ELDER SAUL KALU EGBUTA & ANOR. V. CHIKWENDU ELEKWACHI & ANOR. (2013)

ELDER SAUL KALU EGBUTA & ANOR. V. CHIKWENDU ELEKWACHI & ANOR.

(2013)LCN/5872(CA)

In The Court of Appeal of Nigeria

On Friday, the 25th day of January, 2013

CA/PH/24/2008

RATIO

WORDS AND MEANING: “CONSEQUENTIAL”

CONSEQUENTIAL ORDER: WHAT IS A CONSEQUENTIAL ORDER

Accordingly, a consequential order made subsequent to a judgment or order which detracts from that judgment or order is not proper, as it amounts to an order made without jurisdiction. See SAEKLER & ANOR v TANIMOLA & ORS (1995) 4 NWLR (Pt.389) p.370.PER HARUNA SIMON TSAMMANI, J.C.A

COUNTER CLAIM: WHETHER AN ORDER CANNOT BE MADE IN FAVOUR OF A DEFENDANT WHEN A COUNTER CLAIM HAS NOT BEEN FILED
It has been held by the Supreme Court that it is a misconception to hold that an order cannot be made in favour of a defendant simply because he has not filed a counter-claim. However, that the order made in favour of a defendant even where he has not counter-claimed must flow from the evidence, and if the justice of the case demands. See MONAH v VAB PETROLEUM (supra) cited by Learned Counsel for the Respondents and REG. TRUSTEES OF APOSTOLIC CHURCH v OLOWOLENI (1990) 6 NWLR (Pt. 158) p.514.PER HARUNA SIMON TSAMMANI, J.C.A

APPEAL: WHAT IS AN APPEAL

I must state that an appeal is a complaint against the decision of a lower court. lt is therefore the decision of the lower court that will be the subject of an appeal.PER HARUNA SIMON TSAMMANI, J.C.A

APPEAL: WHETHER A MINORITY JUDGMENT CAN BE APPEALED AGAINST

Consequently, in a situation where a case is heard by a number of justices or judges, as in the instant case at the trial customary court, it is the majority judgment that represents the judgment of the court. It is therefore the majority judgment that can be appealed against. A minority judgment of the trial customary court in the instant case may be likened to a dissenting judgment in the appellate courts. Such a minority judgment, no matter how articulate and powerful, is not the judgment of the court and is not binding and therefore cannot be the subject of an appeal.PER HARUNA SIMON TSAMMANI, J.C.A

APPEAL: MINORITY JUDGMENT: WHEN A MINORITY JUDGMENT WILL BE APPROVED ON APPEAL AS REVEALING JUSTICE

Circumstances may however arise where in the determination of an appeal, the majority judgment may be set aside, while the minority judgment which reflected the justice of the case may be approved. Aside that instance, a minority judgment should not be the subject of argument or appeal. Counsel should therefore not rely on or resort to a minority or dissenting judgment in arguing their appeal. See P.I.P. LTD v TRADE BANK (NIG) PLC (2009) 13 NWLR (Pt. 1159) P.577; O.S.I.E.C. V.A.C (2010) 19 NWLR (Pt 1226) p.273 and OLUFEAGBA v ABDUL RAHEEM (2009) 18 NWLR (Pt. 1173) p.384.PER HARUNA SIMON TSAMMANI, J.C.A

APPEAL: ISSUES FOR DETERMINATION: EFFECT OF AN ISSUE NOT BEING RELATED TO THE GROUND OF APPEAL

Thus, if the issues raised by any party is not related to any ground of appeal, such an issue will be irrelevant and therefore go to no issue; and any argument in a brief in support of such issue will be discountenanced by the court. See ONIFADE v OLAYIWOLA (1990) 7 NWLR (Pt. 161) p.130; IBATOR v BARAKURO (2007) 9 NWLR (Pt. 1040) P.470 and ADELAJA v FAMAIKI (1990) 2 NWLR (Pt. 131) P.137.It therefore means that any issue raised by a respondent in an appeal must relate to the grounds of appeal filed by the appellant. Where a respondent desires to raise any issue not related to the grounds of appeal filed by the Appellant, he must file either a cross appeal or a respondent’s notice, except were such issue challenges the jurisdiction of the court.PER HARUNA SIMON TSAMMANI, J.C.A

JUSTICES

MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

1. ELDER SAUL KALU EGBUTA
2. ISAIAH UKPABI
For themselves and as representing Amakpo lgbere Community Appellant(s)

AND

1. CHIKWENDU ELEKWACHI
2. JONAH UKPAI
For themselves and as representing Elu-Ohafia Igbere Community Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A: (Delivering the Leading Judgment) This Appeal is against the judgment of the Customary Court of Appeal, Abia State delivered on the 13th day of January, 2005, where in it dismissed the Appellants’ appeal against the majority judgment of the Customary Court, Ajayi delivered on the 4th day of October, 1999.
The Appellants as Plaintiffs before the Customary Court, Alayi had sued the Respondents who were defendants in respect of a piece of land which they called “Amandi Land” situate at Amakpo Igbere in Bende Local Government Area of Abia State. Before the Alayi Customary Court, the Appellants as Plaintiffs sought for three reliefs as follows:

(a) N2,000.00 general damages for trespass.
(b) Forfeiture of the portion of the land in dispute verged green in Plan No. EC/211/73.
(c) A perpetual injunction restraining the Defendants from further entry into the land.

