Prince George Iloka V. Peter Chike Edokwe & Ors (2016)

LawGlobal-Hub Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.C.A.

On 22-9-1997, the appellant filed a claim and caused a writ of summons to issue on the same day against Simon Sunday Edokwe the father of the respondents in the High Court of Anambra State at Nnewi commencing suit No HN/138/97 and claiming for-
a. A declaration that the plaintiff in possession is entitled to a statutory right of occupancy over the said land in dispute.
b. sum of N1,000,000.00 (one million naira) being damages for trespass.
c. Perpetual injunction restraining the defendant his servants, workmen, privies or agents from any further acts of trespass or in any manner whatsoever from interfering with the plaintiff?s right of occupancy and possession of his land.?

On 8-7-1998 Simon Sunday Edokwe the father of the respondents filed a claim and caused a writ of summons to issue on the same date against the appellant herein commencing suit No. HN/105/98 in the same Anambra State High Court at Nnewi claiming for-
?a. A declaration that the plaintiff, as the person in possession is entitled to the statutory right of occupancy in respect of the said piece or parcel of land situate at

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Okpuno-ebenator Area of Anambra State, within the jurisdiction of this Honourable Court; more particularly delineated and verged Red (which also embraces the area verged PINK) on the plaintiff?s survey plan.
b. N5,000,000.00 (five million naira) being general damages for the said trespass, and
c. Perpetual injunction restraining the defendant, his agents and privies, servants or his successors-in-title and assigns from further acts of trespass or from further interfering with the plaintiff?s right over the said piece or parcel of land in possession of the plaintiff. Dated at NNEWI this 20th day of October,1998.?

Upon the death of Simon Sunday Edokwe, the respondents as his children, substituted him as defendants in suit No HN/138/97 and as plaintiffs in suit No HN/105/98 by order of the trial court on 14-5-2001. Both suits were consolidated by Order of Court. The plaintiff in suit No HN/138/97 was made plaintiff in the consolidated suits. The plaintiffs in suit No HN/105/98 were made defendants in the consolidated suits.

The parties amended their respective pleadings several times. The appellants adduced evidence in support of their case

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through PW1, PW2, PW3 and PW4. The respondents adduced evidence in support of their case through DW1, DW2, DW3, DW4 and DW5. After conclusion of evidence and addresses by both sides, the trial Court on 27-7-2004 rendered judgment dismissing the appellants claim in suit No HN/138/97 and granted the reliefs claimed for by the respondents in suit No HN/105/98.

Dissatisfied with this judgment, the appellants commenced this appeal No CA/E/154/2007 by filing a notice of appeal dated 5-8-2004. The date of filing is not indicated in the certified copy of the notice contained in pages 373 to 375 of the record of this appeal. The said notice of appeal contains four grounds of appeal and was amended by the Order of this court made on 18-4-2013. The amended notice of appeal contains 7 grounds of appeal. Both sides have filed, exchanged and adopted their respective briefs as follows- appellant?s brief, respondent?s brief and appellant?s reply brief.

The appellant?s brief raised the following issues for determination-
1. Was the lower right in delivering one judgment in the consolidated suits Nos. HN/138/97 and HN/105/98?
?2. Was the PW4 a tenant of the

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appellant or the respondents? father in respect of the land in dispute
3. Was the learned trial judge right to have allowed PW4 who was merely subpoenaed to tender documents in the proceeding to be cross-examined extensively.
4. From the facts and circumstances of this case has the appellant not established his title to the land in dispute?
5. Was the learned trial judge justified in granting the land in dispute to the respondents?

The respondent?s brief raised the following issues for determination-
1. Whether the appellant proved his root of title to the land in dispute
2. Whether the learned trial judge was (not) right in allowing PW4 (Clement Obiaga) to be cross-examined and (thereby) making use of the answers/facts elicited during cross-examination in the determination of the suit and whether the judge?s evaluation of same was prejudicial to the appellant.
3. Whether the learned trial judge adequately considered and evaluated all the evidence led by both parties before he (The learned trial judge) delivered his judgment.?

I will determine this appeal on the basis of the issues raised for determination in the appellants brief.

?Let me start

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with issue 1, which asks-?Was the lower right in delivering one judgment in the consolidated suits Nos. HN/138/97 and HN/105/98

Learned counsel for the appellant argued under this issue that the trial Court delivered one judgment in the consolidated suits; that in the process the trial Court became confused as to whether the parties proved or did not prove the claims in their respective suits, that the trial Court failed to appreciate that just as the appellant had the burden to prove his claim as plaintiff in suit No HN/138/97, the respondents equally had the duty to prove their claims in their suit No HN/105/98, that the trial Court did not weigh the evidence adduced by each party in each of the cases to determine which one is more credible, that if the trial Court had done so it would have realized that the respondents did not lead any credible evidence by way of traditional history, purchase or acts of possession as to entitle them to judgment in suit No HN/105/98; that on the other hand, the appellant led credible and substantial evidence in suit No. HN/138/97, that if the trial Court had written separate judgments, it would have found that

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the appellant was entitled to judgment.

Learned counsel for the respondent has argued in reply that the trial Court delivered two judgments and not one judgment, that the trial Court considered all the evidence presented in both cases in its judgment, that the trial Court made specific pronouncements in respect of each of the two suits, that Learned Counsel misconceived the judgment of the trial Court in the consolidated suits Nos. HN/138/97 and HN/105/98.

Let me now consider the merits of the above arguments of both sides.

The above arguments of both Learned Counsel throw up two sub-issues for consideration, as follows-
1. How should a trial Court consider or treat the evidence adduced by each of the parties in the consolidated suits
2. How should the judgment in respect of each of the suits be rendered.

It is settled by a long line of judicial authorities including Sawuta & Anor v. Ngah (1998)13 NWLR (Pt 580)39 at 43 held 2 and Okene v. Orianwo (1998)9 NWLR (Pt 566) 408 at 420 held 36 cited by Learned Counsel for the appellant that the effect of consolidation is not to dissolve the independent existence of each suit but to Unite the trial of the consolidated

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suits on the same evidence and determine or decide each suit separately on the same evidence. See also Chikere & Ors v. Okegbe & Ors (2000) LPELR ? 847 (SC). This effect of the consolidation of the suits create the challenge of how the trial court should treat the body of evidence adduced by both parties in respect of the two separate suits and how it should decide each suit.

