Otuaha Akpapuna & Ors V. Obi Nzeka & Ors (1983)

LawGlobal-Hub Lead Judgment Report

IRIKEFE, J.S.C. 

The proceedings giving rise to this appeal were commenced by the respondents before this court in the then ASABA-OGWASHI-UKU Judicial Division of the HIGH COURT OF MID-WESTERN STATE (NOW BENDEL) of Nigeria. The claim read as follows:

“(a) A declaration that all that piece and parcel of land lying and situate in OBOMKPA, ASABA DIVISION, which land is verged in pink on PLAN No. LSU 145 filed by the plaintiffs in this case is the property of the plaintiffs’ people of OBOMKPA.

(b) The sum of 310,000 (ten thousand pounds) being general and special damages for trespass in that the defendants, their servants and or agents, on or about the 23rd December, 1970 broke into the land, cleared a portion of it and deposited a juju pot thereon, thereby desecrating plaintiffs’91 ancestral shrine, which the plaintiffs had to reactivate at great expense (then follows particulars of special damages).

(c) An injunction restraining the defendants their servants and or agents and each of them from further act of trespass upon the said land. ”

The action was prosecuted throughout by the respondents as representatives of the OBOMKPA TOWN of the then ASABA DIVISION and defended also in a representative capacity by the appellants on behalf of IDUMUOKAKWU quarter of UKWUNZU TOWN.

In their last amended statement of claim the respondents (plaintiffs in the court of first instance) averred inter alia as follows:

“1. The plaintiffs are people of OBOMKPA Town in ASABA DIVISION and bring this action for themselves and on behalf of the people of their town.

1A. Both OBOMKPA TOWN and UKWNZU TOWN are clearly shown and marked in

(i) 3rd Edition of Mid-Western Nigeria Map No. 1000/2/7-71 of 1971;

(ii) ASABA and IKA DIVISIONS Map of 1966;

(iii) ISHAN DIVISION Map No. 1000/1/5-71.

2. The defendants are members of Idumuokakw village of UKWUNZU TOWN, ASABA DIVISION and are sued for themselves and on behalf of the people of their village.
3. The land in dispute is situate in OBOMKPA and is known as ‘OJIOKPA’, OFIA OBOMKPA or OFIA IRU AFA. It is more particularly described as to its extent and location and verged PINK on Plan No. LSU 145 filed with the statement of claim.
4. The land in dispute is bounded on the South and Southwest by the land of the people of UKWUNZU on the North by plaintiffs’ OWUWU Stream, on the Northwest by plaintiffs’ OJIOKPA Stream, which has a confluence with MOBO Stream of the people of UKWUNZU, and on the East and Southeast, by plaintiffs’ peoples land.
5. The plaintiffs inherited a large expanse of land from one ANAGBA, their earliest ancestor who broke the land including the one now in dispute as a virgin forest.
6. Anagba was a member of the family of one Chima who was a Chief under an Oba of the old Benin Kingdom. Chima angered the Oba who thereupon ordered his warriors to get Chima, remove his staff of office (Ufie) from him and if necessary kill him in the process. Chima got wind of this plan and escaped with his whole household and supporters.
7. Among those who escaped with Chima were Onicha, Ado, Adago, Chaeze, Anagba, Ifite, Ukpali Oligbo, Gbualo, Esigie, Alimini Ugo.
8. Chima and his train after a long travel settled at a place near the present Onicha Ugbo in Asaba Division, and subsequently as the pursuit on them heated up they spread to found some of the towns now known as UMUEZECHIMA in ASABA DIVISION.
9. There are now nine towns in Umuezechima also called Ezechima Clan viz: Obior, Onicha-Ugbo, Issele-Uku, Onicha-Ukwu, Obomkpa, Ezi, Onicha-Olona, Issele-Mkpitima and Issele-Azagba.
10. Ado and Chaeze were strong men of war to whom aged and tired Chima entrusted the staff of office for safe custody. Anagba was a famous medicine man that was to direct the flight with his magical powers.
11. At a place now called Onicha-Ukwu Chima’s people made a sacrifice to confuse their pursuers who in fact withdrew for a long time.
12. The flight had to continue however and Anagba through his constant consultation on his AFA (oracle) directed his people (who could continue the flight) through the land now known as Obomkpa at which place his wife gave birth to a child. Anagba left a small party to take care of his wife and child having made sure from his oracle that the place was to be his permanent home.
13. Anagba directed the remainder of the party, headed by Ado, Chaeze and Ifite, through to the town now called Ezi where a child was born to Ifite. Ifite remained there.
14. Anagba having made sure that Ado and Chaeze were on the right track, and that the Ufie of Chima was therefore safe, retraced his step to his family at Obomkpa. Ado and Chaeze continued through the place now called Ukwunzu, Illah to the present Onitsha in East Central State. Onitsha is also known as Onitsha Ado.
15. Anagba traversed a large expanse of land including the area now in dispute, and planted several protective jujus thereon. By his magical powers he controlled the float of several streams on the said land thereby making the land the safer for habitation.
16. The land traversed by Anagba (including the place now known as UBULUBU) extended to EMULE and also UKPEI (OHORDUA), which is across OJIOKPA Stream.
17. When the warriors of the Oba of Benin withdrew, they returned to the Oba to report that Chima’s people had fled beyond capture, but the Oba did not accept the story. He instead took it as a challenge to his might and ordered reinforcement from various sections of his kingdom, including some of those who had returned who would then act as guide to the fresh recruits.
18. A fresh search for Chima’s people followed, but the would-be assailants, after a long travel, arrived within the present Asaba Division as friends. They had camped near the present Idumuje-Unor and Ugbodu.
19. It was during the reign of Obi Ngwuagiliga of Obomkpa that one IKOGWUDA and a few men came to Obomkpa. They introduced themselves as friends and after a few days, left and settled at a place now known as ODO village, UKWUNZU, which is the foundation of UKWUNZU town.
20. Several Obis have reigned in Obomkpa since the time of Anagba, among whom was Obi Obome.
21. During the reign of Obi Obome, a strong hunter named UWAGBOI OMEZI came to Obomkpa with a few followers and begged Obi Obome to allow them to settle on his Obi’s land. Obome granted his request and asked his son Uya to show Uwagboi a site. Uya showed Uwagboi a place in Obome’s farm.
22. Uwagboi and his followers later left to stay at a place called Ogodor far away on the way to EBU, but some of these followers returned to Obomkpa and resettled in the old farm spot. This settlement, which was referred to by the then, Obomkpa people as UGBOBA (father’s farm) grew to become one of the four villages that make up Obomkpa town. The whole town had a common Obi and did things in common.
23. Obi Uya reigned after Obome, and Usifo succeeded Uya, then Dibia after whom reigned his son CHIDI. During the period of CHIDI’s reign, one KABAKWU was the head of OGODOR family. Obi CHIDI was the father of Obi NSEUBO who begat Obi NZEKA the 1st plaintiff in this case.
24. The said KABAKWU was the son of one OFUATE of OGODOR and ANOMCHIONYE the daughter of Obi UYA of Obomkpa.
25. KABAKWU was convicted of a criminal offence at ILLAH CROWN COURT and fined five pounds, which he could not pay. His mother ran to Obi CHIDI who then ordered the four villages of Obomkpa, namely ogbe Obi, Ugboba, Ogbe-Onoi and Ukpatu to contribute 1 pounds. 5/ each with which KABAKWU was redeemed. KABAKWU was brought back to Obomkpa amid great rejoicing.
26. The plaintiffs as owners in possession have economic and cash crops on the land in dispute. They have farmed it, worshipped their jujus as their ancestors before them, and have on payment of royalties to them allowed timber contractors to cut timber in the land without hindrance from anyone including the defendants.
27. On or about the 23rd of December 1970, the defendants, their servants and or agents, acting in concert with the defendants in High Court Suit No. A/11/71, who are from Ugboba, Obomkpa entered and cut a long part within the land in dispute, and cleared the portion verged yellow on plaintiffs’ plan.

They further deposited a juju pot within the cleared portion, thereby desecrating the ancestral “AFA” shrine of the plaintiffs, which the plaintiffs had to reactivate at great expense.

27A. In the said Suit No. A/11/71 the defendants in that case have conspired and are asserting that they from Ugboba village of Obomkpa is a town (not a quarter/village of Obomkpa) and have boundaries with the defendants of UKWUNZU. The plaintiffs hereby plead the statement of defence and plan filed by the defendants in A/11/71 and the proceedings in Ezechima Clan Court Suit No. 28/51″.

So far as relevant, the appellants met the above averments as follows in their amended statement of defence:

3. “The defendants deny paragraphs 2, 3, 4 and 5 of the statement of claim and will put the plaintiffs to the strictest proof thereof. In further answer to paragraph 2 of the statement of claim, the defendants assert that there are seven quarters in UKWUNZU town and the defendants come from one of the seven quarters.
4. With regard to paragraphs 3 and 4 the defendants state that the land in dispute is in UKWUNZU and it is part of the land called ‘OFIA IKOKA’. It is verged in pink in the defendants’ plan. The entire OFIA IKOKA is verged violet in the defendants’ plan Number MWC 110/72 filed with this statement of defence.

