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EDWIN UMEH v. CLEMENTINA UMEH & ORS (2019)

EDWIN UMEH v. CLEMENTINA UMEH & ORS

(2019)LCN/13736(CA)

In The Court of Appeal of Nigeria

On Friday, the 2nd day of August, 2019

CA/OW/223/2012

JUSTICES

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria

Between

EDWIN UMEH – Appellant(s)

AND

1. CLEMENTINA UMEH

2. LINUS ECHEGWU

3. OKECHUKWU ECHEGWO – Respondent(s)

RATIO

WHETHER OR NOT ISSUES FOR DETERMINATION MUST RELATE TO THE GROUNDS OF APPEAL BEFORE THE COURT

Ordinarily, appellate Court would be justified to terminate the appeal at this stage, as the Court is not expected to speculate as to which issue(s) for determination, relates to which ground(s) of appeal, since appeals are argued on the basis of issues distilled for determination. See Okoronkwo Vs Orji (2019) LPELR 46515 (CA) and Nwankwo & Ors Vs Yar?Adua & Ors (2010) LPELR ? 2109 SC, where the Supreme Court held: Issues for determination must relate to the grounds of appeal before the Court. Issues must fall within the scope or ambit of the grounds of appeal any any issue falling outside is incompetent? Issues for determination whether formulated by appellants or the respondents must be tailored to the real issues in the grounds of appeal

In the recent case of Felix Ejiogu Vs Christian Amajioyi Nwauzoagba & Ors : CA/PH/215/1999, delivered on 28/5/19, we said: Parties are always advised to endeavour to relate their issues for the determination of appeal to grounds of appeal, as failure to do so amounts to overloading the Court and can see injurious to the appeal, (as the Appellate Court can strike out the appeal) where the appellate Court is not supplied the necessary materials to work with, that is, credible ground(s) of appeal and competent issues(s) for determination of the Appeal, distilled from the grounds, and duly related to and flowing from grounds. See the case of Diamond Bank Plc Vs HRH Dr. Peter Opara & Ors (2018) LPELR ? 43907 (SC). See also UBN LTD Vs Odusote Book Stores Ltd (1995) NWLR (Pt.421) at 563: PER MBABA, J.C.A.

WAYS OF ESTABLISHING TITLE OF OWNERSHIP TO LAND

The law relating to the five various ways of establishing title to land has been, mutually, cited and relied upon by the parties in this case, who also relied on the decided authorities of Court, including, Ole Vs Ekede (1991) 4 NWLR (Pt.187) 572; Idundun Vs Okumagba (1976) 1 NWLR 200.

The five known ways of proving title to land are:

1) By traditional evidence;

2) By production of documents of title;

3) By exercise of numerous and positive acts of ownership, extending over sufficient length of time to warrant the inference that the person is the true owner;

4) By acts of long possession and enjoyment of the land, and

5) By proof of possession of connected or adjacent lands and in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.

The authorities on this are replete. See Anagbado vs Faruk (2018) LPELR?44909 (SC); Adewuyi Vs Odukwe (2005) LPELR?165 SC; Duru & Ors Vs Duru & Ors (2017) LPELR?42490 CA; Atanda Vs Ajani (1989) NWLR (Pt.111).

In the case of Duru Vs Duru (supra) it was held that: It is not out of place for a claimant to rely on more than one of the separate ways of proving title to land, to prove and consolidate his claim of title to land, though proof of a single way is enough. Onwubuariri Vs Igboasoyi & Ors (2011) LPELR ? 754 SC; Awodi & Anor Vs Ajagbe (2014) LPELR ? 24219 (SC). PER MBABA, J.C.A.

WHETHER OR NOT PRODUCTION OF DOCUMENT  TITLE AUTOMATICALLY ENTITLES A PARTY ARMED WITH IT, TO OWNERSHIP OF LAND

Also of all the five ways of proving title to land, production of documents of title appears to be the simplest and most potent way of proof of title, where credible documents are available to support the claims of the Plaintiff. However, the production of document is not conclusive evidence. See Korie Vs Ifenkwe (2018) LPELR?44987 CA and Adetula Vs Akinyosoye & Ors (2017) LPELR?42130 CA, where Ogbuinya JCA said: In the eyes of the law, a document of title does not automatically entitle a party, armed with it, to ownership of land. A party?s production and reliance on such an instrument, inevitably, carries with it the necessity for the Court to probe into some number of questions namely:

1) Whether the document is genuine and valid;

2) Whether the grantor had the authority and capacity to make the grant;

3) Whether the grantor had, in fact, what he purported to grant, and

4) Whether the grant had the effect claimed by its holder, See Akinduro Vs Alaya (supra), Romaine Vs Romaine (1992)4 NWLR (Pt.238) 650; Dabo Vs Abdullahi (2005)7 NWLR (Pt.923) 181; Kyari Vs Alkali (2001)11 NWLR (Pt.724) 412; Jolasun Vs Bamgboye (2010)18 NWLR (Pt.1225) 295. PER MBABA, J.C.A.

WHETHER OR NOT A DOCUMENT OR EVIDENCE EXTRACTED FROM A PARTY BY HIS ADVERSARY UNDER OR DURING CROSS-EXAMINATION CAN BE USED AGAINST THE PARTY, IF THE MATERIAL FACT RELATING TO THE EVIDENCE IS NOT PLEADED BY THE PARTY SEEKING TO MAKE USE OF IT

The Court is entitled to ignore such evidence, even though it is obtained in cross examination. (Idahosa Vs Oronsaye (1959) SCNLR 407; NIPC Ltd Vs Thompson Organisation Ltd (1969)1 NWLR 99; Ajuwon vs Akanni (1993)9 NWLR (Pt.316) 182.  See also Ita Vs Ekpenyong (2001) NWLR (Part.695) 615, where the Supreme Court held Again it is a correct principle of law that a document or evidence extracted from a party by his adversary under or during cross examination cannot be used against the party, if the material fact relating to the evidence or the document was not pleaded by the party seeking to make use of it. See Dina Vs New Nigeria Newspaper Ltd (1986)2 NWLR (Pt.22)353; Woluchem Vs Gudi (1981)5 SC 291 at 320; Ewarami Vs A.C.B Ltd (1978)4 SC 99; Uchechukwu Vs Okwuka (1956)1 FSC 70; Chigbu Vs Tonimas Nig Ltd (1999)3 NWLR (Pt.593) 115. PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the judgment of Imo State High Court, Orlu Division, in suit No.HOR/64/2003, delivered on 13th March, 2012 by Hon. Justice L.C. Azuama, dismissing the claims of the plaintiff, (now Appellant).

At the trial Court the Appellant had sought the following reliefs:

1) The sum of N500,000.00 (Five Hundred Thousand Naira) being special and general damages for trespass committed by the Defendants on the plaintiffs? Ohia ? Abo land situate at Obinetiti Okwalili, Urualla, within jurisdiction, on the Month of May 2003.

2) An injunction restraining the Defendants by themselves, their agents privies, servants and howsoever from further acts of trespass on the plaintiffs? land aforesaid.

