Onuoha Nwokorobia V. Desmond Uchechi Nwogu & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C

This is an appeal against the decision of the Court of Appeal, Port Harcourt Division delivered on 13th of June, 2002. The process that culminated into this appeal before us started at the High Court of Mbaise, Imo State. The appellant in this court was the plaintiff in that court, and the parcel of land which he was claiming against the respondents is called ODONKWU NWOKOROBIA, situate in Umualim Ikenga Eziudo Aboh Mbaise. The plaintiff traced the history of the land in dispute to himself in his statement of claim, and claimed therein as follows:

26 (a) An order of court commanding the defendants to surrender to the Plaintiff all the piece or parcel of land which is part of ODONKWU NWOKOROBIA, and situated in Umualim Ikenga Eziudo in Aboh Mbaise, which piece or parcel of land has been in possession of the defendants, and which the defendants have refused to surrender despite repeated demands.

(b) An injunction perpetually restraining the defendants, servants and or their privies from further entry into the lands so surrendered,

After pleadings were ordered, and the defendants refused/or neglected to file their statement of defence, the plaintiff sought for judgment to be entered in his favour, but the learned trial judge insisted that he would hear oral evidence. Meanwhile the defendants sought and obtained an order of extension of time to file their statement of defence. In their joint statement of defence, the defendants denied most of the claims in the statement of claim, alleging that the land in dispute forms part of a land UKPABI, and not Odonkwu Nwokorobia, and the land was pledged to Iwundu Ashiru by Nwokorobia. According to the defendants the land in dispute was from time immemorial owned and possessed by the Ogide family from whom the defendants inherited the land, Ogide being their ancestor. The land was pledged to Onuoha Nwachukwu Agunkwo of Umuwada Onicha, and the defendants sought to redeem it.

Both sides to the litigation adduced evidence. The learned trial judge appraised the evidence before him, considered the addresses by learned counsel, and at the end of the day found in favour of the plaintiff and gave judgment as follows:-

All aspects of this case and on all issues raised and canvassed by the parties, I am satisfied that the plaintiffs case yielded the degree of proof required in civil cases. In other words he has proved his case on the balance of evidence as being more probable. Accordingly, judgment is hereby entered for the plaintiff in terms of his claim for surrender of the land in dispute shown, demarcated and verged Red in Exhibit A and for (2) perpetual injunction restraining the defendants, their servants or their privies from further entry into the land so surrendered.The defendants were aggrieved by the judgment, and so appealed to the Court of Appeal, which set aside the above judgment. Dissatisfied with the setting aside, the plaintiff appealed to this court on four grounds of appeal. Learned counsel for both sides exchanged briefs of argument, on the appeal, as is the practice in this court. Issues for determination were raised in the briefs of argument. In the appellant’s amended brief of argument are the following issues:-

1. Whether the lower court was right in holding that there was no certainty in the description of the disputed land by the Plaintiff/Respondent/Appellant evidence before the trial court
2. Whether the Plaintiff/Respondent/Appellant has established his ownership of the land by traditional history.

The following issues for determination are in the amended respondents’ brief of argument:-

(1) Whether the Appellant had by credible evidence established the identity/features of the land in dispute.

(2) Whether the Appellant had established ownership over the land in dispute.

The two sets of issues are in essence the same. In arguing issue (1), the learned counsel emphasized the impropriety of the Court of Appeal overturning the findings of fact of the trial court which heard and watched the demeanour of the witnesses along side the veracity of Exhibits and tendered by both parties. Learned counsel submitted that the trial court based its findings on the credibility of the witnesses, and even went further to state clearly that DW3 was unreliable and inconsistent. He placed reliance on the case of Iwuorie Ihanacho & others v. Mathias Chigere & 3 others (2004) 17 NWLR part 901 page 130. Learned counsel reiterated the principle of law that an appellate court will not ordinarily interfere with the Findings of fact of a trial court unless there is ample evidence that the trial court failed to evaluate and make proper findings. In such a situation the appeal court ought to give its reasons, but it did not in the instant case. Reliance was placed on the cases of Chief James Obande Ibori v. Engineer Goodness Agbi & 5 others (2004) 6 NWLR part 78 page 123, and Chief D. M. Okochi & 2 others v. Chief Amukali Animkwoi & 2 ors (2003) 18 NWLR part 851 page 1. The main bone of contention on the identity of the land in dispute was the rejection of the probative value of exhibit “A” by the lower court, when the defendant did not challenge any aspect of it. The case of Omoigie v. Idugienwanye (1985) 2 NWLR part 5 page 41 was referred to.

