from time immemorial but led no evidence of traditional history as to how the land was acquired by them. He contended that the appellants allegation of “immemoriality” was not established before the court. He submitted that the original ownership of the land in dispute must first be established before any acts of ownership allegedly exercised by the appellants on the land can be considered by the court. He argued that the appellants having failed to lead evidence of traditional history as to their root of title were bound to fail in their claims for title and forfeiture. He relied for this proposition on the decisions in Mogaji & ors v. Cadbury Nig. Ltd. & ors. (1985)2 NSCC 966; (1985) 2 NWLR (Pt. 7) 393 and Odofin v. Ayoola (1984) 11 SC 72 at 120. He contended that evidence of long possession and enjoyment of land cannot found a claim of declaration of title against a true owner of the land. He argued that the findings of fact of the trial court must not be treated as sacrosanct and submitted that the Court of Appeal is entitled in appropriate cases to make its own findings.

The appellants in their reply brief submitted that it cannot be the law as postulated in the respondents brief that the original ownership or root of title of the land in dispute must firstly be established before any acts of ownership exercised thereupon may be considered by the court. It was asserted that the appellants mainly relied on acts of ownership and possession and not on any traditional history and that this is why no evidence of traditional history in establishment of their root of title to the land in dispute was led by them.

The appellants contended that proof of their root of title to original ownership of the land was not the principal mode of ownership relied upon in their amended statement of claim. There was therefore no necessity on their part to lead any evidence of tradition in proof of their title to the land.

I think it will be necessary for a better appreciation of the issues that have arisen in this appeal to set out the relevant paragraphs of the appellants amended statement of claim. These are as follows:-

“2. The land trespassed upon by the defendants which is situate at Amawa village belongs to the plaintiffs from time immemorial and is more particularly shown delineated pink on the plaintiffs plan No. PO/E116/78 filed with this statement of claim.

3. The said area verged pink forms part of the vast area of the plaintiffs land known as and called “Ubulu land” and more particularly shown on the plaintiffs plan and therein verged yellow. The said area verged pink is within the area verged yellow all of which belong to the plaintiffs.
4. As owners the plaintiffs like their fore-fathers before them exercise maximum acts of ownership and possession by themselves and through their tenants in and over the land without any let or hinderance from the defendants or anybody else.
5. In pursuance of their acts of ownership and possession, the plaintiffs farm the land known as Ubulu land, reap the fruits of the economic trees therein. The 1978 farms of the plaintiffs family are more particularly shown in the plaintiffs plan referred to in paragraph 3 of this statement of claim.
6. In furtherance of their acts of ownership and possession, the plaintiffs have granted portions of the land known as Ubulu land to people for residential and farming purposes under Ogbunike Customary Law and in the understanding that the tenants pay annual tribute to the plaintiffs and in the events of the tenants vacating the area granted to them the land will revert to the plaintiffs. One of the plaintiffs tenants was one John Ipim for Ogidi and when he died and his family moved back to Ogidi, the land granted to him reverted to the plaintiffs.
7. At the end of each year during the feast of “Igbonwunwu” which marks the end of farming season, the tenants pay their tribute to the plaintiffs which said tribute consists of 8 yams, 4 Colanuts and 2 gallons of palm wine. The tenants are mainly from Umuezemba family of Azu Ogbunike.
8. Some of the plaintiffs tenants on the land are- Agudosi family, that is to say, the family of the 3rd defendant, Humphrey Eziosa Nwafodu, Sylvester Ofia. The plaintiffs will found on the Memorandum of Agreement between the plaintiff and the tenants above referred to. The area verged orange and walled round was granted to the 1st defendants father Okoye Oneze by the plaintiffs family many years ago and on his death his son Herbert Okoye the 1st defendant continued to live within the area granted to his father.
9. In pursuance of their acts of ownership and possession, members of plaintiffs family have brought actions against trespassers into their Ubulu land and obtained judgment. The plaintiffs will rely on Ogidi Native Court Suit No. 194 of 17/4/17; Nwosu v. Onyeaghana (2) Nwosu v. Nwanyiaso & Anor Suit No. 537/538/1917 of 14/8/17.
10. By a Memorandum of Agreement dated the 28th of February, 1977, the plaintiffs granted under Ogunike Customary Law the area verged pink in the plaintiffs plan to one Sylvester Ofia of Umuezemba Family of Azu Ogbunike for residential purposes under a condition that in the event of his vacating the said area verged pink, the land refers to the plaintiffs. This grant was in response to an application by the said Sylvester Ofia dated the 16th of February, 1977. The plaintiffs will found on both the agreement and the said application.
11. The defendants who are also members of Umuezemba Family of Ogbunike have no land near the land in dispute and their forefathers never made any claim of ownership to the land in dispute.”

It suffices to state that the respondents denied the above averments in the appellants amended statement of claim. They stated inter alia that the land in dispute is their own portion of the communal land of Azu village, Ogbunike. They further averred that they are in occupation and possession of the said land in their own right from time immemorial without any let or hinderance from the plaintiffs.