The plaintiffs were originally two but the 2nd plaintiff died and his name was struck out on 2/11/2006. Hearing commenced on 3/7/2008, with only one witness, Mr Nestor Umeh (pages 113?156 of the Records). The hearing had commenced before the coming into effect of the new High Court Rules, which requires front loading of processes, and

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so the Court allowed the witness to conclude his evidence under the old Civil Procedure Rules, on 5/5/10. He tendered 18 Exhibits?A to S. The Defendants filed their defence and defended the suit. The original 1st Defendant died and was substituted by his wife.

At the end of the trial and after considering the evidence and addresses of counsel, the trial Court held against the plaintiff and dismissed the claims, saying:

?Again when one relates the PW1?s claim that the said EMMANUEL UME deforested the land in dispute, and his Exhibit C and F among others, one cannot but say, that the claimant, put up inconsistent case before this Court. This is because the land which EMMANUEL UME said proceeded from many generations before getting to him, cannot definitely, be the same as the one which the PW1 said that the said EMMANUEL UMEH deforested. The effect of the said evidence of the PW1, in the face of the contents of the Exhibits quoted above, is that the PW1, does not know, not only the history of his family but also, that of the land in dispute. Since the PW1 has shut down the issue of traditional history over the land in dispute by

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stating that the land in dispute has no history beyond his grandfather EMMANUEL UMEH, which evidence is however inconsistent with the account given by his said grandfather, I cannot but hold that the case of the Claimant brakes (sic) down even on this account.

The only thing to add to this case, is that, beside what has been said of the weight of the Exhibits tendered in this case to prove the title of the claimant to the land in dispute, the case suffers more by the poor image of the PW1 as a witness of truth as even he denied knowledge of members of UME OZURUOHA family like HYGINUS UMEH even in the face of his survey plan Exhibit A, that glaringly show HYGINUS UMEH as an occupant of the OHIA ABOH land. Again, there is the fact that Exhibit J the said POWER OF ATTORNEY said to have been given to the claimant and one DANIEL UMEH by EMMANUEL UMEH, has no survey plan of the land involved in the donation as to know the size. Yet Exhibit Q, the Certificate of occupancy,shown to belong to the said DANEL over a portion of the OHIA ABO land raises an issue of private ownership of part of the OHIA ABO land involved in it, as against the joint ownership portrayed

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by Exhibit J, except Exhibit J can be shown by a survey plan to be different from Exhibit Q. In all these there was no explanation of how a joint interest in Exhibit J translated to a private property in Exhibit Q assuming in the face of the case put up by the defence, Exhibits J and Q can simpliciter, prove title to the land, without more.

It follows from the foregoing, that the Claimant has not only failed to show how the various Exhibits tendered by him has affected the land in dispute, but that he also failed to establish clearly the identity of the land in dispute and this Court therefore cannot simply by seeing that the said Exhibits deal with OHIA ABO land, assume that OHIA ABO, is synonymous, with the claimant in the face of the claim of the Defendants that is unchallenged. In the light of the foregoings, it follows that the claimant has failed to prove his claim and the same is therefore dismissed with cost of N3000.00 in favour of the Defendants.

(See pages 158 ? 160 of the Records of Appeal).

?

Dissatisfied with the above decision, Appellant filed this appeal on 7/6/2012, as per pages 161 to 164 of the Records of

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Appeal, disclosing 6 grounds of Appeal. Appellant filed Amended brief of arguments on 17/10/2018, which was deemed duly filed on 20/6/19, upon the Records of Appeal being regularized on the said 20/6/19, when this appeal was also heard. In effect all the processes, including Amended Respondents brief and Reply brief were deemed properly filed, finally, on the said 20/6/19, upon the Records of Appeal being regularized on that date.

Appellant distilled three (3) issues for the determination of the Appeal, as follows:

1) Whether the learned Trial Judge was correct in holding that the Appellant did not, by credible evidence, prove title to the land in dispute in order to make out a case to enable the Honourable Court grant the reliefs claimed

2) Whether the learned Trial Judge was right in holding that the Appellant had not proved the identity, Boundaries and Features of the Land in dispute

3) Whether the learned Trial Judge was right when he came to the conclusion that the Appellant did not prove exclusive possession.

?

The Respondents? brief, filed and deemed duly filed on 20/6/19, also distilled three issues for the determination

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of the Appeal, namely:

1) Whether the learned trial judge was correct in holding that the appellant did not by credible and preponderance of evidence, prove title to the land in dispute to entitle him to the grant of the reliefs sought.

2) Whether the learned Trial judge was right when he came to the conclusion that the Appellant did not prove exclusive possession?

3) Whether the learned Trial judge was right in dismissing the claimants/Appellant?s case whose evidence is at variance with his case, considering the material contradictions in the evidence that goes to the root goes to the root of the case.

FAILURE TO RELATE ISSUES TO THE GROUNDS OF APPEAL

Neither the Appellant nor the Respondents related the issues distilled to the grounds of Appeal, thereby allowing the issues to float, without anchor. Ordinarily, appellate Court would be justified to terminate the appeal at this stage, as the Court is not expected to speculate as to which issue(s) for determination, relates to which ground(s) of appeal, since appeals are argued on the basis of issues distilled for determination. See Okoronkwo Vs Orji (2019) LPELR 46515 (CA) and

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Nwankwo & Ors Vs Yar?Adua & Ors (2010) LPELR ? 2109 SC, where the Supreme Court held:

?Issues for determination must relate to the grounds of appeal before the Court. Issues must fall within the scope or ambit of the grounds of appeal any any issue falling outside is incompetent? Issues for determination whether formulated by appellants or the respondents must be tailored to the real issues in the grounds of appeal

In the recent case of Felix Ejiogu Vs Christian Amajioyi Nwauzoagba & Ors : CA/PH/215/1999, delivered on 28/5/19, we said:

?Parties are always advised to endeavour to relate their issues for the determination of appeal to grounds of appeal, as failure to do so amounts to overloading the Court and can see injurious to the appeal, (as the Appellate Court can strike out the appeal) where the appellate Court is not supplied the necessary materials to work with, that is, credible ground(s) of appeal and competent issues(s) for determination of the Appeal, distilled from the grounds, and duly related to and flowing from grounds. See the case of Diamond Bank Plc Vs HRH Dr. Peter Opara & Ors

7

(2018) LPELR ? 43907 (SC).

See also UBN LTD Vs Odusote Book Stores Ltd (1995) NWLR (Pt.421) at 563:

?While it is true that the rules as regards filing of brief of argument do not specifically state that Counsel must indicate in his brief, which of the ground or grounds of appeal are covered by an issue, it is highly desirable, that that should be done. This will assist the appellate Court tremendously in relating arguments on the issues to the grounds of appeal they are related, thus serving, the time of the Court and enhancing quick disposal of the appeal.

The flaws of the Appellant in not relating the issues to the grounds notwithstanding, I shall consider this appeal on the three issues distilled by the Appellant (and adopted, with slight modifications, by the Respondents), in the interest of justice, as I can note that the issue one can be related to grounds 1 and 6 of the appeal, and issue 2 to grounds 2 and 3 while, the issue 3 flows from ground 4. See the case of Ejiogu Vs Nwauzoagba & Ors (supra); Olusanya Vs Osibamowo (2011) 4397 (CA); Ukwuoma Vs Okafor (2016) LPELR ? 41505 (CA); Okoronkwo Vs Orji (2019)

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LPELR ? 46515 (CA).