The learned counsel for the respondents in their amended brief of argument submitted that the identity of the land in dispute was an issue, as is averred in paragraph (4) of the statement of defence, and so are the features of the land, as can be seen in paragraphs (5) and (6) of same. According to learned counsel no features of the land in dispute was given in evidence by the appellant and his witnesses, thus, the appellant failed to discharge the first burden on him at the trial, which was to establish the identity of the land. Reliance was placed in the cases of Odofin v. Ayoola (1984) 11 SC. 72, Baruwa v. Ogunshola 4 WACA 159, Adomba v. Odieze (1990) 1 NWLR part 125, page 165, Udeze v. Chidebe (1990) 1 NWLR part 125 page 141, and Tukuru v. Saki (2005) 3 NWLR part 913 page 544. Learned counsel further submitted that the burden of proving the features on the plan was on the appellant, contrary to the submission of the appellant that it rested on the respondents. He cited the cases of Ojoh v. Kamalu & ors (2005) 12 SCNJ 236, Agbana v. Owah & ors (2004) 5 SCNJ 195, and Nwabuoku & ors v. Onwordi & ors (2006) 5 SCNJ page 359.

At this juncture I will reproduce the relevant averments in the appellant’s statement of claim here below. They read:-

(a) The land part of which is the subject matter of this dispute is generally called “ODONKWU” “NWOKOROBIA”. “NWOKOROBIA” was the father of the Plaintiff. It is situate in Umualim Ikenga Eziudo Aboh Mbaise within jurisdiction. It is a very large area of land. The whole of “ODONKWU” is shown on Plan No. VEN/D234/87 which is attached and filed with this statement of claim. It is hereby marked Exhibit “A”. At the trial, the Plaintiff shall rely on the features shown on the plan as well as on those not shown on the Plan as well as on those not shown in so far as they are relevant.

(b) Part of “ODONKWU NWOKOROBI” which is the subject matter of this dispute and which the Plaintiff and his immediate brothers inherited from their father is more particularly shown on the Plan No. VEN/D234/87 attached to this statement of claim and verged Green. Exhibit ‘A’

(c) This area verged green is almost surrounded by the lands belonging to the other sections of Nwokorobia and Elemaranya family namely, Egbukichi Owunna Elemaranya, Timothy Njoku Elemaranyoa, Aligwekude Nwokorobia, Maduneme Nwokorobia, Onyekwere Nwakorobia, Eneremadu Mwokorobia, Akwaja Nwokolobia and Ihuoma Nwokorobia, as well as portions of ‘ODONKWU’ on pledge to Oluo of Umuawada and Osuagwu Onueha of Umuwada both in Onucha by the Plaintiff and his fore fathers.

(d) “ODOWKWU” NWOKOROBIA” has boundary on the Eastern side with the lands of Umusu people of Eziudo, Umuzu people have no relationship with the people of Umualim Ikenga Ezuido from where the Plaintiff’s hails. The defendants have no lands here as of right except the area granted to their forefathers by the plaintiff’s forefathers which is the history that is the subject matter of this dispute. The area of “ODONKWU” “NWOKOROBIA” pledged by NWOKOROBIA to one Iwundu Eshihe of Umuzu Village which was redeemed by the plaintiff and his late Senior brother in 1940 is verged yellow on the Plan attached. The area of “ODONKWU” which is still in possession of the defendant’s family and which is the subject of this dispute is verged PINK also in the Plan attached.Now, how did the respondents react to the above pleadings In their joint statement of defence, the defendants made the following averments:-

.The Defendants deny paragraph 3(a) of the Statement of Claim. The Defendants particularly deny that the plaintiff and his immediate brothers inherited the portion of Ukpabi land in dispute from their father. The plaintiff’s plan No.VEN/D234/87 annexed to the statement of claim does not fully represent the land in dispute. The Defendants at the trial shall tender and rely on Survey Plan No. ASNIMD 208/89 as a true representation of the land in dispute and its features.

