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AHIAKWO & ORS v. OKPOR & ORS (2022)

AHIAKWO & ORS v. OKPOR & ORS

(2022)LCN/16112(CA)

In the Court of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Monday, April 25, 2022

CA/PH/428/2020

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

1. Rev. Kenneth Ahiakwo 2. Chief Eke Oreke 3. Mr. Obulor Oreke (For Themselves And On Behalf Of The Entire Umu-Ewor Family Of Umu-Ordu Kindred Of Okposi Town) APPELANT(S)

And

1. Elder Apostle Benedict Okpor 2. Archdeacon Godspower E. Wokocha (For Themselves And On Behalf Of The Entire Umuolota-Uriem Kindred Family Of Okposi Town) 3. Elder Obi Amadike 4. Elder Nwabueze Amadike (For Themselves And On Behalf Of The Entire Umuolota-Uriem Kindred Family Of Obrikom Town) 5. Elder Matthew Adi 6. Elder Friday Okirieake 7. Chief Elder Sunny Ohie, JP. (For Themselves And On Behalf Of Umu Orukwo Family Of Umuordu Kindred Family Of Okposi Town In Ogba/Egbema/Ndoni Local Government Area) RESPONDENT(S)

 

RATIO

WAYS OF PROVING TITLE OF OWNERSHIP TO LAND

The five ways by which title to land may be proved are as follows:
a. by traditional evidence;
b. by production of documents of title;
c. by acts of a person or persons claiming the land such as selling, leasing, renting out or farming on it;
d. by acts of long possession and enjoyment of the land; and

e. by proof of possession of connected or adjacent land.

See Piaro v. Tenalo[1976] 12 SC 31 and Idundun v. Okumagba [1976] 9-10 SC 277.

Traditional evidence, if accepted by the trial Court, stands on the same footing as any other type of evidence, e. g. documentary. It can form and indeed, is sufficient to form, the basis for the grant of a declaration of title. See The Stool of Abinabina v. Enyimadu [1938] A.C. 207 at 211 and Aikhionbare v. Omoregie [1976] 12 SC 11 at 27. A party who relies on traditional history as the foundation of his claim for title to a piece of land must plead and prove facts as to:
a. Who founded the land;
b. In what manner the land was founded and the circumstances leading to it;
c. The successive persons to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained. See Ewo v. Ani [2004] 3 NWLR (Pt. 861) 610 at 628-629. PER ADEGBEHINGBE, J.C.A.

THE POSITION OF LAW ON THE PRIMARY DUTY OF THE TRIAL COURT

It is beyond argument that the evaluation of evidence and ascription of probative value to such evidence are the primary duties of the trial Court which saw, heard, and duly assessed the witnesses. Where such a Court of trial has justifiably evaluated the evidence, it is not the business of the appellate Court to substitute its own views for those of the trial Court. What the appellate Court ought to do is to ascertain whether there is evidence upon which the trial Court acted. Once there is evidence, the appellate Court must not intervene even if such appellate Court felt that if the facts were before it, it would not have come to the same decision as the trial Court. An appellate Court may only interfere with the findings of fact of a trial Court under circumstances such as where the trial Court did not properly evaluate the evidence or make a proper use of the opportunity of seeing or hearing the witnesses at the trial or where it has drawn wrong conclusions from accepted evidence or where the finding of the trial Court is shown to be wrong or perverse in that it is not supported by evidence before the Court. See the case of Eigbejale v. Oke [1996] 5 NWLR (Pt. 447) 128 at 143.  PER ADEGBEHINGBE, J.C.A.

THE POSITION OF LAW WHERE ACQUISITION OF TITLE BY SETTLEMENT IS PLEADED
Where acquisition of title by settlement is pleaded, that perhaps is all that the claimant will be required to prove to succeed, with the traditional history as to who first settled on the land providing fitting background to the evidence of length of time acts of ownership had been taking place on the land. It is right, of course, to use recent facts as a test of the probability of traditional history, but recent facts must be of such quality and character as would lead to the probability of traditional history. See Aseimo v. Abraham [2001] 16 NWLR (Pt. 738) 20 at 32-33. The test of the traditional history from the 1st-2nd respondents, using Exhibit E, as a basis should have revealed to the lower Court that CW1 was not a witness of truth when he testified that members of his family had farms on the land in dispute, including himself, as he could not identify any of such farms in his family’s survey plan at the trial. PER ADEGBEHINGBE, J.C.A.

WHETHER OR NOT ANY DECISION OF THE COURT ARRIVED AT WITHOUT A PROPER EVALUATION OF EVIDENCE CAN STAND

The case of Bassil v. Fajebe (2001) 11 NWLR (Pt. 725) 592 at 608-609 admonishes that evaluation of evidence involves reviewing and criticising the evidence given and estimating it. Any decision arrived at without a proper or adequate evaluation of the evidence cannot stand. Evaluation of evidence does not stop with assessing the credibility of witnesses, although that, in appropriate cases, is part of the exercise. It extends to a consideration of the totality of the evidence on any issue of fact in the circumstances of each case to determine whether the totality of the evidence supports a finding of fact which the party adducing the evidence seeks that the trial Court should make. After giving due concession to the advantageous position in which the trial Court is regarding credibility of witnesses, the responsibility of the appellate Court to consider the finding of the fact and ensure that it is arrived at after an adequate consideration of the totality of the evidence or whether a reasonable tribunal, properly adverting to the evidence, would make such finding remains where the findings of fact are challenged. When the appellate Court concludes that the trial Court did not properly advert to the evidence or give necessary consequence to the evidence given, the appellate Court will itself perform that exercise. To do so is not a usurpation of the province of the trial Court. To fail to do so is an abdication of responsibility. In the instant case, there is no question of credibility of witnesses involved, as what was before the trial Court was evidence adduced by the 1st-2nd respondents themselves and documentary evidence. PER ADEGBEHINGBE, J.C.A.

THE REQUIREMENT OF THE COURT WHEN CALLED UPON TO DETERMINE A SUIT FOR DECLARATION OF TITLE TO LAND

A Court determining a suit for declaration of title to land is called upon to exercise its discretionary powers, judicially and judiciously. The plaintiff in an action for declaration of title is required to satisfy the Court by evidence and not by admission in the pleadings of the defendant of his right to the declaration sought or claimed. This is because the grant of a declaration by the Court is discretionary. See Temile v. Awani (2001) 12 NWLR (Pt. 728) 726 at 755.

Acting judiciously means, (a) proceeding from sound judgment; (b) having or exercising sound judgment; (c) marked by discretion, wisdom and good sense. Acting judicially is also said to import the consideration of the interests of both sides and weighing them in order to arrive at a just or fair decision. See Agbenyi v. Abo (1994) 7 NWLR (Pt. 359) 735 at 747. The Court does not exercise its discretion in vacuo, but on legal evidence or materials placed before it by the parties. Thus, an exercise of judicial discretion must be guided by evidence adduced. See Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203 at 253. PER ADEGBEHINGBE, J.C.A.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): The writ of summons, with which the suit in this appeal was commenced, was filed on 28/04/2004 (page 1 of the record of appeal) by the family of the 1st and 2nd respondents, on behalf of themselves and the entire Umuolota-Uriem family of Okposi (hereinafter called the 1st and 2nd respondents). There is a (amended) writ of summons, filed on 12/04/2005, at pages 48-49 of the record of appeal, with which the names of the newly joined parties were included in the proceedings. The last of the (amended) writs of summons is the one filed on 15/07/2013, which is at page 526 of the record of appeal.

The 1st-2nd respondents sued the 3rd and 4th respondents (as 1st-3rd defendants) for themselves and on behalf of the entire Umuolota-Uriem Family Kindred of Obrikom (hereinafter called the 3rd and 4th respondents).

The 1st-2nd respondents sued the appellants (as 4th-6th defendants) for themselves and on behalf of the Umu-Ordu Kindred Family of Okposi (hereinafter called the appellants).

The 5th-7th respondents (hereinafter described as such) applied to be joined in the suit and it was so ordered on 16/03/2005 (see pages 45-46 of the record of appeal). They defended the suit (as 7th-9th defendants) for themselves and on behalf of the Umu-Orukwo family of the Umu-Ordu Kindred of Okposi Town.

The defendants were described in the lower Court as 1st, 2nd and 3rd sets of defendants/respondents. They are now described respectively in this appeal, as appellants, 3rd-4th respondents and 5th-7th respondents. The claimants in the lower Court are, in this appeal, is described as 1st-2nd respondents. This Court will not refer to the parties in sets, but in terms of appropriate numbers which is already manifest in the heading of this judgment.

The 1st-2nd respondents, in their statement of claim, filed on 07/06/2005, (at pages 5-10 of the record of appeal) claimed a declaration of title to and two orders of perpetual injunction protecting their rights to land known as Nkwakwa and Ehulor situated in Okposi community in Ogba/Egbema/Ndoni Local Government Area of Rivers State.