Arguing the appeal, Appellant?s Counsel, Chinyere Umeojiaka Esq (who settled the brief), answered the issue one in the negative. He referred us to the survey plans filed by Appellant and the Respondents, Exhibits A & B, respectively and said that, while Appellant claimed the entire land verged yellow, the Respondents acknowledged that the entire Ohia Abo land (verged Blue in their Survey Plan) was a vast area of land, the 1st and 2nd Respondents only owned part thereof. Counsel admitted that, because the claim raised issue of trespass and injunction, that title was in issue (Jokotaya Vs Onimalu (1998)13 NWLR (Pt.580) 159). He argued that, from the totality of oral and documentary evidence adduced, Appellant was entitled to judgment in his favour; that though Respondents tried, stoutly, to discredit the evidence led by Appellant, and evoked Section 92 (3) of the Evidence Act, a thorough perusal of the evidence and exhibits, tendered, will reveal that those events took place when it was unimaginable to conceive that there will be the present suit; that Respondents only trespassed into the land in dispute in 2003; that by

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Exhibits B,C,D,G, and O ? it took more than 30 years before the suit was instituted.

He relied on the case of Ole Vs Ekede (1991)4 NWLR (Pt.187) 572 at 573, on the five known ways of proving title to land, and asserted that Appellant had proved his said title majorly by documentary evidence as well as through other methods, though in minor way. He relied on Exhibits A-S, which he said are all relevant documents, mostly Records of proceedings and judgments of Courts of competent jurisdictions, decided in Appellants? favour, to the extent that the land, Ohia Abo, belonged to Emmanuel Umeh, the father of Appellant, and devolved to him at the death of his father. He argued that though the Respondent had denied the existence of the judgments, generally, and that same favoured Appellant?s father, they did not plead that the judgments were in respect of lands other than Ohia Abo land. He referred us to paragraphs 5 and 6 of the statement of claim (pages 13 to 14 of the Records).

?

Counsel said it was the Respondents that resorted to proof of their title by traditional evidence and sought to trace their family history (lineage) from one

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Umeozuruoha down to 1st Respondent. He relied again on Oke Vs Ekede (supra) on the need for the Respondent to plead the names of their ancestor and lead evidence on them, to succeed on their said traditional history. He said the Respondents, woefully failed to plead any of the particulars required by law in proof of title by traditional history.

Counsel also said that the trial Court was in error when it held that Appellant did not tender the survey plans needed in the various suits, successfully prosecuted by Appellant?s predecessors in title over the land in dispute. He referred us to page 125 (sic) 89 of the Records, where the trial Court admitted the Exhibit G as ?the document sought to be tendered – a copy of survey plan used in a previous suit which parties or their relations used in suit No.187 and 188/49 at the Mbanaso Customary Court. The surveyor (sic) affects the Ohia Abo land which is also part of what is in dispute in this case.?

?

Counsel also referred us to page 95 and 98 on the same documents. Exhibit G, and wondered why the trial Court reversed itself on the issue of the survey plan (Exhibit G) evidencing the land in

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issue in the previous proceedings. He argued that the findings of the trial Court was contradictory and therefore, perverse, leading to miscarriage of justice.

He submitted that the areas in dispute in the previous litigation were clearly discernible from a community of consideration of Exhibits A and G and the judgment tendered, as Exhibits B, F, O, P and R, all clearly show that it was the self-same land which was in dispute in the previous suits that was also in dispute in the present suit; he said that the failure of the trial Court to appreciate this point, inspite of Appellant?s pleadings, evidence and address of Counsel, occasioned a miscarriage of justice.

Counsel said the trial Court was also wrong to say that PW1?s traditional evidence, that his grandfather deforested Ohia Abo land in dispute, destroyed PW1?s testimony. Counsel submitted that the evidence was in line with Appellant?s pleadings?pages 13?14 of the Records of Appeal; he said that the evidence was not contradictory; that the alleged long history of the Umeh family had nothing to do with Appellants, fathers deforestation of the land in

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dispute. He relied on the Supreme Court case of Ajuwon Vs Adeoti (1990)2 NWLR (Pt.132 296 at 297, on the fact that Law suits form acts of possession as well. It was held:

?It can therefore be said that although the previous suits were the foundation of the present case, they are not coterminous with the instant. In this case of the present case, the respondent claims a relief which was not in existence during the time of the previous suits and could not have been contemplated by them. As I stated in the recent case of Chief Kriah Akpana Adomba & Ors Vs Benjamin Odiese & Ors (1990)1 SCNJ 135 at PP 142 ? 143; (1990)1 NWLR (Pt.125)165, it is perfectly legitimate for a person who has had previous suit in his favour either to use it as a foundation for an action in trespass or to Court again to add something now to what he already got in the previous judgment in his favour.?

He further relied on Section 50 (sic) of the Evidence Act, on the relevance of previous ?judgment, order or decree of a competent Court

?

Counsel, therefore, said that it was abundantly clear from the above, that the judgments tendered

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and admitted in evidence in proof of the title to the Ohia Abo land were, infact, conclusive proof that the Ohia Abo land, declared to belong to Emmanuel Umeh, infact, entitled him to the said property, from the date of those judgments and, similarly, to his predecessors in title; he said that unless and until the said judgment are set aside, they remain valid and the title to the property so conferred by them, remain so. He argued that the Respondents never pleaded or adduced any evidence to challenge the subsistence and validity of the said judgments; that they only feigned ignorance of the existence of same,but that the said judgments, having been tendered and admitted in evidence, in certified true copies, they were deemed admitted by the Respondents, and needed no further proof.

Counsel further referred us to page 137 of the Records of Appeal with respect to the findings of the trial Court on Exhibit O the judgment in Suit No. HOR/140/1988 ? which showed that the judgment was obtained in favour of the claimant and was relevant as it also touched on the land in dispute. Counsel said the Court below cannot reconcile such findings with its ultimate

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decision that Appellant did not show that the previous suits were in respect of the land in dispute. Counsel said that the trial Court was approbating and reprobating, and making a case for the Respondents. He asserted that evidence adduced by Appellant at the trial, in proof of his case, was overwhelming and in comparison to that by the Respondents, whose witnesses DW1, DW2 and DW3 (according to Counsel) even knew little or nothing about the land in dispute and gave evidence (under cross examination) at variance with their written depositions. He referred us to evidence of DW1 and DW2, and said that, in the face of such grave contradictions, the Court cannot pick and choose what to believe; that we should dismiss the whole evidence as false ? Igbi vs State (1998) (Pt.574) 419.

He also relied on Jokotayo Vs Onimalu (1998)13 NWLR 9Pt.580) 159 andOle Vs Ekede (supra) to the effect that:

?If a plaintiff establishes titles to a large parcel of land, proof of title to a smaller area of land included in that larger parcel is inevitable, inferred and it is not necessary to prove, separately, title to that smaller area.?

?Thus, Counsel

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said having proved title to the Ohia Abo land, a larger parcel of land (as per the exhibits), it is inferred that the Appellant have inevitably also proved their title to the smaller area within the larger parcel the land in dispute.