The Appellants’ claim before the trial Customary Court is that, the land which they call Amandi land belong to the Amakpo lgbere community as communal land which they inherited from their forefathers. That ownership of the land in dispute had been confirmed by several court judgments in their favour, and which judgments they tendered as exhibits C and D respectively. It is also their case that their ancestor, one Akpo gave the land in dispute to the Respondents’ ancestor, one Abali for farming purposes only, upon payment of tributes in the form of drinks and meat. That the respondents who had been paying the tributes suddenly stopped and proceeded to challenge the Appellants’ title to the land in dispute. This then culminated in the court judgments in exhibits C and D and the present action.
The respondents denied any act of trespass on the land in dispute. Rather, it is their case that the land which they call “Ngwo Onya Agu” was their inheritance through their ancestor Abali. That it was Abali, their ‘ancestor, who gave the land in dispute to Akpo, the Appellants’ ancestor.
The Respondents therefore claimed that Akpo never gave the land in dispute to their ancestor, Abali. They then denied trespassing into the land in dispute but claimed to be the owners of the land in dispute. They also denied planting cassava on the land as claimed by the Appellants.
At the trial, the Appellants presented their case through the 1st Appellant, who testified as their sole witness. They however tendered several documents which included four court judgments, which were admitted as exhibits C, D, H and I all of which they claimed were decided in the Appellants’ favour. The Respondents presented their case through the 1st Respondent and also called two other witnesses who testified as D.W.2 and D.W. 3 respectively. At the close of evidence, the parties addressed the court through their respective Counsel, and in a considered judgment delivered on the 4/10/1999, the trial Customary Court by a majority judgment dismissed the Appellants’ claim before it. The Appellants were dissatisfied with the decision of the trial Customary Court and therefore filed an appeal before the Abia State Customary Court of Appeal. The Customary Court of Appeal after reviewing the trial Customary Court’s record also dismissed the Appeal and affirmed the judgment of the Customary Court, Alayi. It is against that decision of the Customary Court of Appeal, that the Appellants have appealed to this court.
The Notice of Appeal consisting of four (4) Grounds of Appeal was dated the 3rd day of February, 2005 and filed the 15/2/2005, vide court Receipt No. 0347897. The Grounds of Appeal but without their particulars are as follows:-

1. ERROR IN LAW
The Customary Court of Appeal Abia State erred in Customary law of Igbere people when it construed that the judgment of the Customary Court, did not declare and award title of the land in dispute to the Defendants/Respondents when it held as follows:-
“In my considered view I think the Trial Court merely held that from the evidence before it including Exhibit “D” that is the Judgment in Suit No. HU/20A/66 the preponderance of evidence is to the effect that the land in dispute now belongs to the Defendants.”
A decision which is perverse and has occasioned a miscarriage of justice.

2. ERROR IN LAW
The Customary Court of Appeal Abia State erred in Customary Law of Igbere people when it affirmed the Judgment of the Customary Court, Alayi that Amandi Land (Land in dispute) belonged to the Defendants when it held as follows:

“In view of what I said above it is my view and I hold with utmost respect to the Appellants that they misconceived the judgment of the trial Customary Court as the court did not make a declaratory judgment awarding title to the land in dispute to the Defendants who neither claimed or counter claimed.”
A decision which is perverse and has occasioned a miscarriage of justice.

3. ERROR IN LAW
The Customary Court of Appeal Abia State erred in Customary Law of Igbere people when it affirmed the order of the Customary Court, Alayi to the effect that the Defendants should not be disturbed by the Plaintiffs in their use of Amandi Land which the court holds to be an outright gift by the plaintiffs’ great ancestor Akpo was not an injunctive order but a consequential order to meet the justice of the case.

4. ERROR IN LAW
The Customary Court of Appeal Abia State erred in Customary Law of Igbere people when it held as follows:
“Again, having read the records thoroughly, I find that the holding of the trial Customary Court in relation to the area of Amandi Land verged green on Exhibit F is amply supported by the evidence adduced before the Court, I also find that the Defendants were required to pay tributes was not perverse as there was sufficient evidence to hold the contrary. It is my view and I hold that having regard to the accepted evidence by the trial court that it is established that some equities have enured to the benefit of the Defendants/Respondents for which forfeiture cannot be ordered as the Defendants are not mere tenants on the Land. The Trial Customary Court was therefore right when it refused to order forfeiture and dismissed the Plaintiffs’ claim.”
A decision which is perverse and has occasioned a miscarriage of justice.

As the Rules of this court demands, the parties filed and exchanged Briefs of Arguments. The Appellants’ Brief of Arguments settled by O.A Obianwu; SAN was dated the 24/2/2011 and filed the 02/3/2011 by leave of this Court granted the 17/2/2011 vide motion on Notice dated and filed the 28/07/2008. Therein, the Appellants formulated three issues for determination as follows:

1. Was the court below correct under the applicable customary law of the parties to have refused the Appellants’ claim forfeiture of the land in dispute by the Defendants.

2. Was the court below correct under the applicable customary law of the parties when it held that the order made by the court of trial that the Respondents should not be disturbed by the Appellants on the land in dispute did not amount to an injunctive order which was not sought and was baseless.

3. Was the Court below correct in holding that the trial Court’s judgment did not amount to a declaration of title under customary law.

The Respondents’ Brief of Arguments was dated the 23rd day of March, 2011 and filed the 25/03/2011. Therein, the Respondents nominated three issues for determination:

They are as follows:

1. Whether the lower court was correct in dismissing the Appeal of the Appellants for trespass, forfeiture and injunction under the applicable customary law of the parties?

2. Whether the lower was correct in upholding the consequential orders by the trial court in favour of the Respondents under the customary law of the Parties?

3. Whether the holding by the trial court which was upheld by the lower court that the land in dispute belongs to the Respondents by virtue of the Evidence of the Appellants that the land was a “gift free of charge” amount to a declaration of title under the customary law of the parties?

The Appellants also filed a Reply Brief out of time, by leave of this court granted the 24/4/2012 vide Motion on Notice dated the 04/04/2012 and filed the 05/04/2012. The said Appellants’ reply Brief is dated the 24/04/2012 and filed the 30/04/2012.

Having read and reflected on the issues formulated by the parties, I am of the view that the issues are similar in substance, though differently couched. In that respect, I shall determine this appeal on the three issues nominated by the Appellants. I shall start by considering issue 2, and then 3 and 1 in that order.
On issue No, 2, Mr. Obianwu, SAN of Learned Counsel for the Appellants referred to the holding of the trial court at pages 291 line 43 – 292 line 1 of the record of appeal to contend that the fundamental basis of the order of the trial court was the finding of the court that the land in dispute was given to the Respondents as an outright gift without payment of tributes as a condition. That the holding of the trial Customary Court is perverse in that it is not in line with the evidence and the customary law of the parties. That in any case, the Respondents never made it as their case on which the order was based, as they never said their ancestor was given the land in dispute by the Appellants’ ancestor (Akpo), but that it was the Respondents’ ancestor that gave the land to the Appellants’ ancestor. He accordingly submitted that the order was based on the opposite of what the Respondents presented. He then referred to the case of OREDOYIN v AROWOLO (1989) 4 NWLR (Pt. 114) p.172 to submit that, such order cannot be said to be consequential, in the sense that the order was a direct negation of the Respondents’ case as it does not flow from the evidence. It was further submitted that the case of MOMAH v VAB PETROLEUM (2001) 2 S.C.P. 142 at 154 relied on by the Respondents is therefore inapplicable in the circumstances of this case. That the Respondents never claimed relief against forfeiture and therefore the court had no business awarding what they did not claim. The case of ODOFIN v AGU (1992) 3 NWLR (Pt. 229) p.350 at 372 was further cited in support.
Mr. Metu of Learned Counsel for the Respondents contended that, the lower court was right in upholding the consequential order made by the trial Customary Court as the decision of the court below was predicated on the evidence and finding of faults made by the trial court at pages 288, 289, 290, 291 and 292 of the record of appeal. While agreeing that a court cannot award a party what he did not claim, he contended that there are exceptions, to the effect that a court can make consequential orders in the following circumstances:-