5. The land in dispute has been shown and verged Green and Red in the said Plan No. ASA/IMD 208/89 annexed to this statement at Defence.
6. Paragraphs 3(c) and 3(d) of the statement of claim are denied. The Defendants aver that the land in dispute is bounded as follows:-

(a) On the West by:

(i) The land of Ojimadu of Umuzu Eziudo

(ii) The land of 1st Defendant (not in dispute) and

(iii) The land of 3rd Defendant not in dispute.

(b) In the North by land of Uwakwe family (Gabriel Uwakwe) of Umuwada Onicha not in dispute and the land of the 3rd Defendant’s father not in dispute but on pledge to Akwaja Nwokorobia.

(e) In the East,the land of Eneremadu Adumele family of Unweremanya (no relations of the plaintiff), the land of the 3rd Defendant in dispute and the land of the 2nd Defendant not in dispute.

(d) In the south by the land of the 1st Defendant not in dispute and that of Augustine Uehegbu of Umuwada Onieha.

7. Further to paragraph 6 hereinabove the Defendants state that no member of the plaintiff’s family has any land around the land in dispute. The only Eneremadu that has land adjoining land in dispute is Eneremadu Adumele. There is no Eneremadu Nwokorobia in Umualim. Neither the land nor any land adjoining it was pledged to lwundi Ashihu by Nwokorobia.
8. In further answer to paragraph 3(d) of the Statement of Claim, the Defendants state that all the parcel of land owned at Ukpabi by the Defendants devolved on them from their forebears. The lands came to them as of right. The forefathers of the plaintiff did not grant any land to the Defendants’ forefathers. The Defendants came into possession and ownership of their ukpabi lands including the land in dispute by inheritance. The lands have since been shared or partitioned by the Defendant’s family members.

It is clear from the above averments that the respondents/defendants joined issues with the appellant/plaintiff on the identity of the land in dispute. Now, what was the evidence in support of the appellant’s pleadings On the evidence of identity of the land, the appellant gave the following evidence in his examination in chief:-

“I showed the boundaries of the land to the surveyor before he made Exhibit A. There is a pathway passing through the land between Umuawada and Ezindo Ezinihitte. I started showing the surveyor the extent of the land in dispute from the boundary with the land of Onyekwere Nwokorobia; the next boundary neighbour is Maduneme Nwokorobia; after that there is land of Aligwekwe Nwokorobia; thereafter there is the land of Timothy Njoku of Umuelemaranya Ezindo. Elemoranya and my father Nwokorobia were the sons of one father. After the land of Timothy Njoku the next boundary neighbour is Egbukioki of Umuelamaranya Eziudo…

After Akwaja’s second parcel of land there is the land of Ekweremadu. The boundary neighbours I have mentioned are all the children of Nwokorobia – my late father.”

In the course of cross examination, P.W.1 testified as follows inter alia:-

“I know the expanse of land called Ukpabi. My father got his own land near Ukpabi land and called it Odonkwu. ….The persons I mentioned as my boundary neighbours are indeed my boundary neighbours; they are available as my witnesses.”

PW2 Gabriel Uwakwe who was not an immediate boundary man, in the course of cross-examination stated thus:-

“The man I have been seeing farming on the land in dispute is the plaintiff. The land in dispute is part of the vast area called Ukpabi land. I do not know of any other name by which the land in dispute is called except Ukpabi. No body lives on the land in dispute.”

P.W. 3 testified that his land is close to the land in dispute and that the appellant had been farming on the land since he was born, but under cross examination he reiterated the evidence of P.W 2 above, that the land in dispute falls within Ukpabi land. In fact his evidence reads thus:-

“I know an area of land called Ukpabi. The land in dispute as well as other lands where the Defendants farm fall within the area called Ukpabi.”

Contrary to the evidence of PW.3 that the appellant has been farming on the disputed land, P.W.4 testified that the defendants have been farming on the land.