The countersigned Survey plan by the Surveyor-General, Midwestern State will be tendered at the trial).

(5. The defendants’ plan accurately shows the land in dispute and all relevant surrounding features.

7(a) The defendants further state that UKWUNZU town had long been established ever before the founding of any of Chima’s towns.

(b) The defendants at or during the trial will found on the Intelligence Report on ODIANI GROUP, ASABA DIVISION, and BENIN PROVINCE by MR. R. B. KERR, DISTRICT OFFICER and as No. WP 13809A Secretary’s Office, Southern Provinces; and other legislations, plan and maps relevant to the existence and establishment of UKWUNZU with its allied towns.

8. During the wave of one of the Benin wars, some refugees who were led by one Ise ran to UKWUNZU where they took shelter from the ravages of the war.
9. Later Ise and his retinue continued their flight till they settled at the site no known as Issele-Uku.
10. Ise begat Chima and Chima begat Obioma, Onicha and Oligbo.
11. Anagba was the ancestor of the plaintiffs’ people and he was a herbalist who came from Ogidi in the East Central State (now Anambra).
12. The said Anagba served Oligbo, one of the descendants of Chima and during his servitude he conceived NKEMAMUNA, one of the daughters of his master and eloped with her.
13. Anagba then fled with Oligbo’s daughter to UKWUNZU where the defendants’ people gave them a site opposite UGBOBA town as sanctuary.
14. It was at the reign of Obi Madagbai one of the Obis of UKWUNZU that the plaintiffs’ people came to the defendants’ people for the said protection.
15. Obi Madagbai sheltered the erring Anagba and played a leading role in trying to pacify the highly infuriated Oligbo.
16. It is generally believed that Oligbo died of the shock and shame of the daughter’s scandal and Anagba was only reconciled to Oligbo’s sin called Obi Owelle at the incessant intercessions and plea of Obi Madagbai of UKWUNZU.
17. Anagba paid dearly for his crime before he was forgiven.
18. UKWUNZU was founded by Ogbe who migrated from IFE to the new land due to the spirit of adventure.
19. Ogbe and his followers were the first people ever to settle at UKWUNZU and they farmed extensively on the land in dispute and areas now known and called Ogodo, Ubulubu, Obomkpa.
20. Besides his family members Ogbe left Ife with his brother called Ugbodu. It was Ugbodu who founded the present Ugbodu town while Ogbe founded UKWUNZU.
21. Only 5 known rulers, who are of late referred to as Obis have reigned at Obomkpa whilst several Obis have reigned in UKWUNZU since the time of Ogbe.
22. The defendants also deny vehemently paragraph 26 of the statement of claim. On the other hand, the defendants and their people are owners in possession of the disputed land. As owners in possession they have exercised maximum acts of ownership thereon to wit:

(a) Farming

(b) Hunting

(c) Worshipping juju (Shrines)

(d) Exploiting timber without any hindrance from the plaintiffs, their people or any other person

(e) Planting economic crops.”

DXIssues having been so joined the action proceeded to trial and both parties herein led evidence, both oral and documentary.

The traditional evidence produced at the hearing shows that the two communities in this case came into existence as the result of migrations by people either from the ancient Kingdom of Benin direct or from AKURE or IFE in the YORUBA Kingdom through Benin. The respondents herein come under the category of those who came from Benin while the appellants represent the second group. While the Benin immigrants now have Ibo as their sole language, the YORUBA immigrants speak both YORUBA and Ibo. There is evidence that the descendants of the YORUBA immigrants refer to themselves as well as their own brand of YORUBA dialect as OLUKUMI. The OLUKUMI settlements as revealed by the evidence are: UKWUNZU, UGBODU, UGBOBA, UBULUBU, OGODO and IDUMUOGO. It was also not seriously contested that Obomkpa is one of the 9 settlements that constitute the EZECHIMA Clan, the others being:-Obior, Onicha-Ugbo, Issele-Uku, Onicha-Ukwu, Ezi, Onicha-Olona, Issele-Mkpitima and Issele-Azagba. A common factor in the folklore of the parties is the man ANAGBA, the herbalist or magician. Each side in seeking to establish prior settlement of the area in dispute introduced Anagba into the case in its own peculiar way, assigning to him a role at a particular point in time.

One inescapable conclusion from the welter of testimony tendered is that the Ezechima settlements and the Olukmi settlements had been in existence for upwards of two centuries.

The learned trial judge (MOJE BARE J.) after having heard all the evidence recorded a judgment in which he dismissed the respondents’ claim for title and injunction and made an order of non-suit in respect of the claim for damages for trespass. Both parties appealed against the decision of the court of first instance, the respondents appealing against the dismissal of their claim for title and injunction, while the appellants appealed against the order of non-suit.

The Court of Appeal after entertaining argument from counsel on the grounds of appeal filed before it, in a unanimous judgment dismissed the respondents’ claim for damages for trespass, thus setting aside the lower court’s order of non-suit. The court then reversed the lower court and pronounced a decree of title and injunction in favour of the respondents in regard to the land in dispute.

The appellants being dissatisfied with the decision of the Court of Appeal have now appealed to this court on the following grounds:

“1. The Federal Court of Appeal misunderstood and misapplied the principle laid down in KOJO vs. BONSIE 1957 1 W.L.R. 1223, 1226.

PARTICULARS OF MISDIRECTION AND MISAPPLICATION

(a) There being a conflict of traditional history it became necessary to resolve such conflict by reference to the facts in recent years as established by evidence and so determine which of the two competing histories is the more probable.

(b) The Federal Court of Appeal found that the plaintiffs were not in exclusive possession of the land in dispute.

(c) In the premises the plaintiffs have failed to discharge the onus of proving that they were the exclusive owners of the land.

(d) Properly understood and correctly applied, KOJO vs. BONSIE was authority for dismissing the plaintiffs’ claim.

2. The Federal Court of Appeal erred in treating a portion of the evidence given in chief by D.W.6 (Obi Christopher Ogho I of UKWUNZU) as corroboration of or support for the plaintiffs’ claim to title to the land in dispute.

PARTICULARS OF ERROR

(a) What D.W.6 said in his evidence in chief (pp. 103-104) was that the land in dispute ‘was part of land that Obi Madagbai gave to Anagba to settle on.’

Under cross-examination the witness disclaimed having stated that the land in dispute was part of the land Madagbai gave to Anagba.’

(b) It is apparent from the con of his evidence in chief that the emphasis was on a grant to accommodate Anagba whilst it is highly probable that the question addressed to the witness under cross-examination and therefore his answer must have put the emphasis on an absolute grant to Anagba.

(c) In the alternative to (a) and (b) plaintiffs did not base their claim on a grant to them by Obi Madagbai but on an allegation that they settled on the virgin land. It was accordingly wrong to have awarded them judgment on the basis that they probably had such a grant.

(d) In the further alternative, where a witness makes two apparently contradictory statements he ought to be given the opportunity of reconciling or explaining the apparent contradiction (if he can) otherwise the evidence, if truly contradictory, must be treated as worthless and unreliable.

3. The Federal Court of Appeal erred in law in holding as follows:-

‘It is equally clear that a claim for damages for trespass does not mean that a plaintiff is seeking . . . a declaration that he is in exclusive possession thereof.

PARTICULARS OF ERROR

Possession, in order to support an action for trespass to land must be clear and exclusive and exercised with the intention to possess. (Halsbury’s Laws of England 3rd Edition Vol. 18 para.1213).

4. Judgment is against the weight of evidence.
5. Having come to the conclusion that ‘the claim for damages for trespass was rightly refused by the learned trial judge” the Federal Court of Appeal erred in law in making the order for injunction which was purely ancillary to the claim for trespass.
6. The Federal Court of Appeal erred and misdirected itself in law in granting to the plaintiffs ‘a declaration to a right of customary occupancy (sic) of the land in dispute in this case’.

PARTICULARS OF ERROR AND MISDIRECTION

(a) On the evidence before the court the land in dispute is land to which section 36 of the Land Use Act applies.

(b) The court having found that plaintiffs were not in exclusive possession no declaration of entitlement to a customary right of occupancy ought to have been granted to them.”

In the brief filed on the appellants’ behalf by counsel, the following matters were listed as questions calling for a determination in this appeal, namely:

(a) Whether the Federal Court of Appeal has properly understood and correctly applied the principle laid down in KOJO vs. BONSIE to the facts of this case.

(b) Whether the Federal Court of Appeal was correct in treating a portion of the evidence ofD.W.6 (Obi Christopher Ogoh) as corroboration of or support for the plaintiffs’ claim to title to the disputed land.

(c) Whether, in all the circumstances and having regard to the evidence in this case and the provisions of the Land Use Act, a declaration ought to have been made that the plaintiffs are entitled to a customary right of occupancy.”

