Nkado V Obiano (1997)

LAWGLOBAL HUB Lead Judgment Report

S. U. ONU, J.S.C. 

The case giving rise to the appeal herein is in relation to a land dispute wherein the plaintiffs/respondents claimed in representative capacities as against the defendants/appellants who defended in their representative capacities for:

(1) title to the land in dispute

(2) damages for trespass and

(3) perpetual injunction.

Pleadings were ordered, duly filed and exchanged. Evidence was adduced from witnesses called by either side, at the close of which, the learned trial Judge entered judgment for the plaintiffs/respondent’s claim in its entirety.

The background facts in the case herein as borne out in the plaintiffs/respondents Writ of Summons dated 25th June, 1979 and in the parties respective pleadings in Suit No. AA/49/79 commenced in the Awka High Court may be summarised as follows:-

The respondents in their 37 paragraph statement of claim based their case on:

(i) tradition, tracing their title to their great ancestor Obekwu Egolum from whom they inherited their land through their genealogical tree;

(ii) the fact that appellants migrated from Arondizogu and were Strangers in Agulu and inter-marry with respondents people who granted them part of their lands for residential and farming purposes but who in 1979, on taking over the lands of their kith and kin who had died or returned to Arondizogu, trespassed on the respondents land in dispute, hence this suit.

(iii) the fact that they from their predecessors and they themselves after them, have been owners in possession of the land in dispute from time immemorial exercising maximum acts of ownership and possession over the land till the present day.

(iv) the fact that the land in dispute, verged pink in their plan, is only part of their (respondents) land, all verged red, and forms one parcel of land with another contiguous, continuous, and identical parcel of land, verged green in their plan – both parcels together verged red being separated by Agulu-Nnobi Road with both bearing the name “Agu-Obekwu” and

(v) that the elders and councillors of Umunkpoko and Nkitaku had arbitrated over the dispute according to custom and found that the land in dispute belongs to the respondents. The respondents’ plan at the trial is Exhibit ‘A’.

The appellants in their 42 paragraph statement of defence denied, traversed and joined issues with the respondents in most of the latters averments of facts contained in their claim. In particular they contended that:

(i) they and the respondents descended from a common ancestor and denied that they were strangers and grantees of the land from the respondents and maintained that they and the respondents are members of Umunkpoko extended family made up of Onadili (appellants) Okwuogbo (respondents) and Nwike

(ii) they denied that they were strangers who migrated from Arondizogu and further contended that they and the respondents formed the same kith and kin in Umunkpoko, asserting that being from a different Obi in Umunkpoko, they could and do, intermarry with persons from another Obi

(iii) they denied respondents ownership of the land in dispute which they maintained is called “Ana Agu Ngene Umuo Nadili.”

(iv) On the pleaded tradition over the land they denied that it originally belonged to respondents ancestor Obekwu and maintained that it descended to them through Onadili, one of the children of Umunkpoko. They did not however, show how Onadili inherited the land or got it as his share

(v) on customary arbitration over the land in dispute between the parties by the elders and councillors of the Nkitaku community, the appellants arbitration, rather relied on one which they alleged was done by Igwe Ejidike and maintained that he found for them. The appellants tendered their survey plan as Exhibit ‘D’. They called the land in dispute “Ana Agu Ngene Umuonadili” and testified that they inherited it from their ancestor, Nkpoko Ukuta, and have been enjoying it undisturbed from their ancestor up till the present day and have been exercising various acts of possession and ownership thereof. They denied that they were strangers in Agulu, adding that they migrated from Arondizogu and were granted land by the respondents people.

Aggrieved by the said judgment, the appellants appealed to the Court of Appeal, Enugu Division (hereinafter referred to as the court below) on several grounds. Briefs of argument were subsequently filed and exchanged. After arguments were proffered by both sides, the court below on 30th March, 1993 delivering its judgment constituting a split decision (Abdullahi and Akintan, JJ.C.A.) with Oguntade, J.C.A. dissenting), affirmed the decision of the trial court.

The further appeal to this court is against the majority decision aforesaid. The appellants who filed a brief and a Reply Brief, identified three issues for the determination of this court, to wit:

(i) Whether the Court of Appeal was right in affirming the decision of the trial court, that on the pleadings and evidence led, the plaintiffs/respondents were entitled to a declaration of title to the land in dispute?

(ii) Whether the Court of Appeal was right in affirming the decision of the trial court that the defendants/appellants are strangers in Agulu?

(iii) Whether, from the facts and circumstances of this case, the Court of Appeal was not in error in affirming the decision of the trial court which invoked section 45 of the Evidence Act in favour of the plaintiffs/respondents?

The respondents, on the other hand, submitted the following five issues as arising for our determination, namely:

3.01. Whether the Supreme Court should interfere with the concurrent findings of facts by the courts below when not perverse.

3.02. Whether the Court of Appeal was right in affirming the decision of the trial court that, on the pleadings and evidence, the plaintiffs/respondents were entitled to a declaration of title to the land in dispute on four out of the five usual methods of proving title to land including the application of the principle in Kojo II v. Bonsie; whether the plaintiffs/respondents proved their claim and were entitled to a declaration of title on grounds of traditional evidence.

3.03. Whether the Court of Appeal was right in affirming the decision of the trial court that the defendants/appellants were strangers in Agulu and migrated from Arondizogu.

3.04. Whether from the facts and circumstances of this case, the Court of Appeal was in error in affirming the decision of the trial court which invoked section 45 of the Evidence Act in favour of the plaintiffs/respondents?

3.05. Whether the Court of Appeal was right to have affirmed the decision of the learned trial Judge to have preferred the case of the plaintiffs/respondents as it relates to the Customary arbitration over the land in dispute between the parties to the arbitration by Igwe which the defendants relied upon.