Looking carefully at Exhibit A, the plan tendered by the appellant, I can see that the boundary men mentioned by the appellant in his evidence are reflected therein. The boundary men testified to that effect, but it is instructive to note that whereas the appellant described the land in dispute as part of Odonkwu Nwokorobia, some of his witnesses described it as part of Ukpabi land, the later of which supports the case of the respondents, as is stated by the following pieces of evidence:-

“DW1…

The land in dispute is called Ukpabi. I know the land called Ukpabi, it is a vast expanse of land. The land now in dispute belongs to my family of Umuogide. Apart from Umuogide other people own land in the area called Ukpabi. The people of Umunosisi Obizi farm on the Ukpabi land as land owners. Umuzu Eziudo people own land at Ukpabi. The Umuada Onicha people own land in the area called Ukpabi. I do not know of any land in Umualim called “Okonkwu Nwokorobia”.. Odonkwu means a palm plantation. The land in dispute has never been a palm plantation to my knowledge.”

It is instructive to note that the last sentence of the evidence contradicts the evidence of the appellant, when he said inter alia as follows:-

My father planted oil palm trees on the land when he inherited it and it became known as “Odonkwu”.

Looking carefully at Exhibit ‘A’, (the appellant’s plan), particularly the whole land verged green, supposedly known and called ‘Odonkwu Nwokorobia’, I fail to see that a palm plantation exists thereon. There are trees depicting palm trees, but these are but a few here and there in the upper area of the land. In fact I can count only four of such. Could that therefore be said to constitute a plantation I have my doubt.

The cardinal principle of law is that in a claim of declaration of title to land a party must prove the identity of the land he is claiming with definitive certainty. Proof can be by evidence of the boundary men of the land in dispute, and a plan. See Ezeokeke v. Uga 1962 1 All N.L.R. 482, and Okolo v. Nwamu 1973 2 SC. 59. The learned trial judge accepted the evidence adduced by the appellant and found on the identity of the land which I consider to be correct, as that was ample credible evidence in support. In this respect the Court of Appeal was therefore in error when it found as follows:-

“One can see from the description given that no features are mentioned apart from the names of boundary neighbours. There is no certainty whatsoever in the description of the disputed land as testified by the respondent, and the survey plan Exhibit A could not do any better since he was the one who showed the surveyor what he drew in Exhibit A. I resolve this issue in favour of the appellants.”

For the foregoing, I resolve this first issue in favour of the appellant, and so the related grounds of appeal nos (1) and (2) succeed Now, to issue (2) in the appellant’s brief of argument supra, on the establishment of the ownership of the land by traditional history. It is settled law that litigation is fought on pleadings of the parties, as it forms the foundation from which it is developed and tackled to the stage of judgment.

It is pleadings that form the basis of the plank of a case and the evidence that is adduced in support therefore. Hence the fulcrum of a case is derived from the pleadings and its success depends thereon, for pleadings that are bereft of the facts needed to prove a case, cannot be proved by evidence no matter how cogent. i.e. parties are bound by their pleadings. See Shell B.P. v. Abedi 1974 1 SC. 23, and Ebosie v. Phil-Ebosie 1976 7 SC. 119.

In this direction I will reproduce the salient paragraph of the appellant’s statement of claim which sought to establish the pivot of his claim, which seems to me to be traditional history. The averment reads:-

‘The said ‘Odonkwu Nwokorobia’ was originally owned by the family of Nwoko of Umualim Ikenga Ezindo. When Nwoko died he left two sons, Elemaranya and Uhuakwukwa who shared his landed property between themselves. Nwokorobia was a descendant of Nwoko.’

It is the contention of the learned counsel for the appellant that the above paragraph can not be described as bereft of the requisite particulars in a claim based on traditional history, and he has taken us through the rigours of the definition of the word ‘original’, as used in the above paragraph. The learned counsel has submitted that pleading does not contain evidence, and so the description of the plaintiff s grandfather as the original owner is sufficient pleading as far as deforestation is concerned. He referred to the case of Adisa v. Oyinwola 2000 6 SCNJ 290.

In this reply the learned counsel for the respondents has argued that the appellant woefully failed to prove his case, and so the Court of Appeal was right in its finding on it. He stated that the appellant has a duty to bring his claim under one the five ways of proving title to land as enunciated in the case of Idundun v. Okumagba 1976 1 NMLR 200, one of which is traditional history. He relied on the case of Jiya v. Shande 2005 9 NWLR part 931 page 543. He further argued that if a plaintiff elects to pursue his case by traditional history the law requires him to plead and prove who founded the land, how he founded it and particulars of intervening owners through whom he claims. See Osafile v. Odi 1994 2 NWLR part 325 page 125, Ezeokonkwo v. Okeke 2002 5 SC part 1 page 44, and Nkano v. Obiano 1997 50 LRCN 1048, where the Supreme Court laid down the principles governing such claims.