The 3rd-4th respondents filed their statement of defence on 02/05/2006 (see pages 116-118 of the record of appeal).

Not to be left out, the appellants filed a statement of defence and counter-claim on 17/07/2006, wherein they claimed against the 1st – 2nd respondents, the sum of N2,050,000.00 as special damages, expenses/cost/loss they incurred following their being dragged to the Okija shrine and the Court of law by the 1st – 2nd respondents; the sum of Thirty Thousand Naira as general damages for all the stress, pains and agony which the 1st – 2nd respondents caused them in the process of dragging them about in the shrine and in the Court of law and an order of perpetual injunction restraining the 1st – 2nd respondents by themselves or through their agents, allies or by any means whatsoever from laying claim to the Onuzoekwe land (the subject matter of this suit) and or trespassing on same. (See pages 175-184 of the record of appeal).

The 1st-2nd respondents filed a reply to the statement of defence and defence to the counter-claim on 25/09/2006 (see pages 383-385 of the record of appeal).

The 5th-7th respondents filed a statement of defence and counter-claim on 10/11/2006, which is not really relevant to this appeal (See pages 270-276 of the record of appeal).
The 1st-2nd respondents filed a reply to the statement of defence and defence to counter-claim of the 5th-7th respondents, on 20/09/2007 (see pages 380-382 of the record of appeal).

The lower Court delivered and concluded its judgment, dated 30/07/2020, with the following words, resting at pages 866-892 of the record of appeal:
“Being guided by the above authority, I hold that the 3rd set of defendants are not entitled to the grant of general damages and injunction having not established their title to the land. Accordingly, reliefs 2 and 3 are refused.
On the whole, I hold that judgment is entered for the claimants as follows:
a. It is hereby declared that the Claimants are entitled to the customary right of occupancy over the Nkwakwa and Ewhulor lands situated in Okposi Community in Ogba/Egbema/Ndoni Local Government Area, within the jurisdiction of this Honourable Court.
b. It is hereby ordered that the 1st and 2nd set of defendants are perpetually restrained from selling, disposing off or in any way, alienating in whole or in part the Nkwakwa and Ewhulor land in Okposi Town.
c. It is hereby ordered that the 2nd set of defendants are perpetually restrained from entering, farming, harvesting any economic tree or in any way tampering with, the Claimants lands known as Nkwakwa and Ewhulor in Okposi Town.”

The appellants filed a notice of appeal, on 16/09/2020, containing six grounds of appeal.

Hearing of the Appeal
This appeal was heard of 09/02/2022. Collins Nteptep Esq., appeared for the appellants. Learned counsel adopted appellants’ brief of argument filed on 29/01/2021 (deemed on 23/08/2021) and the reply brief of argument filed on 26/10/2021 as argument of the appeal. He urged the Court to allow the appeal and set aside the judgment of the lower Court.

R. A. Nwokocha Esq. (with G. C. Akor Esq.) appeared for the 1st and 2nd respondents. Learned counsel adopted the 1st and 2nd respondents’ brief of argument, filed on 23/09/2021, as argument of opposition to the appeal. He told us that the 1st and 2nd respondents transmitted additional record of appeal on 08/02/2021. He urged the Court to dismiss the appeal.

J. G. Iniayemana Esq., appeared for the 3rd – 4th respondents. He had nothing to urge in the appeal. C. U. Amadike Esq., appeared for the 5th – 7th respondents. He had nothing to urge in the appeal.

Issues for Determination
In the appellants’ brief of argument, settled by P. O. Ukposi Esq., learned counsel distilled the following issues for determination:
“1. Whether the learned trial Judge was right to hold that the disputed land is a collective/family property of the entire Umu-Olota Kindred and not personal property of Amadi Nwaekie Ordu (Odo Nwa Amadike as pleaded by the Claimants) in spite of the evidence before Court which indicated/points to sole/permanent ownership of the land by Amadi Nwaekie-Ordu (Ground 1).
2. Whether the learned trial Judge was right to rely solely on Exhibit E and the evidence of DW2 in concluding that the Claimants have established title to the disputed land without properly evaluating the entire evidence of the parties before him as required by law (Grounds 2, 3 and 4).
3. Whether the learned Judge has not caused a miscarriage of Justice to the 2nd set of Defendants/Appellants by delivering his judgment more than thirty-four (34) months after addresses of counsel (Grounds 5 and 6).” In the 1st-2nd respondents’ brief of argument, which R. Aduche Wokocha Esq., settled, four issues were identified, but this judgment will only dwell on the first issue from the 1st-2nd respondents, for reasons to be explained later. The appeal will be determined on the strength of appellants’ issues which are similar to the three other issues from the 1st-2nd respondents.

Appellants’ Argument of the Appeal
Appellants’ counsel answered the first question/issue for determination in the negative. He complained that the lower Court failed to properly assess and evaluate the pieces of evidence led by the appellants and completely shut its eyes to material contradictions/inconsistencies in the 1st-2nd respondents’ case, who predicated their case on traditional history, based on joint family ownership as between the 1st-2nd respondents’ family and the 3rd-4th respondents’ family. He noted that the traditional history relied upon by the 1st-2nd respondents had many gaps and embarrassing linkages which should have made the lower Court to give a different judgment. He highlighted some perceived material contradictions in the case of the 1st-2nd respondents. Learned counsel relied on the cases of Sankey v. Onayifeke [2014] All FWLR (Pt. 749) 1083-1084, Sambo Petroleum Ltd. & Ors. v. UBA Plc & Ors [2010] 6 NWLR 530 at 531 and Edokpolor v. Ohenhen [1994] 7 NWLR (Pt. 358) 511 etc.

He informed this Court that the lower Court ignored Exhibit F, which was not fought in a representative capacity and tendered by the 3rd-4th respondents. Exhibit F, coupled with the evidence of DW3 (under cross-examination) disproved the claim of joint ownership claimed by the 1st-2nd respondents. Learned counsel submitted on the importance of documentary evidence over oral testimony, with the aid of Jerry & Anor v. IGP & Ors. [2004] LPELR-24625 (CA) and Ndayako v. Mohammed [2006] 17 NWLR (Pt. 1009) 655. He insisted that Exhibit F declared the customary interest of the 3rd-4th respondents over the land in dispute as extinguished, while ownership thereof had become vested in the appellants. He urged this Court to resolve the first issue in favour of the appellants.

About the second issue, appellants’ counsel argued that the holding of the lower Court on Exhibit E, as proof of title to and identity of the land in dispute by the 1st-2nd respondents, was in error because it ignored the other survey plans tendered in evidence by the appellants and the 5th-7th respondents – Exhibits W and X, respectively. He submitted that it was the duty of the lower Court to consider to all evidence before it. The case of Enterprise Bank Ltd v. M. N. L. [2015] All FWLR (Pt. 773) 1995 at 2037 was cited. He complained that Exhibit E was tendered in evidence by CW1 who is not its maker and whose evidence is hearsay. He submitted that the trial Court was wrong to have attached evidential weight to Exhibit E. He relied on the decisions in Wuyah v. Jama ‘A LG Kafanchan [2011] LPELR – 9078(CA) and Waziri & Anor v. Geidam & Ors [2015] LPELR-26046(CA).

Learned counsel complained that the lower Court ignored evidence to the fact that Amadi Nwaekie-Ordu owned the land in dispute personally, until he gave same to the appellants’ ancestors for safe-keeping. Later, Amadike Nwa Amadi, son of Amadi Nwaekie-Ordu, gave one-third of the land to the appellants’ ancestors. The lower Court, according to learned counsel, ignored the evidence which was not contradicted and corroborated by Elder Obi Amadike (DW 1), under cross-examination.

It is also the view of learned counsel that the lower Court ignored evidence on oath-taking when the land was to be left in the charge of appellants’ ancestors, to seal the understanding between Amadi Nwakie-Ordu and Egima, which fact was admitted by DW1, under cross-examination. On efficacy of oath-taking, learned counsel cited the case of Umeadi v. Chibunze [2020] 10 NWLR (Pt. 1733) 405 at 412.

He recalled that the 5th-7th respondents, whom appellants were alleged to have brought on the land, donated part of the land to Okposi community through Exhibit D, which the 1st and 2nd respondents prepared and executed the document, acknowledging the title of the 5th-7th respondents over that part of the land.

On the third issue, learned counsel noted that trial was concluded on 27/04/2016, address of counsel adopted on 04/07/2017 and judgment delivered on 30/07/2020. He cited Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999. He explained that the lower Court delivered judgment some thirty-four (34) months after expiration of the time allowed for delivery of judgment in the suit. He submitted that the time-lag was unreasonable, which affected the perception of the trial Court, appreciation and evaluation of the evidence led at the trial, which led to loss of impression of the witnesses and lack of recognition of material contradictions in the evidence of witnesses, particularly CW1 and DW2.