(a) Where there are facts or evidence supporting it;

(b) The facts do not detract from the judgment; and

He relied for this proposition on the case of MONAH v VAB PETROLEUM (2000) 2 S.C.P 142 at 154 per UWAIS; CJN. He then listed the facts or evidence on which he contends, the order of the trial Customary Court can be justified. Those facts he submits are:
(a) The Appellants in their particulars of claim and evidence in chief stated that the land in dispute is situate at Amakpor Egbere Community; but under cross-examination and at the locus in quo, showed a different land situate at Ibina Igbere community.

(b) That by exhibit C and the evidence of the Appellants at page 310 lines 41 – 45, it is stated that the land verged green in exhibit “F” was a gift, free of charge to the Respondents, and that the 2nd Respondent is still farming the land till date free of charge.

(d) The Appellants claimed and testified on oath that the Respondents trespassed on the land by cultivating cassava therein, but at the locus in quo, testified that it was they (Appellants) and not the Respondents that planted the cassava.

(e) That it was found at the locus that the Respondents have their houses on both sides of the land in dispute, and Exhibit D held that the Appellants cannot dispossess the Respondents of the land in dispute.

Learned Respondents’ Counsel then submitted that, based on the above stated facts before the trial court, it had no option but to make the consequential orders. He then referred to the findings of the trial Customary Court at pages 290 lines 41-291 line 9, and that of the court below at page 77 lines 11-18; page 78 lines 1-24, to further submit that, the consequential order flowed from the record of the court and the judgment does not detract from the evidence on record. He also urged us to uphold the consequential order made, as it did not detract from the judgment and that the justice of the case demanded that same be made, having been found by the lower courts that the Respondents were and are living on both sides of the land.
It is clear from the submissions of counsel that the issues under consideration deal with the order of the trial court at pages 291 lines 43-292 line 74 which the Customary Court of Appeal upheld. Therein the trial Customary Court held thus:
“The defendants on record should not be disturbed by the Plaintiffs in their use of Amandi land which is outright gift by the Plaintiffs’ great ancestor Akpor reference to proceedings of the Suit No. 8/61/; Exhibit C page 5 last paragraph and also to paragraph 11, 14, 62(1) and 62 (D) of Customary Law Manual of the Ministry of Justice Anambra State 1977 for Anambra and imo States of Nigeria and also reference to HU/20A/66 Exhibit “D” last paragraph which grants possessory right of the land in dispute to the defendants on record.”
While upholding this order of the trial Customary Court, the court below found as follows:
“In other words, what the trial court is saying here is that it believes the evidence that the land originally belongs to the plaintiffs but was given free of charge by the plaintiffs’ ancestor called Akpor, to one Abali (Defendants’ Ancestor) and that the payment of tribute was not a Condition…..
In view of the findings of fact and the holding of the trial court, when it came to making order at page 149 of the Records after making the order, dismissing the plaintiffs’ claim followed it up with a consequential order, to the effect that the Defendants should not be disturbed by the Plaintiffs in their use of Amandi land which the court holds to be outright gift by the Plaintiffs’ great ancestor Akpor.”
The court below then proceeded to hold at page 78 lines 5-9 that, having regard to the accepted evidence by the trial Customary Court the consequential order which it made in favour of the Defendants/Respondents was to meet the justice the case demands and that it was therefore proper in the circumstances. In other words what the court below did was to affirm the said order made by the trial Customary Court as a consequential relief to meet the justice of the case in favour of the Respondents.

Now, the word consequential is not a term of art, but applied in its simple dictionary meaning; the word means, “a happening as a result or an effect of.” A consequential order therefore is one that is made to give effect to a judgment or order to which it is consequent thereof. It is an order which is directly traceable to or flowing from that judgment or order duly prayed for and by the court from the evidence adduced before it. It is an order founded on the claim of the successful party. In other words a consequential order is one which is not merely incidental to a decision properly made, but is one which is made so as to give effect to that decision. See ODOFIN v AGU (1992) 3 NWLR (Pt. 229) p.350; AWONIYI & ORS v AMORC (2000) 10 NWLR (Pt. 676) p.522; A.G; FEDERATION v A.I.C. LTD (2000) 4 W.R.N p.96; ADEKANYE v COMPTROLLER NIG. PRISONS SERVICES & ORS (1999) 14 NWLR (Pt. 637) p.115; OKEGBE v CHIKERE (2000) 12 NWLR (Pt. 681) P.274 and IFEADI v ATEDZE (1998) 13 NWLR (Pt. 581) p.205.Accordingly, a consequential order made subsequent to a judgment or order which detracts from that judgment or order is not proper, as it amounts to an order made without jurisdiction. See SAEKLER & ANOR v TANIMOLA & ORS (1995) 4 NWLR (Pt.389) p.370. In the instant case, the order complained of was made in favour of the Respondents as defendants before the lower court, while the Appellants’ claims were dismissed entirely. It is not in doubt that the Respondents did not counter-claim. The order of the trial court restraining the Appellants from disturbing the Respondents in their use of the Amandi land was therefore not based on any claim of the Respondents at the trial Customary Court.
It has been held by the Supreme Court that it is a misconception to hold that an order cannot be made in favour of a defendant simply because he has not filed a counter-claim. However, that the order made in favour of a defendant even where he has not counter-claimed must flow from the evidence, and if the justice of the case demands. See MONAH v VAB PETROLEUM (supra) cited by Learned Counsel for the Respondents and REG. TRUSTEES OF APOSTOLIC CHURCH v OLOWOLENI (1990) 6 NWLR (Pt. 158) p.514. In the instant case, the trial Customary Court made the order ostensibly on the premise that in the proceedings of the District Court of Alayi/Item/Igbere in Civil Suit No. 8/61, the Appellants’ representative testified that:
“The main road now leading to Ohafia Igbere passed through that our Amandi land. The defendants took the part of the land. A small portion of the land was given or shown to Abali the son of Odiegwu to be farming free of charge. No. 2 defendant is up till today farming on the portion given or shown to his grandfather free of charge.”
The trial customary court also supported its order by paragraphs 11, 14, 62(1) and 62D of Customary Law Manual of the Ministry of Justice and the last paragraph of Exhibit D, which is Suit No. HU/20A/66. This is pursuant to its finding at page 285 lines 13 ff to the effect that:
“The first and earliest evidence in chief in the matter relating to Amandi land with the defendants on record is that on the old man called Akuma Ugo in which he said that Akpor showed or gave AMANDI LAND to Odumegwu for residence and that Akpo gave another portion of AMANDI LAND FREE OF CHARGE TO ABALI for faming. A “GIFT FREE OF CHARGE” is an ‘OUTRIGHT GIFT'” It is a gift which is not controlled by rules, regulations, and or conventions, it is a gift which one used without consulting others. Neither revocation nor reclamation nor forfeiture of the gift is customary. The defendants are therefore free-holders, they have rights and interest of a free holder occupying an OUT RIGHT GIFT of land.”
See page 285 lines 13-26 of the record of appeal.

