ABEL OGBOGWU V. EIJE AIGBO (2013)

ABEL OGBOGWU V. EIJE AIGBO

(2013)LCN/6245(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of May, 2013

CA/J/221/2009

JUSTICES

JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

ABEL OGBOGWU Appellant(s)

AND

EIJE AIGBO Respondent(s)

RATIO

WAYS TO ESTABLISH OWNERSHIP OF IDENTITY TO A LAND IN DISPUTE

It is well established that a plaintiff seeking for declaration of title to land bears the enormous duty in law to adduce credible and admissible evidence in establishing of such title. The plaintiff must succeed on the strength of his own case except where the evidence adduced by the defendant strongly supports his case.

WHETHER OR NOT FACTS ADMITTED NEEDS FURTHER PROOF

The law is settled that facts admitted need no further proof. Counsel argued that the complain of the appellant as to identity of the land is misplaced and unmeritorious. He urged the court to resolve the issue in favour of the respondent.
The first duty of a plaintiff who comes to court to claim a declaration of title is to show the court clearly the area of land to which his claim relates and this can be done by:
(i) Giving such oral description of the land that any surveyor acting on such description can produce a plan of the land he claims.
(ii) Filling a plain reflecting all the features of the land and showing clearly the boundaries of the land. See Akulaku V. Yonqo (2002) 5 NWLR (Pt. 759) page 135, Ogwu V. Akinyelu (2004) 18 NWLR (Pt.
905) 362; Akinolu Baruwa V. Ogunsola (1938) 4 WACA 159 and Ate Kwadzo V’ Robert Kwasi Adijei (1944) 10 WACA 274. PER MSHELIA, J.C.A.

WHETHER OR NOT THE QUESTION OF IDENTITY OF LAND WILL ARISE WHERE THE LAND IN DISPUTE IS KNOWN TO PARTIES

It is trite that where the disputed land is known to both parties as in this case the question of identity of the land does not arise, In Odofin V. Oni (supra) at 144 it was held thus:-
“where both partres are familiar with or know the land in dispute the question of identity of or its certainty will cease to perplex the trial court and the appellate court and neither party will be allowed to place a clog in the wheel of justice by mischievously raising the issue of identity in order to becloud what is otherwise a piece of land that is well known to both parties.” PER MSHELIA, J.C.A.