The law is well settled that where evidence of tradition is relied on in proof of declaration of title to land, the plaintiff, to succeed, must plead and establish such facts as; who founded the land, how he founded the land and the particulars of the intervening owners through whom he claims. The learned counsel further argued that apart from the absence of satisfactory pleading the evidence led by the appellant is fatally flawed by glaring contradictions. What are the averments on the successive ownership of the land In the statement of claim can be found the following:-

‘.Uhuakwukwa died living four sons namely Agbakwuru, Nwanguma, Njoku and Amaeshi (alias Nwokorobia) father of the plaintiff.

6. At the death of Uhuakwukwa, “Odonkwu”, the land part of which is now in dispute was allotted to Amaeshi (alias Nwokorobia) father of plaintiff.
7. In his life time Amaeshi (Alias Nwokorobia) farmed on this land with members of his family, built their houses on some parts of this land without interference from anybody whatsoever.
8. Amaeshi (Alais Nwokorobia) Plaintiffs father had two other brothers, the oldest of whom was called Agbakwuru.
9. On the day in question, Agbakwuru, senior brother of Nwokorobia in a state of excitement and joy, because his newly married wife was to return, drew out his cap-gun and aimed to shoot at the sky. As he was about doing this somebody from the crowd hit him by the hand saying ‘do not do this’ Agbakwuru’s hand dropped, the cap-gun exploded and one Ikpo Ogide who came from the defendants family was killed accidentally.
10. When the defendants’ family could get at Agbakwuru, they arrested his brother Amaeshi (alias Nwokorobia) and that he should pay for his brother with his head.
11. Amaeshi (alias Nwokorobia) pleaded with them to allow him time to find his brother and for the mean time, gave them a portion of “ODONKWU” land with the tacit understanding that if Agbakwuru was found, and vengeance extracted according to Custom, the land so given would be returned. This land which is verged PINK on the plan attached is still in the possession of the defendants who are the descendants of Ogide family in Umualimikuenga Ezindo. This area of “ODONKWU” is the land in dispute in this suit.
12. A year later Amaeshi (Alias Nwokorobia) learnt that his brother Agbakwuru was hiding in a nearby village, he decided to have him back, arranging in the process that the defendants’ family should extract their revenge in the process.
13. As Agbakwuru was being taken home, he was attacked and killed by members of the defendants’ family paying therefore with his head for the death of Ikpo defendant’s relation in accordance with, Native Law and Custom of their people.”

I will at this juncture reproduce pieces of various evidence given by the appellant himself in an endeavour to trace the history of the land. At the beginning of his evidence in chief he said:-

“The Odonkwu Nwokorobia is situate at Umualim Eziudo Ezinihitte Mbaise within jurisdiction. I inherited the land n dispute from my father Nwokorobia. I knew a man called Nwoko. He Nwoko was my grandfather. My father Nwokorobia inherited the land in dispute from his own father named Nwoko who is now dead. When Nwoko died his sons shared his lands. He had two sons who shared his lands after his death. His first son was Elemanya; his second son was named Uhuakwukwa Egbuleye. Nwoko was the father of Uhuakwukwa Egbuleye. Nwoko was the father of Uhuakwukwa who was the father of Nwokorobia. My father’s name is Nwokorobis, he was also known as Amaeshi… My father was called Amaeshi from birth but after the killing of the member of Ogide family he began to be called Nwokorobia.

My father Nwokorobia, his father Umuakwukwa and grandfather named Nwoko farmed on the land in dispute.

My father inherited the land from his father. Nwokorobia is now dead”

The pertinent question here is, has the appellant pleaded traditional history and has his evidence so far reproduced above proved traditional history in consonance with the principle of law laid down in the Nkano v. Obiano case supra As far as I can see, paragraph (4) of the statement of claim supra is bereft of who founded the land and how it was founded. The fact that the said paragraph (4) stated that it was originally owned by the family of Nwoko has not specifically stated that Nwoko founded the land part of which is in dispute because it generalized that it was owned by the family of Nwoko, when it is usually one person that founds a land, either by settlement, conquest etc. In the instant case it is not even known how the said Nwoko owned the land (assuming the pleading established that he found it). Then came the pieces of evidence reproduced above which are devoid of the facts needed as evidence of tradition in proof of traditional history.