Learned counsel submitted that this appeal is a special circumstance which calls for this Court’s intervention by assessing and reviewing the evidence of witnesses led before the lower Court. He urged the Court to allow the appeal.

1st – 2nd Respondents’ Argument of the Appeal
On a preliminary question, 1st-2nd respondents’ counsel submitted that the party who filed this appeal was not a party to proceedings in the lower Court and judgment was not given against them. He submitted that the alteration of names on the record changes the identity of a suit and transforms it to a different suit in respect of which the Court below did not deliver judgment. He submitted that this Court lacks jurisdiction to entertain the appeal. The cases of  Senator Magnus Abe & 41 Ors v. INEC (2019) and APC v. PDP & INEC Suit No. SC/295/2019 delivered by the Supreme Court on 11/04/2019 were cited. He urged this Court to dismiss the appeal and cited Order 7 Rule 6 of the Rules of this Court.

On the first issue for the 1st and 2nd respondents, the position taken by learned counsel is that the lower Court appropriately assessed and evaluated evidence before it, as there were no material contradictions in the evidence led by the 1st-2nd respondents, which is based on collective ownership of the land, predicated on traditional history and evidence, pleaded in paragraph 18 of the statement of claim and led in evidence by CW1, under cross-examination, at page 805 of the record of appeal. That evidence was corroborated by DW1 (page 822 of the record of appeal) and DW2 who testified that he did not know how their grantor acquired sole title to the land in dispute. Learned counsel complained that there were no gaps in the traditional evidence or history given by the 1st-2nd respondents and that what appellants want is for the Court to elevate their status as customary tenants, who have overreached his overlord, to that of an owner, simply by accepting personal fantasy of a gift of the family property contrary to what appellants admitted at pages 117 and 176 of the record of appeal. He urged the Court to affirm the evaluation of evidence and finding of the lower Court.

On the second issue, learned counsel argued that the lower Court was right in its evaluation and use of Exhibit E, which is not different from Exhibit W (appellants’ survey plan, showing land claimed by appellants) and Exhibit X (5th-7th respondents’ dispute survey plan showing land claimed by the 5th-7th respondents). He explained the role of a survey plan in litigation, which is to certainly describe the land in dispute. DW2 testified for the appellants and in learned counsel’s view, the Court justifiably evaluated his evidence at the trial.

On the third issue, it was argued that it is public knowledge that Omoku, the headquarters of Ogba/Egbema/Ndoni Local Government experienced persistent violence between 2014 and 2019 making regular activities impossible, during which the lower Court managed to do its work. He explained that parties had to file final addresses, which were adopted afresh when all parties except one died and had to be replaced. He relied on Section 294(5) of the 1999 Constitution on the issue and submitted that the appellant did not suffer any miscarriage of justice. He urged the Court to dismiss the appeal.

Appellants’ Reply Brief of Argument
The appellants’ counsel, in appellants’ reply brief of argument, argued that appellants brought a motion for substitution, after “all the persons sued as 2nd set of Defendants who are members of the Appellants family, passed on/transited at intervals.” The lower Court granted the motion (pages 699-706 of the record of appeal). The current appellants were substituted for themselves and on behalf of the entire Umu-Ewor family of Umu-Ordu kindred of Okposi town as the 2nd Set of Defendants. He argued that the appellants “are taken to have replaced the demised members of their kindred/family who were sued in representative capacity as the 2nd set of defendants.” The substitution, according to appellants’ counsel, was reflected in the final written address filed by the appellants.

Learned counsel appropriately noted that the complaint of the 1st-2nd respondents concerns the inclusion of “Umu-Ewor family” in the representative status of the appellants in the trial Court, which he described as technicality and not the substance of this appeal.

He urged the Court to allow the appeal.

Determination of the appeal
Since the appellants brought the appeal to this Court and the issues for determination raised by the appellants properly capture the essence of the appeal, the appeal will be determined on the issues brought by the appellants. Having stated the above, it is important to note that the first issue raised by the 1st-2nd respondents is not a proper issue for determination because it is not derived from any of the grounds of appeal. Ordinarily, that issue should be struck out. However, it is observed that the question raised may impact on the jurisdiction of this Court or the competence of the appeal. Thus, since parties have exchanged argument on the issue, the question will not be decided as an issue for determination, but as an essential point to be resolved on the route to the determination of the appeal.

The 1st-2nd respondents asked:
“Whether this appeal is not incompetent, having been filed without leave of Court, by Umu-Ewor family of Umu-Ordu kindred of Okposi, a party who is not a party on record against whom judgment was directly given in the suit?”

An examination of the record of appeal will confirm that the 1st – 2nd respondents’ complaint is about the fact that the appellants in this appeal described themselves as bringing this appeal:
“For themselves and on behalf of the entire Umu-Ewor Family of Umu-Ordu Kindred of Okposi Town.”

The judgment of the lower Court had the appellants described as defending the suit:
“For themselves and on behalf and on behalf of the entire UMU-ORDU Kindred family of Okposi Town.”

The contention of the 1st-2nd respondents is that there was no Umu Ewor family of Umu-Ordu kindred family of Okposi town before the lower Court and that the family cannot file an appeal against a judgment, which they were not parties to. The family before the lower Court was described as Umu-Ewor kindred family of Okposi town in the judgment of that Court. As important as the capacity in which litigation is pursued may be, the approach of the Courts is that it should not be allowed to overshadow the substance of the dispute before the Court. In the case of Alhaji Honourable Ibrahim Nyekachi Orlu v. Alasin Enterprises Nigeria Limited [2021] LPELR – 56278(CA), this Court (per Olabode A. Abimbola, J.C.A.) held that an appellate Court has the power (and now, indeed, a duty) to enter judgment in the appropriate capacity in which the parties contested the case before it, even if there was no formal application for amendment. See Order 4 Rule 1 of the Court of Appeal Rules, 2021 and the cases of Vulcan Gases Ltd. v. Okunlola [1993] 2 NWLR (Pt. 274) 139 at 148-149 and House of Representatives v. S. P. D. C. N. [2010] 11 NWLR (Pt. 1205) 213 at 259-260. It is the duty of this Court to enter judgment in this appeal, deriving from the appropriate capacity in which the appellants brought their appeal, as the named appellants are the same persons named in the judgment of the lower Court, as the second set of defendants, who are now appellants in this Court. It is the capacity in which the appellants brought the appeal that this Court has a duty to identify, as appropriate, in this judgment.

At pages 699-706 of the record of appeal, there is a motion filed by the appellants on 09/07/2020, for their substitution for the deceased erstwhile defendants, representing appellants’ family. In that application, the appellants described themselves as they have described themselves in the notice of appeal with which they filed this appeal. The lower Court granted the appellants’ application, as prayed, during the proceedings of 15/07/2020. (See pages 864-865). The ruling of the lower Court, which the 1st-2nd respondents have not successfully appealed against, is binding on the parties and the lower Court. Thus, it was an understandable oversight on the part of the lower Court when it omitted to reckon with the alteration of the capacity of the appellants it previously ordered, when it delivered the judgment in the suit. When appellants filed their final written address before the lower Court, on 20/07/2020 (pages 716-739 of the record of appeal) they described themselves as they did in their notice of appeal, thereby complying with the order of the lower Court, which allowed substitution in that capacity. 

The complaint of the 1st-2nd respondents is hereby discountenanced.

In any event, when the 1st-2nd respondents filed their suit, they claimed that the appellants brought the 5th-7th respondents onto the land in dispute and sued them under the same family name. Throughout the trial, the appellants on the one hand and the 5th-7th respondents on the other, sternly insisted that they are two separate families who came unto the land in dispute through two separate means and not through each other. Thus, when the 5th-7th respondents were added as defendants to the suit, as mentioned above, they came into the suit in the capacity in which they appear in this appeal. The appellants also insisted that they have a different identity from that in which they were sued. The order of the lower Court, for substitution, properly described the appellants, as they desired to be known in these proceedings. There is no merit in the question raised by the 1st-2nd respondents, which is hereby discountenanced. This is a valid appeal.

Having resolved the preliminary issue, as recorded above, I will now pay attention to the appellants’ three issues for determination.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Resolution of the First and Second Issues
The first and second issues for determination of the appeal, which will be determined together, read as follows:
“1. Whether the learned trial Judge was right to hold that the disputed land is a collective/family property of the entire Umu-Olota Kindred and not personal property of Amadi Nwaekie Ordu (Odo Nwa Amadike as pleaded by the Claimants) in spite of the evidence before Court which indicated/points to sole/permanent ownership of the land by Amadi Nwaekie-Ordu (Ground 1).
2. Whether the learned trial Judge was right to rely solely on Exhibit E and the evidence of DW2 in concluding that the Claimants have established title to the disputed land without properly evaluating the entire evidence of the parties before him as required by law (Grounds 2, 3 and 4).”