On issue 2, whether the trial Court was right to hold that Appellant had not proved the identity, boundaries and features of the land in dispute, Counsel answered in the negative. Counsel said the identity of the land was not in issue in the case, as the Respondents never made the identity of the land an issue for determination in their pleadings; we said that Appellant filed a survey plan which clearly identified the land, and same was pleaded, with boundaries and features. He also argued that the Respondents too had filed survey plan and pleaded boundaries and features, which were identical to those pleaded by Appellant in his pleadings, except for slight variations in respect of details; he said that the area vergedPINK in Appellant?s survey plan (Exhibit A) falls within the area said to be in dispute in the Respondents? survey plan (Exhibit B). He relied on Omoregie v Idygienmwanye (1985) 2 NWLR (Pt. 5) 41;

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Adelaja Vs Alade (1999) 6 NWLR (Pt. 608) 544; Adesanya Vs Aderonmu (2000) 9 NWLR (Pt. 672) 370 to say that the Respondents did not make the identity of the land in dispute an issue.

Counsel, therefore, submitted that the trial Court was wrong in proceeding on the basis that the Respondents joined or issues or challenged either identity, boundaries or features shown in the Exhibit A (Survey Plan of Appellant) as these were nowhere in the Respondents? pleadings. He added that the production of the Survey Plan (Exhibit A) was sufficient identification of the land and proof of the boundaries and features, thereof. He relied on Adesanya Vs Aderonmu (supra); Omoegie Vs Idugumwany (Supra); Adelaja Vs Alade (1999)6 NWLR (Pt.608)544 at 559; Osho Vs Ape (1998)8 NWLR (Pt.562) 492 at 495.

Counsel said that it was not the entire Ohia Abo land that was in dispute but a specified area verged PINK in Exhibit A (Appellant?s Plan) and also so marked in Exhibit B (Respondents? Plan); that the trial Court was in error, when it delved into the entire Ohia Abo land, as the land in dispute, and held:

?The name of ?Ohia Abo? is used in

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this case, in the abstract sense and the chances are that ?Abo? under reference, if not a person, might be an object like tree, a road, a river, etc.in that sense, the name easily assumes a generic character that will apply to other people in terms of description of contiguous land owned by such people within the area, particularly, in a family set up as admitted to exist between the parties in this case?. (Page 156 of the Records).

Counsel said that the trial Court therefore went off on a trajectory; that it is not the business of the Court to conjecture or speculate on issues which were neither pleaded nor were in contention as between the parties to the Suit; that the cause of action is as shown in the Appellant?s survey plan (Exhibit A). Thus, the trial Court was wrong to raise same, suo motu, without reference to the parties and resolve it. He relied on S.S.L. Vs Ogbeni (1976)4 SC 85; State Vs Aibangbee (1988)3 NWLR (Pt.84) 548.

He further argued that the trial Court,wrongly, tasked the PW1 on questions bothering on the Exhibit A (survey plan) which was already before the Court. He relied on the case of Akpan Vs Otong

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(1996) 10 NWLR (Pt.476)108 at 128; (1996) LPELR ? 374 SC, which the Supreme Court said:

where a valid survey plan has been duly admitted in evidence such as Exhibit A of the Appellant in the case on land, the Court can consider same and rely on it without a surveyor having to testify. Also where a plan has been admitted in evidence, the surveyor who made the plan, if called to testify, is only going to give evidence as to the contents of the survey plan which he produced and nothing more. This will amount to a witness giving evidence as to the contents of the document before the Court, contrary to the provision of Section 76 of the Evidence Act which provides that ? ?All facts, except the contents of documents may be proved by oral evidence? Per Onu JSC.

Thus, Counsel said there was no issue of identity of the land especially as the Exhibits A & B (Survey Plans) were tendered by consent. He relied on Ezukwu Vs Ukachukwu (2004)17 NWLR (Pt. 902) 227.

?

Counsel further argued that Appellant had pleaded several maximum and numerous acts of ownership and possession over the land in dispute (pages 14 to 15 of

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the Records) and tendered in evidence several documents in proof of his averments, including the Power of Attorney, registered as No.82, at page 82 in Volume 476 at the Land Registry Enugu (now Owerri) and statutory right of occupancy over the portion, dated 6/6/1988; He also referred to the suits delivered in favour of Appellant?s father, which he maintained against intruders to the land ? HOR/140/88; MID/3/2000, and HOR/58/91 (whereof 1st Respondent testified as witness for the adverse party).

Counsel said the Respondents? answer to the above evidence was to feign ignorance of the existence of the events and documents, without tendering any documents to counter them; he said that one is therefore left to wonder and asked, if these various acts do not suffice to show exclusive possession, what else would? He added that Exhibit A has shown, clearly, the area, subject matter of the judgment in HOR/140/88, Exhibit A being plan of the land in dispute. He said that the trial Court, in Exhibit O, had held that the land Ohia Aboh belonged to Appellant?s father. He referred us to page 18 (sic) of the Records of Appeal where he said the

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Court said:

?The parcel of land is not a communal land but is a bonafide property of Emmanuel Umeh, the plaintiff?s father who exercised his right of ownership over the land, planted economic trees on the land (See page 18 of the Exhibit O.)

Counsel also referred us to Exhibit P (the judgment in HOR/58/91) where the trial Court also said:

The parcel of land is not a communal land but is a bonafide property of Emmanuel Umeh, the plaintiff?s father who exercised his right of ownership over the land, planted economic trees on the land (See page 18 of the Exhibit O.)

Counsel also referred to Exhibit P (the judgment in HOR/58/91) where the trial Court also said:

witness admitted that plaintiff?s father had a majority judgment in his favour over ?Ala Ohia? also specifically as shown in Exhibit B in Suit No. 187/49 in which the plaintiff?s and their father were Defendants. He went on to say? The plaintiff?s father claimed the land as his own

?

Counsel therefore said that in the light of the above evidence, the

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trial Court ought to have perceived from the evidence that the Respondents could not be in a better position than the original Defendant ? Fidelis Umeh, who had admitted the Appellant?s fathers ownership in Exhibit P; he said that the new stance of feigning ignorance of the previous victories by Appellant?s father, was condemnable and the trial Court should have seen through the charade.

On issue 3, whether the trial Court came to right conclusion that Appellant did not prove exclusive possession, Counsel answered in the negative.

Counsel relied onSanga Vs Jobuson (1974) 11 SC 207 to say that Possession raises the presumption of ownerships; that by Exhibits A to S?Appellant had proved that their father, late Emmanuel Umeh had been adjudged the owner of the land; that there is nothing like concurrent possession. He relied on Ayinla Vs Sijuola (1984)1 SCNR 410.

Counsel added that the trial Court relied on extraneous matter, not pleaded by either party, but on which the Court allowed PW1 to be cross-examined on, to found its judgment, that Appellant, did not establish exclusive possession.He relied on Kayode Vs Odutola

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(2001) NWLR (Pt.725) 668; Ita Vs Ekpenyong (2001) NWLR (Pt.695) 615.

Counsel stated that the Hyginus Umeh, whom the trial Court held was also on the land in dispute, was not a party to the case, to warrant using his presence to found the decision of the trial Court against Appellant; he said that the importation of a 3rd party, coloured the trial Court?s determination of the case, leading to the erroneous conclusion; he added that Appellant had proved better title and was entitled to judgment in his favour. He relied on Ocean State Ltd Vs Morman Pinder (1969) 2 AC 19; Arase Vs Arase (1981) 5 SC 33.