It is now settled that there exists five different ways or methods of establishing or proving ownership of land in dispute. For the avoidance of doubt, these methods, as postulated by the various decisions of this court are as follows:-

(i) Proof by traditional evidence.

(ii) Proof by production of documents of title duly authenticated, unless they are documents 20 or more years old, produced from proper custody.

(iii) Proof by acts of ownership, in and over the land in dispute, such as selling, leasing, making a grant, renting out all or any part of the land or farming on it or a portion thereof – extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such proprietary acts are the true owners of the land.

(iv) Proof by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership, not only of the particular piece of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarly that the presumption under Section 46 of the Evidence Act, Cap. 112 of 1990 applies and the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land.

(v) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.

See: D.O. Idundun & Ors v. Okumagba (1976) 9 and 10 SC 227 at pages 246-250; Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511; Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386 etc etc.

What is of paramount importance is that a party claiming declaration of title to a statutory or customary right of occupancy to land needs not plead and prove any more than one of the above methods to succeed. It must however be stressed that if, as it is sometimes the case, the claimant pleads and/or relies on more than one method to prove his title, he merely does so ex abundanti cautela as proof of one single root of title is sufficient to sustain a plaintiff’s claim for declaration of title to land. See: Balogun & Ors. v. Akanji & Another (1988) Vol. 19 1 NSCC 180; (1988) 1 NWLR (Pt. 70) 301. It is now necessary to turn to the material facts pleaded by the appellants in their amended statement of claim in support of the reliefs claimed.

Without doubt, paragraph 2 of the amended statement of claim averred that the land in dispute belonged to the appellants from time immemorial. But it is equally true that no particulars or material facts whatever concerning this averment of traditional history were pleaded in proof of the alleged original ownership of the land in dispute from time immemorial. Consequently no evidence was led by the appellants in proof of ownership of the land by traditional history.

The point has repeatedly been made and it seems to me well settled that it is not sufficient for a party who relies for proof of original title to land on tradition to merely plead that he and his predecessors in title had owned and possessed the land in dispute from time immemorial without more. The question of original ownership of land from time immemorial is an issue of hard historical facts. Accordingly, material and necessary facts to sustain such a claim must be clearly averred and proved. And they are not established by sweeping and vague assertions that the land is owned by the plaintiff from time immemorial or from time beyond human memory without further details. Such sweeping assertions clearly leave the traditional evidence at large and in the air and can be fatal to a plaintiff’s case if they are the only root of title relied on. See Alade v. Lawrence Awo (1975) 4 SC 215 at page 229.

Where evidence of tradition is relied on in proof of declaration of title to land, it is well settled that the plaintiff, to succeed, is bound to plead and establish facts such as:-

(i) Who founded the land.

(ii) How he founded the land and

(iii) The particulars of the intervening owners through whom he claims.

See: Akinloye v. Bello Eyiyiola (1968) NMLR 92; Sunday Piaro v. Chief Tenalo & Anor (1976) 12 SC 31 at page 41; Olujinle v. Adeagbo (1988) 2 NWLR (Pt.75) 238; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417 and Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386 at Page 399. In the present case, it cannot be disputed that the appellants neither sufficiently pleaded nor gave evidence in support of their original ownership of the land in dispute by tradition from time immemorial. Recognising the fact that there are five modes of establishing title to land, the next issue must be whether the appellants pleaded and/or relied on any other way or ways in proof of their title to the land in dispute. Besides, although a plaintiff is entitled to rely on traditional evidence alone to succeed in his case (for which See Stool of Abinabina v. Enyimadu 12 WACA 171 at 174 and Idundun v. Okumagha. (supra) if such evidence of tradition is inconclusive, the case must rest on the question of other facts pleaded and relied on at the trial. See: Ekpov. Ita II NLR 68 and Balogun & Ors. v. Akanji & Anor (1988) Vol. 19 1 NSCC 180; (1988) 1 NWLR (Pt. 70) 301.

A close study of the averments in paragraphs 3 to 11 of the amended statement of claim already set out above discloses in the clearest possible terms that the appellants copiously pleaded and relied primarily on various acts of ownership and possession, in and over the land in dispute, by themselves and, before them, their forefathers, numerous and positive enough to warrant the inference that they are the exclusive owners thereof. The respondents do not dispute this fact for in their brief of argument, they stated as follows:-

“It is clear from the pleadings that the plaintiffs based their claim to title to the land in dispute on two well settled ways in which ownership of land may be proved viz:

(a) acts of person/persons claiming the land such as selling, leasing, renting out the land or parts of it, farming on it or on a portion of it. Such Acts must extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person/persons are the true owner. See: Ekpo v. Ita II NLR 68.

(b) acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece or quantity of land with which such acts are done. See Section 46 of the Evidence Act. See: ldundun & Ors. v. Okumagha (1976) 9 & 10 SC 227 at 246/252.”