It is glaring that the trial court determined each suit and did not ignore any of them. It made pronouncements in respect of each of them. It decided them separately and differently thus- ?In the result and because of all I have said above, the plaintiff?s case cannot succeed. The defendants? case succeeds. The plaintiff did not deny entering on the land in dispute, so I find him liable in trespass. I make the following orders:
1. The plaintiff?s claims in suit No. HN/138/97 is hereby dismissed in its entirety.
2. The defendants are entitled to statutory right of occupancy to the land in dispute verged pink in survey plan No. SSC/AN-D17/96 and filed in Court in suit No. HN/105/98.
?3. The plaintiff shall pay the defendants the sum of N1,000.00 damages for

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trespass.
4. The plaintiff, his agents, privies, servants and assigns are hereby perpetually restrained from trespassing on the land in dispute. I award costs of N2,000.00 in favour of the defendants and against the plaintiff.?

The argument of Learned Counsel for the appellant in the reply brief describing the two separate decisions in respect of each suit ?as two conclusions in a consolidated Suit ?is not correct. An order of Court dismissing suit No HN/138/97 and another order granting the reliefs in suit No HN/105/98 cannot be correctly described as two conclusions. These orders are decisions as each determines the merit or otherwise of the particular suit in respect of which it is made. They are not conclusions without more. Being determinations of the merits of the issues in each suit or the rights and obligations of the parties in each suit, they constitute judgments. A judgment is defined in Black?s Law Dictionary 9th Edition, page 918 as ?A Court?s final determination of the rights and obligations of the parties in a case and that it includes an equitable decree and any order from which an appeal lies.? The

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Supreme Court in Alor & Anor v. Ngene & Ors (2007)2 SC 1 restated the definition of a decision in relation to a Court in S. 318 of the 1999 Constitution as ?any determination of that Court includes judgment, decree order, conviction sentence. See also Rabia v. The State (1980)11-12 SC (Reprint) 85 and Ogunbadejo v. Owoyemi (1993)1 SCNJ 148. The argument of Learned Counsel in the appellant?s reply brief that the pronouncement in respect of each of the two suits cannot amount to two judgments is therefore not correct.

I think that the dispute as to whether the two pronouncements amounted to one or two judgments is one of form. See Ilonuba & Ors v. Anosike & Ors (unreported decision of this Court in CA/E/238/2007). The trial court did not border to make each pronouncement under a separate heading, namely, ?Judgment in Suit No. HN/138/97? and ?Judgment in Suit No. HN/105/98.? May be that would have brought out the separateness of the decisions more clearly. However, it remains very glaring that the trial Court made separate pronouncements in respect of each of the two suits to show that each case had its own

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separate existence.

It is obvious from the totality of the judgment of the trial Court that the two decisions derive from the same review and evaluation of the same evidence and the same analysis and reasoning process in the determination of the sole question of who as between the appellant and the respondents is entitled to the right of occupancy of the land in dispute. This appear to have influenced Learned Counsel for the appellant in regarding the decision concerning each of the two suits as amounting to one judgment and not two judgments. This can be seen from his submission that the trial Court in reaching its decision on any of the suits ought have considered the evidence of each party in respect of that particular suit evaluate and weigh them to determine which party?s evidence was more probable in each suit. Implicit in this submission is that separate judgment for each of the suit cannot derive from the same review and evaluation of evidence and that the approach of not separating the evaluation of the evidence of the parties as it relates to each suit is not consistent with the principle that consolidated suits, though tried on the same body of

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evidence remain separate and do not solidify into one suit by virtue of being tried on the same body of evidence.

The question that arises at this juncture is whether the trial Court?s approach of not reviewing, evaluating and analyzing the pleadings and evidence in respect of each suit separately turned the two suits into one suit and destroyed their separate existence? This exact question was answered by this Court in Ilonuba & Ors v. Anosike & Ors (CA/E/238/2007) per Agim JCA thusly ? The question that arises from the above arguments of Counsel is whether the trial courts approach of not reviewing, evaluating and analyzing the pleadings and evidence in respect of each suit separately turned the two suits into one suit and destroyed their separate existence. The answer to this question would depend on the peculiar circumstances of each case. There is no general and single answer to the question. There is no stereotyped approach to the trial of consolidated suits. The trial court has the discretion to adopt the approach that suits the circumstance of the case and ensures that substantial justice is done to all parties in the two suits.

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Where the pleadings are factually identical in content, the central issue in controversy in the two suits are the same and the same evidence is required or relied on to prove or defend the two suits, as in this case, a trial Court will be right to adopt the approach of a single or common review, evaluation and analysis of the pleadings and evidence for the two suits. There is no need for a separate evaluation and analysis of the pleadings and evidence for each suit. Such a separate evaluation and analysis will involve repeating in the second case what had been said in respect of the first case. This will amount to an unnecessary duplication. I agree with the Learned Senior Advocate for the respondents that the determination of the claims in each case is dependent on the determination of one question, namely, whether late Anthony Okeke Ilonuba made the will, Exhibit P1. The pleadings in the two cases contain exactly the same facts to prove or disprove that late Anthony Okeke Ilonuba made Exhibit P1 while alive. The trial court was therefore right to have made the two pronouncements on the basis of a common review, evaluation and analysis of the evidence. This

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approach did not affect the separate existence of the two consolidated suits. It emphasises the existence of the conditions that warranted the consolidation of the two suits to avoid the multiplication of the trial of the same issues and the attendant costs and improve access to justice. The conditions include the existence in the suits of a central question of law or fact that is common to all of them, that the claim for reliefs in the suits are based on the same facts, that the determination of the claim for reliefs in each suit is dependent on the determination of the central question of law or fact that is common to all the suits. These principles and conditions are restated by the Supreme Court in OKWUAGBALA & ORS V. IKWUEME & ORS (2010)19 NWLR (PT. 1226) 54 AND IN IFEDIORAH & ORS V. UME & ORS (1988) NWLR (PT. 74)95, as those that warrant or justify the consolidation of suits.