It is clear therefore that, the trial Customary Court came to that conclusion based on the testimony of Akuma Ugo when he testified in Suit No. 8/61 which is in evidence as exhibit C. It is the decision of the Item/Alayi/Igbere District Court. I have perused the said proceeding of the Alayi/Item/Igbere District Court (Exhibit C). The present Appellants were the Plaintiffs in that Suit, while the Respondents were defendants. The issue now is, whether it was found in exhibit C that the land in dispute was given to the Defendants/Respondents as an absolute or outright gift. The decision or judgment in exhibit C was a split decision and the majority judgment affirmed title of the disputed land on the Plaintiffs who are now appellants in this appeal. This is what the majority judgment said;
“From what we saw during land inspection and from the numerous evidence from Ibina people (the defendants people) are in favour of the plaintiffs, this court is fully satisfied that this disputed land “Amandi” belongs to the plaintiffs.”

Nowhere in the majority judgment of the court was the issue of the grant or gift of the land to the Respondents by the Appellants pronounced upon. It is true that the Appellants’ witness stated that the land was given to the Respondents’ great ancestor by the Appellants’ great ancestor for farming purposes free of charge, but the issue never arose for determination in that case, and the Alayi/Item/Igbere District did not make any pronouncement on it. The case went on appeal to the then Bende County Court of Appeal, up to the High Court sitting at Umuahia, Presided over by Hon. Justice A.N. Aniagolu (as he then was). The relevant portion of the judgment of the High Court utilized by the trial Customary Court in this case, is at page 340 line 1-15 of the record of appeal (page 6 lines 1- 15 of exhibit D wherein Aniagolu; J (as he then was) held as follows:
“From this, what the learned trial Magistrate held that the land on the left side of the road running from Onu Ibina to Ohafia – Igbere belonged to Amakpo people while the right side belonged to Elu – Ohafia. But if a portion of the land in dispute was granted to Abali to farm by the people of Amakpo, the descendants of Abali could not claim ownership of the land UNLESS THE GRANT TO Abali was an outright grant. The highest they could claim be a right to farm the land based upon their possessory title. They could not obviously, claim radical title to the land. It would be a different thing if the plaintiffs were seeking to dispossess them of the land. In that case, some equities may have enured to their interest. I am not necessarily saying that some equities have enured to their interest; I am simply saying that should possession be claimed by Amakpo people it is possible that the Elu Ohafia people could claim some equities.”
The Learned jurist then concluded at page 341 line 14 -19 of the record of appeal (page 7 lines 14 -17 of exhibit D) that;
“I must mention here that the effect of this judgment is not that the people of Amakpo are necessarily entitled to dispossess the people of Elu Ohafia of the land lying to the right hand side of the road running from Onu Ibina Igbere to Ohafia Igbere. What has been decided is merely that the radical title to the land is vested in the people of Amakpo.”
It is these portions of the judgment of Aniagolu; J (as he then was) that the trial customary court, and which the court below upheld, to hold that, the Respondents are in occupation of the land in dispute as an outright gift and therefore they could not be dispossessed by the Appellants. My understanding of the portions of the judgment of Aniagolu; J (as he then was) is that, he affirmed the judgment of the Alayi/Item/Igbere District Court which affirmed the radical title of the land in dispute to Amakpor people, and proceeded to express the view that, if the land was granted to the people of Elu Ohafia for farming purposes, they could not claim ownership of the land unless the grant to them was an outright gift. That should the people of Amakpor seek to dispossess them, they could plead some equities which might have enured to them. In my view, that case decided the radical title to the land on the appellants, while retaining the possessory right on the Respondents. It did not decide that the people of Amakpo were foreclosed from seeking to re-possess the land. It only decided that should they decide to do that, the Respondents are entitled to plead some equities which might have enured to them. They may decide to plead those equities by, for example seeking the court to grant them relief against forfeiture. That, the Respondents did not do in the instant case, rather, they claimed title to the land in dispute as their free hold estate.
I must also point out that the court below was in error when it construed the statement of Akuma Ugo at page 310 of the records (page 5 of exhibit C) to mean that the grant by the Appellants’ great ancestor to the Respondents’ great ancestor was an outright gift. The said witness merely stated that:
“A small portion of this Amandi land was given or shown to Abali the son of Odiegwu to be farming free of charge. No 2 Defendant is up till today farming on that portion given or shown to his grandfather free of charge.”
I do not agree that the statement of Mr. Akuma Ugo amounted to saying that the grant to Abali was an absolute or outright gift. The proper construction I give to that statement is that the land was granted or given to the Respondents’ great ancestor (Abali) for him to farm on without the payment of the customary tribute. By that grant, the Appellants divested themselves of the possessory rights over the land in favour of Abali while retaining the radical title to the land. The court below was therefore in error when it affirmed and held that the respondents have the rights of an occupier of an outright gift of the land and that the outright gift of the land is not subject of revocation, reclamation (sic) nor forfeiture. It may well be that the Appellants may not succeed in dispossessing the Respondents on ground of failure to pay tribute, but they may succeed on some other ground. Having found that the grant to the respondents was not an outright gift, it would not be in accord with justice to restrain the Appellants from disturbing the Respondents’ possession of the land, as ordered by the trial Customary court and affirmed by the court below. The order made by the trial court is therefore not in accord with the evidence on record. Accordingly, I resolve issue two (2) in favour of the Appellants, and hold that the court below was in error when it made the order that the Respondents should not be disturbed by the Appellants in their use of Amandi land.
I now proceed to consider issue three (3) which is akin to issue two (2) resolved above. Relying on the case of IBEBO v UME-OHANA (1993) 2 NWLR (Pt. 2771 p.570, Learned senior counsel for the Appellants contended that, the proper manner to treat decisions of nature or customary courts judgment is to have regard to the substance of the whole proceedings as revealed by the claim, the evidence and judgment. He then submitted that the judgment of the trial court as a whole declared the Respondents owners of the land in disputes. He referred to the holding of the trial court at page 290 of the record, which the court below took the view that the appellants misconceived, and held at page 78 lines 15 -22 of the record that, the trial court did not declare the Respondents the owners of the land in dispute. That confronted by a similar situation in HU/20A/66 (Exhibit D), Aniagolu, J (as he then was) approached the matter differently from that taken by the trial Customary Court. The decisions of Aniagolu; J, at page 336 lines 24 – 337 line 2, and that of the trial customary Court at page 290 lines 5 – 11 of the record were referred to, to submitted that, the judgments of the two courts below amounted to a gross distortion and perversion of the findings of the Alayi/Item/Igbere District Court in Exhibit C which was confirmed on appeal by Aniagolu; J. as in Exhibit D. Learned Senior Counsel further referred to the findings of Aniagolu; J. at pages 340-341 of Exhibit D which he contends defined the relationship between the parties to also submit that, in spite of the clear and unambiguous statements of the law and the telling admissions of the 1st Respondent at pages 136-137 of the record, the trial court and the court below held that the land in dispute belonged to the Respondents and proceeded to restrain the appellants from disturbing them. That the judgments of the two courts below reversed the judgments of the Alayi/Item/Igbere District Court (Exhibit C) which was affirmed by Aniagolu; J. in Exhibit D. It was therefore contended that the judgments of the two courts below are perverse as they shut their eyes to the obvious. The cases of ATOLAGBE v SHORUN (1985) 1 NWLR (Pt. 2) p.230 at 373; ADIMORA v AJUFO (1988) 3 NWLR (PT. 80) P.1 and ONWUGBUFOR v OKOYE (1996) 1 NWLR (Pt. 424) p.252 were cited in support.