Professor Kasunmu, learned counsel representing the appellants argued that the Federal Court of Appeal erred in reversing the trial judge on the question of title and injunction. He stated further that, although the Federal Court of Appeal purportedly did so by relying on the testimony of D.W.6 (Obi Christopher Ogoh, the Obi of UKWUNZU) given during examination-in-chief, it was the view of learned counsel that this evidence had been taken out of its con. He urged us to read the testimony of this witness in its entirety, as, according to counsel, what the witness deposed to during examination-in-chief had been retracted under cross-examination. In the alternative counsel then argued that even if D.W.6 had in fact stated what was attributed to him in examination-in-chief, the respondents would not on that score alone, be entitled to the declaration awarded them by the Federal Court of Appeal as, in the view of counsel, the respondents did not plead that their alleged title to the disputed land emanated from a grant from the appellants. Finally counsel argued that in so far as the respondents’ case was concerned, based on the averments in their pleadings, the evidence given by D.W.6 went to no issue.

On the cross-appeal which deals with the non-suiting of the respondents’ claim for damages for trespass, counsel was of the view that the Federal Court of Appeal was right in dismissing the said claim as it had not been proved. Dr. Odje, learned counsel for the respondents in reply submitted that although the traditional evidence in the case as a whole had been rejected, the Federal Court of Appeal was right in decreeing title and injunction in favour of the respondents on the totality of evidence of dealings with the disputed land Wl1hin recent years in line with the principles laid down in KOJO v. BONSIE (1957) 1 W.L.R. 1223. Learned counsel however, with commendable candour admitted that it was never the case of the respondents that the appellants placed them on the disputed land. Counsel then stressed that although a plaintiff must as a rule succeed on the strength of his case, he is not debarred from drawing solace from an admission made by the defence which would go to buttress the case of the plaintiff. When asked if the situation would be the same even if such evidence went to no issue, counsel submitted that the evidence of D.W.6 supported the case of the respondents.

The Federal Court of Appeal took the view that the High Court was right in refusing to decree an award of damages; it based this conclusion on the premise that there was no basis before the High Court upon which damages could have been assessed. The Federal Court of Appeal then went on to hold, and I think it was right in so doing, that as the High Court had not afforded the parties herein an opportunity of being heard before it made the non-suit order on the claim for damages for trespass in line with the decision of this court in CRAIG vs. CRAIG (1967) N.M.L.R. 52, the said order was incompetent and invalid. It then proceeded to dismiss the claim under that head. I also would endorse the order of dismissal as nothing that was urged upon us by counsel has persuaded me to hold a contrary view. The cross appeal on this ground accordingly fail and it is dismissed.

One of the most crucial of the conflicting contentions between the parties is the question whether UGBOBA is a town on its on with its own OBI as alleged by the appellants or one of the quarters of OBOMKPA as alleged by the respondents. The learned trial judge (MOJE BARE, J.) resolved this issue in favour of the appellants. He did so in the following words:

“I accept the evidence of the defendants and their witnesses and exhibit “F” that UGBOBA is a town in her own right with her own OBI, and reject that of the plaintiffs that UGBOBA is a quarter in OBOMKPA.”

The learned trial judge took the view, as he was entitled to do, that the traditional evidence in the case was inconclusive, and based his decision in dismissing the respondents’ case on the inadequacy of the evidence of acts of ownership by the respondents within recent times. This accords in my view with the decision in KOJO vs. BONSIE (1957) 1 W.L.R. p. 1223 at p. 1226-7 where Lord Denning in delivering the judgment of their Lordships of the Privy Council stated thus:

“Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. 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 misdemeanour is a little guide to the truth. The best way is to test the traditional history 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 was what the High Court did in this case and if only the Federal Court of Appeal had adverted its mind to the express findings of the lower court in this case, it might not have fallen into the error it did by reversing that court. This was what that court said:

“On the preponderance of evidence I find the evidence of the defenders more plausible and that the plaintiffs have at no time been in exclusive possession of the land in dispute. …. I accept the evidence of the defendants and their witnesses as to acts of possession of UGBOBA and UKWUNZU people on the land in dispute hatched PINK in exhibit “A”. I do not consider the origin of Anagba or of the defendants or of UGBOBA as material in this case. With the greatest of deference to their Lordships of the Court of Appeal, the evidence ofD.W.6 was not direct evidence, but the self-same evidence of traditional history, which the learned judge had stigmatised as inconclusive. Surely D.W.6 could not have been speaking from personal knowledge of what ANAGBA did or did not do over 200 years ago. I think that court was in error when, in its lead judgment (per Agbaje, J.C.A.) after setting out the following evidence given-in-chief by D. W.6:

“The land in dispute is called OFIA IKOKA by the people of UKWUNZU; it was part of land that Obi Madagbai gave to ANAGBA to settle on . . .”

It then proceeded to state:

“It appears to me that on this evidence ANAGBA would be entitled to title to the land in dispute either as a result of a grant by the Obi of Madagbai or as a result of the settlement thereon having first got the consent of Obi Madagbai to do so.”

It is trite law that issues are tried on the parties’ pleadings and the parties are to be bound thereby. My understanding of the correct legal position is that a defendant in a civil action is not obliged to wade, blindfold, through a booby-trapped and uncharted minefield, in order to discover at the end thereof what case he has to meet.

As indicated earlier on in this judgment, each of the parties in this case, bases its claim to title to the land in dispute on prior settlement and this was why learned counsel representing the respondents readily conceded that it was never his clients’ case that the appellants permitted them to settle on the disputed land. It would therefore be wrong for the Federal Court of Appeal to provide the respondents with a case, which they did not set up in their pleadings. There are several decisions of this court on this point and the following are but a few: GEORGE & 2 ORS. vs. DOMINION FLOUR MILLS LTD. (1963) 1 ALL N.L.R. p. 71; N.I.P.C. v. THOMPSON (1969) N.M.L.R. p. 99; EMEGOKWUE vs. OKADIGBO (1973) 4 S.C. p. 113 and SHELL B.P. LTD. vs. ABEDI & ORS. (1974) 1 ALL N.L.R. p.1. The common ratio decidendi in the above cases is that in an action before the High Court, parties are to be bound by their pleadings. Their case stands or falls in accordance with the averments made in the pleadings and the evidence produced in proof of those averments. Any evidence not supported by the pleadings such as in the case in hand should be ignored as it goes to no issue. It is manifest that a plaintiff can only derive strength from evidence volunteered by a defendant if such evidence goes to an issue and is therefore admissible. This is my understanding of AKINOLA & ANOR. vs. OLUWO & ORS. (1962) 1 ALL N.L.R. p.224. In the case in hand the appellants did not counter-claim for title. They were content to allow the respondents to succeed on the strength of their own case. Had they counter-claimed for title, and then it may perhaps be argued that the evidence by D.W.6 could be treated as an admission against interest. See – KODILINYE VS. ODU – 2 W.A.C.A. (1935) p. 336.

In conclusion I have not the slightest doubt in my mind that the Federal Court of Appeal fell into serious error in setting aside the judgment of the trial court dismissing the respondents’ claim for title and injunction in the face of the clear and unequivocal findings of fact by the said trial court. The learned trial judge having held that the traditional evidence was inconclusive and further that on the preponderance of evidence he found that the evidence of the appellants was more plausible and that the respondents were at no time in exclusive possession of the disputed land, the order of the Federal Court of Appeal setting aside these findings of fact was best an exercise in futility. While a court of appeal may differ from a trial court on the evaluation of evidence, it certainly should not do so in an area concerned, as in this case, with the trial court’s impression of the evidence given by witnesses. An appeal court would be in as strong a position as the trial court if what is in issue is the inference to be drawn from evidence contained in the printed record of trial. See OKPIRI & ORS. vs. JONAH & ORS. (1961) ALL N.L.R. p. 102 in which the decisions in WATT OR THOMAS vs. THOMAS (1947) A.C. 484 and BENMAX v. AUSTIN MOTOR CO. LTD. (1955) A.C. 370 were considered and approved of. In BENMAX v. AUSTIN a decision of the House of Lords in England Viscount Simmonds has this to say “This does not mean that an appellate court should lightly differ from the finding of a trial judge on a question of fact, and I would say that it would be difficult for it to do so where the finding turned solely on the credibility of a witness. But I cannot help thinking that some confusion may have arisen from failure to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts. . . A jury finds that the defendant has been negligent and that is the end of the matter unless its verdict can be upset according to well-established rules. A judge sitting without a jury would fall short of his duty if he did not first find the facts and then draw from them the inference of fact whether or not the defendant had been negligent.”

See also WOLUCHEM & ORS. vs. GUDI & ORS. 1981 5 S.C. p.291 and ARIORI & ORS. vs. ELEMO & ORS. – 1983 1 S.C. p. 13.