I have no reason to depart from the above decision of this Court. So I will follow it. Since in this case the pleadings in the consolidated suits are factually identical in content, the central issue in controversy in the two suits are the same and the same evidence

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is relied on to prove or defend each of the two suits, the trial court was right to adopt the approach of a single or common review, evaluation and analysis of the pleadings and evidence to reach its decision in each of the two suits. There was clearly no need for a separate evaluation and analysis of the pleadings and evidence of each suit as this would amount to an unnecessary duplication. In any case, Learned Counsel for the appellant who argued that the approach of the trial court made it confused as to which party proved or did not prove its claim in the respective suits and made it unable to appreciate that each party had the burden to prove its claim in its suit, failed to show the basis for such argument by reference to the portion of the judgment that showed such confusion or inability. It is not enough to assert that the trial court was confused as to who proved or did not prove what suit or was unable to understand that each party as a plaintiff in his suit had the burden to prove his claim. The party so asserting must refer to the parts of the judgment that show such confusion or lack of understanding on the part of the trial Court. Learned Counsel

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for the appellant failed woefully to show how the common review, evaluation and analysis of the pleadings and evidence adduced by the parties made the trial court confused about how the requirement of proof of the claim in each of the consolidated suits is discharged, about who has the burden to prove the claim in each suit and whether such burden was discharged.

Learned Counsel did not show or even allege that the said approach of the court disabled it from properly evaluating any evidence in respect of any claim in any of the two suits.

In the light of the foregoing, I resolve issue No 1 in favour of the respondents.

Let me now determine issue No 2 which asks- Was the PW4 a tenant of the appellant or the respondents? father in respect of the land in dispute. This issue is not derived from any of the grounds of this appeal. There is no ground of this appeal complaining against the trial Court?s specific finding of fact that PW4 was a tenant of the respondents. Issue No 2 is incompetent for this reason. It is settled law that every issue raised for determination in an appeal must derive from a ground of the appeal and that an issue for determination

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that is not derived from a ground of an appeal is incompetent and must be struck out. See Kalu v. Odili & Ors (1992)6 SCNJ 76. Since the issue is incompetent, the arguments thereunder are equally incompetent and are hereby struck out.

Since there is no ground of this appeal complaining about the trial court?s specific finding of fact that PW4 was a tenant of the respondents, issue No. 2 and the arguments thereunder that contend to the contrary of that finding are incompetent and not valid for consideration in this appeal. The appellant by not appealing against the said finding accepted it as correct, valid and binding upon him. SeeIyoho v. Effiong (2007) 4 SC (pt 111) 90, SPDC Nig Ltd & Anor v. D.M. Federal Ltd & Anor (2006)7 SCNJ (Pt 11)27 and Biariko & Ors v. Edeh ? Ogwuile & Ors (2001)
It is settled law that a party will not be heard on appeal on a particular finding of the trial Court which he has not appealed against. See Awote v. Owodunni (1987)5 SCI and Sparkling Breweries Ltd & Ors v. UBN Ltd (2001) 7 SC (Pt 11) 146. So the appellant cannot competently raise and argue any issue contrary to the specific finding of the

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trial Court that PW4 was a tenant of the respondents.

Issue No 2 and the arguments thereunder are hereby struck out.

Let me now consider issue No 3 which asks- ?Was the learned trial judge right to have allowed PW4 who was merely subpoenaed to tender documents in the proceeding to be cross-examined extensively.?

Learned Counsel for the appellant argued under this issue that PW4 was summoned at the instance of the appellant to produce certain documents in Court and for that purpose was served a subpoena (Exhibit ?S?), that because he was subpoenaed only to produce or tender documents, PW4 was not sworn on oath and so did not enter the witness box to tender the documents, that PW4 tendered the documents without entering the witness box, that the respondents then applied for leave of Court to cross-examine PW4, that despite the appellant?s objection, the trial Court ruled granting the respondents leave to cross-examine him, that PW4?s testimony under cross examination contradicted the documents produced and tendered by him as Exhibits T, U and v, that the trial Court made extensive use of the PW4?s testimony under cross

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examination to hold that the PW4 was a tenant of the respondent and not a tenant of the appellant, that Learned Counsel for the appellant did not convert the PW4 into a witness so as to expose him to cross-examination, that the trial Court was in grave error to have allowed the application of the respondents to cross-examine him, that if the respondent intended that the PW4 testify as a witness, he should have subpoenaed him to testify as such witness, that the PW4 tendered only the documents and did not testify in chief as to warrant a cross-examination, that the testimony of PW4 under cross examination is inadmissible evidence, and that if the trial court had not relied on PW4?s testimony under cross examination its decision would have been substantially different.

?Learned Counsel for the respondents conceded that PW4 was subpoenaed to tender certain documents. He then argued that PW4, in addition to tendering the documents, testified in chief without being sworn that ?I have looked at ID. I. The signature in Id. I looks like my signature. But I was in the batcher only. Id. I was not given to me.? Learned Counsel further submitted that after

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this testimony, the appellant sought to tender the said Id. I as an exhibit, that following the objection of the respondents to which the appellant replied, the trial Court refused to admit it in evidence. It is also the submission of learned counsel for the respondents that the trial Court rightly granted the respondents leave to cross-examine PW4, that PW4 having testified as quoted above, he was liable to be cross-examined. Learned counsel relying on Anatogu v. Iweka No 2 (2004) 47 WRN, cited by Learned Counsel for the appellant, argued that the fact that it was an unsworn testimony is of no moment.

Let me now determine the merit of the above arguments.

All sides agree that PW4 was served a subpoena which was admitted as Exhibit S, to come to Court to produce and tender rent receipts. But Exhibit S states thus- ?To Mr. C.C. Obiaga of Onitsha Road, Nnewi. You are hereby commended by the state to attend in person before this Court at Court 1 Nnewi on Tuesday the 16th day of April, 2002 at 9 O?clock in the forenoon, and so from day to day till the above cause be tried, to testify all that you know in the said cause. You are hereby summoned at the

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instance to tender receipts shown on attached document. Issued at Nnewi this 11th day of April, 2002.?