Similarly, the Court of Appeal fully recognised the position when, Per Uwaifo, J.CA. who delivered the lead judgment, it stated thus:-

“It can therefore be taken that the plaintiffs rely on (a) acts of possession as their root of title; and (b) acts of ownership i.e. alienating renting and farming of land. Such acts of possession and ownership constitute two of the five ways of establishing title to land as laid down by the Supreme Court. See: Idundun v. Okumagba (1976) 9 & 10 SC 227 at 246; Sunday Piaro v. Tenalo & Anor (1976) 12 SC 31 at 42-43; Okonkwo v. Okolo (supra) at page 656. As for acts of ownership, they must extend over a sufficient length of time and must be numerous and positive enough as to warrant the inference that the plaintiff is the true owner in conformity with the principle of Ekpo v. Ita II NLR 68. The other aspect of the root of title, namely acts of long possession, derives from Section 46 of the Evidence Act that such possession and enjoyment may be prima facie evidence of ownership of the particular piece mass of land.”

A little later in the judgment of the court below, it was further stated as follows:-

“What the plaintiffs set out to prove from the facts pleaded by them were acts of ownership which must be numerous and positive, and also acts of long possession and enjoyment of the said land.”

The judgment of the learned trial Judge also was based entirely on the appellants acts of ownership and possession on the land in dispute and not on any traditional evidence. There can be no doubt that all concerned were ad idem on the issue that the appellants in this case pleaded and relied primarily on acts of ownership and possession of the land in dispute extending over a period of time numerous and positive enough to warrant the inference that they are the true owners of the land.

The above is the third method, as adumbrated in the leading case of D.O. Idundun & Ors. v. Okumagba together with those of Atanda v. Ajani and Balogun & Ors. v. Akanji & Anor, supra, of establishing or proving ownership of land in dispute. It must however be emphasised that the applicable principle is that a plaintiff when claiming declaration of title must succeed on the strength of his own case and not on the weakness of the defence although where any aspect of the defendant’s case supports the plaintiff’s case, the plaintiff will not be deprived of the advantage of such support. See: Kodilinye v. Mbanefo Odu 2 WACA 336 at 337; Cobblah v. Gbeke 12 WACA 294; Akinola v. Oluwo (1962) 1 SCNLR 352; (1962) 1 All NLR 224 at page 225; Nwagbogu v. Chief Onoli Ibeziako (1972) 1 All NLR (Pt. 2) 200. A party, as in the present case, who relies on acts of possession and ownership of the land in dispute as evidence of, and in proof of, his title to land must, to succeed, establish that such acts not only extend over a sufficient length of time but also that they are numerous and positive enough to warrant the inference of exclusive ownership of such land. In effect, such a party must show:-

(i) That from the overwhelming number of such acts over a sufficient length of time on the land in dispute, it is but safe and imperative to conclude that the party exercising such acts is the exclusive owner of the land.

(ii) That from the nature of such acts nec vi, nec claim, nec precario exercised over a sufficient length of time as aforesaid, any person asserting a contrary title would have known of such exercise of rights and ought to have asserted his adverse title to the land.

It must however be stressed in this connection that an isolated or a few of such acts which the adversary was not in a position to have known about may not suffice. See: Ekpo v. Ita (supra); Piaro v. Tenalo (1976) 12 SC 31 at 41; Balogun & Ors. v. Akanji & Anor and Anyanwu v. Mbara (supra) etc etc. I will later in this judgment deal with the appellants acts of ownership and possession on the land in dispute.

It was submitted on behalf of the respondents that the original ownership of the land in dispute must first be established before any acts of ownership and possession exercised by the appellants on the land can be considered. I find myself unable to accept this proposition of law as well founded. Learned respondents counsel in making this submission was obviously labouring under the misconception that the appellants relied on traditional history only as their root of title to the land in dispute. This is clearly not the case.

The Court of Appeal for its own part put the issue as follows:-

“It will be noted that, while the plaintiffs assert ownership of the land, they have not said how the ownership came about …. Nothing was pleaded or given in evidence as to who the forefathers were or to show “immemoriality”

With profound respect, I cannot agree with the court below that the appellants must on the main issue that arises in this case establish their ownership of the land in dispute from time immemorial and whom their forefathers were before they can lead evidence of their acts of possession on the land. The reason is because where, as in the present case, the appellants merely relied on mere acts of ownership and possession on the land and did not rely exclusively on traditional evidence as proof of their root of title from a particular source, proof of the original ownership of the land in dispute, such as who founded it, how he founded it and the particulars of the intervening owners through whom the claims cannot arise. See: Balogun v. Akanji (supra) at pages 322-323 where this court Per Oputa, J.S.C. explained the matter lucidly in the following terms:-

“One final word on Ekpo v. Ita supra, anyone who pleads acts of possession as his root of title is really relying on the presumption that possession is 9/10 of the law and that he who is in possession is presumed by S. 145 of Evidence Act Cap. 62 of 1958, to be the owner and that the onus of proving that he is not the owner is on the person who affirms that he in not the owner. Looked at critically and logically a person pleading acts of possession as his root of title is simply saying “I do not know how I got the land” All that I know is that I have been in possession and have exercised various acts of possession. Now you prove that I am not the owner.”