Finally, Counsel said the trial Court did not approach the evidence led, dispassionally and that it had misapprehended the issues, state of pleadings and evidence, adduced;that a proper appraisal of the evidence would clearly place Appellant?s evidence superior to that of the Respondents, and would give judgment to Appellant; he said that the trial Court approach resulted in miscarriage of justice ? He relied on Mora Vs Nwalusi (1962)1 ALL NLR 681 for definition of ?Miscarriage of Justice?. He also relied onLengbe Vs Imale (1959)

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NLR 325; Adeyemi Vs Bamidele (1968)1 All NLR 141.

Responding, Counsel for Respondents, C.N. Nwachukwu Esq, who settled Respondents? brief, answered the issue one in the affirmative. He argued that the traditional history of the Appellant on the devolution of the land, as per oral evidence, was at variance with the pleadings and documents tendered in the case. Exhibits C & F being judgments in previous Suits were contradictory; that whereas paragraph 5 of the Amended statement of claim dated 9/6/10, averred:

?The entire Ohia Abo land verged yellow in the disputed plan was originally owned by the father of the claimants known as Emmanuel of Manuel Umeh. The title of the father of the claimants to the said Ohia Abo land had been confirmed in four separate native Court suits or Mbanasa native Court and the appeal therefrom?;

At pages 17 and 18 of the judgment of the trial Court, the Court referred to page 95 of the Native Court suit in Exhibits ?C? and ?F? tendered by the claimant himself in support of the case, which referred to the testimony of Emmanuel Umeh, whom the claimant in this case claims to

24

be the original owner of Ohia Abo land, wherein the said Emmanuel Umeh testified in the said Exhibits ?C? and ?F? as follows:

?I am a native of Urualla. The land belonged to our great grandfather by name UMEANWUBERE. From UMEANWUBERE the land came to the hand of UMEJIRIGWE. There was no dispute over the land then. From UMEJIRIGWE the land came to the hand of UMEOZURUOHA and from him the land came to EGWUNGWU?.

Counsel said that traditional history is one of the five ways of proving title to land, but that for it to avail the claimant, he must give unbroken chain of devolution of the land. He relied on the case of Wachukwu Vs Owunwanne (2011) Vol. 197 LRCN page 33 at 75.

Counsel said the Emmanuel Umeh, whom the Claimant claimed to have been the first to possess and own the land in dispute was the one who testified in Exhibits C and F, that the land had devolved on at least previous owners before him,that the said Emmanuel Umeh admitted that Egwungwu got the land in dispute through Umeozuruoha. He argued that the traditional history of the Defendant, through DW3, was that the land devolved from Umeozuruoha to

25

Egwungwu to Mgbeobu and then to Ibekwe, who died extinct, being the only son of Mgbeobu; that on the death of Ibekwe, without a surviving male issue, his property and things reverted to the Umeozuruoha family. He submitted that in the Umeozuruoha family,Egwungwu and Umeh were the 1st and 2nd sons of Umeozuruoha, respectively; that Egwungwu begat Mgbeobu who begat Ibekwe, while Umeh begat 3 males ? Aladi, Emmanuel and Idimogu; that Aladi, had 3 sons ? Nlebemmo, Fidelis (late 1st defendant) and Hyginus.

Counsel said that Emmanuel begat the 1st and 2nd plaintiffs; that when Ibekwe died without an issue to succeed him, and the property devolved on him reverted to Umeozuruoha family to be inherited by his younger brother Umeh, who before then, had died, so also the 1st son of Aladi. He said that after the death of these two persons, it behoved on Nlebemmo (1st Son of Aladi) to perform the burial and funeral rites of Ibekwe, by killing a cow for the repose of his soul, but he could not so perform, because of impecuniosity that this task was undertaken by Fidelis Umeh (later first Defendant) with the consent and authority of Nlebemmo, who was to have

26

undertaken this task. Nlebemme granted part of the ?Ohia Abo? land to him, where he build his house and lived, died and was buried.

Counsel said the trial Court had properly evaluated the evidence of traditional history of ?Ohia Abo? land and resolved for the Respondents. He urged us to affirm that decision and relied on Eyo Vs Onuoha (2011) Vol. 195 LRCN 38; Nwokorobia Vs Nwogu (2009) Vol. 172 LRCN 4.

On the issue of identity of land in dispute, Counsel relied on Ayuya & Ors Vs Yonrin & Ors (2011) Vol. 199 LRCN 143, and said that what is usually in dispute is the ownership of the particular land being, claimed by the plaintiff.

On the evaluation of evidence and ascription of probative value to it, the Respondent relied on the case of Hamza Vs Kure (2010) Vol. 187 LRCN 143, and said that it is primarily and ordinarily the function of the trial Court which had the benefit of seeing and hearing the witnesses testifying to evaluate the evidence. Thus, this Court should rely on the findings made by the trial Court, once the same are not perverse.

?

On issue 2, whether the trial Court was right when it came to the

27

conclusion that Appellant did not prove conclusive possession, Counsel answered in the affirmative. He submitted that the law is that exclusive possession of land gives the one in possession the right to retain it and have undisturbed enjoyment of it against all wrong doers, except a person who can establish a better title; that Possession is nine points (9/10) of the law. He relied on Omotayo Vs Co-operative Supply Association (2011) 202 LRCN 134 at 161.

On issue 3, whether the trial Court was right to dismiss Appellants? case, in the circumstance that his evidence was at variance with his case,and had material contradictions, Counsel answered in the affirmative. He relied on the case of Abibo Vs Tamuno (1999) 4 NWLR (Pt.599) 334 at 339, where it was stated:

?Where the evidence of a party is at variance with his case, the result is that he has failed to prove his case and the proper order to make is dismissal.?

Counsel repeated what he said earlier on the points of variance of evidence, as earlier argued, and urged us to resolve the issues against Appellant. He relied on Kayili Vs Yilbuk (2015)244 LRCN 108 at 163;

28

Adesanya Vs Aderonmu (2000)79 LRCN 2149 at 2172.

RESOLUTION OF THE ISSUES

I think the three(3) issues distilled by the Appellant for the determination of this Appeal should be taken, together, as they all relate to whether Appellant had led credible evidence to establish his case and title to the land in dispute and whether the land was clearly identified, by him.

?

The facts of the case at the lower Court, show that the parties are of the same ancestry or family and that the Respondents are seeking to invoke some alleged traditions to enjoy access to land in dispute, which they claimed reverted to the larger family of Umeoguruoha, upon the death of Ibekwe, the only son of Mgbeobu and last person who inherited the lands of his father Mgbeobu; that having died extinct, that is, without a male child the land reverted. They claimed the late 1st Defendant (Fidelis Umeh) performed the traditional rites, and so their head (Nlebemmo), who was supposed perform the rites to get the land, but consented to Fidelis Umeh doing so, gave the said Fidelis Umeh a part of the ?Ohia Abo? land, whereof he built his house, lived in and died and was buried therein.

29

Whereas Appellant produced documentary evidence, including previous decisions of Court, (Exhibits C, F, D & R) to show that the land ?Ohia Abo? had been adjudged for Appellant, and that Appellant further obtained land instruments on the land ? Exhibits J (Power of Attorney registered as No. 82 at page 82 in Volume 476 Land Registry, Enugu, now Owerri) and Exhibit Q (Certificate of Occupancy), the Respondents argued that Appellant did not properly trace the chain of devolution of the land by his traditional evidence, and so the Appellant?s failure to satisfy the Court as to his traditional history, justified the decision of the trial Court dismissing Appellant?s case.