In as much as the Notice of Appeal filed by the appellants on 10th November, 1993 setting in motion the appeal herein two sets of issues formulated on behalf of the appellants and respondents are three and five respectively, the five submitted at the respondents’ instance are, in my opinion, more succinct and fairly overlap the six grounds. I therefore prefer the respondents’ to the appellants’ issues. The appellants in their Reply Brief have, however, submitted, quite rightly in my view, that in as much as issue numbers 3.01 and 3.05 appear to be hinged on and/or formulated from the fifth and sixth grounds of appeal contained on pages 277 and 278 of the Notice of Appeal dated 10th November, 1993, they cannot be sustained. This is because, it is contended on their behalf, quite rightly in my view, that although they filed six grounds of appeal, their issues for determination relate only to grounds one to four. That being so, grounds five and six are deemed to have been abandoned by them.

Consequently, the appellants have further maintained, quite correctly in my view, that the respondents cannot rightly formulate issues and canvass argument at length on the said grounds of appeal deemed to have been abandoned by them vide Osafile v. Odi (1994) 2 NWLR (Pt. 325) 129. A fortiori, the following paragraphs in the respondents brief, that is to say: paragraphs 2.01 (v), 2.02(v), 2.02(v), 2.03(iv), 3.05(h), 4.05(h), 4.09 and 6.01 must be and are hereafter discountenanced. Issue Nos. 3.01 and 3.05 in the respondents, brief and all the arguments, proffered thereon but which were not contained in the respondents original brief now withdrawn, amendment of which was granted by this court on 27th November, 1996, shall be and are accordingly discountenanced and struck out as incompetent. It is pertinent in this regard to point out, too, that while respondents issues 3.02 and 3.03 are coterminous with appellants issue (i), their issue 3.04 overlaps appellants issue (iii). Accordingly, I intend for my consideration of this appeal, to adopt the respondents issues namely, to deal with issue 3.02 and 3.03 together and 3.04 separately as hereunder, respectively.

Before the appeal came up for hearing on 3rd February, 1997, an application was made and granted to withdraw the respondents original brief. On the same day, the appellants simultaneously applied to file out of time and to deem as filed their Reply Brief. The request having been acceded to, subject to the payment of penalty, argument was proffered by both sides in elaboration of the parties respective Briefs as follows:-

On the first issue, learned Senior Advocate, Chief Ikeazor, urged in oral argument firstly, that the respondents relied mainly on traditional history and also on their having inherited the land in dispute from their ancestor Obekwu.

Secondly, that the respondents failed to plead and prove how he, Obekwu Egolum came to own and live on the land, adding that all the other reliefs will fail, the respondents having failed to plead and prove their traditional history. Had they pleaded and proved their root of title could they have relied on acts of ownership and possession. After referring us to the case of Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252, learned Senior Advocate submitted that this case is to be distinguished from the case of Amobi v. Amobi (1996) 8 NWLR (Pt. 469) 638 at 658, where the plaintiff failed to plead how his father came to own the land which he alleged his father gave to his mother from whom he inherited it. Learned Senior Advocate after conceding the fact that one can prove all five methods of acquiring title, argued that if one relies and pleads inheritance from the grantor or the owner the question is, how did the root of title come about? When reminded by court how in the instant case it has been pleaded that Obekwu settled on the land in dispute, learned Senior Advocate contended that when one fails to prove how one came about the land, proof of title is fatal the respondents not having pleaded that they were the first to settle on the land. Learned Senior Advocate cited in support thereof the case of Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 160, a case in which the parties pleaded settlement but did not prove how their root of title carne about. In the instant case, he argued, the respondents did not say they gave the appellants their land and since they pleaded Obekwu as their source of inheritance, their case upon their root of title failed. Upon this alone, learned Senior Advocate further argued, the respondents traditional history as to their root of title was fractured.

Learned Senior Advocate in his written submission contained in the appellants Brief submitted in addition by referring us to the pleadings, especially paragraph 16 of the respondents Statement of Claim representing their root of title. The respondents, it is argued, clearly pleaded and relied on evidence of traditional history in proof of their case, although in so doing, they failed to plead and/or prove How their ancestor Obekwu came to own the land. In addition, it was contended that the averment in paragraph 16 (ibid) did not attempt to throw any light whatsoever on the founding of the land in dispute, the result being that at the close of pleadings (and throughout the trial) the vital issue of how the respondents came to own the land was at large.

Significantly, it is further contended, it was the appellants counsel who raised this paramount issue, which despite its fatality as a defect that was pointed out and the learned trial Judge in consequence was urged to dismiss the claim, he paid no heed thereto. Turning to the court below, argument was proffered that the same point was raised in one of appellants issues as well as in their counsel’s oral arguments, yet that court failed to make any finding on it in its majority decision which thus affirmed the trial court’s judgment. For the proposition that the respondents root of title pleaded by them could not support any decree of title in their favour and was thus fatally defective as had been persistently raised in the two courts below, the following cases were further cited in support thereof, viz:

1. Ezulumeri Obiaeri v. Adinnu Akabeze (1992) 2 NWLR (Pt. 221) 1
2. Mogaji & ors v. Cadbury & Co. (1985) 2 NWLR (Pt. 7) 393 and,
3. Oyibo Madubonwu & ors v. Anumudu Nnalue & ors. (1992) 8NWLR (Pt. 260) 440.

It was next contended that while the majority decision of the court below overlooked this fundamentally important issue the dissenting judgment applied the law correctly.

After our attention had been drawn to several passages in the record of appeal, it was contended that the majority decision of the court below was wrong in that the pleadings, the evidence and legal deductions as well as inference capable of being drawn therefrom do not support the conclusion arrived at by it. In the first place, it was contended, as far as the issue of acts of ownership and enjoyment of land goes, the law is settled that:

“……………evidence of positive and numerous acts of possession is only relevant in the absence of traditional evidence.”