Learned counsel for the Respondents contended that, the trial Customary Court and the Court below, did not declare radical title to Respondents as contended by the Appellants. That the court below was right in its view that the appellants misconceived the judgment of the trial court, which based its judgment on the evidence before it and not only on the judgment of the Native court. He then referred to the judgment of Aniagolu, J. at page 340 lines 4-15 of the record to submit that the trial court having found that the issue of gift being free of charge, established by Appellants’ evidence, the court had no option but to give force to that by holding that the land was a gift free of charge, thus stopping the Appellants from dispossessing the Respondents, which exhibit D enjoins at page 341 lines 13 – 17 of the record of appeal. Learned counsel for the Respondents further submitted that, the issues before the trial court were, inter alia, forfeiture for trespass, damages and injunction of the land Verged Green by the Appellants. That exhibit D says that the Appellants cannot do that and that if they attempt that, the Respondents are entitled to equities that must be enforced. Further that, Exhibit D which dealt only on declaration of title sated that if the land is proved to be an outright gift, which has been established in this case, then the Appellants cannot dispossess the Respondents of it. That what the trial court merely did was to enforce the said judgment after finding out that the land in dispute was a gift free of charge. It was therefore submitted that, being a concurrent finding by the two lower courts, this court should not disturb same because they are findings established in the record of proceedings. That the Appellants having not shown that the findings of the two lower courts is perverse, it should not be disturbed.
Now, the crucial finding of the trial Custom any Court which the Appellants complain of is at page 290 lines 5 – 11 of the records. I endeavour to reproduce same below:
“…the Honourable Court believes that the land in dispute lying and situate on the right side of the road from Onu Ibina Igbere to Okafia Igbere between the Faith Tabercle (sic) Congregation Church/School, Igbere and the new Asa Alaku road is called Ngwo-Onya-Agu and not Amandi and belongs to the defendants on record and HU/20A/66 Exhibit D regards it as a free hold.”
The Court below alluded to the above quoted findings of the trial Customary Court at page 75 lines 16-31 of the record and proceeded to hold at page 76 lines 1-13 when it held thus:
“The question that arises for determination here is, can the above quoted portion of the judgment of the trial customary court, be construed to mean that the court had declared and awarded title of the disputed land to the Defendants. In my considered view, I think the trial court merely held that from the evidence before it, including Exhibit “D” that is the judgment in Suit No. HU/20A/66, the preponderance of evidence is to the effect that the land in dispute now belongs to the Defendants. This conclusion can be drawn, if one reads the judgment from pages 147 lines 45 – page 148 line 9 of the Records of Appeal..”
Now, the trial customary court had stated at page 289 lines 34 – 290 line 3 that the High Court Umuahia did not ask the Respondents to pay tribute to the plaintiffs and that Akuma Ugo who testified for the Appellants in Exhibit C, stated that Akpor (Appellants’ ancestor) gave the Amandi land to Abali (Respondents’ ancestor) free of charge for no payment of tribute. It therefore declined to order payment of tribute by the Defendants/Respondents for the use of the land in dispute. I had held while resolving issue two that, the issue of payment of tribute was not an issue canvassed and pronounced upon in Exhibits “C” and “D.” I had also resolved that the grant of the land to Abali for farming free of charge did not foreclose the Appellants’ right of ownership of the land in dispute, as the statement of Akuma Ugo cannot be construed to mean an absolute or outright grant of the land by the Appellants to the Respondents. It is however pertinent to point out that the issue of payment or non-payment of tribute cannot form the basis for the pronouncement of the trial customary court at page 290 lines 3-14 of the Record of Appeal.
I also find in pertinent at this stage to point out that this issue complained of by the Appellants is a concurrent finding by the two courts below. The law is that, an appellate court will not interfere with the concurrent findings of fact by lower courts unless there are compelling reasons to do so to justify such interference. In other words, an appellate court, though is in as good position as a trial court to evaluate the evidence on the record, such appellate court should not readily disturb or interfere with concurrent findings of facts made by two lower courts. The appellate court will only interfere in exceptional circumstance, such as where the findings are perverse, or where the findings are not supported by the evidence on record; or where a miscarriage of justice has been occasioned by the findings of the two lower courts. See JOLASUN v BAMGBOYE (2010) 18 NWLR (Pt. 1226) P. 285; KOPEK CONST. LTD VEKISOLA (2010) 3 NWLR (Pt. 1182) P.618; AGALA v OKUSIN (2010) 10 NWLR (Pt. 1202) P.412. AFOLALU v STATE (2010) 16 NWLR (Pt. 1220) p.584 and SALISU v. ODUMADE (2010) 6 NWLR (Pt.1190) p.228.
In the instant case the trial customary court based its decision on the fact that Suit No. HU/20A/66 (Exhibit D) regarded the land in dispute lying and situate on the right hand side of the road from Onu Ibina Igbere to Okafia Igbere between the Faith Tabernacle Church/School Igbere and the new Asa Alaku road, called Ngwo-Onya-Agu, and not Amandi is the freehold land of the Respondents. This is a specific finding of the trial customary court and which finding has the effect of conferring absolute title to the land on the Respondents. However, the High Court Umuahia held in Suit No. HU/20A/66 (Exhibit D) that:
“The District court found for the plaintiffs declaring title to the land in dispute to be vested in them. Without adopting the irregular procedure the County Court had no valid reason for upsetting the said judgment of the District Court. The Learned Magistrate was not entitled to declare ownership in the defendants in respect of the land lying to the right hand side of the road leading to Okafia Igbere from Onu Igbere since the defendants did not claim title….
This court is unable to see any valid reason why the decision of the Alayi/Item/Igbere District Court should have been disturbed. On the accepted historical back ground connection Abali with the people of Amakpo the decision of the District court was certainly valid.”
See page 340 lines 27 – 34 and page 341 lines 7- 11 of the record of appeal. The above cited judgment affirmed the decision of the Alayi/Item/Igbere District Court declaring title to the land in dispute on the Appellants. That High Court judgment has not been appealed against by the Respondents. It is thus a valid and subsisting judgment declaring title to the land in dispute on the Appellants. That judgment was and is still binding on the trial Customary Court and in that respect, the court below. Incidentally at the trial before the trial Customary Court, the 1st Respondent admitted that the decision in Exhibit “C” which affirmed the radical title to the land on the appellants went on appeal to the High Court and that he did not file any appeal after the High court judgment which is Exhibit “D” because in his view, the judgment was in their favour. Under cross examination, he answered thus:
“Q(1). This land in dispute is on both sides of the road moving from Onu Ibina to Okafia Igbere.
A. Yes the land in dispute is on both sides of the road from Onu Ibina to Okafia village Igbere.
Q(2). Is this parcel of land you call Ngwu Onyagu the same parcel of land the plaintiffs on record call “Amandi”
A. Yes it is the same land called Amandi by the plaintiffs on record.
Q(3). Going from Onu to Okafia Igbere the land on your left hand side is in dispute
A. The land on the left hand side from Onu to Okafia Igbere is not in dispute.
Q(4). That section the land on the left hand side from Onu to Okafia Igbere belongs to Amakpo Community.
A. Amakpo Community owns Amandi land which was given to them by Abali.
Q(5). The judgment of the High Court Umuahia shown in exhibit “D” covers both the land on the land (sic) left and right Onu Ibina to Okafia Igbere.
A. Yes the judgment covers as claimed above.”
The Respondents having admitted that the land in dispute is the same land covered by Exhibit D, I find it hard to see how the two lower courts could have arrived at a decision that the land in dispute lying and situate on the right hand side of the road from Onu – Ibina to Okafia Igbere belong to the Respondents as freehold. That decision is not supported by the evidence on the printed record. It had therefore occasioned a miscarriage of justice to the Appellants as it has the effect of reversing the declaration of tile made in their favour by the Alayi/Item/Igbere District Court which the High court affirmed, and which decision still subsists, having not been appealed against. Accordingly, I resolve this issue also in favour of the Appellants.