The law relating to the five various ways of establishing title to land has been, mutually, cited and relied upon by the parties in this case, who also relied on the decided authorities of Court, including, Ole Vs Ekede (1991) 4 NWLR (Pt.187) 572; Idundun Vs Okumagba (1976) 1 NWLR 200.

The five known ways of proving title to land are:

1) By traditional evidence;

2) By production of documents of title;

3) By exercise of numerous and

30

positive acts of ownership, extending over sufficient length of time to warrant the inference that the person is the true owner;

4) By acts of long possession and enjoyment of the land, and

5) By proof of possession of connected or adjacent lands and in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.

The authorities on this are replete. See Anagbado vs Faruk (2018) LPELR?44909 (SC); Adewuyi Vs Odukwe (2005) LPELR?165 SC; Duru & Ors Vs Duru & Ors (2017) LPELR?42490 CA; Atanda Vs Ajani (1989) NWLR (Pt.111).

In the case of Duru Vs Duru (supra) it was held that:

?It is not out of place for a claimant to rely on more than one of the separate ways of proving title to land, to prove and consolidate his claim of title to land, though proof of a single way is enough. Onwubuariri Vs Igboasoyi & Ors (2011) LPELR ? 754 SC; Awodi & Anor Vs Ajagbe (2014) LPELR ? 24219 (SC).

?

Also of all the five ways of proving title to land, production of documents of title appears to be the simplest and most

31

potent way of proof of title, where credible documents are available to support the claims of the Plaintiff. However, the production of document is not conclusive evidence. See Korie Vs Ifenkwe (2018) LPELR?44987 CA and Adetula Vs Akinyosoye & Ors (2017) LPELR?42130 CA, where Ogbuinya JCA said:

?In the eyes of the law, a document of title does not automatically entitle a party, armed with it, to ownership of land. A party?s production and reliance on such an instrument, inevitably, carries with it the necessity for the Court to probe into some number of questions namely:

1) Whether the document is genuine and valid;

2) Whether the grantor had the authority and capacity to make the grant;

3) Whether the grantor had, in fact, what he purported to grant, and

4) Whether the grant had the effect claimed by its holder, See Akinduro Vs Alaya (supra), Romaine Vs Romaine (1992)4 NWLR (Pt.238) 650; Dabo Vs Abdullahi (2005)7 NWLR (Pt.923) 181; Kyari Vs Alkali (2001)11 NWLR (Pt.724) 412; Jolasun Vs Bamgboye (2010)18 NWLR (Pt.1225) 295?

It should be obvious, that where the questions raised, above, on

32

the document of title are resolved, favourably for the plaintiff, the said document of title would and should in my view take precedent over any other mode of proof of title, including traditional history or traditional evidence of the defendant, or any party. See Ajegbomogun & Ors, Danwe & Ors Vs Tukur (2019) LPELR?46996 CA; Obineche & Ors Vs Akusobi & Ors (2010) LPELR?2178 SC; Jolasun Vs Bamgboye (2010) LPELR?1624 SC.

Appellant in this case had pleaded and led evidence of/on documents of his title to the land in dispute, including previous Court judgments in Exhibits C, F, O andR (suits Numbers 187/47, 105/47, HOR/140/1988 and HOR/58/91 respectively).

Appellant had pleaded in paragraphs 5 & 6 of the statement of claim, as follows:

?The entire ?Ohia Abo? land verged Yellow in the dispute plan was originally owned by the father of the plaintiffs known as Emmanuel or Manuel Umeh. The Title of the father of the plaintiffs to the said Ohia Abo land had been confirmed in four separate native suits of Mbanasa Native Court and the Appeals therefrom. The following relevant documents shall be

33

founded upon at the trial:

i) Record of proceedings and judgment in suit No. 105/47;

ii) Record of proceedings and judgment in suit No. 187/47

iii) Certified true copy of extract from the Appeal record book in suit No. 188/49

iv) Certified true copy of extract from appeal record book in suit No. 181/49

v) Certified true copy of extract from appeal record book 2/50 at page 351 in Suit No. 105/47;

vi) ——

vii) ——-

6) ?Ohia Abo? land belong exclusively to the plaintiffs? father and his descendants. During his life time the said plaintiff?s father exercised maximum and numerous acts of ownership in and over the said land, including the creation of Power of Attorney dated 26th June 1967. The said Power of Attorney is registered as No. 82 at page 82 in volume 476 at the Lands Registry in the Office formally Enugu but now Owerri. (See page 10-11 of the Records).

Some of the said judgments of Court, pleaded in paragraph 5 of the statement of claim, were admitted?as Exhibits B, C, F. (documents produced in long hands by the various Native Courts/Panels). Appellant also pleaded

34

other Court judgments in Suit No.HOR/140/88, which adjudged the whole land ?Ohia Abo? to belong to Appellant?s father and granted him injunction against trespassers ? Police & other persons. He also pleaded Suit No. HOR/58/91, which gave Emmunuel Umeh judgment against Pius Onwugada, wherein 1st Respondent in this case, testified for the adversary. See paragraphs 10 and 11 of the Statement of Claim (page 12 of the Records).

The said Suit No. HOR/140/1988 and HOR/58/91 were the Exhibits O and R, respectively, in this case.

On page 18 of the said Exhibit O (admitted by the trial Court), was the judgment in Suit No. HOR/140/88: Between Daniel Umeh Vs Police Service Commission & Ors wherein, that Court held:

?The defendants essentially and specifically pleaded a document with which Urualla Community donated plaintiff?s land to the Police. That is so because, I find as a fact from the evidence of the plaintiff and his witness that ?Ohia Abo? land belonged to the plaintiff?s father who in turn donated it to his sons by his irrevocable power of attorney,who are in effective possession of the

35

land. There is no doubt at all, that the parcel of land it not a communal land but is a bonafide properly of Emmanuel Umeh, the plaintiff?s late father who exercised his right of ownership over the land planted economic trees on the land which was later passed over absolutely to the plaintiff by his father?s Exhibit – Power of Attorney.?

With such (above) definitive Court findings and decisions:

?.. that ?Ohia Abo? land belonged to the plaintiff?s father who in turn donated it to his sons by his power of attorney, who are in effective possession of the land. There is no doubt at all that the parcel of land is not a communal land but is a bonafide property of Emmanuel Umeh, the plaintiff?s late father who exercised his right of ownership over the land, planted economic trees on the land which was later passed over absolutely to the plaintiff by his fathers Exhibit ? Power of Attorney?.

I find it difficult to understand why the learned trial Court, in this case, at hand, opted to ignore such profound findings of the Judge in HOR/140/88 (a Court of coordinate jurisdiction – which he (Trial

36

Judge) even referred to on page 149 of the Records of Appeal, but failed to comment on said the decision). I think the Exhibit O was applicable to this case and binding on the parties and their privies, being a final judgment of a competent Court on the same subject matter (land) in this case.Though the Respondents were not, directly, parties to the Exhibit O? precious case of HOR/140/88, delivered on 2/3/95, the trial Court in this case, at hand, at the point of admitting the precious judgment as exhibit, had held:

?The document was pleaded in this Suit and the objection is not taken on the grounds of it not being pleaded. The issue as to whether it is relevant is also not being contested as it is one that touches on the land in dispute. The fact that the defendants are not parties to the judgment in question is one which,in my opinion, does not relate to the relevancy of the said document or its admissibility, but rather on the weight to be accorded to the document? (Underlining mine). See page 101 of the Records of Appeal.”