The five ways by which title to land may be proved are as follows:
a. by traditional evidence;
b. by production of documents of title;
c. by acts of a person or persons claiming the land such as selling, leasing, renting out or farming on it;
d. by acts of long possession and enjoyment of the land; and

e. by proof of possession of connected or adjacent land.

See Piaro v. Tenalo[1976] 12 SC 31 and Idundun v. Okumagba [1976] 9-10 SC 277.

Traditional evidence, if accepted by the trial Court, stands on the same footing as any other type of evidence, e. g. documentary. It can form and indeed, is sufficient to form, the basis for the grant of a declaration of title. See The Stool of Abinabina v. Enyimadu [1938] A.C. 207 at 211 and Aikhionbare v. Omoregie [1976] 12 SC 11 at 27. A party who relies on traditional history as the foundation of his claim for title to a piece of land must plead and prove facts as to:
a. Who founded the land;
b. In what manner the land was founded and the circumstances leading to it;
c. The successive persons to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained. See Ewo v. Ani [2004] 3 NWLR (Pt. 861) 610 at 628-629.

The 1st-2nd respondents relied on traditional history as the foundation of their claim to the land they claimed. The 1st-2nd respondents claimed title to the land described in the survey plan admitted in evidence as Exhibit E. They claimed that they are from the same family with the 3rd-4th respondents, who the 1st-2nd respondents sued in the lower Court, alongside the appellants and the 5th-7th respondents. Claimants claimed the land called Nkwakwa and Ehulor, located at Okposi community. The 1st-2nd respondents traced their ownership to their progenitor – Olota – who was said to have joined his brother – Obulor – on the land, which the latter had founded. Later, the two brothers shared Obulor’s land into two, with each brother taking one portion. It is a part of Olota’s portion, which is in dispute in this case.

In paragraphs 1, 6-23 of the statement on oath of CW1 (pages 154-159 of the record of appeal), which he adopted at the trial, the witness testified, on behalf of the 1st-2nd respondents, as follows:
“1. That I am the head of the Wokocha section and a principal member of the Umu-Olota family of Okposi, Claimants in this case.

6. That my family is one of the two founding families of Okposi community, our Ancestor joined his brother Obudo the ancestor of Okposi Obudo family of Okposi who first discovered and founded Okposi as a new settlement.
7. That Upon arrival at Okposi, the two brothers shared the land among themselves from the village square, with the elder brother Obudo taking the land to the East of the village square while giving to his junior brother Olota ancestor of my family, the land to the West of the square.
8. That the two brothers lived alone in the new found settlement until their younger brother Agojuru joined them over 10 years later.
9. That with the arrival of Agohuru, all the descendants of Uriem became settled in Okposi For over 200 years. They lived thus together without any neutral or other family.
10. That my family’s ancestor, Olota, succeeded his father as the Priest of the family deities called Amakwu-Uriem and Ajie-Ukwu both of which were at the former settlement Obigwe.
11. That my family’s ancestor relocated the deities to Okposi and built the Shrine of one of the deities called Mmakwu-Uriem on the piece of land he named Nkwakwa, while he kept the other shrine called Ajie-Ukwu on the piece of land he called Ewhulor because it was within the dwelling houses of the founding settlers.

12. That my family’ ancestor thus succeeded his father as the Priest of the two juju or deities which till date known as shrines of all Uriem kindred family people of Ogbaland.

13. That my family’s ancestor also built some fish ponds in a swamp on his Nkwakwa land which he called IME-ERISI swamp, meaning ‘Inside Juju’ because it was on the land on which he located the shrine Mmakwu-Uriem deity.
14. That my family ancestor, Olota bore four sons, whom he respectively called Okraenya, Egbirikaonu, Amadi and Oriechukwu. These four sons bore the entire members of my family, now known after their ancestor’s name, as Umu-Olota, meaning Children or descendants of Olota.
15. That Okra-enya bore two sons called Okarike Chewill and his descendants who include the current family head, are today called “Ndeka Okpor” meaning Okpor’s people.
16. That Egbirikaonu bore Ehiba and Ake, Ake bore Ajuknwura while Ehiba bore Amos and both brothers bore several children and their descendants who include the 2nd Plaintiff are today called “Ndeka Egbirikaonu” meaning Egbirikaonu’s people.

17. That Amadi bore Amadike, who bore Ordu, Eluozo and Ugbari and his descendants who include the 1st set of Defendants are today called “Ndeka Amadike” meaning Amadike’s people.

18. That Oriechukwu bore Eze, who bore Wokocha and Okrugbo and his descendants who include the 3rd Plaintiff are today called “Ndeka Wokocha” meaning Wokocha’s people.
19. That all the descendants of Olota as a whole, who constitute the Umu-Olota family of Okposi, inherited and farmed on all the lands owned by their ancestor, including Nkwakwa land now known to the 2nd and 3rd sets of Defendants as Nkwakwa and Ewhulor lands respectively.
20. That the lands of the Claimants’ family were delineated into four farming areas assigned for farming, to the four units of the family known respectively as Egbrikaonu, Amadi, Okpor and Wokocha, with the Nkwakwa section of the family lands allocated to the 1st set of Defendants’ unit of the family.
21. That the said Nkwakwa land is bounded on the North by Umuchikere family of Omoku, on the East, by a Rubber Plantation belonging to Mr. Olowu of Omoku, on the south, by the residential area of the village and on the west, by Elua grassland (purchased by the 3rd set of Defendants from a family at Aligwu Community which shares boundary with Okposi community) and Umuihi family land at Omoku. The land is better described in the Survey Plan No. AS. A/RSD15/2006 dated 28/04/06 and prepared by surveyor J. O. Agugua.
22. That the system of delineating arable family lands for farming by various units of a family is in Ogba custom known as ‘Ewa-Onu’, which literally means portion for farming. It does not amount to demarcation or allocation of land to members or sections of the family for privatization of ownership.
23. That each unit of Umu Olota family still retains farming rights over the delineated portions till date, but do not have monopoly right of building thereon, or the right to sell or lease out any portion or plot of such family land to a buyer.”

The appellants were consistent in their evidence and stance before the lower Court that it is the family of the 3rd-4th respondents they know and not the 1st-2nd respondents’ family, who they never dealt with. The appellants were consistent in their claim that all previous disputes they had were with the 3rd-4th respondents (through whose forebear named Amadike (Odo Nwa Amadike), they received a grant of the land they occupy. Judgments of Courts were tendered in evidence by DW 3 (called by the 5th-7th respondents), which confirmed the right of appellants to occupy the land in dispute against the desire of the 3rd-4th respondents to evict them (see Exhibits F and G which the lower Court did not even give a glance).

In Exhibit F, which is the decision of the Senior Resident, Rivers Province, dated 02/09/1953, the deciding officer refused to review the earlier decision of the Asst. District Officer, dated 11/03/1953, by stating:
“In the circumstances, I see no reason to amend the judgment. I confirm the judgment of the Reviewing Officer.”

The judgment of the Reviewing Officer dated 11/03/1952, which was affirmed in Exhibit F, is quoted in the same Exhibit F. The Reviewing Officer had upturned the earlier decision of the Native Court dated 19/04/1953, in the following words:
“I award title to that part of the land called Nkwakwa known as Umu-Ekwu by Defendants to Plaintiff, the Western and Northern boundaries being those agreed upon before me by Plaintiff and neighbouring land owners i. e. the innermost of those indicated on the map. In view however of their long occupation of this area, I award the right of occupation and full exclusive use of this land to the members of Defendants family and their descendants, until such time as they may wish to relinquish it, in which case it reverts to the Plaintiffs. The land may not be alienated without the consent of and arrangement with the plaintiff. Costs to be shared equally by the Plaintiff on the one hand and Defendants on the other. Defendants to refund 15/- to Plaintiffs.”

Thus, as between the 3rd-4th respondents and the appellants, the quoted decision above is an extant judgment, in appeal no. AK/29/53, which was an appeal from suit no. 11/52 from the Omoku Native Court. In the decision, the deciding authority, which was a judicial decision, upheld the right of the appellants to occupy Nkwakwa land and have exclusive use of the land in dispute, though acknowledging the ownership of the 3rd-4th respondents, until the appellants may abandon the land. It was also held that the appellants did not have a right to dispose of the land without the consent of or arrangement with the 3rd-4th respondents. In Exhibit F, the family of the 3rd-4th respondents was represented by Eluozo Amadike of Obrikom, against Oreka Oginia & 9 Ors of Okosi for the appellants. The 1st-2nd respondents, as asserted by the appellants, did not feature in that litigation. DW3 tendered the judgment at the trial. There was no mention of the 1st-2nd respondents in Exhibit F, as owner of the land.