The last issue which was argued as issue one (1) by the Appellants is whether the court below was correct under the applicable Customary Law of the parties to have refused the Appellants’ claim for forfeiture of the land in dispute by the Defendants. Arguing this ground. Learned Senior Counsel for the Appellants alluded to the holding of the court below at page 81, line 19 – 82 line 5 which affirmed the decision of the trial customary court refusing the evidence held by the Plaintiffs/Appellants that the Defendants/Respondents were required to pay tribute. He contended that the Court below predicated its conclusion on the reasons given by the trial Court as set out at pages 70 – 80 line 19. That considering the findings of the Court below and that of the trial Customary Court as mentioned above, it would be seen that the two courts based their decisions on the evidence said to have been given by Akuma Ugo in suit No. 8/61 (Exhibit C) and not on the findings made by the court in Exhibit “C.” That the two concurrent decisions are perverse, as it would be seen that the trial court picked the aspect of the witness’ testimony that it felt was un favourable to the Appellants and thereby destroyed their case with the alleged admission, while shutting its eyes to the entire evidence led at the trial before it. That the court below which had the benefit of the record simply rubber-stamped such a perverse and uncustomary decision. He then referred to the testimony of the said Akuma Ugo under cross-examination in Exhibit “C” at pages 313 lines 115 – 126 and 314 lines 41 – 44, and that of Appellants’ 3rd witness in Exhibit “C” at page 317 lines 24 – 30. Reference was also made to the testimony of the Appellants 4th witness in Exhibit “C” at pages 317 – 318 and that of the Respondents’ witness in the said Exhibit “C” at page 323 lines 2-5, to further submitted that the manner in which the courts below treated Exhibit “C” is regrettable.
Learned counsel for the Appellants further submitted that, it is the law that, the proper manner to treat decisions of native court or customary courts is to have regard to the substance of the whole proceedings. He then relied on the case of IBERO v UMEOHAWA (supra) to contend that, the claim, evidence and judgment are looked at. That Exhibit “C” was confirmed in its entirety by the High court in exhibit “D”, yet both courts below, rejected the Plaintiffs/Appellants’ claim. That the Respondents’ case on the point at the trial customary court is as stated at page 137 lines 2-14 of the record, and therefore, the decision of the court below affirming the majority judgment of the trial court at page 299 tine 34 – 290 line 3, is perverse and cannot therefore stand. It was therefore submitted that, the evidence on record was overwhelming that farming on the land in dispute by the Respondents was contingent upon payment of tributes.
It was also contended by the Learned senior counsel for the Appellants that, the land verged green in Exhibit “F” was clearly given to the Respondents for farming purposes upon payment of tributes. That rather than pay the tributes, the Respondents trespassed into the land, leading to the institution of the suit in Exhibit “C” and that by so doing they have challenged the Appellants’ title in Exhibit “C” and in the present proceedings. That the real basis of the misconduct or misbehavior, in law, which renders the tenancy of a customary tenant liable to forfeiture is the challenge to the title of the overload. He then submitted that, it is equally settled that the remedy for forfeiture under customary law is not discretionary but follows upon a breach of the condition of the customary tenancy. The cases of ONIAH & ORS v ONYIA (1989) 1 NWLR (Pt. 99) p.514; AKINTOLA v OYELAKKUR (1993) 3 NWLR (Pt.282) p.379 and RUBA ABIOYE v YAKUBU (1991) 5 NWLR (Pt. 190) p.130 were then cited to submit that, the appellants duly made out a case for forfeiture under customary law and both courts below were wrong not to have ordered forfeiture, and thereby caused a miscarriage of justice. That the minority judgment of the trial Customary Court correctly captured the position under the applicable customary taw at pages 260 line 25 – 261 line 1 and equally made the right order at page 263 line 29 – 264line 10. We were then urged to resolve this issue in favour of the appellants.
Learned Counsel for the Respondents contended that, the court below was absolutely correct in upholding the dismissal of claim for forfeiture of the land allegedly VERGED GREEN in the Appellants’ Exhibit “F”. That it is trite law that the duty of assessing the credibility of witnesses lies within the realm, power and authority of the trial court and not that of the court below, which is an appellate court, and which never saw nor witnessed the proceedings. That the facts found by the trial court which led to the dismissal of the entire claims of the Appellant for forfeiture, damages and injunction are in the cold prints of the record of appeal, and which facts the court below evaluated or reviewed before upholding the dismissal.