Then there are the discrepancies in his own evidence, like why his father was called Amaechi, and then his evidence that Agbakwuru was his father’s senior brother. See pages 62 ad 64 of the printed record of proceedings. I can’t seem to reconcile these two facts, because if the appellant’s father was called Amaechi because his grandfather had suffered the loss of children before him, then the reasonable presumption is that Amaechi did not have any brother that is senior to him. Minor as the discrepancies may be, they are material to the determination of the veracity of the traditional evidence.

It is a fact that the appellant while being cross examined did testify that Nwoko deforested the land. This is however outside his pleadings, and the law is settled on the effect of such evidence which does not derive its source from the pleadings. The position of the law is that evidence must support pleadings, as a party is expected to give evidence that is within the periphery of his pleadings and not beyond it. When such evidence are adduced the law says they should be ignored as they are regarded and treated as non issues. See Temile v. Awani 2001 12 NWLR part 728 page 726, Makwe v. Nwukor 2001 14 NWLR part 733 page 356, and Orizu v. Anyaegbunam 1978 5 SC. 21.

In converse, I am of course not unmindful of the position of the law that parties do not plead evidence but facts, see Saraki v. Society General Bank 1995 1 NWLR part 371 page 325.

However, in a case of this nature predicated on traditional history where particulars and specifications are required, a party is bound to plead succinctly such particulars. See First African Trust Bank Ltd. v. Partnership Investment Co. Ltd. 2001 1 NWLR part 695 page 517.

Another contradiction is in the evidence of PW2, as against the averment in paragraph (4) and the evidence of the appellant himself. The relevant evidence of PW2 reads thus:-

“I have heard of a man named Nwoko, he was the son of Elemaranya Nwoko and Elemaranya were of the same parents. The Plaintiff descends from Nwoko.”

The nephew of the appellant, PW6 in the course of cross examination, gave the history of the land in dispute thus:-

“The original owner of the land in dispute was the father of Nwoko named Nkudehi. Nkudehi had one son called Nwoko. Uhuakwukwa was the father of Nwokorobia. Nwokorobia was the rather of Aligwekwe among other sons.’

It is clear from the above that the evidence does not support the averment, in paragraph (4) of the statement of claim, and the appellant’s traditional evidence. Whereas the appellant’s history started with Nwoko family as the original owner of the land in dispute, that of PW6 started with one Nkudehi (the father of Nwoko whom he described as the original owner of the land. It is in fact a deviation from the appellant’s case, and the contradiction is glaring. When one studies the evidence adduced by the appellant, one is bound to see that they have not satisfactorily proved the traditional history of the land in dispute. They are riddled with contradictions and inconsistencies, which did not assist the plaintiff in the claim of declaration of title to land. It is a cardinal principle of law that a party who seeks a relief of an order of declaration of title to land and it is predicated on traditional history; it must plead and prove its case with cogent, credible, consistent and uncontradicted evidence. Evidence that are not consistent, but have discrepancies cannot sustain an action for declaration of title to land. See Onibudo v. Akibu 1982 7 SC.60, and Adesanya v. Aderonmu 2000 9 NWLR part 672 page 370.

It is in the light of the above discussion that I endorse the finding of the Court of Appeal, which after reproducing paragraph (4) of the statement of claim reads as follows:-

“There is nothing in this paragraph or in all the paragraphs of the statement of claim to show how the family of Nwoko came about the land. Was it by deforestation, or by conquest, or by purchase I agree with the learned counsel for the appellants that the pleading was bereft of the requisite particulars in a claim based on traditional history.”

The learned counsel for the appellant referred to paragraphs 5, 6, 7, 8 and 9 of the statement of claim on the existence of the appellant’s boundary neighbours, descendants of Nwoko family. According to him, the presence of these boundary neighbours who are descendants of Nwoko family goes to strengthen the evidence of the Appellant. He cited the case of Idundun v. Okumagba supra to wit he reproduced a holding of the court in his brief of argument, which reads thus:-

‘”proof of possession of connected 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, may also rank as a means, of proving ownership of the land in dispute.”