Again, when the appellants and the 3rd-4th respondents returned to the Magistrate’s Court in suit no. MCO/3/79, E. O. Agbara Esq. (Magistrate Grade 1), entered judgment in favour of the appellants (Michael Nwata & Anor as claimants, for themselves and on behalf of the Umuewo family of Okposi village in Ogba District) against Sampson Eluozi & 3 Ors (of the 3rd-4th respondents’ family), as defendants, wherein the Court ordered against the 3rd-4th respondents’ family members as follows:
“(1) General damages for the trespass N600.00.
(2) Cost assessed against the Defendant is N50.00.
(3) The defendants or their agents are restrained from further acts of trespass on the land until perhaps the issue of title is determined.”

Exhibit G simply confirmed the right to possession of the appellants’ family. In lines 3-22, page 7 of Exhibit G, which judgment is dated 17/7/1980, the Court held:
“This Court was moved to the locus in quo. In the bush, the defendants prevaricated as much in answering question, put to them by the Court. For the first time, they admitted that they now know the land called Nzoekwe which they had earlier denied knowledge of. They also admitted that there had been a dispute over the land between the two families but denied this earlier. In the same bush, the Agip episode was put forward. There was no serious counter-evidence in opposition to this. The statement that left as much to doubt came out also in the bush. “This land belongs to us. We gave it all to the defendant on caretaker basis to deal with the land anyhow, and bring the proceeds to us.” This statement made by the defendants is as doubtful as it is untrue. I imagine that there was ever such a contract between the two families which can still subsist in modern times.
Generally, in my opinion, I hold that the plaintiffs have been in possession of Nzoekwe at all times material times and that the defendants did trespassed into the land.”

It has to be recalled that the appellants have consistently called the land they occupy Nzoekwe (and not Nkwakwa). The appellants were victorious in Exhibit G against the 3rd-4th respondents and the Court confirmed appellants’ right to possess the land in dispute in its judgment.

It is remarkable to repeat the obvious, that Exhibits F and G were tendered by DW3, who was a witness for the 3rd-4th respondents. The documents repudiated any claim of joint ownership of the land in dispute between the 1st-2nd respondents and the 3rd-4th respondents in the determination of the disputes over 70 (seventy) years ago.

Contrary to the finding of the lower Court that there was no proof of how the appellants received a grant/possession of the parcel of land which they occupy, DW2 testified about how they received that grant/possession from Amadike Nwamali (see page 836 of the record of appeal).

DW6 at page 844 of the record of appeal, testified about how the 5th-7th respondents’ family as owner of part of the land in dispute, donated part of the land in dispute to the entire Okposi community for use as burial ground. A Deed of Compromise (Exhibit D) was made, which was tendered through CW1, who admitted that fact at page 807 of the record of appeal. CW1, (1st-2nd respondents’ star witness) signed Exhibit D, in which he accepted that his Okposi community (including the 1st-2nd respondents’ family) received donation of part of the land he claimed before the lower Court from the 5th-7th respondents. That, clearly, was an unshakeable concession that his family is not the owner of the part of the land in dispute occupied by the 5th-7th respondents. In Exhibit D, which CW1 signed, the parties were Umuorukwo family of Okposi Village (5th-7th respondents) (Grantor) and Okposi Community (Donees) represented by:
a. David Obiajunwa and Tobin Amadike of Okposi Obodo Family.
b. Johnson Nwokocha and Reuben Okpo for the Umuolota family.
c. Maxwell Omayi and Monday Orukwowu for the Umuagohuru Family.
d. Emmanuel Umude and Robert Ajie for the Umuenyike family.

e. Ezekiel Ugela and Sunday Ogu for the Umuoba family.

CW1 is Johnson Nwokocha, whose name is in bold font and numbered 2, for himself and on behalf of the Umuolota family (1st-2nd respondents’ family in this appeal). Exhibit D clearly stated:
“1. In consideration of the fact that the Donee acknowledge the title and right of possession of the Grantors to the whole land verged GREEN in Plan No. BAAC/R/39 of 15/7/72 filed with the Statement of Claim in the said action, and the Donees pledge to confine themselves only to the southern half of the area in dispute i. e. the area verged PINK in Plan No. BAAC/6/39 of 15/7/72 for use as communal burial ground, the Grantors have agreed to withdraw their appeal now pending at the Federal Court of Appeal, Enugu.
2. The Grantors hereby agree to grant and the Donees agree to accept only the southern half of the area in dispute i. e. the area verged PINK in Plan No. BAAC/R/39 of 15/7/72 as the burial ground for the whole of Okposi Community forever.
3. The Grantors and the Donees agree that the whole Okposi Community should engage a surveyor to survey and produce a plan of the area now granted to the Community perpetually for use as burial ground for the avoidance of future disputes.”

Exhibit D effectively compromised the judgment it dealt with. It is negatively intriguing that the 1st-2nd respondents lay claim to the same burial ground granted to their Okposi community by the 5th-7th respondents, vide Exhibit D, as justification for or proof of ownership of the larger parcel of land which includes the same burial ground, with the 1st-2nd respondents claiming ancestral founding. The lower Court did not find a need to consider these issues in its judgment, regrettably.

Exhibit A was tendered by CW1 as evidence of registration of the shrine known as Mmaku Uriem Juju Shrine, Okposi – ONELGA. However, Exhibit A does not state the location of the shrine registered, contrary to the suggestion by CW1 that it is located on the land in dispute.

It is equally important to draw attention to the fact that the appellants, in joining issues on the alleged relationship between the 1st – 2nd respondents and the 3rd – 4th respondents, pleaded in paragraphs 3 and 23 of their statement of defence and counter-claim, that the case and traditional history of the 1st – 2nd respondents is a sham, intended to take over the land in dispute from the appellants because there is no joint ownership of the land in dispute between the 1st – 2nd respondents’ family and the 3rd – 4th respondents’ family. The lower Court did not consider this contention by the appellants, despite evidence before it. By the pleading highlighted above, the appellants joined issues with the 1st – 2nd respondents on their alleged family relationship with the 3rd and 4th respondents, through whose family, the appellants claimed to have come on the land in dispute and acquired title to the land they testified was granted to their progenitor, shown in the survey plan in Exhibit W. Since the family relationship of the 1st – 2nd respondents had been challenged and issues joined thereon, it was the duty of the 1st – 2nd respondents to prove that relationship. Proof of that relationship would have satisfied the condition that there should be no gaps in the traditional history presented to the Court.

From the evidence of CW1, the witness confirmed the contention of the appellants. CW1 did not tell the lower Court how he became related to the family he claimed to have testified on behalf of at the trial. CW1 did not testify about his father or mother (who he did not name) or how he became a member of the Umuolota-Uriem family of Okposi. CW2, the second witness for the 1st-2nd respondents, did not testify about how he became a member of the same family and he did not even name his own parents. There was no evidence led on how any or all the named persons who represented the 1st-2nd respondents’ family, as claimants, became members of that family. It is only when the membership of these persons is established, that their relationship with the 3rd-4th respondents’ family may be established. The evidence of traditional history before the lower Court was porous and did not establish the allegation of the 1st-2nd respondents that they are related to the 3rd-4th respondents, such that they have joint ownership of the land in dispute.

Apart from the above, when CW1 was cross-examined, as shown on page 804 of the record of appeal, his evidence showed that there was break in the chain of succession, which the 1st-2nd respondents sought to set up in Court. CW1 responded to a question in cross-examination, as follows:
“At the time Odonwamadike left Okposi for Omoku and Obrikom some of his kindred remained in Okposi. While at Okposi some of his relations also returned to Okposi. Odonwamadike was the head of Umu-Olota family at the time. Until Odonwamadike died no other person headed the family. I do not know who succeeded him as the family head on his death.”
(See page 805 of the record of appeal).

If the lower Court had properly evaluated the evidence led by the 1st-2nd respondents, it would have been clear to the lower Court that the traditional history relied upon by the 1st-2nd respondents was not without its cogent problems, which made it bedraggled and unreliable.

Where named persons file a suit as representing a family and they claim reliefs demanding exercise of discretion from the Court, it is important that the Court should be satisfied, without the claimants being prompted, that the claimants are actually members of the family they claim to be representing. In this case, none of the two witnesses who testified for the 1st-2nd respondents testified about how they became related to the Umuolota Uriem family or how they became related to the 3rd-4th respondents. It is my view and holding that the lower Court should not have acted on the traditional history of the 1st-2nd respondents to hold that their title to the land in dispute was proved. The claim for declaration of title should have been refused.

About the claim for perpetual injunction to restrain the appellants from selling, farming on or dealing with the land in dispute, if the lower Court had carried out due evaluation of the evidence before it, the Court would have noted that the appellants, even based on the case presented by the 1st-2nd respondents, were brought on the land in dispute, lawfully. According to CW1, Egima, the appellants’ progenitor was married into the family of the 1st-2nd respondents and was brought on the land several years ago. Around 1907-1908, Egima was given custody of the land in dispute by his father-in-law, who CW1 described as Odonwamadike (Odo Nwa Amadike), the head of the 1st-2nd respondents’ family at the time.