On the issue of payment of tribute, learned counsel referred to the holding of the court below at pages 78 line 24- 79 lines 1 – 27, 80 lines 4 – 21 and the testimonies of the P.W.1 at page 310 lines 35 – 45; P.W.3 at page 317 lines 24 – 28 and P.W.4 at page 318 lines 12-14 (all in Exhibit “C”) in the record of appeal. It was then contended that the testimonies of the Appellants’ and their witnesses referred to were evidence against interest and the lower courts were found it to be so. That the evidence by these witnesses that the land was subject to tribute after testifying that the land was given free of charge amounted to a contradiction. The case of FAGUNWA & ANR v ALIBI (2004) 20 L.R.C.N.P. 4548 at 4566 paras. EE was cited in support. It was therefore submitted by Learned Counsel that, it is trite law that a witness who gives two conflicting evidence on an issue, as in the instant case, where the land is said by the Appellants to be a gift free of charge, and in another breath that meat and wine are given before farming by the Respondents, is bound to be disbelieved by the trial court. That the Court below rightly held at page 81 lines 19-27 of the record that, the trial Customary Court was right in rejecting the evidence adduced by the Appellants that the Respondents who required to pay tribute, and that such finding was not perverse. That the answer given by the Respondent in Response to a question under cross – examination at page 323 lines 2 – 5 of the records is not an admission to the payment of tribute to the Appellants as contended by the Appellants, but a denial of such a claim and that such denial is substantiated by the 1’t Respondent in his testimony at page 130 lines 3-5 of the record of appeal.
Respondents’ Learned Counsel further submitted that the Respondents’ evidence was a complete denial of payment of tributes which were not contradicted by the Appellants. That the law requires the appellants to succeed on the strength of their case and not on any defect in the evidence of the defence. Reference was made to the case of MOGAJI v CADBURY NIG. LTD (1988) 2 NWLR (Pt. 7) p.353 at 429 to also submit that the contention of the Appellants that the lower courts predicated their decision by improper evaluation of Exhibit C, based on the evidence of Akuma Ugo is rather untrue as can be seen from the facts in the record of the trial court.
Learned Counsel for the Respondents also raised the issue of identity of the land in dispute. He contended that, at the trial court the Appellants’ claimed that the land in dispute was at Amakpor Igbere. That this is evident in their particulars of claim at page 86 lines 25-30 and the 1st Appellant’s testimony at page 96 lines 1-6 of the record, but at page 112 lines 13-14 he testified under cross – examination that the land is in Ibina Igbere. That the 1st Appellant demonstrated this contradiction at the locus in quo when he took the court to Ibina Igbere instead of Amakpor Igbere where the land he claims is situate and lying. It was also contended that the boundary neighbours given by the Appellant at page 96 lines 6-19 of the record are not shown in exhibit “F” and that it also contradicts the version given at the locus in quo at page 288 lines 14-20 of the record. Furthermore, that the Appellants representative (Akuma Ugo) who testified in exhibit “C”, gave different boundary neighbours at page 312 lines 39 – 44 of the record. It was then submitted that, the identity of the land was in the circumstances different in every material particulars as to location, description, fork and substances, and that it was so found by the trial customary court at page 288 lines 5-31 of the records. The case of OTANMA v YOUDU BAGBA (2006) 134 LRCN P.362 at 381 paras. EE was cited in support.
On the issue of planting of cassava on the land in dispute by the Respondents, it was contended by Learned counsel for the Respondents that, the trial court found at page 273 lines 7-10 of the record that the cause of action in the case is the planting of cassava on the land by the Respondents, but at the locus in quo the 1st Appellant admitted that it was the Appellants who planted the cassava and not the Respondents. He therefore submitted that, that fact was an admission against interest made by the Appellants. The case of FAGUNWA & ANOR v ADIBI (2004) 120 LRCN p.4548 was cited to submit that, that grave admission by the Appellants showed that they were the trespassers and not the Respondents. That the trial court made a finding of fact and held that there was no trespass committed by the Respondents and that he dismissed the Appellants’ claim for trespass, injunction and damages, and the court below reviewed the evidence on record on that fact and upheld the decision of the trial court. We were then urged to resolve this issue against the Appellants.
In reply, Learned Counsel for the Appellants submitted that there was no dispute about the identity of the land in dispute as both sides agreed that it was verged green on exhibit F. He referred to page 78 line 24 page 79 line 2 and the testimony of the 1st Respondent at page 136 line 9 of the record. See also pages 153 – 154 of the record. It was therefore submitted that the contention of the Respondents that the identity or description of the land in dispute was not made out is untenable.
Before I proceed to determine on the issues raised above I find it necessary to pronounce on the issue of minority judgment raised by the Respondent at pages 18-19 of the Respondents brief of argument. Perhaps the Respondents raised the issue in view of the Appellants’ submissions at paragraphs 4.12 – 4.13 at pages 13 -14 of the Appellants’ Brief of Argument, wherein the Appellants contended that the minority judgment of the trial Court represents the correct position of the law and should be upheld. The Respondents then submitted that, the Appellants’ submission that the minority judgment be upheld is a clear attempt at open day robbery and kidnapping. That the area in dispute as contended by the Appellants’ is VERGED GREEN in Exhibit F, while the minority judgment of the trial court was predicated on the land Verged Red and Yellow respectively. That the two lower courts would have fallen into a grave error in granting forfeiture over the land verged red and yellow which was shown to the trial court to be the land in dispute contrary to the appellants’ case that the land is Verged Green.
Learned Counsel for the Appellants’ reply is that, the contention of the Respondents is misconceived. He reproduced the order of the trial court from page 262 line 29, to submit that clearly, the minority judgment was based on the area Verged Green on exhibit “F” which is admittedly the area in dispute.