ADZIRA GANA MSHELIA, J.C.A.(Delivering the Leading Judgment): The present appeal emanates from the judgment of the Benue State Customary Court of Appeal, sitting in Makurdi, Benue State in Appeal No. CCA/M/20A/2005 dated the 25th day of June, 2007 , wherein the appeal of the present appellant against the judgment of Grade 1 Area Court, Otukpo, Benue State in suit No. CV/49/2002 dated the 29th day of April, 2002 was dismissed and the judgment of the trial court affirmed.
The brief facts leading to this appeal are as follows: The original plaintiff in this case was Ochai Agada now late was substituted with the present respondent vide an order of this court. The said original plaintiff at the trial Grade 1 Area Court, Otukpo sued the present appellant as defendant seeking the following relief:-
“A Declaration to a piece of land and economic trees and also injunction to further development in the land.”
The case proceeded to trial before Grade 1 Area Court. Both parties gave evidence and called witnesses. At the close of the case of the parties, the trial Grade 1 Area, Court Otukpo proceeded to the Locus in quo. See the report of the visit at pages 39-44 of the record of proceedings. Counsel on both sides submitted written addresses as ordered by the trial court. In a considered judgment dated the 24th day of April, 2005, the trial Grade 1 Area Court, Otukpo entered judgment in favour of the respondent and against the appellant. The appellant aggrieved by the judgment of the trial Area Court, appealed to the lower court upon a Notice of Appeal containing 9(nine) grounds of appeal. The appeal was heard and the lower court in a considered judgment dismissed the appeal on all the issues canvassed and affirmed the judgment of the trial court. It is against this judgment of the lower court that the appellant has now appealed to this court vide his Notice of Appeal dated the 2nd day of July 2007 but filed on 3/7/2007, containing four (4) grounds of appeal. See pages 122 -124 of the record.
In line with the practice of this court parties exchanged briefs of argument. The appellant’s brief settled by Chief S.O Agbo Esq was filed on 19-05-201 1. While respondent’s brief settled by P.A Omengala Esq was filed on 28-02-13. When the appeal came up for hearing both council adopted their respective briefs of argument. Appellant’s counsel urged the court to allow the appeal. While respondents’ counsel urged the court to dismiss the appeal.
Appellant formulated four issues for determination as follows:
1. Whether the decision of the court below that the appellant failed to establish/prove customary arbitration between the parties over the disputed land after making a finding of fact that the validity of said traditional arbitration is not even in doubt is legally justified and or correct? Ground 1 of the Notice of Appeal.
2. Whether the court below was justified to have affirmed the decision of the lower court that the respondent proves his claim of title to land as required by the customary law of Ugboju people? Ground 2 of the Notice of Appeal.
3. Whether the court below was right when it dismissed the appeal of the appellant, stating particularly that appellant could not use more than one method of proving title to land in one particular case, having 1st and foremost relied on traditional evidence to prove his case? Ground 3 of the Notice of Appeal.
4. Whether the court below was right when it held relative to be identify of the disputed land(sic) that it was not in doubt as both parties know the land very well and thus dismissing the appeal thereupon. Ground 4 of the Notice of Appeal.
Respondent also distilled four issues for determination thus:-
1. Whether the decision of the court below that the appellant failed to establish/prove customary arbitration between the parties over the disputed land after making a finding of fact that the validity of the said traditional arbitration is not even legally justified and or correct? Ground 1 of the Notice of Appeal.
2. Whether the court below was justified to have affirmed the decision of the lower court that the respondent proved his claim to title to land as required by the customary law of Ugboju people? Ground 2 of the Notice of Appeal.
3. Whether the court below was right when it dismissed the appeal of the appellant, stating particularly that the appellant could not use more than one method of proving title to land in one particular case, having 1st and foremost relied on traditional evidence to prove his case? Ground 3 of the Notice of Appeal.
4. Whether the court below was right when it held relative to the identity of the disputed land that it was not in doubt as both parties know the land very well and thus dismissing the appeal thereon? Ground 4 of the Notice of Appeal.”
Respondent noted that he adopted the issues formulated by the appellant for the argument of this appeal.
The issues formulated by the appellant are apt as such I will adopt same in the determination of this appeal.
ISSUE NO 1
The contention of the appellant under issue 1 is that the court below erred in law when after stating the correct position of the law that there was valid traditional arbitration went ahead to state that the trial court was right to have held that it was inconclusive, thus occasioning grave miscarriage of justice. That a valid defence/plea of customary arbitration leads to estoppel. Reliance was Placed on Awosile V. Sotunbo (1992) 6 SCNJ 182 at 200 -202. Learned counsel submitted that the court below fell into the error of accepting the perverse finding of the lower court that there are contradictions in the evidence of DW3, hence was not a credible witness. It was argued that there is nowhere in the proceeding that it was indicated that a secretary was appointed and reduced the proceedings into writing. There was also nowhere it was shown that the elders were illiterates and saw the need to put the proceedings in black and white. There is also nowhere on the record that either party to the arbitration could no longer believe the spokesmen on the issue of arbitration. Reference was made to the evidence of DW3 on the issue of customary arbitration set out on pages 29-31 as from lines 27 of page zg and page 30 line 36 and page 31 lines 1-10 of the record. Learned