(Italics supplied for emphasis)

In the present case, the only evidence led by the respondents is that the land in dispute is their own portion of Azu village communal land. No single independent witness was called by them to show that he has a common boundary with them on any side of the land in dispute. On the contrary, four members from their Azu village, including their blood relations, testified that they were let on the land by appellants on payment of annual tributes. I will return to this aspect of the case later in this judgment.

It was further argued by respondents learned counsel, citing the cases of Mogaji & Ors. v. Cadbury Nig. Ltd. (1985) 2 NSCC Vol. 16 959 at 966-968; (1985) 1 NWLR (Pt. 7) 393 and Odofin v. Ayoola (1984) 11 SC 72 at 120-122, that since the appellants failed to establish how their ancestors came about the land in dispute, that is to say, whether by grant, inheritance, conquest or otherwise, their claims for title to the land in dispute and forfeiture ought to fail. As I have repeatedly observed, the appellants in the present case mainly relied, not on tradition but on acts of ownership and possession which are one of the recognised methods for the establishment of title to land. These are clearly pleaded in paragraphs 4, 5, 6, 7, 8 and 9 of the appellants amended statement of claim. Both the trial court and the court below fully recognised this fact.

In the second place, the facts in the Mogaji and Odofin cases relied on by learned counsel for the respondents are with respect, not apposite to those of the present case under consideration. In the Mogaji case, the plaintiffs who pleaded and traced their root of title to the land in dispute to Aina Adeokun or Dada Okin family relied on traditional evidence in proof of their original ownership of the land. The traditional evidence as regards the only root of title pleaded by them was substantially self conflicting and totally at variance with their pleadings by reason of the conflicting testimonies of their witnesses. The defendants claim to ownership by their predecessors-in-title was accepted by the court as solid and established on oral evidence and previous judgments confirming their ownership of surrounding lands. It was held by this court that parties are bound by their pleadings, that the plaintiffs/appellants having pleaded and traced a particular root of title could not dispense with proof of that title as pleaded and that unless the origin of such title was valid, possession would not ripen an invalid title of a trespasser to a valid ownership of title. See too Thomas v. Holder 12 WACA 78 at 80; Jegede & Ors. v. Gbajumo & Ors (1974) 10 SC 183 at 187 and Da Costa v. Ikomi (1968) 1 All NLR 394 at 398.

So also, in the Odofin case, the plaintiff who claimed declaration of title to land and injunction relied on traditional evidence. The root of title claimed was granted by the Oni of Ife to his ancestor. Upon a finding by the trial court that the plaintiffs traditional history in respect of the alleged grant was conflicting, unreliable and inconclusive, the claims were accordingly dismissed.

Reference may also be made to the recent decision of this court in Gbaniyi Osafile & Anor v. Paul Odi & Anor (1994) 2 NWLR (Pt. 325) 125. In that case, the plaintiffs in a claim of declaration of title to land, trespass and injunction based their root of title on ownership by inheritance from time immemorial. The plaintiffs evidence of traditional history was preferred by the trial court to that of the defendants and judgment was entered for the plaintiffs. This was inspite of the fact that in their statement of claim, only bare ownership by inheritance with clearly insufficient material facts in proof of the alleged root of title they relied upon were averred. Although, the plaintiffs root of title was based on original ownership by inheritance from their forefathers, there was total lack of averments in their pleadings in that regard. Consequently no evidence whatever relating to the founding of the land and the actual person who first founded and exercised original acts of possession thereon was led by the plaintiffs at the trial. Additionally, not one single act of effective possession by any of the plaintiffs ancestors was also pleaded. Consequently the alleged original ownership of the land by the plaintiffs ancestors was found not established either in the Statement of Claim or by evidence. In those circumstances this court had no difficulty in dismissing the plaintiffs/appellants claim for title to the land in dispute.

It cannot be over-emphasized and it seems to me elementary that a plaintiff in a declaration of title action who bases his claim on customary title must give satisfactory evidence of how he derived the particular title pleaded and claimed. The burden which is on a plaintiff in such an action is to lead clear evidence that is sufficiently cogent and credible in proof of the particular root of title relied on. Indeed, delivering the judgment of this court in the Osafile case (supra) Uwais, J.S.C. (as he then was) aptly observed as follows:-

“The difficulty which the plaintiffs ran into, as pointed out by the Court of Appeal, is that they omitted in their pleadings to aver fully the facts about their root of title. In the absence of such averment, they did not and indeed could not have validly adduced evidence to establish their root of title.”

(italics supplied for emphasis)

Accordingly, a plaintiff in a declaration of title action who bases his claim on a particular root of title must sufficiently plead and establish how he derived the specific title claimed.

In the present action, the appellants copiously pleaded and simply relied on acts of ownership and possession extending over some length of time, numerous and positive enough to warrant the inference that they are the true owners which constitute a settled method of establishing ownership of the land. With profound respect, I think that the observation of the court below to the effect that while the appellants asserted ownership of the land, they did not “say how the ownership came about” is a total misconception of their pleadings and the mode of title pleaded and relied upon by them. In my view, once a plaintiff in a declaration of title to land claim relies as his proof of title, on acts of ownership and possession in and over the land in dispute, extending over a sufficient length of time and numerous and positive enough as to warrant the inference that he is the true owner of the land and satisfactorily discharges the burden of proof on him in that regard, he will be entitled to the declaration sought. I will now turn to the question of whether the appellants made out a case for declaration of title.