So the subpoena in its content commands that PW4 should come and testify and produce documents. It is a subpoena ad testificandum/duces tecum. Restating the nature of a subpoena and what the addressee thereon who appears in obedience to it is required by law to do, this Court in Okoye v. Charles & Ors (unreported Judgment of 29-12-2015 in CA/E/EPT/59/2015) held thusly ? ?A person who appears in court in obedience to a sub poena duces tecum has the duty of only producing and placing before the court the document he is commanded in the subpoena to produce. The documents can be tendered and admitted through him and he need not swear to an oath as a witness. On the other hand, a person who appears in court in obedience to subpoena ad testificandum must testify under an oath or affirmation. If the subpoena is two fold in that it commands that the addresses produce certain documents and testify, the person commanded would be sworn in or affirmed as a witness before and testify as a witness. It is what the subpoena commands in and not its

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heading that determines the nature of the subpoena. In our present case, although the subpoenas are headed ?duces tecum at testificandum, they were not two fold, they were in substance duces tecum since they commanded only the production of documents.?

So PW4 who appeared in Court in obedience to Exhibit S, had the duty to testify and to produce documents because Exhibit S commanded so. The belief of both parties that he was only commanded by Exhibit S to come to Court and produce documents and not to testify as a witness is not supported by the of Exhibit S. The view is therefore wrong. Exhibit S is a subpoena ad testificandum/duces tecum.

I agree with the submission of Learned Counsel for the respondents that PW4 did not just produce and tender documents, he went further to testify in examination in chief. He did not just produce the documents and walk away. It is clear that the documents were tendered in evidence through him. This in my view amounts to giving evidence of the documents. In the process of tendering the documents, he testified in respect of Exhibits T and U that ?they were issued to me the same day,? he testified in

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respect of Exhibit V, while laying foundation for its admissibility that the original was lost, he testified in respect of Id. 1. that the signature on it does not look like his, that the original copy was not given to him and that he was in the batcher in 1994 and 1995 and also testified in respect of one receipt which he did not produce in Court that it was destroyed by flood. This part of his testimony is contained in lines 29-30 of page 306 to page 307 of the record of this appeal.

At the conclusion of the process of tendering the receipts in evidence through PW4, Learned counsel for the respondents argued that he was entitled to cross-examine the witness because the witness gave lengthy evidence and tendered Exhibits S, T and U, that the documents were controversial in nature and that the procedure adopted by Learned Counsel for the appellant was strange. Learned Counsel for the appellant objected to PW4 being cross examined because he gave no evidence beyond tendering Exhibits S, T and U, he was not sworn on oath or affirmed as a witness and did not enter the witness box.

The trial Court on 8-6-2002 ruled thusly- ? Ruling: The witness was not sworn

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but he gave evidence and also tendered documents. It is view that to come under Section 192 all the person subpoenaed to produce documents has only the duty to produce them in Court. Under Section 193 if he merely produced the documents he does not thereby become a witness, who is a witness. In my view a witness is a person who gives evidence in Court. It does not matter whether he is sworn or not or whether he enters the witness box or not. All that will go to the weight the worth attaches to his evidence. Did the witness merely produce documents? The answer in my opinion is in the negatives. He did more than that. He in addition gave evidence. That in my humble what makes him a witness. Once he is a witness he is subject to cross-examination. I am of the view therefore that Mr. Nwobosi has the right to cross-examine the witness who is PW4. I don?t therefore agree with the opinion of Mr. Anah regularity in his book.?

I do not agree with the argument of Learned counsel for the appellants that the above ruling of the trial Court is wrong. The PW4 was not summoned only just to produce documents. He was summoned to testify and produce documents. He

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did not just produce documents, he tendered them in evidence and gave further evidence in the process of tendering them in evidence. So S.219 of the Evidence Act 2011 cannot apply here to prevent the PW4?s cross-examination. If the PW4 was summoned just to produce documents and had merely produced the documents without more, he would not have been open to cross examination. S. 219 of the Evidence Act 2011 clearly states that he does not become a witness in the case by merely producing a document in court and that he cannot be cross-examined if he merely produced the document in Court.

The evidence of PW4 in respect of which he was cross-examined by the respondents was adduced through him by the appellant. If the appellant did not want him to testify, he should have let PW4 go after he produced the documents and should not have asked him any question thereafter. The Supreme Court in Anatogu v. Iweka (supra), concerning a situation as in this case, where documents produced by a person summoned upon a subpoena duces tecum to produce documents were tendered in evidence through him, without being sworn as a witness, held that the party who called him could

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have asked the trial Court to release him after he had brought to the Court the documents he was summoned to produce and that the said party confused the role of the person he summoned and had wanted him to testify as a witness. But by tendering the documents through him and thereby proving their existence and contents by asking him questions to elicit answers about the authorship and authenticity of the signature on Id. 1, about the fact that a particular receipt could not be produced because it was lost or destroyed by flood, about the fact that he stayed in the property from 1994 ? 1995, the appellant turned PW4 into a witness. PW4 testified on facts within his own personal knowledge. It is obvious that the appellant elicited evidence of those facts through him, in support of his case. The appellant who relied on those facts, cannot validly argue that the respondent cannot cross examine his witness through whom those facts were admitted in evidence. It would be unfair to the respondents and amount to a violation of their right to fair hearing to prevent them from defending themselves in respect of the case the appellant has made against them by the

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facts he introduced in evidence through PW4 by cross-examining him on his testimony of the facts. The right of fair hearing in a judicial proceeding includes the right of a party to cross-examine the witness of his opponents on any evidence given in support of his opponent?s case. A party cannot be deprived the right to cross examine the witness of his adversary for any reason. There can be no fair trial if a party is prevented from cross-examining such a witness.

The argument that the testimony of PW4 under cross-examination is not admissible evidence because it was not made on oath or affirmation as required by S. 205 of the 2011 Evidence Act is in my view contrary to the rule of fair hearing that both parties to a case must be heard on every issue and that the parties must be treated equally and given equal opportunities during the trial. The appellant who did not contend that the evidence he adduced through PW4 is inadmissible cannot argue without reasonable basis that the testimony of PW4 under cross-examination concerning the said evidence he had given is inadmissible. If the evidence he adduced through PW4 is admissible evidence, then the testimony

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of PW4 under cross-examination on the said evidence cannot be inadmissible. Any argument to the contrary is absurd, incongruous and unreasonable. It will be inequitable to allow the appellant utilize evidence in support of his case and prevent the respondents to challenge such evidence by cross-examination of the witness that gave such evidence.