The above was not a finding as such but the restatement of one of the five ways of proving ownership of land.

“From the evidence of the Plaintiff and his witnesses and also Exhibit A it is certain that the land in dispute is surrounded by the lands of the sons of Nwokorobia or their relations except on the West where names of adjoining land owners from Nmaozu are given in Exhibit A. In the North-East the Defendants in their Exhibit B concede that the land in the possession of Akwaja’s son is on pledge but contradicted themselves by stating there under NOT IN DISPUTE. It is difficult to reconcile the two statements of the Defence on that point, more so when the Plaintiffs stand amounts to denial of the so-called pledge to Akwaja by the Defendant’s grandfather.” It is instructive to note that one of the five ways of proving ownership of land, as encapsulated in the Idundun’s case supra reads thus:-

‘”…For the provisions of Section 45 of the Evidence Act to apply, there must be an admission by the respondents, or a finding by the trial judge, that the land in dispute was surrounded by other lands belonging to the appellants. Not only was this fact not proved by the appellants there was also no admission to that effect on the part of the respondents. Furthermore, as the learned trial judge could not, and did not, make any finding on this crucial point, the inference under Section 45 of the evidence Act that the appellants were the owners of the disputed land could not have been drawn.”

Indeed, in the case at hand, the learned trial Judge found that the land in dispute was surrounded by the appellant’s relation’s lands. Before I continue I would like to examine Exhibits A and B more carefully. A careful perusal of these exhibits reveal that the land in dispute are physically the same, and both plans depict some same boundaries, like Akwaja family land and Eneremadu family land etc. The learned trial judge found the oral evidence of the plaintiff and his witnesses and the content of Exhibit A more probable and he believed them. It was the learned trial judge who saw and heard the witnesses of both sides, so he had the singular advantage of determining their credibility vis a vis the evidence of the other parties. The prerogative of believing or not believing any witness squarely rests on a trial Judge who watched the demeamour of witnesses, and the law is settled that any finding of a judge based on facts cannot and will not be interfered with by an appellate court unless the finding is perverse and is not supported by unchallenged credible evidence. See Makinde v. Akinwale 2000 NWLR part 645, page 435, Fatoyinbo v. Williams 1956 SCNLR 274, Awaegbo v. Eze 1995 1NWLR part 372, page 393, and Balogun v. Agboola 1974 1 All NLR part 2 page 66.

On the applicability of the provision of Section 46 of the Evidence Act Cap 112 Laws of the Federation of Nigeria to the instant case, I will reproduce this provision which was formerly section 45 hereunder. It reads:-

“46. Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.”

The appellant in this appeal has proved that the ownership or possession of the various pieces of land surrounding the land in dispute and which form boundaries to the land, vest on the appellants’ relations, with whom they share common ancestry. The appellant has also shown vide Exhibit’ A’ that the land very next to the land in dispute is in his possession.

Although the acts of possession of the land was not satisfactorily established as is discussed in the earlier part of the judgment due to the discrepancies in the evidence of the appellant’s evidence, the appellant has proved that the land he is farming on is contiguous to the land in dispute, and this has raised the probability the appellant owns the land in dispute. See Kaiyaoja v. Egunla 1974 12 SC. 55. The law is trite that civil cases are decided on balance of probability and preponderance of evidence. See Elias v. Omo-Bare 1982 5 SC.25, and Odulaja v. Haddad 1973 II SC. 357.

In the light of the above discussions and reasonings, I am satisfied that the appellant proved his ownership of the land in dispute vide the fifth way of proving title to land. The appellant may have failed to prove title by traditional history, which was what he predicated his case on but the evidence before the court has proved his entitlement to the land by one of the ways enunciated in the Idundun v. Okumagba case supra.. In the circumstances, I resolve this last issue partly in favour of the appellant, and ground (3) of appeal fails, whereas ground (4) succeeds.

In the final analysis, the appeal succeeds, and it is hereby allowed. The judgment of the trial court is hereby affirmed and that of the Court of Appeal is set aside. I assess costs at N50, 000.00 costs in favour of the appellant.

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SC.291/2002