In this regard, the vital evidence on the issue is principally that of the 1st appellant. This witness gave detailed evidence of a number of tenants, both residential and farming tenants, to whom portions of the land in dispute were granted on payment of annual tributes at various times right from the time of their forefathers until the institution of this action. These tenants included the late John Ipim and Onyeaghana, both of whom had left the land. These tenants are mainly from the respondents family of Azu Ogbunike and included Okoye Onaeze, now dead, whose walled compound was granted to him by the appellants. His son, the 3rd respondent still lives on the land. There are also Udenze Obeagha, the 4th respondent Clement Ikwuazom, Eziosa Nwafudolu and Humphrey Nwafudolu. These tenants are from the respondents family and are the appellants residential tenants on the land. The 1st appellant’s father made grants of portions of this land to the fathers of Agbapuonwu, Agbakoba and Ikwuemesi on payment of tributes to the appellants. All the above named grantees are from the respondents family and duly paid their tributes to the appellants. The premises on which Udenze Obeagha now lives was granted by the appellants to his father who built a house and lived therein on payment of annual tributes until his death some 30 years ago. His son who is P.W. 3 in this case has continued to live on the land and paid his tributes to the appellants as his late father did.

The 1st appellant testified that a number of the respondents ancestors who were granted parts of the land in dispute by the appellants family duly paid their annual tributes to the appellants family until their death. The appellants and before them their forefathers exercised and have continued to exercise numerous and positive acts of ownership and possession on the land over a long period of time without any let or hinderance from the respondents or anyone else. Accordingly they had always fanned on the land by cultivating yams and cocoyams thereon as their fathers and forefather did, reaped the fruits of their economic trees thereon and made the said customary grants of various portions of the land at various times to several named persons for residential and farming purposes on payment of annual tributes of 8 yams, 4 kolanuts and palm wine.

Some of the appellants grantees testified before the trial court. They included P.W. 3, Udenze Obeagha, to whose father part of the land in dispute was originally granted by the appellants on payment of annual tributes. P.W. 3, himself was born on the land in dispute and has been on the land in his own right for over 27 years after the death of his father in 1967. Some of the other tenants who testified for the appellants were P.W. 7, Ezenagu Onyenyozina and P.W.9, Sylvester Offia. P.W. 7 had always cut down palm fruits on the land in dispute for the plaintiffs wives on payment of some fees. Only the appellants family collected the palm fruits so harvested and he was never challenged by the respondents or anyone else while cutting the palm fruits for the appellants. He had been harvesting and cutting down these palm fruits for the appellants both before and after the Nigerian Civil War of 1966-1970. The appellants also showed him where he fanned on the land in dispute no one ever disturbed him thereon. P.W. 7 listed members of the respondents family who now live on the land and whose respective fathers lived and paid tributes to the appellants until their death.

Of clear importance, also, is the evidence of P.W. 2,P.W. 6, P.W. 7 and P.W. 9 all of whom either related to or came from the respondents village of Azu Ogbunike. They testified that the land in dispute belonged to the appellants and not to the respondents. They also gave evidence in confirmation of various grant of parts of the land in dispute by the appellants family to named ancestors and various members of the respondents family including themselves on payment of tributes.

Coupled with all the above evidence is the testimony of P.W. 2,P.W.4, P.W. 5 and P.W. 8 to the effect that where all from Amawa village of the appellants and had boundaries with the appellants to the north, south, east and west of the land in dispute as indicated in the appellants plan Exhibit A. However, for reason which, with respect, are difficult to appreciate, the Court of Appeal looked at the evidence of these witnesses with disfavour, dismissing them outright with the observations that acts of possession and enjoyment of land are not proved by boundary witnesses and that it was unnecessary to call boundary witnesses in this case as “the issue was not as to the boundaries of the land in dispute.”

With profound respect, I think the court below was in gross error by dismissing the evidence of the appellant’s boundary witnesses as unnecessary. In the first place, paragraph 2 of the appellants amended statement of claim averred that the land in dispute which situates in Amawa village belongs to the appellants. In reply thereto, the respondents per paragraph 3 of their statement of defence traversed the same and averred that the land in dispute is situate at Azu Village, Ogbunike. In other words, whereas the appellants averred that the land is situate within their Amawa village, the respondents claimed that it is situate within their Azu village.

There can be no doubt that the parties joined issue on the situs or location of the land in dispute, namely, whether it is situate at Amawa or Azu village. Indeed I accept the submission of the appellants that a resolution of this issue would go a long way in determining who owns the land in dispute in so far as neither party pleaded purchase as their root of title.

The court below would appear to have appreciated this point when it stated thus:-

“One obvious fact which the plaintiffs had to prove was that they know the land of Amawa village as distinct from the land of Azu Ogbunike. This they could prove by showing the boundary between them by credible evidence. This is important because these are separate villages and the land in question must necessarily be within one of the villages. So it would appear that one of the facts that ought to be satisfactorily established by the plaintiffs is the boundary.”