Although S.205 of the 2011 Evidence Act provides that ?Oral evidence given in any proceedings must be given upon oath, affirmation administered in accordance with the Oaths Act or Law as the case may be,? the Supreme Court in Anatogu v. Iweka (supra) has held that the failure to take oath or make an affirmation and any irregularity as to form of oath or affirmation shall not affect its admissibility and probative value and that such testimony shall be deemed to have been given as if under oath unless it can be shown that a party has suffered a miscarriage of justice as a result of the omission or failure to administer the oath or affirmation before the testimony. In Anatogu v. Iweka (supra) the witness who was summoned upon a subpoena duces tecum to produce document, testified without oath or affirmation and

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the documents he produced were tendered through him. The Supreme Court considered the consequence of the failure to administer oath or affirmation on a witness before he testified in Court in the light of S. 179 of this Evidence Act 1990 Cap 112 Laws of the Federation of Nigeria 1990 (the same with S. 205 of the 2011 Evidence Act) and held that ?The answer is given by S.4(3) of the Oaths Act of 1963 which provides that (3) the failure to take an oath or make an affirmation, and any irregularity as to form of oath affirmation shall in no case be construed to affect the liability of a witness to state the truth.? Since by these provisions, the evidence of PW4 is to be taken to have been given as if under oath, in other words, as if he had been sworn, then, no miscarriage of justice has been occasioned by the omission to administer oath or affirmation on the witness It is noteworthy that unlike in this case, in that case the issue was not raised at the trial Court and in this Court. It was nevertheless considered by the Supreme as a point that is fundamental in nature.

?In the light of the foregoing issue 3 is resolved in favour of the

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respondents.

Let me now consider issues 4 and 5 together.Issue 4 asks- ?From the facts and circumstances of this case has the appellant not established his title to the land in dispute?
Issue 5 asks- ?Was the learned trial judge justified in granting the land in dispute to the respondents?

The substance of the arguments of Learned Counsel for the appellant under these issues is that the appellant established title to the Suit land and that the respondents did not prove their title to the Suitland and that therefore the trial Court ought to have granted the claim of the appellant in suit no HN/138/97 and dismissed the respondents? claim in suit No HN/105/98. The appellant in his pleading and evidence stated that the Suitland was given to him by Late Patrick Nwokafor Chukwuma in 1975 in exchange for the land appellant gave to him in return, that since then he has been in possession of the land in dispute and performed many acts of ownership and possession of the land in dispute, that in 1976 he erected a two storey building on part of the said land and that the remaining portion of the said land he got in the exchange, is an open space which is

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the land in dispute. This was the appellant?s explanation of how he derived title to the Suitland.

The trial Court considered the merit of the appellant?s claim that his title to the suit land is derived from the 1975 exchange of lands between Patrick Nwokafor Chukwuma and the appellant. It held thusly- ?The next issue is whether the land in dispute was the subject matter of the land exchanged between the plaintiff and Patrick Nwokafor Chukwuma.
Issue No. 2:
?I observe that Patrick Nwokafor Chukwuma is the younger brother of Felix Chukwuma who the defendants say sold the land to their father.The plaintiff to notified that the land in dispute was part of the land he got from Patrick Nwaokafo Chukwuma who inherited the land in dispute from the father Chukwuma in as exchange of lands with Patrick Nwokafor Chukwuma. He tendered Exchange F in support of his testimony. This is all the evidence proof of the exchange. This issue in my view, is a very important issue if not the most important issue to the plaintiff in this case. No other person testified in support, not even Patrick Nwokafor Chukwuma or if he is dead any of his descendants. Exhibit F is a

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receipt given to the plaintiff by Patrick Nwokafor Chukwuma for the payment to him of N100 for the transfer of Ana-Ogugu Nwokafor Chukwuma at a place called ?Ochuno Iloka?. May be ?Ochuno Iloka? is the same as ?Okpuno Iloka?. The evidence of the defendants is that their father bought the land in dispute from Felix Chukwuma and not Patrick Nwokafor Chukwuma. Dose Exhibit F show conclusively that the subject of that transfer is the land in dispute?
The land the plaintiff gave in return is not mentioned in Exhibit F. Indeed Exhibit F talks of transfer of land and not Exchanged of land. Even if it is believed that Patrick Nwokafor Chukwuma exchanged this land at Okpuuno Iloka there is no evidence to show the land in dispute is the only land he has at Okpuno Iloka and that is assuming he has land there at all. There is no survey plan or even a sketch plan attached to Exhibit F.
?And yet this transaction was only in 1975 and not in ?olden days?. What is more the fact that no other person witnessed this exchange, not even the Obi of Iloka family, is unbelievable. I do not believe it. I am not satisfied that the transaction

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in Exhibit F has been proved to relate to the land in dispute.?

There is no ground of this appeal complaining against the above specific findings of fact and holding.

The respondents maintained a rival claim of title to the Suitland on the basis of their claim that Felix Chukwuma, the elder brother of Patrick Nwokafor Chukwuma sold the land to their father under a sale agreement contained in Exhibit Z2.