In the face of the solid findings of fact made by the learned trial judge in this case in favour of the appellants, after he had rejected the traditional evidence as inconclusive, it would be extremely difficult, to say the least, to support the reversal of those findings as the Federal Court of Appeal had done. In the result this appeal succeeds and it is allowed. The judgment of the Federal Court of Appeal dated 2nd December 1981 decreeing title and injunction in favour of the respondents herein in respect of the land in dispute as per exhibit “A” (plaintiffs’/respondents’ plan) is hereby set aside. That portion of the Federal Court of Appeal’s judgment dismissing the claim for damages for trespass is affirmed (it being a substitution for the order of non-suit erroneously made by the trial court).

Accordingly the decision of the High Court of Bendel State (MOJE BARE, J.) in this matter dated 9th February 1979 dismissing the claims of the respondents herein for title and injunction is hereby affirmed subject to the variation set out above in the Federal Court of Appeal. The appellants are awarded N300 costs against the respondents.

All judgments are read. Idigbe, J.S.C. who is not present had expressed agreement.

BELLO, J.S.C. I had the privilege of reading the judgments of my learned brothers, lrikefe and Obaseki, JJ.S.C. For the reasons stated in both judgments, I agree that the appeal by the defendants be allowed and the decision of the Federal Court of Appeal granting title and injunction to the plaintiffs be set aside; that the cross-appeal by the plaintiffs be dismissed and the decision of the Federal Court of Appeal setting aside the order of non-suit and substituting the order of dismissal therefore in respect of the claim for trespass be affirmed. I also agree with the order as to costs.

OBASEKI, J.S.C. I have had the advantage of reading in draft the judgment just delivered by my learned brother, lrikefe, J.S.C. I agree with him that the appeal by the defendants is allowed and the cross-appeal by the plaintiffs be dismissed.

The appellants were the defendants in an action Suit No. A/16/71 instituted on the 27th day of September, 1971 by the respondents as plaintiffs, claiming as per paragraph 29(a), (b) and (c) of the amended statement of claim:

(1) A declaration that all that piece and parcel of land lying and situate in Obomkpa, Asaba Division which land is verged pink on Plan No. LSD 145 filed by the plaintiffs in this case is the property of the plaintiffs’ people of Obomkpa.

(2) The sum of ‘a310,000 (ten thousand pounds) being general and special damages for trespass in that, the defendants, their servants and or agents on or about the 23rd December, 1970 broke into the land, cleared a portion of it and deposited a juju thereon, thereby desecrating plaintiffs’91 Ancestral Shrine, which the plaintiffs had to reactivate at great expense.

PARTICULARS OF SPECIAL DAMAGES

Total 1,017:10:

General Damages 8,982: 10:

—

Grand Total 10,000:

(3) An injunction restraining the defendants, their servants and or agents, and each of them from further acts of trespass upon the said land.

Pleadings, on the orders of the court, were settled, filed and exchanged and the issues joined eventually came before Moje Bare, J. for trial. On completion of the trial, he gave a well-considered judgment in which he made an order of dismissal in respect of the claims for declaration of title and injunction, and an order of non-suit in respect of the claim for damages for trespass. The plaintiffs were not satisfied with the judgment and being aggrieved by the decision, they appealed to the Federal Court of Appeal. Ten grounds of appeal were argued before the Federal Court of Appeal. The defendants also cross-appealed against the order of non-suit. After hearing arguments on the grounds of appeal and grounds of cross appeal filed, the Federal Court of Appeal (Ete, Agbaje and Okagbue JJ.C.A.) gave a considered judgment allowing the appeal against the order of dismissal on the claim for declaration of title and injunction. They also allowed the defendants’ cross-appeal against the order of non-suit. In the concluding paragraph of the lead judgment (in which Ete, J.C.A. and Okagbue, J.C.A. concurred) Agbaje, J.C.A. concluded as follows:

“The conclusions I reach therefore in the plaintiffs’ appeal are as follows:

(1) They are entitled to judgment on their claim for a declaration of title and injunction against the defendants in respect of the land in dispute;

(2) The claim for damages for trespass was rightly refused by the learned trial judge.

As regards the cross-appeal of the defendants complaining about the order of non-suiting the plaintiffs’ on their claim for trespass, I am satisfied that the order of non-suit was wrongly made. In the first place, the claim for damages for trespass was not proved on the findings of the learned trial judge. In the second place, the learned trial judge did not call for addresses from counsel on the issue of non-suit before he made the order. See Craig v. Craig (1967) NMLR. 52.

In the result the plaintiffs’ appeal succeeds on the issue of title to land and an injunction. The plaintiffs are hereby granted a declaration to a right of customary occupancy of the land in dispute. An injunction restraining the defendants and their servants or agents from further acts of trespass on the land in dispute is hereby granted the plaintiffs. The claim for damages for trespass is hereby dismissed.”

The defendants were dissatisfied with the decision on the claim for declaration of title and injunction and have appealed to this Court. The plaintiffs were also dissatisfied with the order of dismissal of their claim for damages for trespass, and have also cross-appealed. The defendant’s filed 6 grounds of appeal while the plaintiffs filed two grounds of appeal.

They also filed their briefs of arguments in support of their grounds of appeal and cross-appeal.

In the appellants’ brief, three main questions were set out for determination in this Court. They read as follows:

“(a) Whether the Federal Court of Appeal has properly understood and correctly applied the principle laid down in Kojo v. Bonsie to the facts of this case.

(b) Whether the Federal Court of Appeal was correct in treating a portion of the evidence of D.W.6 (Obi Christopher Ogoh) as corroboration of or support for the plaintiffs’ claim to title to the disputed land.

(c) Whether in all the circumstances and having regard to the evidence in this case and the provisions of the Land Use Decree, a declaration ought to have been made that the plaintiffs are entitled to a customary right of occupancy.”

These questions were properly formulated from grounds 1, 2, 5 and 6, which read:

(1) The Federal Court of Appeal misunderstood and misapplied the principle laid down in Kojo v. Bonsie (1957) 1 WLR 1223, 1226.

PARTICULARS OF MISDIRECTION AND MISAPPLICATION

(a) There being a conflict of traditional history, it became necessary to resolve such conflict by reference to the facts in recent years as established by evidence and so determine which of the two competing histories is the more probable.

(b) The Federal Court of Appeal found the plaintiffs were not in exclusive possession of the land in dispute.

(c) In the premises the plaintiffs have failed to discharge the onus of proving that they were the exclusive owners of the land.

(d) Properly understood and correctly applied Kojo v. Bonsie was authority for dismissing plaintiffs’ claim.

(2) The Federal Court of Appeal erred in treating a portion of the evidence given-in-chief by D.W.6 (Obi Christopher Ogoh 1 of Ukwunzu) as corroboration of or support for the plaintiffs’ claim to title to the land in dispute.

PARTICULARS OF ERROR

(a) What D.W.6 said in his evidence-in-chief (pp.103-104) was that the land in dispute ‘was part of the land that Obi Madagbai gave to Anagba to settle on’. Under cross-examination, the witness disclaimed having stated that the said land in dispute was ‘part of the land Madagbai gave to Anagba.’

(b) It is apparent from the con of his evidence in chief that the emphasis was on a grant to accommodate Anagba whilst it is highly probable that the question addressed to the witness under cross-examination and therefore his answer must have put the emphasis on an absolute grant to Anagba.

(c) In the alternative to (a) and (b), plaintiffs did not base their claim on a grant to them by Obi Madagbai but on an allegation that they settled on the virgin land. It was accordingly wrong to have awarded them judgment on the basis that they probably had such a grant.

(d) In the further alternative, where a witness makes two apparently contradictory statements, he ought to be given the opportunity of reconciling or explaining the apparent contradiction (if he can) otherwise, the evidence if truly contradictory must be treated as worthless or unreliable.

(5) Having come to the conclusion that the claim for damages for trespass was rightly refused by the learned trial judge, the Federal

Court of Appeal erred in law in making the order for injunction which was purely ancillary to the claim for trespass.

(6) The Federal Court of Appeal erred or misdirected itself in law in granting to the plaintiffs ‘a declaration to a right of customary occupancy (sic) of the land in dispute in this case.’

PARTICULARS OF ERROR AND MISDIRECTION

(a) On the evidence before the court, the land in dispute is land to which section 36 of the Land Use Act applies.

(b) The court having found that plaintiffs were not in exclusive possession, no declaration of entitlement to a customary right of occupancy ought to be made.

The questions raised by the grounds are questions of mixed law and facts and their determination necessarily calls for an examination of the relevant evidence adduced before the trial court and the facts found by the learned trial judge.

As these facts were not stated in a summary form by the learned trial judge but enmeshed in the of his judgment, I shall proceed straight away to quote specific portion of his judgment, which contains the findings. The learned trial judge, examining the evidence before him said:

“To come to the exhibits, exhibit ‘A’ plaintiffs’ plan which shows the area verged Pink as the area in dispute also shows that

(1) Ugboba quarter is within the said Pink verge

(2) A road allegedly constructed by one Mathew Ogwu in 1952

(3) Area verged Yellow showing defendants’ alleged trespass

(4) Ojiokpa stream is the boundary between the land of Ohordua and Obompka

(5) Scattered rubber plantations.