?The cases in Exhibit O and Exhibit R were initiated by the Plaintiff, Daniel Umeh, against the Police

37

Service Commission and others to ward off trespassers on this land. The Respondents in this case (relations of the Plaintiff in that case) stood by. The 1st Respondent in this case even gave evidence on the side of the Defendant in Suit No. HOR/58/91 (Exhibit R), whereof the Appellant herein (Godwin Umeh) was also the Plaintiff. The case was against Pius Onwugaba delivered on 15/2/94. Again the trial Court in this case, while admitting the said previous judgment as Exhibit R said:

?The document sought to be tendered is a certified true copy of Orlu High Court Judgment in Suit No. HOR/58/91 between one Godwin Umeh and another against Pius Onwugaba, delivered on 15th day of February, 1994 and which, on the face of it, relate to the land called ?Ohia Abo? page 104 of the Records of Appeal.?

That case, in Exhibit R, was also for trespass and perpetual injunction, in which the late first Defendant, in this case, testified in favour of Pius Onwugaba, who lost ? (page 144 of the Records). The identity of the land in dispute in this case was, therefore, clearly ascertained and known to the parties and specifically found

38

by the trial Court, as per its rulings above, to be ?Ohia Abo? land and to relate to the land in dispute. See the case of Anagbado Vs Faruk (2018) LPELR?44909 SC to the effect that identity of the land is not in issue where the parties knew the exact land they were struggling over. See also Iroegbu Vs Abazie (2017) LPELR?42617 CA.

On page 145 of the Records, the trial Court said:

?As stated above, it was pleaded that in 2003 the Defendants trespassed into part of the Ohia Abo land, now in dispute that is exclusively owned by claimant?s father called Emmanuel Umeh and in respect of which he had won the cases listed above in various Court and that the defendants have no boundary with the Claimants over the land. The above in a nutshell, form the substance of the claimant?s case and evidence in chief in this case.”

?

Rather than restricting its findings to that case of Appellant, founded on documents of various Court judgments in his favour, in respect of the same land, whereof the Appellant and his father had successfully warded off other trespassers on the same land, the trial Court went on a curious

39

frolic and voyage, of discovery, to find reasons to fault the alleged traditional history of the Appellant on the land; that he pleaded Emmanuel Umeh as his great grandfather, who owned the land, originally, whereas in the Native Court judgments, in Exhibits C and F, tendered by Appellant, his father Emmanuel Umeh had told the Native Court that:

The land belonged to our great grandfather by name Umeanwubere. From Umeanwubere the land came to the hand of Umejirigwe. There was no dispute over the land then. From Umejirigwe the land came to the hand of Umeozuruoha and from him the land came to Egwungwu.? Pages 157 ? 158 of the Records.

The above evidence was in respect of 1947 and 1949 cases, gotten from the archives, which were also determined in favour of the father of Appellant. See pages 87 and 88 of the Records. I see nothing wrong with the evidence of Appellant in this case, vis-a-vis the above history in Exhibits C and F, still from the Appellant, as the current evidence appears to have built up on the already existing facts which have received the recognition of law as judicial precedent.?

On page 153, the

40

trial Court said:

?The closest Exhibit affecting the Defendants over the Ohia Abo in this case is Exhibit R that deals with part of the Ohia Abo that is acknowledged, at page 4 of the said Exhibit R as being occupied by Fidelis Umeh, the husband of the 1st Defendant in this case and not on the ground that it was given to him by Emmanuel Umeh as now claimed by the PW1. It is clear to this Court that all the Suits tendered by the Claimants in this Case were fought with Survey Plans though none of than was tendered in this case. There is no doubt the need to know precisely the portion or size of the land involved in the Court cases as they relate to the land now in dispute, and that cannot be done merely by referring to Ohia Abo, without more. This is because, the word ?Ohia Abo?, is not shown to be synonymous with claimant or Emmanuel Umeh. That cannot be, given that Exhibits A and R tendered by the Claimant, even show that Exhibit R admits that the husband of 1st Defendant as well as Fidelis Umeh live on part of the said Ohia Abo land. The question is whether the judgments tendered as Exhibits in this case, in their face value, have

41

clearly defined or shown the land affected by them or their location, vis-a-vis, the land in dispute as would permits this Court to safely say that the lands involved in the said Suits, are the same as the one now in dispute? The answer is no.? See pages 153 ? 154 of the Records.

From the above conclusion by the learned trial Court, it is clear that the trial Court had abandoned its role in the case, to that of sitting on appeal over the previous judgments, tendered as Exhibits O and R, to review them and satisfy itself, whether the lands therein or thereof, upon which the judgments were founded (which the trial Court admitted were founded on Survey Plans) clearly defined or showed the lands affected by them or their location, vis-a-vis, the land in dispute in this case.?

That in my view was a strange assignment which the trial Court opted to take, completely, outside its mandate and powers, and so fell into grave error and confusion. A trial Court has no powers to review its own decision or the findings of another trial Court of coordinate or concurrent jurisdiction except the same was done without jurisdiction, or was a default

42

judgment. That is the work of an appeal Court, where it is properly invoked to review the said decision of lower Court, by parties to the said previous Suit, or their privies. See Bero Vs Omotosho & Ors (2008) LPELR?8335 CA; Eneh Vs NDIC & Ors (2018) LPELR?44902 (SC); NIMB Ltd Vs UBN Ltd & Ors (2004) LPELR?2003 (SC); Prime Marketing Associates Ltd & Anor Vs Keystone Bank Ltd (2016) LPELR?42262 CA; Onyekwuo Vs A.G. Imo State & Anor. (2018) LPELR?45479 CA.

In the case of Incorporated Trustees of Association of House Owners and Resident, Aba Ngwa (for and on behalf of members of Ass. House Owners & Resident Aba Ngwa and Ors Vs Hon. Justice of Abia State & Ors (2019) LPELR?47280 CA, it was held:

?The learned trial Court had actually found, as a fact, that there was such judgment in A/243/2012, delivered on 3/3/14, and that the said judgment was extant, and on the said issues raised by the Appellants (though it also mixed-up and was confused by the pendency of the said Suit No. A/234/2012 and other Suits raised by Respondents?) But the trial Court, in my opinion,

43

slipped and erred, the moment it thought and considered that it was called upon to review, affirm or uphold the decision in Suit No. A/243/2012?.

The trial Court in this case at hand was bound by the previous decisions in Exhibits O and R, in particular, being judgments of Courts of co-ordinate jurisdiction, and on the same subject matter ?Ohia Abo? land adjudged for Appellant/or his father, in 1994 and 1995 (Exhibits R & O respectively ? Suits Nos. HOR/58/91 and HOR/140/88). The said Judgments therefore operated as estoppels, having specially pronounced on the ownership of the same land ? ?Ohia Abo? in favour of the Appellant, and 1st Respondent having testified for adversary, in Exhibit R! Those decision operate as credible documents of title over the land in dispute and should have been placed far above and superceding whatever oral evidence by PW1 on the detail of the purported traditional history relating to the devolution chain of the Appellant?s forebears over the land.