In respect of this claim of purchase of the Suitland by respondents? father from Felix Chukwuma, the trial Court held thusly- ?I turn to issue No. 3 and that is whether Felix Chukwuma sold the land in dispute to the defendants?Father. I will deal with this briefly. The evidence of the plaintiff is that that was not possible because (1) the land in dispute belonged to Patrick Nwokafor Chukwuma and not to Felix Chukwuma and (2) that since the kand us subject to Ana-Ogugu custom, it cannot be sold without the consent of Iloka family, who are now the granters. For the defendants, DW3, Francis Nwagbala, DW4 Emmanuel Ikemefuna Edokwe and DW5 Edward Chukwuma Annene gave evidence of this sale, DW3 Francis Nwagbala in particular testified that he

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was present during the sale. Exhibit Z2 is evidence of that sale. DW5 Edward Chukwuma Anene, the son of the vendor Felix Chukwuma testified in support of the sale.
I will now deal with the two points raised by the plaintiff in this issue which I have mentioned above.
The first contention is that Felix Chukwuma did not sell, or could not have sold because the land belonged instead to his younger brother Patrick Nwokafor Chukwuma.
There is no evidence that he challenged the sale. What is revealing is that Patrick Nwokafor Chukwuma signed Exhibit Z2 himself as a witness. So he very well knew of the sale and participated as a witness.
He wouldn?t have done that if it were his land.
The point is the land being subject to Ana Ogugu custom cannot be sold without the consent of Iloka family.
It is in evidence that chief Edwin Iloka was the head or Obi of Iloka family. Chief Edwin Iloka signed Exhibit Z2 as a witness.
He could not have signed as a witness if he did not consent to the sale. Finally on this issue Mr. Obeta heavily criticized Exhibit Z2.
It is important to bear in mind that Exhibit Z2 is not a ?title document? or a conveyance or oven a

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?customary conveyance? it is only evidence of transfer of title.

It does not transfer title. There is evidence that this sale was in accordance with their customs, and that a goat was slaughtered in the presence of witnesses. Under customary law what transfers title to land is the fulfillment of the customary conditions particularly the slaughter of a goat. In this case Dw3 Francis Nwagbala and eye witness, Dw4 Emmanuel Ikemefuna Edokwe and Dw5 Edward Chukwuma gave evidence of the sale and slaughter of goat.
I therefore resolve issue No. 3 in favor of the defendants.
I hold that Felix Chukwuma sold the land to the defendant?s father.?

There is no ground of this appeal complaining against the above specific findings of fact and holding that the respondents customarily purchased the Suitland from Felix Chukwuma the eldest son of Chukwuma whom both sides agree was in lawful occupation and usership of a larger area of land encompassing the Suitland. The appellant also relied on the pleading and evidence of traditional history in support of his case. Concerning the appellant?s pleading and evidence of traditional history the trial Court

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held thusly- ?The plaintiff pleaded traditional history in paragraph 3, 4 and 5 (a) of the further amended statement of claim. In paragraph 3 it is pleaded that Oduge plaintiff?s great grand father was one of the three founding fathers of Okpuno Ebenator Uruagu Nnewi. Also in the said paragraph 3 the genealogy of this plaintiff is traced from Oduge to the plaintiff. In paragraph 5 (a) it is pleaded that the land in dispute forms part of Ana Ochie Uno Iloka, the grand father of the plaintiff.

The evidence of the plaintiffs is in line with the above pleadings. To succeed on a proof of title by traditional history, it is settled law that a party has to plead and prove who founded the land, how he founded, and the history of the devolution of the land in dispute down to such a party.
See Amobi v Amobi (1996 9-10 SGNJ207
Atunyili vs Ejidike (1990) 4 SCNJ 251
Egbo vs agbara (1997) 1 SCNJ 91
Dike vs Okelodo (1999) 7 SCNJ 240

?It will be found that the plaintiff pleaded his genealogy from Oduge to himself, but there is no pleading of the devolution of the land in dispute from Oduge to the plaintiff or to his grand father Iloka. The plaintiff failed to plead and

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prove how the three founding fathers. Found the land, was it by conquest, or by deforesting a virgin forest. Did they act jointly? that was not pleaded nor proved. As I stated above the plaintiff?s evidence is in line with his pleadings. It means that his evidence suffers from the same inadequacies as his pleadings. There was no evidence of how the land was founded by the three founding fathers. There was no evidence of how the land in dispute devolved from Oduge to Iloka, the plaintiff?s or and father. According to the evidence of the plaintiff the land did not hold that proof of title by traditional evidence by the plaintiff is at best inconclusive. I may add that the pleading and evidence of the plaintiff prove of root of title by traditional history is inadequate and insufficient. I hold that the plaintiff has failed to prove root of title by traditional evidence. What is fact appears to me more relevant and more important is the proof of the transfer of the land in dispute to the plaintiff in an exchange of lands. This is so because the defendants trace their title to the same Chukwuma or father a son of Chukwuma. I have dealt with the

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exchange above, and there I held that it was not prove this transfer or exchange, in order to succeed in this case.?

There is no ground of this appeal complaining against these specific findings of fact and holding.

The appellants in their pleading and evidence relied on appellant?s acts of ownership and possession of the Suitland in support of their case, such as his lease of the Suitland to Eekeson Nig Ltd, Caroline Mbonu and C.C. Obiaga. Concerning the proof of the said acts of possession by appellant, the trial Court found and held that ? ?I will now consider act of ownership and possession in proof of title. I will consider only the main acts of ownership and possession. The first is that the plaintiff?s attorney rented out the land in dispute to Eekeson Nig. Ltd. There is pleaded in paragraph 15 of the further further amended statement of claim. In paragraph 32 of the further amended statement of defence the defendants pleaded that what was rented to Eekeson Nig Ltd. was not the land in dispute but another land. Evidence was given in support of both pleadings. Nobody from Eekeson Nig Ltd testified in support of the pleading

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of the plaintiff. No reason was given for this failure. Only the plaintiff gave such evidence. Both PW3 denied that the plaintiff put in any tenants on the Eekeson Nig. Ltd. never used the land in dispute. the plaintiff tendered Exhibits P and R in support of his evidence. But this exhibits do not specifically refer to the land in dispute. There is no evidence that they do not relate to the open space in front of the plaintiff?s house which is adjacent to the open space, the land in dispute. Exhibit P also tendered by the plaintiff made no reference to the sketch plan attached to it. Exhibit A is a copy of a letter written to the sole Administrator of Nnewi Local Government. The Local Government was not called to tender the original copy which is a public document. No certified copy of the Exhibit P has no probative value. I am of the view that the Eekeson Nigeria Ltd. never was in possession of the land in dispute.