Under cross-examination, at pages 804-805 of the record of appeal, CW1 confessed to the lower Court, on 20/12/2012, under cross-examination, thus:
“Odonwamadike left Okposi for Omoku in 1908. I cannot remember when Amadike unit of Olota held the land in dispute. Before Odonwamadike left Okposi to Omoku he handed over the land in dispute and some other land to his son-in-law called Egima, also informing his own relations to farm on the land. Egima is from Umu-Ordu kindred of Okposi. Odonwamadike is not the person as Amadinwaekiye-Ordu. Amadinwaekiye-Ordu is the grandfather of Odonwamadike. Part of the instruction from Odonwamadike is that in the management of the lands and economic crops on it 1/3 (one third) should be retained by Egima and 2/3 (Two third) be brought to him at Obrikom. I do not know how long he stayed at Obrikom between coming back to Okposi. … I do not know that Odonwamadike had a son by the name of Amadike was the son of Amadike. … I have come to know that there was dispute between the 1st set of defendants and 2nd set of defendants over this land in dispute.”

In the 1st-2nd respondents’ brief of argument, learned counsel described the appellants as customary tenants to the 1st-2nd respondents’ family. In that circumstance, could the lower Court have validly issued an order of perpetual injunction against appellants, who, CW1 admitted was handed the land in dispute, lawfully, in 1908 and had been on the land since that time? In his statement on oath, CW1 described how the appellants (known as Umu Ewor) and the 5th-7th respondents (described as Umu Orukwor) arrived in Okposi community and how one of theirs (Egima) married into the Olota family, such that he was given custody of the land in dispute more than 200 years ago. In paragraphs 29-45 of his statement on oath, he said:
“29. That the fifth person who was admitted by the Claimants’ family and their Uriem kindred brothers to settle in Okposi community in about 1900 was Ordu who migrated from Erema community.
30. That Ordu had three sons namely Igwe, Orukwor and Ewor whose descendants are today known as Umu Igwe, Umu Orukwor and Umu Ewor, respectively. These three families make up the Umu Ordu kindred family of Okposi community.
31. That Umu Igwe, and Umu Orukwor units of the Umu Ordu family acquired land, that is Umu Igwe who acquired the piece of land named Okali near Osiakpu village and Umu Orukwor who acquired the piece of land named Elua from Aligu.
32. That the other descendants of Ordu, Umu Ewor did not acquire any piece of land but settled closely among the Umu-Olota family.
33. That the family head of Umu Olota was Eke Nwa-Okpor whose daughter, Oriazu was married to Egima Nwaerieke from Umu Ewor family.
34. That the next person to Eke Nwa-Okpor by age was Odo Nwa-Amadike who by that status was the next family head of Umu Olota after the death of Ezi Nwa-Okpor.
35. That Odo Nwa-Amadike then a warrant chief decided against living at Okposi and so relocated to Omoku town that was more conducive to his trading activities. After sometime, Odo Nwa Amadike left Omoku to Obrikom he was there until his death.
36. That after the death of Odo-Nwa Amadike some of his descendants left Obrikom and resettled at Omoku and elsewhere, while the bulk of them remained in Obrikom, constituting the 1st set of Defendants.
37. That in or about 1905, a member of the Amadi unit of the Claimants’ family accidentally killed his wife during domestic disagreement.
38. That frightened by the fear of retaliation, and worse still the possibility of the new Colonial government’s reaction, most members of the 1st set of Defendants family, and some other members of the community, fled from the village.
39. That in or about 1908, when he was leaving Okposi to Omoku, Odo Nwa-Amadike then the Umu Olota family head, acting as head of his unit of the family, handed over the Nkwakwa piece of land to a son-in-law of the family Egima Nwaerieke, (whose wife Oriazu was well beloved among her brothers) to farm and look after until he and members of his family unit returned back to take it back.
40. That before leaving Okposi, Odo Nwa-Amadike instructed Egima:
(a) Never to sell or pledge the land either in whole or in part to anyone.
(b) Never to harvest the palm fruits and never to sell the economic trees.
(c) To only farm on the land in order to produce food to feed his daughter, Oriazu and that he would retrieve the land whenever he felt like doing so.
41. That Chief Odo Nwa-Amadike notified the entire Umu Olota family of which he was the head at the time, of these instructions for which reason, The Claimants’ family respected their elders wish over his unit’s ewa-onru.
42. That Egima Nwaerieke later invited first, other members of his Umu Ewor unit, and later invited their brothers from Umu Orukwor unit of his family (the 3rd set of Defendants) who were more in number to join him in farming the vast land and for many decades, even after Chief Amadi’s death, abided by the instructions of Nwa-Amadike as aforementioned.
43. That by this benevolent act of Umu Ewor towards Umu Orukwor, the Umu Orukwor unit had more farms than Umu Ewor. This greater possession of farms by Umu Orukwor later brought misunderstandings between Umu Ewor, the original caretaker, who felt cheated, and Umu Orukwor whom they only invited to join them.
44. That to resolve the misunderstandings, they divided the farm into two parts thus: Umu Ewor farmed the inner part of the farmland, while Umu Orukwor farmed the Eastern part and for purposes of distinction, referred to it as “Ewhulor” (meaning near home) because it was the part of Nkwakwa land nearest the village settlement (i. e. dwelling places).
45. That the Defendants have to the best of our knowledge, kept to the injunction of Chief Odo Nwa-Amadike, until recently when he discovered that the Defendants have started allocating portions of the land to its members, to sell off and buy alternative plots from other families in Okposi and Omoku towns.”

Appellants, by the admission of the 1st-2nd respondents, through CW1, were not trespassers on the land in dispute, against whom the lower Court could have issued orders of perpetual injunction. As they have been described as customary tenants (though not expressly pleaded), by learned counsel for the 1st-2nd respondents, there was no prayer for forfeiture of the appellants’ ALLEGED customary tenancy. Thus, appellants will retain their status, even if the lower Court found the case of the 1st-2nd respondents proved (which is not what this Court is saying). It is my view that the lower Court was in clear error when it issued orders of PERPETUAL injunction against the appellants who have lived on the land in dispute for more than (200) two hundred years, going by the admission of CW 1 and CW 2.

When C. U. Amadike Esq., cross-examined CW1, on 21/02/2013, CW 1 told the lower Court: “I did not say that the Nkwakwa land was shared between the 2nd and 3rd set of defendants.
Refers to paragraph 44 I did not state those facts. There is no land called Ehulor. There is only Nkwakwa. (Refers to paragraph 4 of his statement).
The 3rd set of defendants have been on the land in dispute since 1907 but I do not know when they actually came unto the land. It is true that the 3rd set of defendants have been selling, fishing, farming, building and dealing with the land in dispute for over 100 years.
(Shown survey plan). This is our survey plan in this case.
(Apply to tender. No objections from all counsel).
COURT: Surveyor J. O. Agugua and dated 28/04/2006 is admitted in evidence and marked as Exhibit E.
None of my family farmland is indicated on Exhibit E.”
(Pages 810-811).

It will be recalled that contrary to the assertion of the CW1 above, the 1st-2nd respondents mentioned Ehulor as one of the parcels of land claimed, in their prayers before the lower Court.

Where acquisition of title by settlement is pleaded, that perhaps is all that the claimant will be required to prove to succeed, with the traditional history as to who first settled on the land providing fitting background to the evidence of length of time acts of ownership had been taking place on the land. It is right, of course, to use recent facts as a test of the probability of traditional history, but recent facts must be of such quality and character as would lead to the probability of traditional history. See Aseimo v. Abraham [2001] 16 NWLR (Pt. 738) 20 at 32-33. The test of the traditional history from the 1st-2nd respondents, using Exhibit E, as a basis should have revealed to the lower Court that CW1 was not a witness of truth when he testified that members of his family had farms on the land in dispute, including himself, as he could not identify any of such farms in his family’s survey plan at the trial.

CW 2’s statement on oath is at pages 391-393 of the record of appeal. CW 2 – Mr. Abali Jeremiah of Okposi community – under cross-examination by S. I. Chinna Esq., for the appellants, he gave evidence on 18/04/2013, thus:
“This case in Court is to allow the claimants collect back what their ancestor Amadike gave to the defendants’ ancestor, Egima.”
(Pages 816-817).
C. U. Amadike Esq., cross-examined CW2 on 18/04/2013 and he said:
“I know Ewohulor land in Okposi. Every family in Okposi has Ewhulor. Ewhulor land is the bush surrounding the residential land.
The land in dispute between the claimant and 3rd set of defendants is called Ewhulor land. …
The 3rd set of Defendants have been building and farming on the dispute Ewhulor land for many many years.”
(Page 817 of the record of appeal).