?

As a matter of fact, the traditional history (evidence) of Appellant?s grandfather Emmanuel Umeh, in Exhibits C and

44

F, appeared to be subsumed in the latter decision of the High Court, in Suit Nos. HOR/140/88 (Exhibit O) and HOR/58/91 (Exhibit R), in my opinion, and so was devoid of conflict. Appellant did not also put up traditional history to prove his title to the land in this case, but pleaded exclusive possession and ownership by means of documents and Court judgments, which he, copiously, pleaded in paragraphs 5, 6, 7, 8, 10, 11, 12, 13, 14 of the Statement of Claim. (See pages 10 to 12 of the Records of Appeal). The trial Court was, therefore, wrong, in my opinion, to resort to traditional history and use it to dismiss Appellant?s case, loudly, established by documentary evidence. It was the Respondents that pleaded traditional history, even when they raised no counter-claim to the land.

?

The fact is that the Respondents were gambling over the land, purporting to rely on tradition, to take a share in the land in dispute, on the alleged ground that their Kinsman, Ibekwe, died, without a male child and so the property he inherited, reverted to the larger family of Umeozuruoha. The Respondents? Counsel had argued this on page 7 of their Brief, that:

45

“At the death of Ibekwe the lineage of Egwungwu became extinct, thus the property and things of Egwungwu?s lineage reverted to Umeozuruoha family to be inherited by his younger brother, Umeh, who before then had died, so also the 1st son of Aladi. After the death of these two persons, it behooved on Nlebemmo (the 1st son of Aladi) to perform the burial and funeral things of Ibekwe by killings cow for the repose of his soul, but he could not so perform, because of impecuniosity. This task was undertaken by Fidelis Umeh (former first Defendant) with the consent and authority of Nlebemmo? Then after Fidelis Umeh had undertaken this task, Nlebemmo granted part of the ?Ohia Abo? land to late Fidelis Umeh, where he built his house and lived, died and was buried there.?

?

That sounds bizzare and absurd to me; to say that the land, which has been adjudged by competent Courts, not to be communal land but to belonged to Emmanuel Umeh, as bonafide property, which he (Emmanuel Umeh) transferred to his children, by means of Power of Attorney (Registered as No 82, on page 82, Volume 176 at the Lands Registry, Owerri) had reverted to the

46

larger family of Umeozuruoha, and that somebody performed some traditional rites for the repose of a family member, Ibekwe, who died without a male child, to inherit the property of the said deceased (Ibekwe), allocated to him by Nlebemmo (purported head of the family) who himself could not take the property, due to his inability to perform the traditional, rites owing to his impecuniosity.

How can one who could not assume ownership of the land due to his impecuniosity, allocate part of the same land to another person?

?

Such tradition would be absurd and obnoxious, in my opinion and cannot stand against an existing judgment of Court in Exhibits O and R, on the same subject matter ? ?Ohia Abo? land. There was evidence that the presence of Fidelis Umeh on the land in dispute was with the leave of the Appellant?s father, who gave the portion to him ? Fidelis Umeh. I think that should have settled the dispute, especially as the analysis of the Respondents, on page 6 of their brief, showed that Aladi, Emmanuel and Idimogu were all children of Umeh; and that Umeh and Egwungwu were the 1st and 2nd Sons of Umezuruoha. Thus, the

47

children of Aladi and the children of Emmanuel (Respondents and Appellants) were Cousins. They did not have to tear themselves apart because of land.

On the fact that Hyginus Umeh was on the land in dispute and the same was not cause of action or challenged, I think the trial Court did not have to base its decision on such unpleaded facts, that Hyginus Umeh lived on the land, as the said Hyginus was not a party to the suit, and that unpleaded evidence was elicited, under cross examination. See the case of Kayode Vs Odutola(2001) NWLR (Part 725) 668:

?On treatment of unpleaded facts elicited in cross-examination, any fact not pleaded goes to no issue. Thus, evidence which is not material to any issue raised by the pleadings may be disregarded. The Court is entitled to ignore such evidence, even though it is obtained in cross examination. (Idahosa Vs Oronsaye (1959) SCNLR 407; NIPC Ltd Vs Thompson Organisation Ltd (1969)1 NWLR 99; Ajuwon vs Akanni (1993)9 NWLR (Pt.316) 182

See also Ita Vs Ekpenyong (2001) NWLR (Part.695) 615, where the Supreme Court held:

?Again it is a correct principle of law that a document or

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evidence extracted from a party by his adversary under or during cross examination cannot be used against the party, if the material fact relating to the evidence or the document was not pleaded by the party seeking to make use of it. See Dina Vs New Nigeria Newspaper Ltd (1986)2 NWLR (Pt.22)353; Woluchem Vs Gudi (1981)5 SC 291 at 320; Ewarami Vs A.C.B Ltd (1978)4 SC 99; Uchechukwu Vs Okwuka (1956)1 FSC 70; Chigbu Vs Tonimas Nig Ltd (1999)3 NWLR (Pt.593) 115.

I therefore hold that the trial Court was wrong to brush aside the credible documentary evidence of the Appellant, as shown in the various previous judgments including Exhibits C, F, O and R, adjudging the land for Appellant, and as per the Power of Attorney (Exhibit J) registered as No 82, at page 82 volume 476 in the Lands Registry, as well as the Certificate of Occupancy (Exhibit Q), all in favour of the Appellant in respect of the same land, and rather restored to alleged contradiction in traditional history of Appellant to dismiss his claims.

?

I see merit in the Appeal, and so resolve the issues for Appellant and allow the appeal. I set aside the decision of the trial Court and enter judgment

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for the plaintiff in the Suit No. HOR/64/2003, that the Respondents trespassed on the plaintiff?s land.

Appellant, as plaintiff, had asked for N500,000.00 as special and general damages for trespass, N300,000.00 being special damages, as per the items listed on page 13 of the statement of claim. Of course, the Defendant had denied damaging the crops alleged and the plaintiff had a duty to prove same strictly, which I think the plaintiff did not do, as required of special damages. See Iwuagwu & Ors V Uzoma (2014) LPELR?23781 CA; Agbarakwe Vs University Press Plc (2015) LPELR?25613 CA; Ibrahim & Ors Vs Obaje (2017) LPELR 43749 (SC).

I award the general damage of N200,000.00 against the Defendants for the plaintiff and grant the perpetual injunction sought against further trespass by the Defendants.Their agents, servants and privies over the said plaintiff?s ?Ohia Abo? land, in dispute.

Respondents shall pay the cost of this Appeal assessed of N100,000.00 (One Hundred Thousand Naira) only, to the Appellant.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

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IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Hon. Justice Ita George Mbaba, JCA, just delivered. I agree with his reasoning and conclusion that the appeal has merit and should be allowed. It is accordingly allowed by me. I also abide by the consequential order with regard to costs.

?

 

 

 

 

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Appearances:

G.E. EDEDE ESQ (arguing the brief of CHINYERE UMEOJIAKA ESQ)For Appellant(s)

C.N. NWACHUKWU ESQFor Respondent(s)

Appearances

G.E. EDEDE ESQ (arguing the brief of CHINYERE UMEOJIAKA ESQ)For Appellant

AND

C.N. NWACHUKWU ESQFor Respondent