Exhibit A is not supported by the evidence of p. w.2, or by exhibits C and E as to boundary. … Exhibit ‘C’ Government plan tendered by the plaintiffs confirms not only that Ohordua is far away from the boundary but also that Ewatto, Ewohimi and other towns and villages are closer to the boundary between Obomkpa and any Ishan settlements.

Exhibit ‘E’ also tendered by the plaintiffs supports exhibit ‘C’. I come to the irresistible conclusion that exhibit ‘A’ is incorrect as to the fact that Ojiokpa is the boundary between Obomkpa and Ohordua. I also reject the evidence of p.w.2, His Highness Bums Aikpoajie, the Onojie of Ohordua that Ohordua has common boundary with Obomkpa. He is a damned and damnable witness and a liar. . . . As for the ‘scattered rubber plantations’ of plaintiffs indicated in the Pink verge, there is no evidence whatsoever as to who planted or owns the said rubber plantations . . . Finally, on exhibit A, the road which virtually cuts the land in dispute into two equal halves indicated thereon as constructed by one Mathew Ogwu is not supported by evidence from the plaintiffs. Rather, it was defendants’ second witness Nathaniel Ogwu, timber contractor who said he cut the road in 1952 along with other roads when he extracted timber from the bush with the consent of the defendants who took him there. Exhibit ‘A’ even confirms that ‘N. Ogwu’ felled two stumps of efume trees indicated thereon. Now D. W.2 denied knowing any Mathew Ogwu, and the said Mathew Ogwu not having been called as a witness I take it that ‘N. Ogwu’ refers to Nathaniel Ogwu and not that initial ‘N’ was mistakenly written there instead of ‘M’.

According to the first plaintiff and as is indicated in exhibit ‘A’ some people from Ugboba, namely, lkenye, Dike Kabawu Ukala and also one Sylvanus Eweaya lay claim to a portion of the land in dispute situate immediately north of the Yellow verge which indicates the path made by defendants. This in my view goes to support the evidence from the defendants that Ugboba is not a quarter of Obomkpa but a separate town of her own with her own Obi and further that the Ubulubu/Ukwunzu road is the boundary between Obomkpa and Ugboba. What I really have to determine is whether the land in dispute is in the exclusive possession of the plaintiffs so as to entitle them to the reliefs sought. In this connection, 1st plaintiff who has been the Obi of Obomkpa since 1955 tried to impress on the court that Ugboba is one of the 4 quarters of Obomkpa community that he is representing in this action. . . . I may quickly observe that under the Bendel State Laws 1976, Chiefs Law Cap 37 section 3 which deals with Recognised Chiefs under Part 2 and the Schedule there under, I find as a fact that Ugboba is classified as Odiani with an Obi of her own while Obomkpa is classified as Ezechima and with her own Obi. .

I accept the evidence of the defendants, and their witnesses and exhibit ‘F’ and reject that of the plaintiffs that Ugboba is a quarter in Obomkpa. I find as a fact that Ugboba is a town and that exhibit ‘A’ is erroneous when it shows that she is a quarter in Obomkpa. Exhibit ‘B’ defendants’ plan shows the area claimed by the plaintiffs verged violet, less Ugboba the yellow verge being their alleged boundary between Ukwunzu and Ugboba. The area alleged trespassed on by the defendants is verged Pink and is styled Ofia Iloka. This exhibit was in fact tendered through the 4th plaintiff by consent. Plaintiffs’ surveyor p.w.1 agreed that it has the same scale with exhibit A, that the north western boundaries are the same in the two plans, that the western boundaries are slightly different. Defendants’ surveyor (D.W.1) said that the southern boundaries of exhibit ‘A’ and ‘B’ are identical . . . The boundary feature Onicha-Koki shrine in exhibits ‘B’ is supported by the evidence of D.W.3 a 75-year old farmer and Regent of Ugboba and who said that from the shrine the left side of the road belongs to Ugboba and that the road runs from Ukwunzu . . . I accept his denial that plaintiffs and Ugboba do things in common, and his evidence that Ugboba is of Odiani clan and Obomkpa is of Ezechime clan.

I have carefully considered and weighed the evidence tendered by both sides. It is significant to note that no attempt was made to call Agbor police to testify in this case. Also no reason was given by the plaintiffs for not calling Nathaniel Ogwu or Mathew Ogwu in support of the story that plaintiffs gave owners consent to the contractor for timber extraction within the land in dispute in 1952. Furthermore, no one else was called to prove the special damage claimed apart from the mere ips dixit of 1st plaintiff. Why was the seer not called as a witness I mean the seer who advised the plaintiffs according to the 1st plaintiff to purchase the items that made up the special damages claimed by the plaintiffs. No receipts were tendered and none of the persons from whom some of the items were purchased testified in this case. Why was no one called from Ugboba quarter to support plaintiffs’ alleged items as to Ugboba being part of Obomkpa town and also as to the boundary between them and the defendants I may hazard a guess. These several suggested witnesses or sources of evidence were not produced because if produced they would have been unfavourable to the plaintiffs-see section 148(d) Evidence Law Cap. 57, Bendel State Laws 1976. . . . Perhaps the more intricate question in this case is the legal question whether, in view of my finding that Ugboba is a town and not a quarter in Obomkpa the plaintiffs can succeed on their claim for exclusive possession of the area in dispute which includes Ugboba as a quarter: the other legal question is that whereas the defendants are the representatives of Idumuokakwu quarter of Ukwunzu, throughout the hearing of this case the plaintiffs fought the battle against the entire Ukwunzu community, all references to the defendants were to Ukwunzu and not to Idumuokakwu quarter of Ukwunzu. 1st plaintiff said, when questioned by defendants’ counsel, that after the facts of trespass complained of, he (1st plaintiff) complained to the Obi of Ukwunzu (D.W.6) and that the latter paid no heed to his remonstrations and that the said Obi even acquiesced in defendants’ acts of trespass. The Obi of Ukwunzu (D.W.6) even said in his evidence that the land in dispute belongs to Ukwunzu . . . One wonders why in view of the stance of the Obi of Ukwunzu and the evidence led the plaintiffs did not consider it necessary to sue the entire Ukwunzu community . . . In this case, the plaintiffs assert that the land in dispute belongs to Idumuokakwu quarter but this they failed to prove. He who asserts must prove.

In conclusion, on the showing of the plaintiffs’ and if I believe the evidence of 1st plaintiff that Ugboba people use the land freely with the plaintiffs (which evidence I believe) it cannot be said that plaintiffs are in exclusive possession of the said land more so where the people of Ugboba also lay claim to portion of the said land in their own right as a separate and distinct community and not as a quarter of Obomkpa or even as tenants which latter was never suggested in evidence. On the preponderance of evidence, I find the evidence of the defendants more plausible and that the plaintiffs have at no time been in exclusive possession of the land in dispute. I reject the evidence that plaintiffs land extends beyond the Ubulubu/Ukwunzu road, which separates Obomkpa town from Ugboba. I accept the evidence of the defendants and their witnesses as to acts of possession of Ugboba and Ukwunzu people on the land in dispute hatched Pink in exhibit ‘A’ . . . Since the evidence of tradition of ownership is inconclusive and the evidence of acts of ownership does not establish plaintiffs as exclusive owners, the claims for title and injunction must fail”

Notwithstanding the rejection by the learned trial judge of plaintiffs’ evidence as to the extent of their land and the acceptance of the evidence of the defendants and their witnesses as to acts of possession of Ugboba and Ukwunzu people on the land in dispute, the Federal Court of Appeal allowed the plaintiffs’ appeal and granted a declaration of title and injunction.

I shall now proceed to set out the relevant and material portions of the judgment of Agbaje, J.C.A. that expresses fully the reason for the decision of that Court. The learned Justices, dealing with the issue of title and the application of the rule in Kojo II v. Bonsie said:

“Dr. Odje (SAN) counsel for the plaintiffs took grounds 10 and 3 first. I have already said what ground 10 complained about.

Ground 3 complains as follows:

‘This being an action involving title to land, trespass and injunction, the learned trial judge erred in law in not evaluating the competing versions of the traditional evidence led in this case and testing the veracity thereof by reference to recent facts enunciated in Kojo II v. Bonsie (1957) 1 WLR 1223 at p. 1226 and thereby came to a wrong decision’.

In order to appreciate the points canvassed before us in respect of these grounds of appeal, it is necessary to set out first the portions of the pleadings touching the traditional evidence relied on by both sides and to note then the evidence adduced by both sides as regards the traditional history. As regards the statement of claim, the following averments therein are relevant . . .”

[Paragraphs 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20 and 22 were quoted]. “As regards the statement of defence, the following averments are material . . .” [Paragraphs 7 (a) and (b), 8, 9, 11, 12, 13, 14, 18, 19 and 20 were quoted].