After the cases of Obiaeri v. Akabeze (supra) and Mogaji v. Cabdury Nigeria Ltd (supra) were called in aid, it was further submitted that having found (albeit erroneously) that the traditional evidence in this case was incapable of sustaining an award of declaration of title in favour of the respondents, it became legally unnecessary for the court below to consider evidence of numerous acts of possession etc. The court below, it was thus argued, confused the issues before it leading it into error which has in turn occasioned a miscarriage of justice. On acts of ownership and enjoyment of the land in dispute, it was contended that a careful look at the Statement of Claim will readily show that the respondents never pleaded that it was their ancestors who in fact built the Ekpe walls nor was it their (respondents) case that the said Ekpe walls were erected to protect their farms on the land in dispute against their neighbours or at all. All the evidence in that direction (whether or not accepted by the learned trial Judge and confirmed by the court below), it was maintained, went to no issue, it being trite that parties are bound by their pleadings and that evidence on a matter not pleaded goes to no issue vide Kalu Njoku & Ors v. Ukwu Erne & Ors. (1973) 5 S.C. 293 at 300.

With respect to farming on the land and enjoyment of economic trees thereon, it was contended on appellants behalf that the respondent who relied on traditional evidence and traced that descent from Obekwu Egolum, cannot without proving their root of title, rely on acts done by them on the land as proof that they are the owners of the land. This, it was argued, is because as Oputa, J.S.C. put it in Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263 at 271-272:-

“One cannot talk of acts of ownership without first establishing that ownership. Where a party’s root of title is pleaded as say a grant or a sale or conquest etc, that root has to be established and any consequential acts following therefrom can properly qualify as acts of ownership. In other words, acts of ownership are done because of and in furtherance to ownership. Ownership forms the Quo-Warranto of these acts as it gives legality to acts which would have otherwise been acts of trespass.”

After enquiring as to whether the respondents by reliance on acts of ownership and enjoyment of the land would suffice to decree title in their favour and answering the question in the negative, reliance was placed on the case of Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301 at 323 and the earlier case cited in support of the appellants’ argument of Mogaji v. Cadbury Nigeria Limited (supra) and Obiaeri’ s Case (supra). The argument was concluded with a submission that after all, the law places paramountcy on the origin of a party’s title, adding that this can only be so since in the absence of any other evidence indicative of ownership, the mere fact of farming on apiece of land could suggest that the person who farms it is in occupation thereof while that cannot by itself lead to an inference of ownership or title.

It is now trite law that a plaintiff who relies on traditional history in proof of a claim for declaration of title to land must lead evidence to show the root of his title; and this includes how his ancestor had come to own the land in the first place and how the land devolved over the years on the claimant family until it got to the claimant. See: Madubuonwu v. Nnalue (supra).

By a long line of decided cases by this court, it is now trite and settled law that there are five different ways of establishing title to land, as enunciated in Idundun v. D.E. Okumagba & Ors (1976) NMLR 200 at 210; (1976) 10 SC 227 at 246 (per Fatayi-Williams, J.S.C. as he then was), in the following immortal words, to wit:

“As for the law involved, we would like to point out that it is now settled that there are five ways to which ownership of land may be proved………….

FIRSTLY ownership of land may be proved by traditional evidence ………..

SECONDLY ownership of land may be proved by production of documents of title which must of course be duly authenticated in the sense that their due execution must be proved.

THIRDLY acts of ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the person is the true owner (See: Ekpo v. Ita 11 NLR 68).

FOURTHLY acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece of parcel of land or quantity of land (See section 45 of the Evidence Act)

FINALLY proof of 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 also Ayoola v. Odofin (1984) 2 SC 120; Roland Omoregie & 3 ors v. Oviamwonyi Idugiemwanye & ors. (1985) 2 NWLR (Pt. 5) 41; (1985) 6 SC 150; Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385; Ekpa v. Utong (1991) 6 NWLR (Pt. 197) 258 and Ogbuokwelu v. Umeanafunkwa (1994) 4 NWLR (Pt. 341) 676, to mention but a few proof of anyone of the five different ways of establishing title to land is the minimum the law requires therefor.

In the case in hand, before the parties joined issues on their pleadings, the respondents in their Statement of Claim had averred in paragraphs 3, 4, 6, 7, 8, 13, 14, 15, 16, 17, 18, 19 and 21 thereof as follows:-

“3. The plaintiffs and the defendants are not related by birth though they form with other families which have relationship with the plaintiffs, what is known as Umumkpoko in Nkitaku village, Agulu.

4. The defendants ancestors were strangers from Ndizuogu to Umumkpoko Agulu town and were habited by the plaintiffs Ancestors with whom they lived together and from whom the defendants ancestors got pieces of land on which they lived and farmed.
5. The Onadili family of the defendants are made up of Nkado, Mbanisi, Maduka, Okonkwo Ogbii Anu and Mkpidike. These first came and settled with the plaintiffs ancestors.
6. Mkpidike died without issues; Maduka was survived by issues who later went back to Ndizuogu and so their respective lands fell into the hands of Nkado and Mbanisi lines.
7. Okonkwo Ogbil Anu had issues but later went back to Arondizogu with his children and the defendants family took over his lands as well.
8. The land in dispute is a portion of a larger area of the plaintiffs’ communal land known as and called “Ana Obekwu or Agu Obekwu” situate at Agulu, within jurisdiction. The land in dispute is verged pink in plaintiffs Plan No. ASC/AN 449 LD/79 filed with his statement of claim.
9. The entire area belonging to the plaintiffs is verged red as shown in Plan No. ASC/AN 449 LD/79 filed with this statement of claim. The boundaries and boundary men are as shown in the said Plan No.ASC/ AN 449 LD/79.
10. The plaintiffs and their family members from time immemorial have been the communal owners in possession of the area verged red which area include the portion now in dispute.
11. One Obekwu Egolum was the ancestor of the present plaintiffs and it was from him that the entire Obekwu land including the land now in dispute descended to the plaintiffs family.
12. Obekwu had 2 sons to wit: Obiano and Ike. Obiano beg at Udewene, Gebriel and Ozulike (the 1st plaintiff). These in turn begat issues who now with the plaintiffs and others make up Obekwu family.
13. Ike beg at Josiah, and Onyejimbe, Josiah begat John the 2nd plaintiff) and Samuel.
14. Obekwu during his life time farmed, reaped and enjoyed the entire Agu Obekwu including the land in dispute.
15. The plaintiffs, like their ancestors before them have been enjoying the land in dispute by farming thereon and reaping all economic trees thereon without let or hindrance from any person including the present defendants until sometime in 1963, when the plaintiffs saw some scattered mounds secretly make (sic) in the land in dispute.”