counsel contended that both respondent and appellant acknowledged Dw3 as the spokesperson/man who delivered the decision of the panel. That the evidence of the respondent under cross-examination at page 6 lines 31 to 36 of the record corroborates the evidence of DW3 on the issue of arbitration. That respondent admitted there was arbitration and specifically mentioned the names of the people present, including DW3 as the spokesman. That counsel did not re-examine the respondent on the issue of admission of the validity of the arbitration. The position of the law is that where there is an admission, the requirement of proof is minimal. See Kamalu v. Umuna (1997) 5 SCNJ 191 at 201 and Eke V. Okwaranya (2001) FWLR (Pt. 51) 1974 at 1996 – 1997. Counsel also referred to the evidence of DW3 at page 19 lines 19-24 and contended that since appellant failed to cross-examine DW3 on the same point he is deemed to have accepted the said evidence. Reference was made to the case of Gaji V. Paye 14 NSCQR (Pt. 1) 613 at 629. Wherein the Supreme Court held that failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. See also Nnamdi v. Nwosu (1992) 6 SCNJ 59 at 70; Oforlate vs. The State (2000) 12 NWLR (Pt. 181) 415 at 626; Agbainfo V. Aiweron (1988) 2 SCNJ 146; Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144 at 240 and Bello v. Iweka (1981) 1 SC 101.
Learned counsel further submitted that the decision of the court below that the appellant failed to establish the issue of customary arbitration based on the reasons given is unsound and has caused miscarriage of justice as such same should be set aside. Reliance was placed on Oparaji V. Ohanu (1999) 6 S NJ 27 at 44 wherein the Supreme Court laid down the principles guiding local arbitration. It was contended that the finding of the court below at page 114 lines 21-21 that “the validity of the said traditional arbitration is not even in doubt” has confirmed the ingredients of the local arbitration stated in Oparaji v. Ohanu (supra) at 44. That what was in dispute which was resolved by DW3 was who actually won the arbitral proceedings and that party is the appellant. Counsel argued that appellant claimed the outcome of the arbitration favoured him but he did not call any witness to support him. On the issue of contradictions spotted in the evidence of DW3, counsel contended that the Supreme Court has stated that such contradiction to be relevant must not be based on vague statement. Reliance was placed on Egesimba Vs. Onusunike (2002) FWLR (Pt.128) 1386 at I411 to 1412. That it is apparent from the decision of the Supreme Court referred to in Egesimba v. Onusunike supra that even if it is argued (which is not conceded) that there was contradiction in evidence of DW3, such contradiction is not such that will affect his evidence as held by the Trial Court and Court below. Learned counsel argued that the decision of the court below at page 114 lines 29-37 is wrong. That the appellant duly established all the ingredients of valid customary arbitration between him and the respondent which was confirmed to be in his favour by the DW3, the acknowledged spokesman of the panel. Counsel finally submitted that the concurrent finding of the trial court and court below on the issue of customary arbitration is not only unsound, it is not supported by evidence and highly perverse, thus caused miscarriage of justice to the appellant having regard to the fact that the respondent is estopped from re-litigating over the issue. He urged the court to resolve this issue in favour of the appellant.
In reply, learned counsel for the respondent submitted that the two lower courts were justified in arriving at the position they did as to the validity of the customary arbitration. Counsel referred to the finding of the trial Grade 1, Area Court Otukpo at pages 82 – 83 and pages 114 – 115 of the record. Learned counsel submitted that the appeal is against the concurrent findings of the two courts below. The law is now firmly established that it is not the duty of the Appeal Court to interfere with the concurrent findings of the lower courts except where the findings are perverse or not borne out of evidence or upon the misapplication of law to proven facts. Reliance was placed on Henry v. Federal Republic of Nigeria (2008) Vol. 165 LRCN at 49 per Onu JSC. That the findings of the two courts below are reasonably justified and urged that same should not be interfered with. According to counsel the appellant in an attempt to show that the findings of the lower courts are perverse has attacked the rejection of the evidence of DW3 by the trial court that was affirmed by the lower court. Learned counsel submitted that the law is settled that the duty of determining the credibility of witness is exclusively that of the trial court and where it is done properly, the appellate court cannot interfere. Reliance was placed on Anthony Ogueji Ofor v. Siemens Limited (2008) 2 NWLR (Pt.1071) 283 at 298, paras A – C and Ali Pindar Kwajaffa v. Bank of the North Limited (2004) Vol. 118 LRCN 4006 at 40302.
Learned counsel further submitted that the lower court was perfectly justified not to have interfered with the findings of fact of the trial court on the credibility of DW3. That the findings were amply supported by evidence. That the trial court at pages 82 – 83 of the record gave reasons for disbelieving the evidence of DW3. That the reasons cannot be faulted. Counsel urged the court to disregard the copious submissions of the appellant’s counsel that have failed to show that the lower court was in error to have dismissed the appeal on the issue of credibility of the DW3. Counsel contended that the appeal being on concurrent findings of the two lower courts should not be interfered with by this court. See Michael Ebeiniwe v. The State (2011) 1 SCNJ 90 at 101. He urged the court resolve this issue in favour of the respondent.
In resolving the issues raised, I wish to note that pleadings are not filed in customary courts and its proceedings should be construed liberally. See Ogbe v. Asade (2009) 16 NWLR (Pt.1172) 1106 at 1132.
The contention of the appellant is that there was a valid customary arbitration and capable of constituting an estoppels. What are the requirements of a valid customary arbitration? For customary arbitration to constitute estoppel the following conditions precedent must be satisfied:-