“Evidence was led by both sides along the lines suggested by their pleadings. The relevant evidence was noted in the judgment of the learned trial judge in the summary of evidence. The learned trial judge realised that a declaration of title could be obtained by plaintiffs on the strength of their traditional evidence alone if it was convincing. . . . It appears therefore that if the traditional evidence adduced by the plaintiffs was convincing, they were entitled to a declaration of title . . . . Counsel then submitted that the learned trial judge was wrong in holding on the evidence before him that the traditional evidence was inconclusive. I dare say I do not see why the learned trial judge said the traditional evidence was inconclusive. He did not say that he did not find either of the two versions of the traditional stories before him probable. Nor did he say that he found the traditional evidence adduced by the plaintiffs unconvincing. Because if the foregoing, I am inclined to agree with counsel for the plaintiffs, Dr. Odje, that the learned trial judge did not properly evaluate the competing versions of the traditional evidence before him. . .”

Continuing his judgment, the learned Justice of the Federal Court of Appeal then observed:

“There is no doubt that if the traditional evidence adduced by the plaintiffs were accepted the plaintiffs would be entitled to judgment on their claim for a declaration of title to the land in dispute at least. The learned trial judge did not make any finding in favour of the plaintiffs in respect of their traditional evidence. This, no doubt is a matter peculiarly within the province of the learned trial judge. Turning to the traditional evidence pleaded by the defendants, can one say that if the evidence were accepted the plaintiffs will also be entitled to a declaration of title in respect of the land in dispute in this case. If the answer is No, then this court, as an appellate court, might have no sound basis upon which to decree title in favour of the plaintiffs in respect of the land in dispute.”

The learned Justice then referred to paragraphs 11, 12, 13 and 14 of the statement of defence and commented:

“The land which according to these paragraphs of the statement of claim (sic read defence) was given to Anagba by the defendants’ people was not specifically related to the land in dispute.

However, D.W.6 (His Highness Obi Christopher Ogoh 1 of Ukwunzu) has this to say in examination in chief as regards the land in dispute and the land given to Anagba by Obi Madagbai:

‘The land in dispute is called Ofia Ikoka by the people of Ukwunzu. It was part of land that Obi Madagbai gave to Anagba to settle on.’

It appears to me that on this evidence Anagba would be entitled to the land in dispute either as a result of a grant by the Obi of Madagbai or as a result of the settlement thereon having first got the consent of Obi Madagbai to do so. There is no doubt that Obi Christopher Ogoh 1 appreciated the vast implication of the above evidence when he said in cross-examination:

‘I do not say in my examination in chief that Ofia Ikoka is part of the land Madagbai gave to Anagba. I did say that I know the land in dispute.’

But the record of proceedings in this case shows that he said so and we are bound by the record . . . . The learned trial judge did not even rightly in my view consider his evidence in cross-examination that he did not give the evidence credited to him by the learned trial judge. It is to be noted that the D.W.6 Obi of Ukwunzu was not re-examined on this point that he did not give the evidence credited to him. So there was nothing to show that he was mistaken as to the evidence he gave that the land in dispute was part of the land given to Anagba by Obi Madagbai to settle on.”

With the greatest respect to the learned Justice, I am unable to agree with him that there was nothing to show that he, D.W.6 was mistaken as to the evidence he gave in chief. The fact of retraction of the evidence is a reflection of the mental awareness of D.W.6 that he was mistaken and that the evidence was incorrect and untrue. Moreso, when the following evidence followed that piece of evidence from the same D.W.6:

“I did say I knew the land in dispute. I have seen the defendants’ plan exhibit ‘B’. I can read plan, I know the land in dispute. The land in dispute is for Ukwunzu community . . . It was the plaintiffs who met us and we gave the plaintiffs where they now live.”

The learned Justice then went on to consider the effect of the said piece of evidence on the basis that it stood uncontradicted and said:

“Another way of looking at the evidence given by the D.W.6 and indeed a better view is this. It shows that at some time past Anagba the ancestor of the plaintiffs was in possession of the land in dispute having settled thereon. This is evidence coming from the defendants, which supports the plaintiffs’ contention that at some distant past, their ancestor Anagba was in possession of the land in dispute as owner thereof. … See Akinola v. Oluwo (1962) 1 All N.L.R. 22. So on the proper evaluation of the traditional evidence before the lower court, either of the following two courses should have been considered:

(1) The story of the plaintiffs-that Anagba settled on the land in dispute more probable having regard to what I have just said above, or

(2) The learned trial judge might have accepted the story of the defence that the Obi Madagbai gave Anagba the land in dispute to settle upon.

In either case, the result would be the same so far as the claim for title is concerned, that is to say that Anagba originally had title to the land in dispute. ”

The learned Justice then considered the effect of the learned trial judge’s finding that Ugboba is not part or a quarter of Obomkpa but a separate town/village by itself whose community always had different ancestry and administrative organisation with an Obi at its head and came to the conclusion that such a finding does not affect the plaintiffs’ entitlement to a declaration.

I have set out the above portions of the judgments of the lower courts, i.e. High Court and Federal Court of Appeal to bring into focus the area of conflicting opinions between the learned trial judge and the learned Justices of the Federal Court of Appeal.

Professor A. B. Kasumu, SAN. Counsel for the defendants/appellants elaborating on the brief of argument filed by Chief F. R. A. Williams, SAN., on behalf of the defendants/appellants, submitted that the Federal Court of Appeal (1) misapplied the rule in Kojo II v. Bonsie (1957) 1 W.L.R. 1223 to the facts of this case; (2) failed to consider the legal effect of two inconsistent statements from D.W.6 Christopher Ogoh I and failed to assess properly the whole evidence given by D.W.6 and (3) failed to consider the case set out by the plaintiffs in their statement of claim and evidence and ascertain whether in actual fact the evidence of D.W.6 supported that case; (4) failed to give due weight to the finding of fact that the plaintiffs were not in exclusive possession of the land in dispute and (5) ought to have held that the plaintiffs not being in exclusive possession were not entitled to a declaration of title or (customary) right of occupancy.

Dr. Odje learned counsel for the respondent in his reply saw nothing erroneous in the application of the rule in Kaja II v. Ransie by the Federal Court of Appeal to the facts of this case.

He further submitted that the Federal Court of Appeal was right in holding that the plaintiffs were entitled to rely on the evidence of D.W.6 to support their case and the recent acts of possession of the plaintiffs as found by the learned trial judge. He relied on Akinala & Anar. v. Oluwa and 2 Ors. (1962) 1 All N.L.R. 224 at 227, (1962) W.N.L.R. 133 at 134.

He also submitted that the finding of the learned trial judge that the plaintiffs and the people of Ugboba were in joint possession does not disentitle the plaintiffs/respondents to the declaration and injunction against the defendants/appellants and that the joint possession is an internal arrangement between the people of Obomkpa and the Ugboba people and cited in support the cases of Arase v. Arase (1981) 5 SC. 33 at 69 and Woluchem v. Gudi (1981) 5 SC. 291 at 323-324.

Finally, he submitted that the Federal Court of Appeal properly granted the customary right of occupancy and cited the case or Adeaga v. Adetana (1979) 2 L.R.N. 262 at pp. 266-267.

On the cross-appeal, learned counsel for the respondent contended that their joint possession of the land with Ugboba people couldn’t, in law, constitute a bar to their successful prosecution of their action in trespass against the appellants. He concluded his arguments with the submission that it is a settled rule of law that one of two or more co owners may sue in trespass if their possession is disturbed. I shall now proceed to consider the submissions.

It appears to me that the Federal Court of Appeal glossed over some important findings of facts, which would have led it to a contrary opinion and a decision different from the one the Justices have given on the issue raised before them. Further, it also appears that they lost sight of the case put forward in the pleadings settled by the respondents as regards the traditional history of their ownership of the land. It will therefore be necessary to set out once more the relevant paragraphs of the statement of claim and the relevant paragraphs of the statement of defence in order to bring out clearly and fix in our minds the cases pleaded by the parties.

In this regard, paragraphs 1, 2, 3, 5, 6, 8, 9, 11, 12, 13, 14, 15, 19, 20, 21, 22, 26 and 27 of the statement of claim are very relevant. They read as follows:

(1) The plaintiffs are people of Obomkpa town in Asaba Division and bring this action for themselves and on behalf of the people of their town.

(2) The defendants are members of Idunmuokaku village of Ukunzu town, Asaba Division and are sued for themselves and on behalf of the people of their village.

(3) The land in dispute is situate in Obomkpa and is known as ‘Ojiokpa’; Ofia Obomkpa or Ofia Iru Afa. It is more particularly described as to its extent and location and verged Pink on Plan No. LSU 145 filed with this statement of claim.

(5) The plaintiffs inherited a large expanse of land from one Anagba their earliest ancestor who broke the land including the one now in dispute as a virgin forest.

(6) Anagba was a member of the family one one Chima who was a chief under the Oba of the Old Benin Kingdom. Chima angered the Oba who thereupon ordered his warriors to get Chima, remove his staff of office (Ufie) from him and if necessary kill him in the process. Chima got wind of this plan and escaped with his whole household and supporters.