It therefore seems to me crystal clear that the boundaries of the land in dispute in so far as its situs or location is concerned was in issue. If the land is conclusively established to lie within Amawa village, then of course it must belong to the appellants. If, on the other hand, it is found to be situate in Azu village, then, naturally it must belong to the respondents. The court below was clearly in error when it held that the evidence of boundary witnesses is devoid of value. This is so as they all came from Amawa village and testified that the entire land surrounding the land in dispute belonged to them and indeed to their Amawa village. Their evidence of boundary was therefore very relevant as, if believed, as indeed it was, the inescapable inference would be that the land is situate within Amawa village and would therefore belong to the appellants.

In the second place, these witnesses did not just give evidence of their boundaries with the appellants on the land in dispute, they also gave material evidence in support of the appellants case. P.W. 2, for instance, not only gave evidence of his boundary with the appellants on the land in dispute but corroborated the appellants testimony to the effect that the respondents family members lived on the appellants land in dispute. P.W. 4, on the other hand, further testified that the land in dispute belonged to the appellants family. P.W. 5 for his own part, testified as to the ownership of the land in dispute by the appellants family. P.W. 8 also testified that the land in dispute belonged to the appellants. He confirmed that the palm trees on the land were being harvested by the appellants family. I think it can be said with some degree of certainty that had the court below given due weight to all aspects of the evidence of these witnesses which it summarily dismissed as unnecessary, it could have come to a different conclusion other than the setting aside of the judgment of the trial court on the issue of the declaration of title to the land claimed.

I have deliberately dwelt in extenso on the various acts of ownership and possession exercised by the appellants family on the land in dispute as adduced in evidence before the trial court in order to project their overwhelming nature.

The respondents, as I have earlier on explained, claimed the land in dispute to be their own share of the communal land of Azu village. They also claimed various acts of ownership and possession exercised by them on the land in dispute. In particular, they claimed that their members lived on the land in dispute in their own right as owners of the land and not as tenants of the appellants. It suffices to say that the learned trial Judge after a close examination and evaluation of the evidence led on behalf of both parties conclude thus:-

“The burden is, of course, on the plaintiffs to prove the declaration sought. For this purpose, the 1st plaintiff gave evidence in support of the averments in the statement of claim and also called 9 witnesses. Of these P.W. 3, P.W. 6, P.W. 7 and P.W. 9 were from the family of the defendants, but their evidence was to the effect that the plaintiffs of Amawa owned the land in dispute. This, in effect, is evidence against interest. It was therefore not enough to suggest, as the defendants and their witnesses did, that they were telling lies. P.W. 3 was a close relation of the 1st defendant, but while he said that the land in dispute belonged to the plaintiffs, the 1st defendant denied this. Yet, the father of P.W. 3 and 1st defendant were brothers. The unreliable evidence of 1st defendant became comical when he agreed that PW 3 and himself lived in the same premises, which he claimed for their family, but P.W. 3 said it belonged to the plaintiffs; D.W. 1 (Daniel Obeagha), younger brother of P.W. 3, contradicted 1st defendant by claiming that where P.W. 3 lived was land of the plaintiffs not in dispute. Although the 3rd defendant died during the trial, D.W. 2, a brother, gave evidence. The 4th defendant also gave evidence. Again P.W. 3, P.W. 7 and P.W. 9 stated that the land occupied by 3rd and 4th defendants was within the plaintiffs land in dispute. Their answer was that these witnesses were liars. It must be added that while the plaintiffs called boundary witnesses to wit: P.W. 2, P.W. 4, P.W. 5 and P.W. 8, the defendant called no witnesses in support of same. Having carefully considered the evidence before me, I prefer the evidence of the plaintiffs and their witnesses to that of the defendants and their witnesses. No credible explanation was offered as to why 4 witnesses from Azu should claim the land in dispute for Amawa. I grant the plaintiffs the customary right of occupancy in respect of the Ubulu land, shown verged in yellow in Exh. “A”. It is shown verged green on the defendants plan, Exhibit “E”.”

(Italics supplied for emphasis)

In view of the above findings and observations of the trial court, it is clear that the Court of Appeal cannot, with respect, be right when it held that the trial Judge did not appreciate or pay regard to what the appellants must prove in support of their claim. I also find myself unable to accept the view of the Court of Appeal that the trial court failed to determine whether the appellants discharged the burden of proof on them in the case. Of course, the learned trial Judge clearly appreciated and paid close regard to what the appellants must prove to succeed, namely, acts of ownership and possession in respect of the land in dispute extending over a sufficient length of time and numerous and positive enough to warrant the inference that they are the true owners thereof. It cannot also be seriously argued that he failed to determine whether the appellants discharged the onus on them in respect of their claim for title to the land in dispute. The point was clearly decided by him as a result of which he proceeded to grant to the appellants the customary right of occupancy in respect of the land in dispute verged yellow in Exhibit A. In view of all my observations above, I entertain no doubt that issue number one as formulated in the respondents brief must be answered in the negative.