What in essence by the combined averments in paragraphs 4,6,13,14,15,16 and 21 above in particular the respondents are saying, is that they first settled on a larger parcel of land part of which is the land in dispute; that the appellants as strangers from Arondizogu later joined them to form the Umuonadili family; were given pieces of the larger tract as opposed to their (respondents) own Umu-Obekwu family who were owners in possession though forming a confraternity of Umu-Mkpoko and staying together in Nkitaku Village, Agulu with both being free to inter-marry.

Thus, apart from pleading traditional history, evidence of which they gave at the hearing of the case leading to the instant appeal, the respondents testified in strict compliance with their pleading how the land now in dispute devolved on them exclusively for over a considerable length of time now as plaintiffs, and by their exercise of acts of possession and enjoyment thereof as well as establishing by evidence following their averments, that they were in possession of connected and adjacent land rendering it probable that they would, in addition, be owners of the land in dispute. Clearly, therefore, the respondents were relying on four of the five ways (the second method being inapplicable) of entitlement to or ownership of the land in dispute. This accounts for the reason, when the chips are down, that the court below fully and justifiably (in its majority decision), in my view, held inter alia that:

“The next point to be resolved therefore is whether the plaintiffs have in fact satisfied any of the five ways by which title to land should be proved as laid down in ldundun & ors. v. Okumagba & ors. (supra). In answering that question I have no doubt in holding that the plaintiffs satisfactorily led traditional evidence in support of their pleading. They have also successfully led evidence to show acts such as farming on the land extending over sufficient length of time, numerous and positive as to warrant the inference that they are the true owners of the land in dispute. The plaintiffs were also able to prove acts of long possession and enjoyment of the land beginning with their great ancestor, Obekwu Egolum, right to the present plaintiffs. They also proved that they were in possession of connected or adjacent land in circumstances rendering it probable that they would, in addition, be the owners of the land in dispute.”

(The Italics in the above extract is mine for emphasis and comments).

The appellants have contended that by the above findings the court below was wrong in that the pleadings, the evidence and all legal deductions as well as inferences capable of being drawn therefrom do not support the above view. Their argument hangs on the reason, among others, that as far as the issue of acts of ownership and enjoyment of land goes, the law is settled that:

“………….evidence of positive and numerous acts of possession is only relevant in the absence of traditional evidence.”

Reliance was placed on this court’s decision in Ohiaeri v. Akabeze (supra) and Mogaji v. Cadbury Nig. Limited (supra).

I must point out straight away that traditional evidence, the absence, failure or inconclusiveness of which would lead to a reliance on evidence of positive and numerous acts of possession, is but one (indeed the First mode in ldundun’ s Case (supra) out of five ways of proving title to land in dispute. The law in that method (traditional evidence) properly put is that where there are two competing histories relating to land in dispute and it is difficult to determine which is more probable resort to the demeanor of the parties and their witnesses is not the best guide; the duty of court is to test the two stories by reference to acts in recent times. This was the principle that was given interpretation in the case of Kojo II v. Bonsie & anor (1957) 1 WLR 1223 wherein the Privy Council (per Denning) held inter alia:

“Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanour is little guide to the truth. The best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is the more probable.”

This principle dealing with conflict or inconclusiveness in a plaintiff’s case has been applied by this court and other hierarchy of courts in Nigeria as exemplified in the following cases, to cite but a few:-

1. Agedegudu v. Ajenifuja (1963) 1 All NLR 109 at 115-116.
2. Ekpo v. Ita 11 NLR 68.
3. Ogundiaro v. Gbadamosi (1974) 4 WSCA 27 at 31
4. P.M. Alade v. Lawrence Awo (1975) 4 SC 215 at 228.
5. Okafor v. Idigo (1984) 1 SCNLR 481.
6. Chukwueke v. Nwankwo (1985) 2 NWLR (Pt. 6) 195 at 201.
7. Ogbuokwelu v. Umeanafunkwa (supra).
8. Thanni v. Saibu (1977) 2 SC 89.

The above typifies how far evidence of traditional history goes in its role to aid in sustaining an award or refusal of declaration of title in favour of the plaintiffs/respondents herein for, there are in their case, other ways (indeed three other modes) pleaded and proved at the trial in proof of their right in aid or sustenance of such an award of declaration of title, to wit:

(a) acts such as farming on the land extending over sufficient length of time, numerous and positive as to warrant the inference that they are the true owners of the land in dispute. See Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263 at 271-272

(b) acts of long possession and enjoyment of the land in dispute sufficient to support a decree of title. See Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301 at 323

(c) possession of connected or adjacent land in circumstances rendering it probable that they would in addition, be the owners of the land in dispute. See Okechukwu v Okafor (1961) 2 SCNLR 368; (1961) 1 All NLR 685.

From the foregoing, I take the firm view that the appellants’ adoption of the views expressed in the dissenting opinion of the learned Justice as a complete misapprehension of the issue when they submitted inter alia that –

“The plaintiffs/respondents clearly pleaded and relied on evidence of traditional history in proof of their case. But in so doing they failed to plead and/or prove how their ancestor Obekwu came to own the land.”