(i) There must have been a voluntary submission of the dispute by the parties to the non-judicial body.
(ii) The parties must have agreed to be bound by the decision of the non-judicial body as final.
(iii) That the decision was in accordance with custom of the people or of their trade or business and
(iv) That the arbitrators reached a decision and published their award.
See Awosile v. Sotunbo (1992) 6 SCNJ 187 at 200.
The trial Grade 1 Area Court, Otukpo and the court below found the plea of customary arbitration inconclusive and rejected it. It has to be noted that respondent did not raise the plea of customary arbitration. Rather it was the appellant that raised the issue when cross-examining the respondent. The response of the respondent appears at page 6 lines 32-36 and page 7 lines 1 -14 of the record. Respondent as plaintiff had this to say:
“It is true when the defendants and his people started to disturb on the land I reported the matter to the elders in Ugboju Icho. The elders arbitrated over the issue. It was ruled that the disputed land was my father’s old home settlement. The elders were (1) Anam Ochekpo the oldest man in the village. (2) Ofikwu Enumaje the spokesman of the people. Dogwu Ochekwu was not present at the settlement committee. Oko Iko was nto there. I do not know Emmanuel Uloko. I do not know Julius Agbo. One Uloko Ejika was present. Others are Ijika Attah, Ape Ugboju, Eche Ejembi Ogolekwu, Ali Ogolakwu. I di not tell the committee that my people were living on the disputed land before packing to Enanjele, we are still living on the disputed land. It is not true that the elders blamed me and asked me to go and beg the defendant. I bought drinks for elders of my mother’s village and not for the purpose of this land case I bought the drink for funeral purpose as I have not been attending their funeral ceremony. When I bought the drink. I went with Ejembi and Anebi Ujah. There was no appeal against the decision. The decision was over 3 years now. I did not go to anybody to tell him anything concerning the decision.”
Appellant testified at page 19 lines 19-25 as follows:-
“This problem started when I gave the land to Saw Mill people. Anam settled the dispute in my favour after hearing from two of us. It was Ofikwu Enumaje who was the spokesman of the meeting. There were many other persons present at the settlement meeting. The land was declared for me and plaintiff was asked to come and beg me for some portion. The plaintiff came with some drinks to beg and I refused.”
Another relevant witness is DW3. At page 29 lines 27 – 33 of the record he also testified thus:-
At page 29 lines 27-33 of
“There was a time there was a dispute over the same land between the parties and it was referred to the elders, one Anam Ameh was the chairman of the committee. I was a member of the committee. I was the one who passed the decision of the committee. We gave judgment to the defendant. I did not give judgment to the plaintiff as he alleged. There was no appeal after our judgment. The plaintiff did not dispute our judgment as at then. I did not see Onyilo Onowa during our panel. I did not see Musa Ochefu
(PW2). I have been settling disputes since the death of Ahmodu Ogwu, the Ochi Ugboju. I do not know the year the Ochi Ugboju died. It is about 16 years since I have been settling disputes.”
When DW3 was cross-examined he said:
“I became involved in land settlement after the death of Ahmodu Ogwu, the Ochi Ugboju. It is also true that I became involved in land settlement over 16 years ago. Ahmodu Ogwu, Ochi Ugboju died over 10 years ago. If it is not up to 16 years, then I do not know the year of the death of Ochi Ugboju. It has taken a long time now. Anam Ameh is now dead. Ochi Ugboju died before him. I do not know the name of the secretary of the committee during the settlement of this very dispute.”
From the evidence reproduced supra there cannot be any dispute as to the fact that both parties agreed that there was a customary arbitration. A decision was reached. But from the evidence adduced it is not certain as to whether the decision was given in favour of the appellant as alleged by him. I agree with the two courts below that the arbitration is inconclusive. The testimony of DW3 was rejected on ground of credibility. I have no cause to interfere with the finding of the two courts below on this issue. In Ali Pindar Kwajaffa v. Bank of the North Limited (2004) All FWLR (Pt. 215) 222 at 247 paras D-E it was held thus:
“it is the pre-eminent duty of a trial court who saw and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value and not the appellate court which neither heard the witnesses not saw them to observe their demeanor in the witness box.”
On the other hand even if the appellant’s side of the story is accepted (which is not conceded there is no evidence on record to show that parties agreed to be bound by the decision of the arbitration committee. In the instant case, it was the respondent that referred the matter to the arbitration committee for settlement. It was also the respondent who later filed the action in court. This in my view is a positive demonstration that he never believed there was a binding arbitration. Before the decision of the arbitration committee can be relied upon as estoppel, all the above requirements enumerated in the Supreme Court case of Amosile V. Sotunbo (supra) must be satisfied. It is clear that having regard to the established ingredients of a binding customary arbitration, the evidence adduced on record fall short of the requirement. Appellant should have called other members of the committee to strengthen his claim that the decision was made in his favour. Appellant raised the issue of arbitration. The position of the law is that he who asserts must prove. Contrary to the submission of appellant’s counsel, I hold the view that the finding of the trial court and court below on the issue of customary arbitration is supported by evidence. I will therefore resolve this issue, in favour of the respondent.
Issues 2 and 3
These two issues are formulated from grounds 2 and 3 and same argued together by appellant’s counsel.