The second issue questions whether the Court of Appeal was right to reevaluate the evidence before the trial court and to have come to a different conclusion from the findings of the trial court. In this regard, Chief Williams, SAN has submitted that having regard to the judgment of the learned trial Judge, no one can accuse him with not having evaluated the evidence. I agree entirely with him on this point and must dismiss the argument of learned respondents counsel to the contrary as untenable and totally lacking in merit. In my view, it is clear that the learned trial Judge reviewed the relevant evidence before him, evaluated them and made his findings thereupon. He preferred the evidence of the appellants and their witnesses to those of the respondents and their witnesses and it seems to me beyond dispute that a trial court is entitled so to do. With the greatest respect, I think the court below was grossly in error when it proceeded to substitute its own views of the facts for the views of the trial court when it observed:-

“…..that the preponderance of evidence of acts of possession is clearly on the side of the defendants even from the evidence adduced by the plaintiffs.”

This must be so as in the first place, the respondents evidence which was based on acts of possession on the land in dispute in their own right was clearly rejected by the trial court in preference to the overwhelming evidence of acts of ownership and possession of the land in dispute by the appellants. These, in the main, included grants of parts of the land made to the respondents and members of their family for residential and farming purposes on payment of annual tributes to the appellants family. In the second place, I have searched in vain from the record of proceedings and can find no evidence from the appellants which may be construed as tilting the preponderance of evidence of evidence of acts of possession on the land in dispute on the side of the respondents as pronounced by the court below.

I think the point must be emphasized that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the court of trial who saw, heard and assessed the witnesses. Where a court of trial unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own views for the views of the trial court. See: Akinloye & Anor v. Eyiyola & Ors. (1968) NMLR 92 at page 95; Enang v. Adu (1981) 11-12 SC 25 at page 39; Woluchem v. Gudi (1981) 5 SC 291 at page 320 etc. What the Court of Appeal ought to do is to find out whether there is evidence on which the trial court could have acted. Once there is sufficient evidence on record from which the trial court made its findings of fact, the appellate court cannot intervene. See: Akpagbue v. Ogu (1976) 6 SC 63; Odofin v. Ayoola (1984) 11 SC 72; Amadi v. Nwosu ( 1992) 5 NWLR (Pt.241 ) 273 at page 280 etc.

Where, however, the trial Judge failed to make a proper use of the opportunity of seeing, hearing and observing the witnesses at the trial or to exercise his discretion properly, or where the findings cannot be regarded as resulting from the evidence or where it has drawn wrong conclusions to accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the court, the appellate court will be at liberty to intervene and to make the necessary findings from such evidence. See: Okpiri v. Jonah (1961) All NLR 102 at page 104; (1961) 1 SCNLR 174; Maja v. Stocco (1968) 1 All NLR 141 at page 149; Ike v. Ughoaja (1993) 6 NWLR (Pt. 301) 539 at page 555; Chief Frank Ebba v. Ogodo (1984) 4 SC 84 at page 90-91 etc.; (1984) 1 SCNLR 372.

In the present case, no where in the judgment of the learned trial Judge can it be suggested that he failed to make a proper use of the opportunity of seeing and hearing the witnesses or that he drew any wrong conclusion from the evidence, neither can it be said that he made any finding which was perverse or not supported by the evidence. The only complaint by the respondents is that the trial Judge after considering all the evidence led before him preferred the evidence of the appellants and their witnesses to those of the respondents and their witnesses. In my view, this course of action by the learned trial Judge cannot be faulted since he was entitled under the law to do so and his action flowed from the evidence before the court. The Court of Appeal was therefore in error to interfere with the findings of fact of the trial court which, in all respects, are justified and supported by evidence, and, to substitute its views on the evidence for those of the trial court. See too Fatoyinbo v. Williams (1956) 1 FSC 87; (1956) SCNLR 274. In these circumstances, the answer to issue number 2 must again be in the negative.

Issue number 3 poses the question whether the decision of the Court of Appeal is against the weight of evidence. A corollary to this question is whether the Court of Appeal was right in holding that the trial court gave undue weight to the number, that is to say, the quantity of witnesses called by the appellants rather than the credibility, viz: the quality of witnesses who testified before it. In this regard, the Court of Appeal opined that the learned trial Judge seemed inter alia to have failed to realise:-

“…that a case is not proved by the number of witnesses called by a party but the quality of the evidence led.”

With profound respect to the court below, the above criticism of the learned trial Judge seems to me totally unjustified and completely unsupported by the judgment and cannot therefore be sustained. Nowhere throughout his judgment can it reasonably be said that the learned trial Judge relied on the number of witnesses rather than the quality of their evidence and I must dismiss this criticism of the trial court as unwarranted and without justification.

The issue of weight of evidence was examined in extenso earlier on in this judgment and it will be idle to repeat them all over again. I need only say that in view of all that I have stated above, the answer to issue number 3 must be in the affirmative.