The next act of possession is the evidence of the plaintiff that PW2 Caroline Mbonu was a tenant of the plaintiff on the land in dispute. Caroline Mbonu gave evidence in support. Exhibit E was tendered in support of this. The defendants deny

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that Caroline Mbonu was ever on the land in dispute. No other person apart from the plaintiff has ever seen Caroline Mbonu on the land in dispute. PW4, plaintiff?s witness testified that he never saw Caroline Mbonu on the land in dispute. PW4 added that only person he saw making use of the shed on the land in dispute was the plaintiff?s wife and that he permitted her to do so. Caroline Mbonu who testified as PW2 state that the shed she used on the land in dispute was destroyed. She did not know who destroyed it. But PW3 stated that it was shed used by the plaintiff?s wife that was destroyed. the plaintiff?s wife did not testify to contradict the evidence of PW4 that he permitted him to use the shed on the land in dispute nor the evidence of DW3 that the shed on the land in dispute was destroyed by the defendants? father. What is more Exhibit E described the shed as that attached to the house of Anselem Iloka. I hold that the act of possession by Caroline Mbonu is not proven as it leaves many questions unanswered. Next is the act of possession to C.C. Obiaga. Both parties agree that C.C. Obiaga is in possession of that land in

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dispute. The only dispute is as to who put him in possession. Both parties claim to have put him in possession of land in dispute. The defence case is that while C.C. Obiaga is their tenant, in respect of the land in dispute, he was also the tenant of the plaintiff in respect of the open space in front of the plaintiff?s small store which is adjacent to the land in dispute. The plaintiff testified and tendered Exhibits T, U and V. All these exhibits were copies of readapts said to have been given to C.C. Obiaga. But they were tendered through C.C. Obiaga himself. In the exhibits it is clearly stated that the open space let to C.C. Obiaga by the plaintiff is the land in dispute. C.C. Obiaga himself testified for the plaintiff as PW4. He stated that he is the tenant of the defendants in the land in dispute, and not the tenant of the plaintiff. He stated that he was the tenant of the plaintiff in another open space in front of the plaintiff?s small store. So he supported completely the defendants? position on this point and that is that he was the defendants? tenant on the land in dispute. PW4?4 evidence contradicts that of plaintiff

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that he was the tenant of the plaintiff on the land in dispute.

In respect of this devastating evidence of PW4, Mr. Obeta submitted that C.C. Obiaga was stopped from denying his landlord?s title by the principle of tenant?s stopped. He relied onAgbomeji v. G.A. Olivant Ltd (1942) 16 NLR 96, I have read that case. I am of the view that the facts are not the same with the facts in the present suits. In the present suits, what PW4 is saying is that he was never a tenant of the plaintiff in respect of the land in dispute; his tenancy to the plaintiff was in respect of another piece of land. C.C. Obiaga never admitted being a tenant of the plaintiff in respect of the land in dispute at anytime. So the issue of challenging or denying the title of his landlord does not arise at all. In Agbomeji?s case (supra) it was not in dispute that the defendants therein were tenants of the plaintiff in respect of the area covered by the store demised to the defendants. I am of the view that that case is not relevant in these suits. I believe the evidence of he PW4 that he is not a tenant of the plaintiff but that of the defendants with respect to the land in

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dispute. Let me add that in spite of this evidence of PW4, he was not treated as a hostile witness by the plaintiff. These are the main acts of possession canvassed in these suits.?

There is no ground of this appeal complaining against the above specific findings of facts and holding that the appellant failed to prove that it leased the land in dispute to Eekeson Nigeria Ltd, Caroline Mbonu and C.C. Obiaga and that C.C. Obiaga was rather a tenant of the respondents. In ground two of the notice of this appeal the appellant complained that- ?The learned trial judge erred in law when he dismissed the plaintiff?s claim without considering the various and diverse acts of ownership and possession exercised by the plaintiff in respect of the land in dispute.
PARTICULARS OF ERROR
i) The plaintiff led evidence to show that he put tenants on the land in dispute.
ii) The plaintiff also tendered rent receipts, letters and other documents which were overt acts of ownership and possession over the land in dispute.
iii) The presiding judge was in error to have disregarded these acts of ownership and possession in arriving at his decision.?

?This is obviously

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not a complain against the findings of facts and holding of the trial Court concerning the appellant?s alleged acts of ownership and possession of the Suitland. The complain in this ground is that the trial Court did not consider the said acts of ownership and possession exercised by the appellant in the Suitland. But the portion of the judgment reproduced above show that those acts were considered by the trial court and decisions reached upon such consideration. So ground 2 is incompetent and not valid for consideration as it alleges an event that is not supported by the record of appeal. The record of appeal show that the appellant?s acts of possession of the Suitland were considered in arriving at the decision to dismiss the appellant?s claim in suit No HN/138/97.

The decisions reached by the trial Court concerning the said acts of possession after considering the appellant?s pleadings and evidence of same have not been questioned in any ground of this appeal. The decision of the trial court that the appellant did not prove any of the main acts of ownership and possession is not challenged in any ground of this appeal. The omnibus

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ground of this appeal complaining that the trial court?s judgment in each suit is against the weight of evidence does not qualify as a complain against a finding, decision or holding of the trial Court on a specific issue. An omnibus ground of appeal is therefore not a ground of appeal against a specific finding of fact or holding of the trial Court. No issue or argument can be validly raised or made against a specific finding of fact or holding on the basis of an omnibus ground of appeal that complains against the weight of the totality of evidence. The supreme Court in Akinlagun & Ors v. Oshoboja & Anor (2006)5 SC (Pt 11)100 held that ?An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error of law.? In Osolu v. Osolu (2003)6 SC (Pt 1)1. The Supreme Court also held that- ?An omnibus ground of appeal implies that the judgment of the trial Court cannot be supported by the weight of the evidence adduced by the successful party, or the trial judge

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either wrongly accepted, evidence or the inference he drew, or conclusion he reached based on the accepted evidence cannot be justified. An omnibus ground also implies that there is no evidence which if accepted would support the finding of the trial Court.?