It ought to be borne in mind as I had occasion to point out earlier in this judgment, that the respondents based their ownership from time immemorial from Obekwu through Obiamo and Ike, through Udewene, Gabriel and Ozulike (1st plaintiff/respondent), Onyejimbe, Josiah who begat John Ike (2nd plaintiff/respondent) and Samuel vide paragraphs 15, 16, 17, 18 and 19 of the Statement of claim (ibid). It is therefore not correct to say that they did not show how Obekwu and his successors passed on the land in dispute to the present respondents. The respondents’ pleading in the above paragraphs of the statement of claim that “the plaintiffs’ and their family members from time immemorial have been the communal owners in possession” of the land in dispute amounts to saying that their ancestor Obekwu Egolum first occupied and possessed the land. “For time immemorial” as defined by Black’s Law Dictionary (6th Edn. page 750) means “time beyond human memory; time out of mind.” Thus, in Ohiaeri & anor v. Akabeze & ors (supra) Akpata, J.S.C held at page 19 paragraph D of the Report in similar circumstances thus:

“It is of interest to note that the trial Judge made no mistake in regarding the averment that “the land in dispute was originally the property of Dioha” as amounting to saying that Dioha was the founder of the land.”

By thus pleading the names of these several ancestor from Obekwu Egolum, the founder down to the respondents, it amounted, in my firm view, to strict compliance with the views held by this court in Akinloye v. Eyiyola (1968) NMLR. 92 as to proof of traditional history regarding root of title see also Total (Nig.) Ltd v. Nwako (1978) 5 SC 1 at p. 12, 13 and 16; 19bodin v. Obianke (1976) 9 & 10 SC 179 and Adedire v. Aderemi (1966) NMLR 398 at page 401. I am therefore in complete agreement with the respondents submission that they indeed pleaded and proved theirtraditional history. See Jude Ezeoke v. Moses Nwagbo (1988) 1 NWLR (Pt. 72) 616 at 621. for as Iguh, J.S.c. in Onwugbufor v. Okoye (1966) 1 NWLR (Pt. 424) 252 at 283 clearly put it:

“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 of 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 he claims cannot arise.” (Italics is mine)

The latter rational encompassed in the Italics word above is in contrast to what this court decided in Kalio v. Woluchem (1985) 1 NWLR (Pt. 4) 610 at 628, where it was held that where a plaintiff relied on traditional history (simpliciter) he would “aver facts to the founding of the land in dispute, the persons who founded the land and exercised original acts of possession and the persons on whom the title in respect of the land devolved since its founding. See also Piaro v. Tenalo (1976) 12 SC 31 at 41. Where he fails to satisfy this requirement, his case fails particularly where the defendant proves good title. See Da Costa v. Ikomi (1968) 1 All NLR 191. Indeed, the law postulates that where possession rests on traditional history which has failed, then such acts of possession become irrelevant and should not be considered in granting a declaration of title. See Ogungbemi v. Asamu (1986) 3 NWLR CPt.27) 161; Mogaji v. Cadbury (Nig.) Ltd (supra) and Odofin v. Ayoola (1984) 11 SC 72. This was the narrow aspect of derivation and devolution of acquisition of land through traditional history on which the writer of the dissenting judgment of the court below dwelt to disagree with the majority view held by that court. He was, in my humble opinion, palpably wrong to have taken such a myopic view of the matter, moreso when the legal position, as Adio, J.S.C., admirably put it in Akunyili v. Ejidike (1996) 5 NWLR (Pt. 449) 381:

“the court below (the Justice who wrote the dissenting judgment) thought that proof of a claim for declaration of title by means of traditional evidence was mutually exclusive with other means of proving the claim. A plaintiff may adopt one or more of the ways of proving ownership, for example, traditional evidence or by means of evidence of acts of ownership or possession. The two or one or the other of them may be sufficient to sustain the claim. It is only where a plaintiff fails to proved his case by means of traditional evidence and also fails to establish it by means of evidence of acts of ownership and possession when these were the means pleaded and relied upon by him that his claim will be dismissed. That was not what happened in this case. The plaintiff/appellant succeeded in proving his claim through the method alleged.” (Parenthesis mine).

As I had occasion to point out at page 406 of the Report:

“Plaintiff could still succeed in an action for declaration of title on acts of exclusive possession and of ownership even where traditional history was entirely lacking.”

However, it is a well known principle of law that a plaintiff must succeed on the strength of own case and not on the weakness of the defendant’s case. See Kodilinye v. Odu (1935) 2 WACA 336 and Bello v. Eweka (1981) 1 S.C. 101. The onus is on the plaintiffs in a case of declaration of title (in the instant case, the respondents) to prove his/their case on a preponderance of evidence in his/their favour. See Elufisoye v. Alabetutu (1968) NMLR 298. In the instant case, the respondents have by credible evidence led strictly in compliance with their pleadings, discharged that onus, Re-inforced by the concurrent findings of fact by the two courts below, I have no hesitation in affirming the decision the court below which confirmed the decision of the trial court.

On evaluation of evidence, I wish to stress firstly, by saying that the confirmation of the concurrent findings of facts by this court of the decisions of the two courts below is compelling in the sense that it is an avowed and age-long judicial policy in this country that the evaluation of evidence called at the trial, the ascription of probative values to them and making primary findings on them, are matters within the province of the court of trial which has the singular advantage or pre-eminently placed to hear the witnesses testify and watching their demeanours. See: Balogun & Ors v. Alimi Agboola (1974) 1 All NLR (Pt. 2) 66; The Military Governor of Western States v. Afolabi Lanibe & Anor (1974) 1All NLR (Pt. 2) 179. For this reason, there is a presumption that a trial Judge’s decision on facts is correct – a presumption which must be displaced by a person who seeks to upset the decision if he can. An appellate court for its part in such a case, should always be reluctant to interfere or to substitute its views of the facts for those of the court of trial. See Ajao v.Ajao (1986) 5 NWLR (Pt. 45) 802 and Kponuglo v. Adja Kodaja (1933) 2 WACA 24.