(8) Chima and his train after a long travel, settled at a place near the present Onicha Ugbo in Asaba Division and subsequently as the pursuit on them heated up, they spread to found some of the towns now known as Umuezechima in Asaba Division.

(9) There are now nine towns in Umuezechima also called Ezechima clan viz: Obior, Onicha-Ugbo, Iselle-Uku, Onicha-Ukwu, Obomkpa, Ezi, Onicha-Olona, Iselle-Mkpitima and Iselle-Azagba.

(11) At a place called Onicha-Uku, Chima’s people made a sacrifice to confuse their pursuers who in fact withdrew for a long time.

(12) The flight had to continue however and Anagba through his constant consultation on his afa (oracle) directed his people (who could continue the flight) through the land now known as Obomkpa at which place his wife gave birth to a child. Anagba left a small party to take care of his wife and child having made sure from his oracle that the place was to be his permanent home.

(13) Anagba directed the remainder of the party headed by Abo, Chaeze and Ifite, through to the town now called Ezi where a child was born to Ifite. Ifite remained there.

(14) Anagba having made sure that Ado and Chaeze were on the right track and that the Ufie of Chima was therefore safe, retraced his steps to his family at Obomkpa.

(15) Anagba traversed a large expanse of land including the area now in dispute, and planted several protective juju thereon. By his magical powers he controlled the flow of several streams on the said land thereby making the land the safer for habitation.

(16) The land traversed by Anagba (including the place now known as Ubulubu) extended to Enule and also Ukpei (Ohordua) which is across Ojiokpa stream.

(19) It was during the reign of Obi Ngwagiliga of Obomkpa that one Ibogwuda and a few men came to Obomkpa. They introduced themselves as friends and after a few days, left and settled at a place now known as Odo village, Ukwunzu, which is the foundation of Ukwunzu town.

(21) During the reign of Obi Obome, a strong hunter named Uwagboe Omezi came to Obomkpa with a few followers and begged Obi Obome to allow them to settle on his Obi’s land. Obome granted this request and asked his son Uya to show Uwagboe a site. Uya showed Uwagboe a place in Obome’s farm.

(22) Uwagboe and his followers later left to stay at a place called Ugodor far away on the way to Ebu, but some of these followers returned to Obomkpa and resettled on the old farm spot. This settlement, which was referred to by the then, Obomkpa people as Ugboba (father’s farm) grew to become one of the four villages that make up Obomkpa town. The whole town had a common Obi and did things in common.

(26) The plaintiffs as owner in possession have economic and cash crops on the land in dispute. They have farmed it, worshipped their jujus as their ancestors before them and have on payment of royalties to them allowed contractors to cut timber in the land without hinderance.

(27) On or about the 23rd December, 1970, the defendants, their servants and or agents, acting in concert with the defendants in the High Court suit No. A/11/71 who are from Ugboba, Obomkpa, entered and cut a long part (sic) within the land in dispute and cleared the portion verged yellow on the plaintiffs’ plan. They further deposited a juju pot within the cleared portion, thereby desecrating the ancestral “Afa” shrine of the plaintiffs which the plaintiffs had to reactivate at great expense.”

It is one of the elementary rules of practice that parties are bound by their pleadings and are not allowed to depart from the case set up in their pleadings and present a totally different case at the hearing. The above paragraphs of the statement of claim fully set out the historical facts to be established by the traditional evidence to be led. Therein, the respondents claimed to have originally owned all the land including the land covered by Ugboba and Ukwunzu. They claimed to have granted Ugboba and Ukwunzu people their land. On the other hand, the defendants pleaded their own historical facts they intend to rely on to establish their ownership. These facts are not in tune with those pleaded by the plaintiffs and are set out in paragraphs 2, 3, 4, 6, 7(a), 8, 9, 10, 11, 12, 13, 14, 18, 19, 20, 21, 24, 25 and 26 of the statement of defence. In their paragraphs 3, 6, 21, 23, 24 and 25 of the statement of defence, the defendants denied the facts pleaded in paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27 and 28 of the statement of claim and demanded strict proof of the facts. Paragraphs 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 22 and 24 of the statement of defence which I consider relevant read:

“3. The defendants deny paragraphs 2, 3, 4 and 5 of the statement of claim and will put the plaintiffs to the strictest proof thereof. In further answer to paragraph 2 of the statement of claim, the defendants assert that there are seven quarters in Ukwunzu town and the defendants came from one of the seven quarters.

4. With regard to paragraphs 3 and 4, the defendants state that the land in dispute is in Ukwunzu and it is part of the land called ‘Ofia Ikoka’ . . .

7(a). The defendants further state that Ukwunzu town had long been established ever before the founding of any Chima’s town.

8. During the wave of one of the Benin wars, some refugees who were led by one Ise ran to Ukwunzu where they took shelter the ravages of the war.
9. Later Ise and his retinue continued their flight till they settled at the site now known as Issele-Uku.
10. Ise begat Chima and Chima begat Obioma, Onicha and Oligbo.
11. Anagba was the ancestor of the plaintiffs’ people and he was a herbalist who came from Ogidi in the East Central (Anambra) State.
12. The said Anagba served Olibgo one of the descendants of Chima. During his servitude he conceived Nkemamuna, one of the daughters of his master and he eloped with her.
13. Anagba then fled with Oligbo’s daughter to Ukwunzu where they were given by the defendants people a site opposite Ugboba town as sanctuary.
14. It was at the reign of Obi Madagbi one of the Obis of Ukwunzu that the plaintiff’s people came to the defendants’ people for the said protection.
15. Obi Madagbai sheltered the erring Anagba and played leading role in trying to pacify the highly infuriated Oligbo.
16. Ukwu-Nzu wasfounded by Ogbe who migratedfrom lfe to the new land due to the spirit of adventure.
17. Ogbe and his followers were the first people ever to settle in Ukwunzu and they farmed extensively on the land in dispute and the areas now known and called Ogodo, Ubulubu, Obomkpa.
18. Besides his family members, Ogbe left Ife with his brother called Ugbodu. It was Ugbodu who founded the present Ugbodu town whilst Ogbe founded Ukwunzu.
19. Only 5 known rulers, who are of late referred to as Obis, have reigned at Obomkpa whilst several Obis have reigned at Ukwunzu since the time of Ogbe.
20. The defendants also deny vehemently paragraph 26 of the statement of claim. On the other hand, the defendants and their people are the owners in possession of the disputed land. As owners in possession, they have exercised maximum acts of ownership thereon to wit

(a) farming

(b) hunting

(c) worshipping juju (shrine)

(d) exploiting timber without any hinderance from the plaintiffs, their people or any other person;

(e) planting economic crops therein.”

Contrary to the respondents’ claim, the appellants claimed to be the original owners of all the lands occupied by the people of Obomkpa and Ugboba and that their ancestors gave them the lands they now occupy.

It is therefore beyond any question that the root of title claimed by the plaintiffs is at variance with the facts pleaded by the defence and since the evidence led followed the pattern set out in the pleadings, it is difficult to secure facts favourable to the plaintiffs’ cause from the totality of the evidence adduced by the defence in aid of proof of their title.

There appears therefore to be much force and substance in the submission of learned counsel for the appellants that the Federal Court of Appeal misunderstood and misapplied the rule in Kojo II v. Bonsie (1957) 1 W.L.R. 1223. In my view, the Federal Court of Appeal did not apply the rule at all. It will be of instructive value to restate the rule in full from the judgment of the Privy Council delivered by Lord Denning. Giving the guide on the proper approach to be adopted in the assessment and evaluation of traditional evidence, Lord Denning said at page 1226 of the report as follows:

‘Their Lordships notice that the judges in the appeal court who were in favour of upholding the appeal of the Asantehane’s B Court, did so on two grounds; first, that it was a decision of fact depending on the demeanour of the witness and almost inviolable on that account; second that on a review of the evidence, it was the correct decision.

So far as the first ground is concerned, their Lordships notice that there was no dispute as to the primary facts, that is, the facts that the witnesses actually observed with their own eyes or knew of their own knowledge in their own lifetime. The dispute was all as to the traditional history, which has been handed down by word of mouth from their forefathers. In this regard, it must be recognised that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their appeal. 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 more probable. That is how the native courts approached the matter and their Lordships think they were right in so doing.”

In the instant appeal, the facts in recent years as established by the evidence appears to be more in favour of the traditional evidence adduced by the appellants and less in support of the traditional evidence adduced by the respondents.

This instant appeal deals with a claim for declaration of title, trespass and injunction and in all cases of declaration of title to land, the well settled rule of law and practice is that the plaintiff must succeed on the strength of his own case and not on the weakness of the defence. Dealing with this onus of proof in actions for declaration of title to land, Webber, C.J. Sierra Leone, in the celebrated case of Kodilinye v. Mbanefo Odu, 2 W.A.C.A. 336 said at page 337 (Kingdom, C.J. Nigeria and Butler-Lloyd, J. concurring)

“The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his on case and not on the weakness of the defendants’ case. If this onus is not discharged, the weakness of the defendants’ case will not help him and the judgment is for the defendant. Such a judgment decrees no title to the defendant, he not having sought the declaration. So, if the whole evidence in the case is conflicting and somewhat confused, and there is little to choose between the rival traditional stories, the plaintiff fails in the decree he seeks, and judgment must be for the defendant.”