While arguing these issues, learned counsel submitted that the court below was legally wrong when in its decision it held that the respondent proved title to the disputed land while the appellant set up different titles and was bound to fail. Learned counsel submitted that the reasonings of the court below contained on pages 115 to 117 of the record does not represent the correct position of the law on the issue of proof of title to land. That a party can establish more than one of the five ways/method to prove title to land. Reliance was placed on Nkado v. Obiano (1997) 5 SCNJ 33 at 47 – 49; Idudun v. Okumagba (1976) NWLR 200 at 210 and Onwugbufor v. Okove (1996) 1 SCNJ 2 at 21. Counsel contended that the court below and the trial court did not advert their minds to the fact that the suit was before an Area court where pleadings are not filed to isolate the main claim of the parties. Pleadings were not filed in this case. That in Area Court great latitude is placed in the interpretation of the proceeding to know the claim of the parties and even the gist of the judgment of the Area court.
Reliance was placed on Ibero V. Ume-Ohana (1993) 2 SCNJ 156 at 165 to 166 and Ezeanva V. Okeke (1995) 4 SCNJ 60 at 76.
Learned counsel further submitted that if the court below and the trial court had properly adverted their minds to the fact pleadings are not filed in Area Court, they would have found that the respondent did not solely rely on traditional history. That he relied on customary arbitration, Acts of ownership extending over a sufficient length of time and numerous and positive to warrant the inference that the appellant is the owner of the disputed land and possession of connected or adjacent land in circumstances rendering it probable that the owner would in addition be the owner of the land in dispute. Counsel argued that appellant established more than 2 of the 5 (five) methods to prove title to land. It was contended that the two lower courts harped more on the weakness of the case of the appellant. Counsel referred the court to the inconsistent evidence of devolution/management of the land given by the respondent vis-a-vis his evidence in chief and under cross-examination. See page 5.4 lines 1-9 and page 13 lines 29 – 31. Relying on Ogan V. Asemah (2002) FWLR (Pt. 128) 1328 at 1346 counsel submitted that there was lacuna in the traditional history put forward by the respondent and PW2.
Counsel urged the court to hold that the decision of the court below is perverse and unsound. That the traditional history put forward by the respondent is not straight forward and logical. Counsel argued that if both appellant and respondent put forward conflicting evidence regarding their root of title the proper procedure to be adopted is to apply the test laid down in Egboade v. Atomesin (1977) 5 SCNJ 13 at 19 wherein the Supreme Court held:
“Where there is a conflict of traditional history demeanor is of little guide to the truth and the best way to test the traditional history is by reference to facts in recent years as established by evidence by seeing which of the two competing histories is more probative. ” See also Onwuabufor V. Okoye (1996) 1 SCNJ 1 at 22, where dealing with the issues of inconclusive traditional evidence the Supreme Court clarified the position of law as:-
Although a plaintiff is entitled to rely on traditional evidence alone to succeed in his case, if the evidence of tradition is inconclusive, the case must rest on the question of other facts pleaded and relied on at the trial.”
That in the instant case the trial court and court below failed woefully to subject the inconclusive traditional histories led by the two parties to other evidence led at the trial but decided to overlook the contradictions in the case put forward by the respondent. Counsel urged the court to resolve the two issues in favour of the appellant.
The respondent in response also argued the two issues together in his brief of argument. Learned counsel submitted that both parties in this case at the trial court relied on traditional evidence as their respective roots of title. While the respondent as plaintiff in the trial court gave the name of the founder of the land as Apeh and went further to give evidence of intervening ownership of the land to himself, the appellant gave conflicting evidence of his root of title. Reference was made to the testimony of DW1 under cross-examination at page 25 lines 2-5 of the record. That DW1 gave the name of the founder of the disputed land as Ejeba. DW2 whose evidence also appeared at page 23 – 28 of the record gave the name of the founder of the land as Odowu Ejeba who first came to settle at O1’Agangwu. The same witness said at page 27 lines 9-10 that Odowu was born on the land i.e Ogohi OI’Agangwu. Reference was similarly made to the evidence of DW3 at pages 29-31 of the record. That appellant as held by the lower projected conflicting roots of title.
That since the case is predicated on traditional history as root of title, the failure of that automatically means failure of the case of the party relying on same. See Yekini Adedokun Oyadare v. Chief Olajire Keji (2005) 7 NWLR (Pt. 925) 571 at 584-585 paras, G-A; 590; paras G-H; Ohiaeri V. Akabexe (1992) 2 SCNJ (Pt.1) 76 at 88 and Alhaji Muritala Adisa Ajikonle v. Mohammed Yusuf (2008) 2 NWLR (Pt.1071) 301 a PP. 339 – 340 paras 4 – 4; 343; paras D-E. Learned counsel contended that the failure of the root of title of the appellant predicated on traditional history means a failure of his defence and hence the appropriate judgment is for the respondent whose root of title was held to be satisfactory. That the lower court was right in affirming the judgment of the trial court since the defence of the appellant was based on traditional history which he failed woefully to make out. That he cannot fall back on other ways of proof of title as canvassed him. He urged the court to resolve the issues against these appellant.
It is well established that a plaintiff seeking for declaration of title to land bears the enormous duty in law to adduce credible and admissible evidence in establishing of such title. The plaintiff must succeed on the strength of his own case except where the evidence adduced by the defendant strongly supports his case.