The appellant by not appealing against the above findings of fact and holdings by the trial Court, has accepted them as correct, valid and binding upon him. See Iyoho v. Effiong (supra) SPDC Nig Ltd & Anor v. X.M. Federal Ltd & Anor (supra) and Biariko & Ors v. Edeh-Ogwuile & Ors (supra).
Having accepted the above findings and holdings as correct, the appellant cannot argue in this appeal that the trial Court was wrong to have held that he did not prove his title to the Suitland and dismissed his claim in suit No HN/138/97 and was wrong to have granted the reliefs claimed for by the respondents in suit No HN/105/98. So issues No 4 and 5 in the appellant?s brief and the arguments thereunder are unarguable and incompetent as they are contrary to the findings and holdings the appellant has accepted as correct. It is settled law that party will not be heard in an appeal on a

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particular finding or holding of the trial Court which he has not appealed against and thereby accepted as correct. See Awote v. Owodunni (supra) and Sparkling Breweries Ltd & Ors v. UBN Ltd (supra).

The complain in ground 3 of this appeal that Exhibit Z2 on the face of it is a forgery and was prepared purposely for the suits is incompetent as it is not part of the case the appellant presented in his pleadings. It was not alleged in any of the appellant?s pleadings that the written document concerning the customary sale of the suit land by Felix Chukwuma to the respondents? father is forged or made for the purpose of the pending suits.

?The respondents as defendant in suit No. HN/138/97 had alleged in paragraph 8 of their further amended statement of defence that- On 6th October, 1971, the defendants? father (Simon Sunday Edokwe) purchased, under Nnewi customary law, another or second piece of land (now the land in dispute) at the same Okpuno-Ebanaator, Uruagu village, Nnewi from Felix Chukwuma (now deceased) and a Receipt/Memorandum was issued to the defendants? father for the payment of the consideration to cover the transaction. The

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defendants plead and will at the trial of this action rely on the said RECEIPT/MEMORANDUM issued to cover the said transaction. In each of the two customary sales mentioned above, goat was slaughter and kolanutes eaten and palm wine drank to perpetuate each of the sales, according to the customary law of Nnewi Town. The defendants plead and will at the trial of this suit rely on the said custom of Nnewi Town. In 1973, after the said two purchases mentioned above, the defendants? late father (Simon Sunday Ediokwe) made a survey, covering the said two portions of land (which adjoins each other with one common boundary) which he bought from Raphael C. Iloka and Felix Chukwuma (both now deceased), as stated earlier in this further amended statement of defence. The survey was done by Mr. G.A. Obianwu, a licensed surveyor, (now deceased) and he produced a survey plan No. E/GA.927/73, dated 24th August, 1973, covering the said two pieces of land, which the defendants? late father from Raphael C. Iloka and Felix Chukwuma as aforesaid.? This averment is also contained in paragraphs 11-13 of the amended statement of claim in suit No HN/105/98.

?The

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appellant as plaintiff in suit No HN/138/97 in paragraph 1(a), (b) and (c) of his amended reply to the further amended statement of defence replied to the above averment thusly- (a) ?The plaintiff denies paragraph 8 of the further amended 3 statement of defence and states that the defendant?s father never purchased under Nnewi Customary law, any piece of land from Felix Chukwuma as Felix Chukwuma was never the owner of the land in dispute. The plaintiff was making use of the land in dispute. During the life time of Felix Chukwuma and the said Felix Chukwuma never complained.
(b) Felix Chukwuma died on or about January 1995, a little before the Defendant?s father started encroaching on the land in dispute. Even before Felix Chukwuma died, his daughter Monica was working for C.C. Obiaga who was paying rent for the land in dispute to the plaintiff.
(c) Assuming the said Felix Chukwuma sold to the Defendant?s father which is not admitted, he had no authority to sell under ?Ana-Ogugu? Land Tenure? of Okpuno Uruagu Nnewi. Before the exchange of the land in dispute, he was not even the person occupying the land under

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?Ana-Ogugu? but Patrick Chukwu. The said Patrick Chukwu exchanged the land in dispute with the plaintiff.?

A similar averment by the appellant is contained in paragraphs 11 ? 13 of the amended statement of defence in HN/105/98. The appellant in his reply said nothing about the receipt tor memorandum stated in paragraph 8 of the further amended statement of defence as having been issued to the respondent?s father for the payment of the consideration. The appellant did not allege it was forged or made for the purpose of the pending litigation, and such facts must be specifically pleaded. SeeNdoma Egba v. ACB (2005) All FWLR (Pt 283)152 at 171 and Ukwunna & Anor v. Ukwunna & Anor (2011) LPELR ? 4238 (CA).

The final address of a party in a case during trial as well as his complain and argument on appeal must be consistent with the case presented by him in his pleadings. He cannot in his address make a case he did not make in his pleadings. He cannot on appeal make a complain inconsistent with the case he made in his pleadings. Any complain or argument on appeal inconsistent with or not contained in the case he made in his

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pleadings is incompetent and not valid for consideration.

The trial Court found as a fact that Chief Edwin Iloka the head of Iloka family (appellant?s family) signed Exhibit Z2 as a witness and that he consented to the customary sale of the suit land by Felix Chukwuma to the father of the respondents. It also found as a fact that Patrick Nwokafo Chukwuma, the elder brother of Felix Chukwuma signed Exhibit Z2 as a witness. Patrick Nwokafo Chukwuma is the person the appellant claimed to have derived his title to the Suitland from. The trial Court also found as a fact that the sale by Felix Chukwuma to the respondents was in accordance with customary law and that a goat was slaughtered in the presence of witnesses as part of the customary sale of land conditions.

There is no ground of this appeal complaining against any of these specific findings of facts. By not appealing against them, the appellant accepted as correct, valid and binding upon him. Having accepted these findings as correct, the argument that Exhibit Z2 is forged or made for the purpose of the pending suits is incompetent, meaningless and unsustainable.

?In the light of the foregoing, issues 4

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and 5 of the appellants brief are resolved in favour of the respondents.

On the whole this appeal fails as it lacks merit. It is accordingly dismissed. The judgment of the High Court of Anambra State delivered on 27-7-2004 by Emegbolu Nri-Ezedi J dismissing Suit No HN/138/1997 and granting reliefs claimed for in Suit No HN/105/1998 is hereby affirmed.

The appellant shall pay cost of N100,000.00 to the respondents.

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Other Citations: (2016)LCN/8847(CA)