Secondly, the court below as an appellate court faced with the trial court’s decision which had been carefully weighed, gave additional reasons, some based on demeanour which had not been faulted, why it must disbelieve certain witnesses (such as DW3, DW4 and DWS) was left with no choice but to agree with the trial court as in the majority decision.

Thirdly, based on the authority of this court’s decisions, the court below could have arrived at a different decision on the primary facts only if they came to the conclusion that the findings of the trial court were perverse or not a result of proper exercise of judicial discretion. See Kuma v. Kuma (1936) S WACA 4; Akinloye v. Eyiyola (supra). As has been demonstrated by this court in Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1 at 15, Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 393 at 396 and Atolagbe v, Shorun (198S) 1NWLR (Pt. 2) 360 at737 and 375, a finding is said to be perverse when it runs counter to the evidence and pleading or where it has been shown that the trial Judge took into account matters which he ought not to have taken into account or shuts his eyes to the obvious. Thus, the minority judgment of the court below which alleged that the findings of fact of the learned trial Judge were perverse, without showing how, ought not to be countenanced. Admittedly, the learned trial Judge’s style of writing his judgment is not ideally commendable in places but his style is his style and this court cannot impeach it when his conclusions, as here, cannot be faulted. For instance, while discussing the issue of marital custom practised between the appellants and the respondents in Agulu the learned trial Judge made a misplaced application of the Matrimonial Causes Decree, 1970 whose section 3(1) he quoted, inaptly though, to exemplify his point, as there was no miscarriage of justice thereby. That apart, his judgment was painstaking and thorough. Indeed, the judgment of a court, it is trite to say, can be arrived at through different routes. See Onajobi & anor v. Olanipekun & ors. (198S) 11 SC (Pt. 2) IS6 at 163; Balewa v. Doherty (1963) 1 WLR 949 at 960 and Arisa v. The State (1988) 3 NWLR (Pt. 83) 378 at 399. It is enough, in my view, if the judgment shows adequate perception of the facts of the case as disclosed in evidence, evaluation of the facts, belief or disbelief of the witnesses vide Isaac Stephen v. The State (1986) SNWLR (Pt. 46) 978 at 1005 and Onuoha v. The State (1988) 3 NWLR (Pt. 83) 460 at 464 and a finding based on the evidence accepted by the court. The judgment of the learned trial Judge in the instant case cannot be said to be deficient in the above attributes. Indeed, an appellate court has to decide whether the decision of the trial Judge was right, not whether his reasons were. See Abaye v. Ofili (1986) 1 NWLR (Pt.15) 134;(1986) 1 SC 231 and Ikejianya v. Uchendu 13 WACA 45 at page 46.

In the alternative, the appellants while accepting that the common sense concept the learned trial Judge brought to bear in the resolution of the issues at stake may sometime be helpful, they (appellants) argued that in the instant case they are unhelpful especially when the issues raised were those of facts which must be decided after evidence, followed by evaluation and which may amount to the throwing away of uniformity in legal proceedings. This argument beside being fatuous and hypothetical, has, in my judgment, no bearing on what the learned trial Judge said, which, devoid of any burden to be discharged by either party, except by way of analogy, is harmless to the respondents case and I so hold.

Fourthly, the numerous other conclusions of fact which the court below reached which were in line with those arrived at by the learned trial Judge, made their two decisions to be concurrent findings on those facts. See Balogun v.Akanji (supra) at page 319. It is incorrect to say as asserted by the learned Justice of the court below who dissented and whose line of argument the appellants have adopted in their argument of this appeal, that the learned trial Judge did not evaluate the evidence in making his finding on them. In any event, the majority decision of the court below, in my view, stated the law correctly when it held inter alia thus:

“Similarly where the trial court made no findings of fact after evaluating evidence in a civil matter, the appellate court is in as good a position to make such finding from the evidence in the printed record if such findings are not related to any advantage to be gained by watching the demeanour of the witnesses as in the present case where the trial court had considered all the evidence led and made observation on the relevant witnesses after watching their respective demeanours in the witness box. (See Orji v. Zaria Industries Ltd & anor (1992) 1 NWLR (Pt.216) 124 at 141; B.C.C.I v. Stephens Ind. Ltd. (1992) 3 NWLR (Pt. 232) 272; section 16 of the Court of Appeal Act; Order 1rule 20 and Order 3 rule 23 of the Court of Appeal rules; and Muraina Ajadi v. Dorcas Olarewaju (supra) per Fatayi-Williams, J.S.C. (as he then was) making it adequately clear that a distinction must be drawn between findings of fact based on the credibility of witnesses and findings based on evaluation of evidence which has been accepted. In the latter case, the court of trial, though it will give weight to the opinion of the trial Judge.”

Be that as it may, as the learned Justice in his dissenting judgment made no findings thereon nor drew any inferences from the accepted facts as found by the trial Judge and in fact the trial Judge made detailed findings with which the majority of the justices of the court below agreed, these culminate in concurrent findings of facts by those two courts, which can only be reversed unless shown to be perverse or in violation of some essential principles of law or procedure so substantial enough to lead to a miscarriage of justice if left uncorrected. See: Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182; Onowan v. lserhien (1976)9-10 SC95; Enang & Ors. v. Adu & ors (1981) 11-12 Sc. 133 at 170-171; Elike v. Nwankwoala (1984) 12 SC 301 at 325 and Okolo v. Eunice Uzoka (1978) 5 SC 86, to mention but a few. In the case in hand, the task of the appellants to upset these findings of fact by the learned trial Judge who based his disbelief of two of the five witnesses called by the appellants upon their demean our (see Egri v. Uperi (1974) 1 NMLR 22 at 26 and Chief Frank Ebba v. ChiefWarri Ogodo & Anor (1984) 4 SC 84 at 99) and the third witness on the facts which negated his impartiality. As the Supreme Court has not the opportunity of seeing those witnesses and so cannot have the benefit or advantage which the trial court had, this court ought not to disturb those findings of fact for the following reasons:-