It had equally, been stated in a plethora of cases that for a plaintiff to succeed in such a case, he could prove his ownership of the said land or title therein through any of the five different ways long entrenched by the Supreme Court for proving the same, that is to say;
(1) By traditional evidence
(2) By production of documents of title duly authenticated in the sense that their due execution must be proved unless they are documents twenty or more years old produced from proper custody.
(3) By positive acts of ownership such as (selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time, or which are numerous and positive enough to warrant the inference that the person is the true owner;
(4) By acts of long possession and enjoyment of land
(5) By proof of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected adjacent land would in addition be the owner of the land in dispute.
See the classicus case of Idundun v. Okumagba (1976) 9 – 10 SC 227. Alli v. Alesinlove (2000) FWLR (Pt.15) 2610 at 2632 paras B – D and Queen v. Uche (1994) 6 NWLR (Pt.350) 529 at 550 Paras G-H.
From the totality of the evidence adduced by both parties there is no doubt that both parties predicated their claim to title in respect of the land in dispute on traditional history. It is trite that traditional history is one of the recognized ways of proving title to land as laid down in Idundun v. Okumagba (supra) 227.
It is also settled law that a plaintiff whose claim for title to land as in this case is founded on traditional history must plead and prove the following facts by credible, cogent and reliable evidence:-
(1) Who founded the land
(2) How he founded the land
(3) The particulars of the intervening owners through whom he claims. See Dike v. Okoloebo (1999) 19
NWLR (Pt.623) 359 at 363; Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745 at 782 – 783 and Igbojinadu v. Ibeabuchi (1998) 1 NWLR (Pt. 533) 179 at 190-191 paras H – B Dakolo v. Rewane Dakolo (2011) 16 NWLR 9Pt.1272) page 22 at 47 – 48 paras A – C.
The action was filed and prosecuted in a representative capacity by the name of plaintiff (Ochai Agada) for himself and on behalf of Al-Apeh community against the defendant also in a representative capacity on behalf of Ole-Agagwu community.
The plaintiff, now respondent in his evidence in chief gave the name of the founder of the land as Apeh, their great grandfather, and stated that he was the first to settle there on the land. According to him, Apeh planted some economic trees like palm tree, mango trees, coconut trees, bush mango trees bamboo trees, cashew and malina trees. Plaintiff also gave evidence of successive devolution of the land upon the death of Apeh (founder) up to himself. PW1 plaintiff’s boundary neighbor also testified. PW2 gave evidence to the effect that he grew up to meet the plaintiff’s grandfather. Apeh on the land. According to him Apeh was living on the disputed land with all his children.
On the part of the defence one Omale Onoja who acted as spokesman of the family stated that the land in dispute is situate at Ogoli – Ol’Agangwu village and it belongs to them and not the plaintiff. He averred that the lineages of Ogolis-Ugboji to be 9 and later said they have 4 kindreds and he named them. He denied the fact that Apeh the father of the plaintiff first acquired the land in dispute. He gave description of the land and told the court that his father was born on the land and grew up there in the land. According to him the first person that acquired the land was Ejeba and that Ejeba is his father and also the father of Abel of Ogbogmi. Defendant also gave evidence to the effect that he has some economic trees on the land and he named them. He also mentioned foundation for a house and well he dug on the land. He narrated other activities connected with the land in dispute, DW1, DW2, DW3, DW4 and DW5 all gave evidence as to what they know relating to the land in dispute.
The trial Area Court judge also visited the locus in quo after both parties closed their case.
After ascribing probative value to the evidence adduced the trial Area Court proceeded to weigh evidence before it on the imaginary scale upon the preponderance of evidence to decide which side the scale weighed having regard to the burden of proof as in Agenifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) at 325,
Mogaji V. Odofin (1978) 4 SC 91; Abisi V. Ekwealor (1993) 6 NWLR (Pt. 302) page 643 and Dakolo v. Rewae Dakolo supra page 55 paras A-C, held as follows:-
“In sum, we hold that the preponderance of evidence weight more on the side of the plaintiff than that of the defendant. The overwhelming evidence supports the claim of the plaintiff especially in the face of the admission by the defendant and his witnesses. That the plaintiff and his people once lived on the disputed land and planted some economic trees. The traditional evidence as given by the plaintiff has been shown to be more credible than that put forward by the defendant who projected two or three conflicting roots of his title. It is a notorious fact that the first settler or founder of a parcel of land between the owner of the land and the head of subsequent settlers on the land. His descendants derive title to the land from him. See Titiloye v. Olupo (2003) 2 NLLC 483 at 516 AJ. We hereby enter judgment for the plaintiff in terms of his claim and dismiss the defendant’s counter-claim.”
In the instant case it has to be borne in mind that plaintiff has the burden of proving his root of title. Where the trial court accepts his traditional history as more probable then he is enti1ed to judgment. It is only when it can neither find any of the two histories probable nor conclusive that the court will declare both inconclusive and decide the case on numerous and positive acts of possession and ownerships. In Ireju Nwokidu & 3 Ors vs. Mark Okami (2010) 1 SCNJ 167 at page 196, (2010) 3 NWLR (Pt. 1181) 362 at 398 paras A-C the Supreme Court gave guide as to what should be done when a trial judge is faced with competing histories regarding the acquisition of a piece of land, through traditional history. The Supreme Court had this to say:-