If the intent of the suit before the lower Court was to take back the land given to the appellants’ ancestor in 1907-1908 and those of the 5th-7th respondents, then that will have to be pursued in a process for termination of that lawful relationship, which the suit before the lower Court was not. In filing suits, the claimant has a duty to appoint appropriate remedies and appropriate processes in pursuing their intention, purpose and relief. This is because a good story may be badly told. A customary tenant, as admitted by the CW 1 and CW 2, two witnesses called by the 1st-2nd respondents, cannot be ejected in the manner of the prayers placed before the lower Court. It is only by forfeiture of the customary tenancy that such may be achieved. The lower Court, without evaluating all these pieces of evidence before it, erroneously ordered perpetual injunction against the appellants, which in effect, summarily barred them from their homes, farms, and other properties, held over the years. That order had not any similitude of justice. It must be reversed.

There is another issue, which is important and should be mentioned. The case of the 1st-2nd respondents is that they are of the same family as the 3rd-4th respondents’ family. The 1st-2nd respondents admit that the land in dispute was given to Odonwamadike, who in turn handed same over to Egima (appellants’ ancestor) in 1907-1908. The 1st-2nd respondents claimed that they owned the land in dispute jointly with the 3rd-4th respondents, who are successors or descendants of Odonwamadike, who was the head of their joint family at the time of the handing over. The 1st-2nd respondents claimed that the family land is held as such and not by individuals in their family. At page 806 of the record of appeal, on 14/02/2013, when CW1 testified under cross-examination, he told the lower Court:
“We the Olota family have another land called Akuohis-Etiunwo. Olota kindred also have pockets of other lands.”

However, at page 809 of the record of appeal, under cross-examination by C. U. Amadike Esq., CW 1 testified:
“I know the Onosi-Ukwa land. I know the Akohiati-Ukwho land. I also know the Obisara land. The parcels of land belong to my family. We do not enjoy these parcels of land with the 1st set of defendants because they are not members of our family and not owners of the parcels of land.”
(Page 809).

The 1st set of defendants referred to in CW 1’s evidence, quoted above, are the 3rd-4th respondents in this appeal. CW1, in one clean but disastrous move, confirmed the allegation of the appellants, in their pleading also mentioned above, that the suit filed before the lower Court was a sham. CW1 admitted that the 3rd-4th respondents are not members of their family and they do not enjoy commonality in enjoyment of land, contrary to what the 1st-2nd respondents pleaded and based their suit upon. The lower Court simply overlooked this grand admission of the truth by CW1.

The case of Nwaigwe v. Okere [2008] 13 NWLR (Pt. 1105) 445 at 478, explained that kindred is a family relationship. It could also mean generally a people belonging to the same group by blood or consanguinity. It also could mean next of kin. It conveys the meaning of family relationships by blood or consanguinity.

As demanded in the case of Kwan v. Sha [1994] 4 NWLR (Pt. 338) 365 at 376, the lower Court had a duty, but failed, to make a finding on the allegation by the 1st-2nd respondents that they are related to the 3rd-4th respondents, as issue was joined on the alleged filial relationship between the 1st-2nd respondents’ family and the family of the 3rd-4th respondents.

The lower Court also appeared to have relied on Exhibit E in its judgment. However, when C. U. Amadike Esq., cross-examined CW1 on 21/02/2013 and CW1 testified:
“(Shown survey plan). This is our survey plan in this case.
(Apply to tender. No objections from all counsel).
COURT: Surveyor J. O. Agugua and dated 28/04/2006 is admitted in evidence and marked as Exhibit E.
None of my family farmland is indicated on Exhibit E.”(Pages 810-811 of the record of appeal).

In the passage, quoted above, CW1 simply admitted that no farmland belonging to a member of his family is shown on Exhibit E. Exhibit E, incidentally, is the survey plan tendered in evidence by the 1st-2nd respondents, on behalf of whom CW1 testified, as claimants. The answer given implied that the documentary evidence, tendered by the 1st-2nd respondents themselves, destroyed the claim of the 1st-2nd respondents that members of their family farm on the land in dispute, which again confirmed the claim of the appellants that the suit before the lower Court is a sham. The lower Court did not note the development highlighted above.

At page 886 of the record of appeal, the lower Court, in dealing with and giving judgment in favour of the 1st-2nd respondents (as claimants), recorded ALL its thoughts and conclusion, thus:
“The claimants averred and led evidence to the effect that their ancestor Olota joined his brother Obudo who was first to discover Okposi as a habitable settlement. The entire Okposi land was shared among the two brothers with Obudo taking the land to the East while Olota the younger one took the land to the West. The Claimants further averred that Olota being the Priest of the family’s deities relocated Mmakwu-Uriem shrine to Nkwakwa land and Ajie-Ukwu shrine to Ewhulo land from their former settlement in Obigiwe.
The claimants averred that Olota had four sons namely; Okraenya, Egbirikaonu, Amadi and Oriechukwu and proceeded to mention the descendants of the four sons of Olota. The claimant averred that Egbiirikaonu begot Ehiba and Ake. Ake begat Ajunknwura while Ehiba begot Amos and both brothers bore several children and their descendants include the 2nd Claimant (who presently is the Claimant on record Elder Sampson Orukwowu). The traditional history presented by the claimants with regards to the founding of the land and its devolution on the claimants was not controverted by the defendants.
It is also pertinent to state that where a claimant claims for declaration of title and perpetual injunction, the area of land in dispute must be ascertained. The claimants must identify the exact size and location of the land. … The identity of a land can be established by oral evidence or by production of a survey plan.
The claimants tendered a Survey Plan marked Exhibit E. From Exhibit E, the entire area verged red is Nkwakwa land it measures 150.393 Hectares. Some of the features on the land are shrine, burial ground, swamp, rubber plantation, pipe line etc. I am of the firm view that the claimants have identified with certainty the Nkwakwa land and have established their title to the said land.”

Reading the judgment of the lower Court and considering the record of appeal and as demonstrated above, it will strike one forcefully that the lower Court did not properly evaluate the evidence of the parties before giving a terse judgment to the 1st-2nd respondents. In evaluating any piece of evidence placed before the trial Court by parties, the trial Court is duty bound to consider the totality of the evidence led by each of the parties. It should then place it on an imaginary scale of justice to see which of the two sides weighs more creditably than the other. Thus, evaluation of evidence entails the assessment of same to give value or quality to it. Evaluation of evidence by a trial Court should necessarily involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. See the case of Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) 427.

It is beyond argument that the evaluation of evidence and ascription of probative value to such evidence are the primary duties of the trial Court which saw, heard, and duly assessed the witnesses. Where such a Court of trial has justifiably evaluated the evidence, it is not the business of the appellate Court to substitute its own views for those of the trial Court. What the appellate Court ought to do is to ascertain whether there is evidence upon which the trial Court acted. Once there is evidence, the appellate Court must not intervene even if such appellate Court felt that if the facts were before it, it would not have come to the same decision as the trial Court. An appellate Court may only interfere with the findings of fact of a trial Court under circumstances such as where the trial Court did not properly evaluate the evidence or make a proper use of the opportunity of seeing or hearing the witnesses at the trial or where it has drawn wrong conclusions from accepted evidence or where the finding of the trial Court is shown to be wrong or perverse in that it is not supported by evidence before the Court. See the case of Eigbejale v. Oke [1996] 5 NWLR (Pt. 447) 128 at 143.

In the case of Adesina v. Ojo [2012] 10 NWLR (Pt. 1309) 552 at 579-580, the Court decided that when a party complains that the decision in a case is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the other party, the judgment given in favour of the other party is against the weight of the totality of the evidence before the Court. Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial Judge after a summary of all the facts, must put the two sets of facts in an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it.

This Court is bound by duty to reverse the judgment of the lower Court awarding title to the 1st-2nd respondents on their claim before it.

Regarding the counter-claim filed by the appellants (as 2nd set of defendants), the lower Court, at pages 888-889 of the record of appeal, stated its thoughts and conclusions, where is stated:
“I have carefully examined the pleadings and evidence adduced by the 2nd set of defendants and I am of the view that the 2nd set of defendants did not place any material fact before the Court with regards to the injury they suffered, also they failed to establish their title to the land in dispute. Accordingly, this relief is refused.”

It needs to be mentioned that the appellants did not claim title to land or damages for trespass or order of injunction to prevent trespass, in their counter-claim. Appellants did not have a duty to prove title to the land in dispute. The lower Court was therefore in error to have held that the appellants failed to prove title, which was symptomatic of the fact that the lower Court lost its grip of the pleading, claim, counter-claims, facts and evidence before it, as will be enunciated under the third issue.

There is no clear ground of appeal presented by the appellants challenging the lower Court’s refusal of their counter-claim, though their claim concerned other things different from title to land. Where there is no appeal against specific findings of a trial Court, an appellate Court will not have the power to alter or upturn those findings. See Adeyemi v. Olakunri [1999] 14 NWLR (Pt. 638) 204 at 211. The 5th-7th respondents did not file any appeal in this appeal. Thus, this is how far this Court can go, in the appeal before it.