(i) That the appellants were strangers in Agulu because if they were not, they would not have had customs diametrically in conflict with the respondents and further that were both parties to be related, they would not have been intermarrying;

(ii) That by reason of the foregoing the appellant’s case that they were related to the respondents and so co-owners of their lands in the past was improbable;

(iii) That the two parcels of land verged green and pink in the respondents’ plan (Exhibit ‘A’) are one contiguous, continuous and identical parcels of land, and that the failure of the appellants to cross-examine P.W.8 and P.W.9 on the evidence on the issue and to call evidence to the contrary, amounts to an admission;

(iv) That the respondents’ ancestors built an ekpe wall around the parcel of land comprised of the two pieces of land verged green and pink in Exh. A, both together called Agu Obekwu;

(v) That respondents had proved that they have been exercising numerous and positive acts of ownership and possession of the land in dispute including building the ekpe wall around it, farming on it, reaping the economic trees in it, and asserting their right when officials of the Posts and Telegraphs department went on the land without their consent; and

(iv) That respondents’ evidence of their traditional history is preferable to the appellants’ .

As against the case put forward by the respondent the appellants had in their statement of defence denied, traversed and joined issues with them in particular that –

(i) They (appellants) and the respondents descended from a common ancestor and denied that they were strangers and grantees of the land from the respondents; and asserting that they and the respondents were members of Umunkpoko extended family made up of Onadili (appellants) Okwuogbo (respondents) and Nwike.

(ii) They denied that they were strangers who migrated from Arondizogu and contended that they and the respondents formed the same kith and kin in Umunkpoko, and asserted that being from a different Obi in Umunkpoko, they could, and do, intermarry with persons from another Obi.

(iii) They denied respondents ownership of the land in dispute which they maintained is called “Ana Agu Ngene Umuonadili.”

(iv) On the pleaded tradition over the land, they denied that the land originally belonged to the respondents ancestor Obekwu and maintained that it descended to them through Onadili, one of Umunkpoko’s children. They failed to state how Onadili inherited the land or had it as his share.

The Court below in upholding the evaluation of the trial court by weighing the case of either side, particularly with reference to the foregoing, held as follows:-

“(i) There is no doubt therefore that there was abundant evidence before the trial court to support the findings of fact made by the trial court and the conclusion it reached in the case.”

(ii) Later, they continued:

“On the allegation that the learned trial Judge failed to resolve, in his judgment, the conflicting issues joined in the pleadings and evidence regarding acts of ownership and possession, I cannot find any such Case of unresolved conflict. What really happened was that the learned trial Judge preferred the evidence adduced by the plaintiffs and rejected the defendants’ case.”

(iii) On whether or not the respondents proved their case by any of the five ways recognised by law, the court by its majority judgment held inter alia:

“In other words, the plaintiff were able to meet four of the five ways by which ownership of land may be proved as set out in the Idundun’s & ors v. Okumagba case.”

(iv) On trespass, their Lordships held inexorably that:

“Also on the failure to make any specific findings of fact in respect of acts of trespass, the court was not bound to do that since it was admitted by the defendants in paragraph 34 of their statement of defence that they went on the land, because it belonged to them. Once that collapsed, as it did in this case, their going on to the land became trespass.”

(v) On the value of testimonies of some of the defence witnesses to their case, the court below held, making sure it gave particulars of the base of these conclusions, to wit:

“I have no doubt that the learned trial Judge carefully considered the evidence given by D.W.3, D.W. 4 and D.W.5 before holding that they were unreliable witnesses.”

(vi) On proof by the parties of the identity and boundaries of the land in dispute the court below held thus:

“The evidence given by P.W2, P.W.3, P.W.7 (Christopher Ogbo), and P.W.8 relate to their respective boundaries with the land in dispute in line with the plaintiffs survey plan (Exh. A). The defendants on the other hand, virtually failed to call any boundary man as witness in line with their survey plan (Exh. D).”

(vii) Last but not the least, on the application of section 45 (now section 46) of the Evidence Act earlier alluded to, as being in favour of the respondents, the court below itself considered the relevant evidence as established on the issue and concluded, rightly in my view, that the learned trial Judge came to a correct conclusion on the issue.

The above is not my last word on this matter. For, as later transpired, learned Senior Advocate for the appellants forwarded to me in Chambers a recently decided case by this court Number SC. 136/1991 delivered on Friday, December 20, 1996: Lawal v. Olufowobi (1996) NWLR (Pt. 477) 177 and now reported in 12 SCNJ 376: to aid me in the logical conclusion to which I may arrive

at therein. Of particular significance, i think learned Senior Advocate’s reference to a portion of the judgment contained at page 384 of the report wherein the writer of the lead judgment (Kutigi, J.S.C.) had this to say:

“I think mere pleading as the plaintiffs had done in this case, that they (Ibipe Community) were founded in 1425 A.D. and therefore had since owned and possessed the land in dispute is not sufficient pleading of tradition. In this regard the plaintiffs were bound to have pleaded who founded the land, how it was founded and particulars of the intervening owners through whom they claim. (See: Akinloye & Anor v. Eyiyola (1968) NMLR 92, Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238, (Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 47 .. The lower courts therefore rightly came to the conclusion that the plaintiffs failed to prove that the land in dispute is Ibipe Community land.”