“in the scenario before the court, where the case is fought on evidence of traditional history – which in other words becomes a matter of hearsay upon hearsay which is the nature of traditional evidence, the trial court in its traditional role of an umpire has a duty to examine the evidence of the parties and come to the conclusion which is more probable in the circumstances of the case, by testing it against the other evidence. Where witnesses of one party contradict each other on the traditional history, relied upon, the trial court will be right to reject the traditional history. If the evidence adduced on one side is supportive of the traditional history relied upon by the other side, the trial court will be right in accepting the traditional history. It is only when it can neither find any of the two histories probable nor conclusive that he will declare both inconclusive and proceed to decide the case on numerous and positive acts of possession and ownership.”
It is clear from the above decision that the issue of relying on other root of title can only arise where the two traditional histories presented, by the parties are rejected by the trial court. Since the trial accepted the traditional history put forward by the respondent as more probable, the trial court cannot rely on any other root of title presented by the appellant. Every case has to be treated according to its peculiar facts and circumstances.
It is the law that evaluation of evidence and ascription of probative value to the testimony of a witness is within the exclusive domain of the trial court that heard and watched the demeanor of the witness before it. The inference drawn by the trial court was supported by evidence. The trial court accepted the traditional history put forward by the plaintiff and his witnesses as more probable and the findings were supported by evidence. The findings of fact made by the trial court were not perverse. The court below was therefore right in affirming the judgment of the trial court. I also agree with the court below. Accordingly issues 2 and 3 are resolved in favour of the respondent.
Issue 4
This issue is tied to ground No 4 of the Notice of Appeal and deals with the identity of the land in dispute.
Learned counsel for the appellant submitted that the decision of the court below that the identity of the land was not an issue because both parties know the land in dispute very well as erroneous on point of law. Reference was made to the judgment of the court below at page 117 lines 8 – 12 of the record. Learned counsel submitted that the issue is whether the respondent as plaintiff led satisfactory and reliable evidence of the portion of land being claimed. That while the respondent called the land Olape (Ai Apeh) the appellant called it Olagangwyu Aigoh. It was his contention that the respondent and his witness led contradictory evidence of the land in dispute and even at the locus in quo showed land inconsistent with evidence led by him in open court in respect thereof. It is trite law and well settled law too that the 1st duty of the plaintiff who claims declaration of title to I and is to clearly show the court the area of land to which his claim relates. See Okoso Epi V. Aigbedion (1972) 10 SC 53 at 59; Akinolu, Baruwa v. Ogbunshola 4 WACA 1959 and Omoregie v. Idugiemwarye (1985) 2 NWLR (Pt. 5) 41 at 43. Learned counsel argued that the boundary of the disputed land described by PW1, PW2 and PW3 are different from that shown by the respondent to the court at the locus in quo. That the boundaries of the land given by the appellant is also quite different remarkably from the ones given by the respondent and his witnesses.
Learned counsel further submitted that the position of the law is that the purpose of a visit to locus in quo is not to make a different case but to confirm or disprove evidence led in open court. He said the respondent failed to link the boundaries of the land given by him. PW1 and PW2 at the locus in quo. He has therefore not shown with certainty the area of land to which his claim relates. Reliance was placed on
Odeche v Chibogwu (1994) 7 – 8 SCNJ 317 at 318 and Obi V. Mbionwu (2002) FWLR (Pt.115) 617 at 637-638. Counsel contended that even if the appellant claimed to know the disputed land, what has been described by the parties are remarkably different. Reliance was placed on Idehen V. Osemwenkhai (1997) 7 SCNJ 581 at 591. Learned counsel argued that the view of the court below that there is nothing on the record to show that one of the parties was in doubt as to the boundaries or identity of the land being disputed and that both parties knew the land is erroneous in law. He urged the court to resolve this issue in favour of the appellant, and allow the appeal.
Learned counsel for the respondent submitted that the present case on appeal emanate from the Grade 1 Area Court where pleadings are not filed but the appellant did not at any time throughout the proceeding dispute the identity of the land in dispute. That appellant admitted at the locus in quo that the land showed by the respondent was the same land that was in dispute. That the admission by the appellant that the land shown to the court by the respondent was the very land in dispute has obviated the need for further proof of the identity of same. The law is settled that facts admitted need no further proof. Counsel argued that the complain of the appellant as to identity of the land is misplaced and unmeritorious. He urged the court to resolve the issue in favour of the respondent.