This statement has over the years since 1935 guided the courts in this country in is adjudication on declaratory actions and both the lawyers and the courts have followed it with religious dedication. Unsworth, FJ, amplified it. In the case of Akinola and Ors. v. Oluwo and Ors. (1962) All N.L.R. 224 at 227 when he said:

“The trial judge held that the plaintiff had failed to establish his case, and said that the plaintiff must succeed on the strength of his own case and not on the weakness of the defendants’ case. This is true, subject of course to the important point that the defendants’ case may itself support the plaintiffs’ case and contain evidence on which the plaintiff is entitled to rely.”

Can we in this instant appeal on a calm view of the case put forward by the defendants and evidence adduced in support of such case find that the defendants’ case support the plaintiffs’ case I think not and I cannot make any such finding. In fairness to the plaintiffs they have not attempted to make out a case different from that set out in their pleadings. If they had attempted, the High Court would not have permitted them for as Verity, CJ. said in Adenuga v. Lagos Town Council, 13 W.A.C.A. 125 at 126: “As has been said on many occasions in this Court, a party to a civil suit is bound by his pleadings. He cannot set up as his case one thing in his pleadings and in this court rely on something entirely different.”

The plaintiffs pleaded that they founded the land in dispute. They never pleaded that the defendants put them on the land. It cannot therefore be said with any conviction that the retracted statement by D.W.6 (that the land in dispute was part of the land his ancestor settled Anagba the ancestor of the plaintiffs on, was evidence in support of the case put forward by the plaintiffs. There is the evidence of D.W.3, second defendants the Isama of Ukwunzu which conflicted with that piece of evidence.

There is also the fact that there is no justification of the decision of the Federal Court of Appeal to accept the recorded evidence in chief as true and discount the legal effect the retraction of the said piece of evidence had on the evidential value of the said piece of evidence. The legal effect on the conflicting evidence is to impeach the credit of the witness D.W. 6 and render the evidence unreliable. See section 209(c) Evidence Act 1958 UFN. See also section 209(c) Evidence Law 1976 Laws of the Bendel State. The learned Justice Agbaje, J.C.A. was therefore, with great respect, very much in error when he came to the conclusion that:

“So on the proper evaluation of the traditional evidence before the lower court, either of the following two courses should have been considered:

(1) The story of the plaintiffs that Anagba settled on the land in dispute more probable having regard to what I have just said above:

(2) The learned trial judge might have accepted the story by the defence that the Obi Madagbai gave Anagba the land in dispute to settle upon.

In either case, the result would be the same so far as the claim for title is concerned that is to say that Anagba originally had title to the land in dispute.”

As it is necessary for a correct appreciation of the full effect and import of the evidence of the D.W. 6, I shall set out the more relevant portions of the evidence of the witness.

In chief, parts of his testimony read:

“. . . I know the land in dispute between the parties. The land belongs to Ukwunzu community. When Oronmiya came from Ife to become the Oba of Benin, he was accompanied by Ogbe and Ugbodu. After the coronation of Oronmiyan the two men appealed to the Oba for land to settle. They left Benin for a place called Ukwunzu and started to farm there. Later Ugbodu asked Ogbe for his own separate land and the land given to him was named after him and is now Ugbodu. During the wave of the series of Benin wars, a man by name Ise together with his family fled from Benin until he came to Ukwunzu. After taking some shelter, he continued his flight to a place known as Issele-Uku. Ise begat Chima and Chima begat Oligbo, Onicha and Obioma. After the death of Ise and Chima, Oligbo took over. It was during Oligbo’s time that one Anagba came from Ogidi in Anambra State (formerly East Central State). The said Anagba was a very good herbalist; Anagba served Oligbo; during this period, Anagba impregnated one of the daughters of Oligbo. When Anagba became aware of Oligbo’s knowledge of the pregnancy, he fled with the daughter and came to Ukwunzu. There he met Obi Madagbai and begged for protection. Obi Madagbai directed Anagba to a place opposite Ugboba and to settle there. There he settled. The descendants of Anagba are the plaintiffs. The land in dispute is called Ofia Ikoka by the people of Ukwunzu. It was part of the land that Obi Madagbai gave to Anagba to settle on. The people of Ukwunzu gave Ugboba where they now live; it is not true, as alleged by the plaintiffs that they gave the land to Ugboba. We gave Ugboba land before we gave plaintiffs where they now stay. On Ofia Ikoka we have rubber plantations, cassava and yam farms; we also have Onicha-Kodi shrine there. The high priest performs his annual festival there. We also have timber there, which we allow contractors to fell. One of the contractors is Nathaniel Ogwu (D.W.2)”

Under cross-examination by Mr. Okpuno, his testimony in parts, reads:

“I am the custodian of things belonging to Ukwunzu. I heard that the police removed a certain pot from the land in dispute and sent it to police. When the police found out that the pot belonged to the people of Ukwunzu they settled the matter; police also found out that the pot had been there for so many years. The pot is a shrine called Onicha-Kodi. The said pot is in the bush not in the town. Obomkpa and we are neighbouring towns . . . I did not say in my evidence in chief that Ofia Ikoka is part of the land Madagbai gave to Anagba. I did say I knew the land in dispute. I have seen defendants’ plan exhibit ‘B’. 1 can read plan.

I know the land in dispute. The land in dispute is for Ukwunzu community . . . It was the plaintiffs who met us, and we gave plaintiffs where they now live. Ugbodu people are our neighbours to the left hand side of the confluence formed by Imobo and Oji-Okpa streams facing Oji-Okpa. . .”

It will be observed that in his examination in chief, D.W.6 testified that the land in dispute belonged to the Ukwunzu community and testified as to the use they put the land to. Under cross-examination, D.W.6 also testified that the land belonged to the Ukwunzu community and retracted the statement that the land in dispute is part of the land Obi Madagbai gave to Anagba to settle on.

Looking at the evidence in chief as a whole, that retracted statement cannot be reconciled with the various acts of possession and ownership by the defendants testified to in chief by the witness, D.W.6. The presence of their rubber plantations, their cassava farms, their Onicha Kodi shrine there, which they worship, do not bear out the truth of that statement. Similarly, the annual performance by the High Priest of their annual festival there and their exploitation of timber on the land through contractors issued with the defendants’ consent cannot be said to support any transfer of ownership of the land in dispute. These acts of ownership and possession, I may recall, were believed and accepted by the learned trial judge. The Federal Court of Appeal erred in shutting its eyes to these glaring facts on record.

This error is fatal to the decision of the Federal Court of Appeal. See Shell B.P. Ltd. v. Abedi & Ors. (1974) 1 All NLR (part I) page 1.

There is also the question that traditional evidence is hearsay evidence and its truth or otherwise has over the years been regarded as difficult to ascertain especially after the lapse of a very long period stretching over hundreds of years or several generations since the matter first arose. Hence, the approach to such evidence was laid down by the Privy Council in the rule enshrined in Kojo II v. Bonsie. The findings of the learned trial judge that he accepted the evidence of acts of possession and ownership by the Ukwunzu people, Ugboba people and Obomkpa people did not tilt the scale in favour of the plaintiffs i.e. Obomkpa people’s case when the learned trial judge said in the concluding paragraphs of his judgment:

“On the preponderence of evidence, I find the evidence of the defendants more plausible and that the plaintiffs have at no time been in exclusive possession of the land in dispute. I reject the evidence of the plaintiffs that Obomkpa’s land extend beyond the Ubulubu/Ukwunzu road which separates Obomkpa town from Ugboba. I accept the evidence of the defendants and their witnesses as to acts of possession of Ugboba and Ukwunzu people on the land in dispute hatched Pink in exhibit ‘A’.

That specific finding also settles the appeal against the grant of the order of injunction in favour of the appellant. It also settles the issue raised in the respondents’ appeal against the dismissal of the claim for trespass. A suit in trespass is only maintainable by one who is in exclusive possession or having a right to it. The finding of the learned trial judge, which was upheld or not disturbed by the Federal Court of Appeal, is that the plaintiffs were not in exclusive possession. There is therefore no basis for the grant of the order of injunction. The cross-appeal by the plaintiffs therefore fails and is hereby dismissed.

For the reasons set out above, the appeal of the defendants succeeds and is hereby allowed.

The decision of the Federal Court of Appeal, in so far as the grant of a declaration of title and an order of injunction to the plaintiffs is concerned, is hereby set aside and in its place an order of dismissed of the claims is substituted. The decision of the Federal Court of Appeal substituting an order of dismissal of the claim of damages for trespass for the order of non-suit made by the learned trial judge is hereby affirmed.

The respondent shall pay the appellants costs assessed at N300.00.

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SC.85/1982