The 1st and 2nd issues are resolved in favour of the appellants.

Resolution of Appellants’ Third Issue
The third issue asks:
“3. Whether the learned Judge has not caused a miscarriage of Justice to the 2nd set of Defendants/Appellants by delivering his judgment more than thirty-four (34) months after addresses of counsel (Grounds 5 and 6).”

Under the third issue, the complaint of the appellants is that the lower Court gave judgment in the suit before it, more than 34 months after parties had adopted their respective final written addresses. They relied on Section 294 of the 1999  Constitution of the Federal Republic of Nigeria, part of which provides in its Sections 1, 5 and 6 as follows:
“294-(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.

(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Sub-section (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by way of reason thereof.
(6) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of Subsection (1) of this Section, the person presiding at the sitting of the Court shall send a report on the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit.”

It was at the proceedings of 27/04/2016 that the lower Court adjourned the suit to 07/07/2016 for adoption of final written addresses (See pages 859-860 of the record of appeal). For inexplicable reasons or reasons not apparent on the face of the record of appeal, the scheduled adoption of final written addresses did not take place on 07/07/2016. The next time proceedings were taken in the suit and the first time final written addresses were adopted was on 03/03/2020 and judgment was thereby adjourned to 21/04/2020 (See pages 861-862 of the record of appeal). Judgment was not delivered on the scheduled date.

The same record of appeal confirms that another session for the adoption of final written addresses by learned counsel for the parties was, again, taken in Court on 15/07/2020 (See pages 864-865 of the record of appeal), on which date judgment was adjourned to 30/07/2020. The second adoption of written addresses taken on 15/07/2020 is without any effect, due to the fact that there was already a breach of the constitutional provision at that stage, which could not be remedied by a second adoption of the final written addresses by learned counsel.

The lower Court declared on 15/07/2020 thus:
“COURT: The final addresses of counsel as adopted by previously are hereby set aside as judgment could not be delivered within the statutory time unit.
Counsel are kindly invited to address the Court afresh.”

As directed by the Court, learned counsel for the parties obediently adopted their respective written addresses, the second time.

The law is that it is the first adoption of written addresses, which took place on 03/03/2020, which will be reckoned to compute compliance with the prescription in Section 294(1) of the 1999 Constitution, quoted above. 

Upon adoption of final written addresses by learned counsel on behalf of parties on 03/03/2020, the lower Court had until 01/06/2020 to deliver its judgment. As admitted on the record by the lower Court, the lower Court failed to comply with the clear provisions of the 1999 Constitution on time within which to deliver its judgment. Section 294(1) was breached by the lower Court. Taken from the point that the last time evidence was led before the lower Court was on 27/04/2016, it may be appreciated that though the actual breach lasted from 01/06/2020 until 30/07/2020, it had the potential for great impact on the mind of the Court due to the unexplained period of lengthy redundancy. The record of appeal confirms that the lower Court delivered judgment on 30/07/2020. (See pages 866-892 of the record of appeal).
In the case of Akoma v. Osenwokwu (2014) 11 NWLR (Pt. 1419) 462, the Supreme Court stated that Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) makes it mandatory for a Court to deliver its judgment within 90 days after final address. However, by Section 294(5) of the Constitution, a judgment will not be invalidated or nullified for non-compliance unless and until the appellate Court considering such a complaint on appeal is fully satisfied that the appellant has shown that it had suffered a miscarriage of justice by such late delivery of judgment. Thus, delay per se does not lead to a judgment being vitiated or nullified. The delay must occasion a miscarriage of justice to lead such a conclusion. In other words, it must be established that the delay occasioned a miscarriage of justice in that the trial Court did not take a proper advantage of having seen or heard the witnesses testify or that it had lost its impressions of the trial due to such inordinate delay. It is not enough to tout the number of days, weeks, months or years between the end of trial and the delivery of judgment; the party who is aggrieved has to show the impact of the delay, inordinate or not, on the review of the case by the Court. 

In determining whether a miscarriage of justice has been occasioned due to inordinate delay in delivery of judgment, the emphasis is not the length of the time simpliciter, but on the effect it produced in the mind of the Court. If the delay is found to have obviously affected the Court’s perception, appreciation and evaluation of the case, then the Court would readily interfere.

Where it is apparent, on record, that the trial Court has lost touch with or grasp of the evidence led or has forgotten the demeanour of the witnesses, it will be demonstrably clear that the delay complained of has led to a miscarriage of justice and such a decision is liable to be set aside by an appellate Court under Section 294 of the Constitution. ​

At page 497 of the Law Report, Rhodes-Vivour, J.S.C. stated that the effect of law in respect of time to deliver judgments affect and concern trial Courts more than appellate Court.
Now, the lower Court gave judgment in favour of the 1st-2nd respondents as already narrated above. However, in confirmation of the complaints of the appellants, it is worthy of note that the lower Court failed to take some or many impactful, course-correcting, pieces of evidence into consideration in its judgment. The lower Court simply ignored penetrating evidence before it in its judgment, which can only be the product of loss of perception and loss of power of recall of what transpired at the trial. A few examples sufficed to drive the point home, as already demonstrated above. It is therefore held, going by the foregoing, that the lower Court’s failure to deliver judgment within 90 days of the date of adoption of final written addresses by the parties, gravely occasioned miscarriage of justice to the appellants.

Conclusion
The case of Bassil v. Fajebe (2001) 11 NWLR (Pt. 725) 592 at 608-609 admonishes that evaluation of evidence involves reviewing and criticising the evidence given and estimating it. Any decision arrived at without a proper or adequate evaluation of the evidence cannot stand. Evaluation of evidence does not stop with assessing the credibility of witnesses, although that, in appropriate cases, is part of the exercise. It extends to a consideration of the totality of the evidence on any issue of fact in the circumstances of each case to determine whether the totality of the evidence supports a finding of fact which the party adducing the evidence seeks that the trial Court should make. After giving due concession to the advantageous position in which the trial Court is regarding credibility of witnesses, the responsibility of the appellate Court to consider the finding of the fact and ensure that it is arrived at after an adequate consideration of the totality of the evidence or whether a reasonable tribunal, properly adverting to the evidence, would make such finding remains where the findings of fact are challenged. When the appellate Court concludes that the trial Court did not properly advert to the evidence or give necessary consequence to the evidence given, the appellate Court will itself perform that exercise. To do so is not a usurpation of the province of the trial Court. To fail to do so is an abdication of responsibility. In the instant case, there is no question of credibility of witnesses involved, as what was before the trial Court was evidence adduced by the 1st-2nd respondents themselves and documentary evidence.

A Court determining a suit for declaration of title to land is called upon to exercise its discretionary powers, judicially and judiciously. The plaintiff in an action for declaration of title is required to satisfy the Court by evidence and not by admission in the pleadings of the defendant of his right to the declaration sought or claimed. This is because the grant of a declaration by the Court is discretionary. See Temile v. Awani (2001) 12 NWLR (Pt. 728) 726 at 755.

Acting judiciously means, (a) proceeding from sound judgment; (b) having or exercising sound judgment; (c) marked by discretion, wisdom and good sense. Acting judicially is also said to import the consideration of the interests of both sides and weighing them in order to arrive at a just or fair decision. See Agbenyi v. Abo (1994) 7 NWLR (Pt. 359) 735 at 747. The Court does not exercise its discretion in vacuo, but on legal evidence or materials placed before it by the parties. Thus, an exercise of judicial discretion must be guided by evidence adduced. See Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203 at 253.

Against the background of all stated above, it is my determination that the lower Court wrongly exercised its discretion in granting the claim of the 1st-2nd respondents. It is determined that this appeal has merit. This appeal is allowed. The judgment of the lower Court dated 30/07/2020 is incapable of being sustained, in the circumstances of this appeal and it is set aside. The suit of the respondents before the lower Court is dismissed.

TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading the lead judgment of my learned brother, OLABODE ABIMBOLA ADEGBEHINGBE, JCA. I agree with the reasoning and conclusion reached therein. I also allow the appeal.

PAUL OBI ELECHI, J.C.A.: I have read before now a draft of the lead judgment just delivered by my learned brother, Olabode Abimbola Adegbehingbe, JCA.

His Lordship has dealt exhaustively with all the issues raised in this appeal which I adopt as mine. The arguments, submissions and conclusions flow directly from the evidence arrived from the evidence adduced at the trial.

It is for this reason and more of it contained in the lead judgment that I also find that the appeal be and is hereby allowed. The judgment of the lower Court is hereby set aside.
Appeal allowed.

Appearances:

I. O. Josaphat Esq. For Appellant(s)

C. U. Amadike Esq. for the 5th — 7th respondents.

R. A. Wokocha Esq. with him G. C. Akor Esq. for the 1st — 2nd respondents.

Jonas G. Iniayemana Esq for the 3rd —4th respondents. For Respondent(s)