The last issue canvassed by the parties was whether both the trial court and the Court of Appeal were right in refusing to make an order for forfeiture as claimed by the appellants. The appellants argument is that there was sufficient evidence of misconduct, particularly the denial by the respondents of the appellants title to the land in dispute to warrant an order of forfeiture. They pointed out that the trial court declined to grant the order for forfeiture on the ground that other persons who might be affected by the order were not made parties to the suit. This reasoning of the learned trial Judge, they submitted, cannot be right as the respondents were sued in their personal capacities and not in any representative capacity. The court below for its own part, declined to grant the forfeiture on the ground that the appellants, in its view, were not entitled to a declaration to the customary right of occupancy claimed. They attacked this reasoning of the court below as erroneous on point of law in view of the facts established before the trial court.

The respondents argument is that the appellants having failed to establish their title to the land in dispute cannot be entitled to an order for forfeiture as claimed. They stressed that before the court below, the respondents filed and argued a respondents notice to the effect that the appellants claim for forfeiture is incompetent on the ground that the appellants when they claimed the additional relief for forfeiture by an amendment of their statement of claim failed to pay the requisite court fees for the new relief. The Notice urged the court below to refuse the appellants claim for forfeiture on ground other than those for which the trial court refused to grant the order.

The appellants in their reply brief did not contest that they did not pay the requisite court fees within seven days or at all in respect of their claim for forfeiture as ordered by the trial court on the 21st April, 1983. It was urged on this court to hold that the issue of non-payment of the requisite court fees in respect of the claim for forfeiture cannot now be canvassed before it because of the failure of the respondents to raise it before the trial court although it was canvassed before the court below.

It is now beyond dispute that forfeiture as a relief is available to a landlord whenever his tenant disputes the landlord’s title to the land or alienates the whole or part of the piece or parcel of land let out to him under customary law without the landlord’s consent. See: Salami v. Oke (1987) 2 NSCC 1167; (1987)4 NWLR (Pt. 63) 1; Dokubo v. Bob-Manuel (1967) 1 All NLR 113; Onyia v. Onyia (1981) 1 NSCC 319; Taiwo v. Akinwunmi (1975) 4 SC 143 at page 230 etc. This, however, is not now the issue. The basic issue that now arises seems to me to be whether the appellants claim for forfeiture was properly before the court or otherwise incompetent as submitted by learned respondents counsel. The issue, being radically fundamental, appears to me properly raised before the court below and is, indeed, properly raised before this court as it involves substantial question of law, substantive or procedural and it is plain that no further evidence would be necessary to reach a decision on the point and it is further desirable to decide the issue to prevent an obvious miscarriage of justice. See: Attorney-General of Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt. 92) 1 at 29; Management Enterprises Ltd. v. Jonathan Otusanya (1987) 2 NWLR (Pt.55) 179; John Bankole & Ors.v. Mojidi Pelu & Ors. (1991) 8 NWLR (Pt.211) 523.

In the present case, it is clear from the record of proceedings that following the appellants application for the amendment of their statement of claim to include, inter alia an additional claim for forfeiture of the respondents tenancy over the land in dispute, the trial court ordered as follows:-

“….. Application for amendment allowed. Plaintiffs to file same within 7 days and also pay the appropriate court fees for forfeiture claimed on paragraph 14(d)”

(italics supplied for emphasis)

This was on the 21st April, 1983.

On the 25th April, 1983, the appellants duly filed their amended statement of claim which ex facie shows that no summons fees as ordered by the court in respect of the new claim for forfeiture were paid by the appellants. The payments made were endorsed on the face of the amended statement of claim as being in respect of:

“Filing Amended Statement of Claim 50k

Service 20k

Kilo 20k

Paid CR No. 803684 of 25/4/83 90k”

Quite apart from the fact that court orders must be obeyed as directed, it cannot be over-emphasized that for a valid and effective commencement of a claim, an intending plaintiff shall strictly comply with the provisions of relevant statutes and the rules made thereunder and governing the claims made such as the High Court Law and Rules of Anambra State. It is the responsibility of the plaintiff inter alia to pay the requisite fees in respect of each and every relief claimed as prescribed by the rules to enable the court’s judicial functions to commence. A court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the court or such fees are payable by any Government Ministry or non-Ministerial Government Department or Local Government pursuant to the provisions of the said High Court Rules of Anambra State. If the default in payment is that of the plaintiff, the claim in respect of which such prescribed fees have not been paid cannot be said to be properly before the court and should be struck out in the absence of an appropriate remedial action or application to regularise such anomally.

In the present case, no payment whatsoever was made by the appellants in respect of their new claim for forfeiture. Payment of the prescribed fees being a condition precedent to the filing of a valid claim before the court, it seems to me clear that the claim for forfeiture in the present suit is incompetent, improperly before the court and ought to be struck out. In the circumstance, it becomes entirely idle and academic to examine the various reasons given by both courts below in refusing the appellants claim for forfeiture which must be and is hereby struck out.

In the final result, this appeal accordingly succeeds and it is hereby allowed. I set aside the decision of the Court of Appeal together with the order for costs therein made and restore the judgment of the trial court which decreed customary right of occupancy in respect of the land in dispute in favour of the appellants. The appellants claim for forfeiture is struck out as incompetent.

There will be costs to the appellants against the respondents which I assess and fix at N600.00 in the court below and N1,000.00 in this court.

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SC.252/1989