With profound respect to the learned Senior Advocate, on the strength of the respondents’ pleading that their ancestors, beginning with Obekwu, had owned and possessed the land in dispute from time immemorial, quite apart from the fact that the issue did not arise from the pleadings, it would, in my view, be unjust, to insist that the respondents must fail because they did not show how Obekwu first acquired the land. For, as earlier pointed out, “time immemorial” means “time beyond human memory; time out of mind.” See Blacks Law Dictionary (6th Edn. p. 750 (ibid). Indeed, it would run against the grain of justice to insist that the respondents who had pleaded and called evidence, as pointed out above, must fail because they did not call evidence, on an incident which occurred beyond human memory. For, come to think of it, any evidence which the respondents might have given as to the precise manner in which Obekwu Egolum first acquired the land in dispute several generations ago, beyond living memory, could have been no better than speculative make-belief. It is to obviate such attempt at recollecting and reconstructing such pieces of evidence that the Privy Council had to warn in the case of Kojo II v. Bonsie (supra) that “witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred years ago.” Thus, it is for the inherent unreliability of such type of evidence that the court in that case devised a more reliable approach culminating in the principle laid down in Kojo II v. Bonsie (supra) and has been adopted by this court in innumerable cases, some of which I have mentioned hereinbefore. Hence, the rationale behind this court’s decision in Balogun & ors v. Akanji & ors (supra) wherein atpage3 17of the Report Nnamani, J.S.C. said:

“Of course if the evidence of tradition led by both sides is inconclusive then the court will have recourse to recent acts of possession and ownership.”

While the case of Lawal v. Olufowobi (supra) failed because it hung from a traditional history of “immemorial” tenor which could not be sustained, the instant case rests on the firm anchor of four ways of establishing the respondents title to the land in dispute. The respondents case would still survive were the traditional history aspect to have failed. Fortunately, it did not and I uphold the conclusion arrived at by the court below. My answer to respondents’ issues 3.02 and 3.03 which collectively tally with the appellants’ issue (1) is accordingly in the affirmative.

In answering the question posed in respondents’ issue 3.04 which collectively with appellants’ issue (iii) whose grouse is whether from the facts and circumstances of this case the court below was in error in affirming the decision of the trial court which invoked section 45 (now section 46) of the Evidence Act in favour of the respondent, much has already been said in respect of this issue hereinbefore to need any repetition here. It will suffice to add as follows:-

Firstly, for a fair and proper construction of the section, it cannot be said to mean that its application is limited to cases in which “the land in dispute is surrounded by other lands belonging to” the party which asserts ownership of the land in dispute. The section clearly provides that it shall apply where “…………the other land is situated or connected therewith by locality or similarity that what is true as to one piece of land is likely to be true of the other pieces of land.”

Secondly, it is pertinent to make an observation that in the clear provisions of the section, what the appellants have tried to do to cases in which the land in dispute is completely surrounded by the land proved or admitted to belong to the respondents, is to erroneously do violence to the clear words of the statute. In this regard I take the view that ldundun & ors v. Okumagba & Ors. (supra) has been quoted out of context. This is because, in that case this court stated that one of the circumstances in which the provisions of the section (section l46(ibid) could properly be invoked is:

“Finally, proof of 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: Okechukwu v. Okafor (supra), followed in many authoritative Supreme Court decision binding upon the two courts below, including Okafor v. ldigo (1984) 1 SCNLR 481; Atanda v .Ajani (1989)3 NWLR (pt.111) 511;Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) 511 and Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90.

Thirdly, having due regard to the pleadings and the evidence led, the two courts below were, in my respectful view entitled to have applied the principle as correct and to have invoked it in the respondents favour, namely that-

(a) In the respondents paragraph 13, 14 and 15 of their Statement of Claim and their plan (Exh.A) the following facts emerged, to wit: that it is their case that their entire land is verged red in Exh. A and is called “Ana Obekwu” or”Agu Obekwu;” that the area verged red is made up of the area verged green, which is not in dispute, and the area verged green and red – the Agulu – Nnobi Road which has not been proved to be a boundary mark, but are contiguous to one another and are almost completely surrounded by an “ekpe” wall.

(b) The appellants in their pleadings denied or traversed some of these averments; hence issues arose on them and became matters for evidence at the trial: See Lewis & Peat (NR.1.) Ltd v. Akhimieh (1976)7 SC 157; (1976) 1 All NLR(Pt.1) 460 and Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587.

(c) At the trial the respondents gave evidence through P.W.8 and P.W. 9 in line with their pleading and claimed ownership of both parcels and showed that they were one and the same contiguous piece of parcel of land. Not only did the appellants not cross-examine these witnesses on this vital issue, but also they called no evidence to show that the areas verged green and pink on respondents plan (Exh. A) were not contiguous or were not one contiguous piece of land. They did not prove that the road separating the parts of Agu Obekwu marked green and pink was a boundary.

(d) On the evidence before him, the learned trial Judge found that the respondents ancestor had built the ekpe wall around the whole of Agu Obekwu marked green and pink on Exh. A in order to guard their farmlands against their neighbours to the north and west and the settlers to whom they granted part of their land to the east. He had no difficulty in finding from Exh. A the unchallenged evidence of P.W.8 and P.W.9 and the supportive evidence of P.W.2, P.W.3 and P.W.7 that the two parcels of land verged green and pink and lying to the northern and south of Agulu-Nnobi Road were contiguous and one continuous parcel of land. Even the appellants surveyor (D.W.1) admitted that there is nothing between the land in dispute and the road. Invoking section 45 (now section 46) one the issue of ownership of the land verged pink on Exh. A he held that

“……….what is true as to plaintiffs “Ana Obekwu” North of Agulu-Nnobi main road up to where it has boundary with Okpu Village is likely to be true of the plaintiffs’ “Ana Obekwu” South of Agulu-Nnobi main road irrespective of the defendants’ encroachment from the east…”

The learned trial Judge having thus resolved the issue of possession and ownership of the parcel verged pink by the application of section 45 (now section 46) of the Evidence Act – a finding which the court below affirmed – this court has no option than to confirm the conclusion of the two lower courts. And as this is one of the ways of proving title, I have no hesitation in holding that even on this conclusion alone, this appeal ought to fail and stand dismissed.

This issue is accordingly answered in the negative and it is resolved against the appellants.

In the result, this appeal lacks substance and it accordingly fails. I therefore dismiss it and award costs assessed in the sum of N1,000 against the appellants in the respondents favour.

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Other Citation: (1997) LCN/2761(SC)