The first duty of a plaintiff who comes to court to claim a declaration of title is to show the court clearly the area of land to which his claim relates and this can be done by:
(i) Giving such oral description of the land that any surveyor acting on such description can produce a plan of the land he claims.
(ii) Filling a plain reflecting all the features of the land and showing clearly the boundaries of the land. See Akulaku V. Yonqo (2002) 5 NWLR (Pt. 759) page 135, Ogwu V. Akinyelu (2004) 18 NWLR (Pt.
905) 362; Akinolu Baruwa V. Ogunsola (1938) 4 WACA 159 and Ate Kwadzo V’ Robert Kwasi Adijei (1944) 10 WACA 274.
In the instant case parties gave oral description of the land in dispute. Appellant’s counsel raised the complaint that both appellant and respondent identified the land in dispute with different names. The identity of a land in dispute is not to be determined by the names both parties decide to call it but by production of credible evidence as names do not change the relative position of any land. In Assam v. Okposin (2001) FWLR (Pt. 56) 630 at 640 paras B – C this court observed as follows:-
“in respect of the identity of the land in dispute …the true identity of the land does not depend on the names that the parties choose to call them and that the criteria for knowing the identity of the land is by ascertaining its boundaries, distinctive features and the location of the land as has been established by pleadings and credible evidence'”
The mere fact that respondent called the land Olape (Ai Apeh) and appellant called it Olagangwu (Ai Agangwu) Aigoh is not fatal to the respondent’s case. From the available evidence it appears parties are clear as to the identity of the land in dispute. At the Locus in quo particularly at pages 39 – 41 of the record he clearly showed the boundaries of the land in dispute as well as features on it. He described the boundary by the west, south, east, north and north-west. The respondent at page 41 lines 17 – 18 of the record admitted at the locus in quo that the land showed by the respondent was the same land that was in dispute. Appellant stated thus: –
“The portion showed the court is the area in dispute between me and the plaintiff.”
The law is settled that facts admitted need no further proof. It is clear from the above statement of the appellant that there was no doubt as to the identity of the land the subject of dispute between the parties.
It is trite that where the disputed land is known to both parties as in this case the question of identity of the land does not arise, In Odofin V. Oni (supra) at 144 it was held thus:-
“where both partres are familiar with or know the land in dispute the question of identity of or its certainty will cease to perplex the trial court and the appellate court and neither party will be allowed to place a clog in the wheel of justice by mischievously raising the issue of identity in order to becloud what is otherwise a piece of land that is well known to both parties.”
It has to be borne in mind that pleadings were not filed in Grade 1 Area Court and as rightly submitted by respondent’s counsel appellant did not at any time throughout the proceeding dispute the identity of the land in dispute. The lower court was therefore right when it re-affirmed what has been agreed by the parties. The respondent in my humble view has clearly shown the area of land to which his claim relates. The complaint of the appellant is misplaced and unmeritorious. I will accordingly resolve issue 4 in favour of the respondent.
By a long line of decided cases, appellate courts have consistently decided not to disturb concurrent findings of fact made by the two courts below unless it is shown that such findings are perverse, or that there is some miscarriage of justice or a violation of some important principle of law or procedure which if corrected the finding cannot stand. See Nwadike V. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296; Kwajaffa v. Bank of the North Limited (2004) All FWLR (Pt. 215) 222 at 254 and Fashanu v. Adekoua (1974) 6 SC 83. From the totality of the evidence adduced I am satisfied that the findings of facts made by the trial court and affirmed by the court below are supported by evidence. I have not been persuaded that there are any grounds for which I can validly interfere in this case. I only wish to note that the trial Area Court made an order dismissing the appellant’s counter claim. At page 1 of the record when the claim was read and explained to the appellant he only responded that he is not liable and no more. A counter-claim is a separate claim and apparently there is no proceedings relating to it. It is trite that a court cannot grant any relief not sought for by parties. The order made has no foundation. Same is accordingly set aside.
All the issues having been resolved against the appellant, this appeal fails and I accordingly dismiss it. The respondent is entitled to costs assessed at N30,000.00.

JA’AFARU MIKA’ILU J.C.A.: I have read in draft the lead judgment of my learned brother Mshelia JCA. I am of the view that the findings of the facts made by the Trial Court and affirmed by the Court below I have seen no reason to interfere in this case. I award the same costs as in the lead judgment.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have before now read in draft, the judgment just delivered by my learned brother, A.G. Mshelia JCA. I agree with the reasoning and conclusion therein, I also hold that this appeal lacks merit and it is hereby dismissed.
I equally abide by the consequential orders made in the lead judgment including that of costs.

Appearances

E, N, Tionsha (Miss) for Appellant with S. A Ajoko (Miss)For Appellant

AND

Jonathan Akume with J. A Chiagorom (Mrs)For Respondent