I must state that an appeal is a complaint against the decision of a lower court. lt is therefore the decision of the lower court that will be the subject of an appeal. Consequently, in a situation where a case is heard by a number of justices or judges, as in the instant case at the trial customary court, it is the majority judgment that represents the judgment of the court. It is therefore the majority judgment that can be appealed against. A minority judgment of the trial customary court in the instant case may be likened to a dissenting judgment in the appellate courts. Such a minority judgment, no matter how articulate and powerful, is not the judgment of the court and is not binding and therefore cannot be the subject of an appeal. Circumstances may however arise where in the determination of an appeal, the majority judgment may be set aside, while the minority judgment which reflected the justice of the case may be approved. Aside that instance, a minority judgment should not be the subject of argument or appeal. Counsel should therefore not rely on or resort to a minority or dissenting judgment in arguing their appeal. See P.I.P. LTD v TRADE BANK (NIG) PLC (2009) 13 NWLR (Pt. 1159) P.577; O.S.I.E.C. V.A.C (2010) 19 NWLR (Pt 1226) p.273 and OLUFEAGBA v ABDUL RAHEEM (2009) 18 NWLR (Pt. 1173) p.384.In that respect, this court can only approve of the minority judgment of the lower court should this appeal succeed. Such approval cannot be raised to the level of affirming the minority judgment which is not the subject of appeal. Learned appellants’ Counsel was therefore misconceived when he urged us to uphold the minority judgment. I will say no more on the issue.
I now return to the substantive issues raised under consideration. In arguing the issue learned counsel for the Respondent raised the issue of identity of the land in dispute. Arguments of counsel thereon had earlier been summarized. I must point out here that appeals are generally determined on the grounds of appeal as contained in the Notice of Appeal. In other words, issues raised for determination by any party to an appeal, be he appellant or respondent, must be based on the grounds of appeal filed by the Appellant. Thus, if the issues raised by any party is not related to any ground of appeal, such an issue will be irrelevant and therefore go to no issue; and any argument in a brief in support of such issue will be discountenanced by the court. See ONIFADE v OLAYIWOLA (1990) 7 NWLR (Pt. 161) p.130; IBATOR v BARAKURO (2007) 9 NWLR (Pt. 1040) P.470 and ADELAJA v FAMAIKI (1990) 2 NWLR (Pt. 131) P.137.It therefore means that any issue raised by a respondent in an appeal must relate to the grounds of appeal filed by the appellant. Where a respondent desires to raise any issue not related to the grounds of appeal filed by the Appellant, he must file either a cross appeal or a respondent’s notice, except were such issue challenges the jurisdiction of the court.
In the instant case, the issue of identity of the land in dispute raised by the Respondents does not relate to any of the grounds of appeal filed by the appellants. The issue is fundamental and not an ancillary issue to any of the grounds of the appeal filed by the Appellants and the issues formulated thereon by the Appellant. That issue which is not supported by or related to any of the grounds of appeal is irrelevant in this appeal and therefore go to no issue. It is accordingly discountenanced.
However, ex abundanti cautela (in the abundance of caution)) and since the parties have argued same, I shall proceed to consider the arguments of counsel in respect thereof. In determining on this issue, I must remind myself that, the Appellants’ claims as plaintiffs before the trial court were damages for trespass, forfeiture of the land Verged Green in Plan No. EC/211/73 and perpetual injunction. That being so, I am of the view that it was incumbent for the Appellants to lead evidence establishing the identity of the land upon which they based their claims. This is so because the law is that, in a claim for trespass coupled with a claim for injunction, the claimant or plaintiff must prove the identity of the land which he alleges the Defendant trespassed upon. A Surveyor’s Plan is the best evidence of the boundaries or identity of the land. However, the necessity of the claimant to lead evidence on the identity of the land will arise or became imperative or necessary or become an issue at the trial, if and only if, the defendant has made it so. Thus, where the identity of the land is not disputed, and the land is known to all the parties to the dispute, it will not be necessary to have a Survey Plan of the land or lead evidence as to the identity of the land in dispute. See NWANKWO v OFOMATA (2009) 11 NWLR (Pt. 1153) P. 496; EKPEMU POLO v EDREMODA (2009) 8 NWLR (Pt. 1142) p.166 AT 195 and ANYANWU v UZOWUAKA (2009) 3 NWLR (Pt. 1159) P.445. It is therefore not in all cases that the necessity to lead evidence on the identity of the land will be necessary. The fact that the parties know or called the land with different names does not matter, so long as the parties are ad idem as to the land in dispute.
In the instant case, the evidence on record reveals that the parties were at idem as to the identity of the land in dispute. The 1st Appellant who testified for the other Appellants stated at page 96 lines 1 – 6 as follows:
“I know all the Defendants in this matter. They are from Elu Ohafia Ibina Igbere. We sued the Defendants on a representative capacity. I know the land called “Amandi” land. The Amandi land is situate, lying and being at Amakpo Igbere.”
He went on to enumerate his boundary neighbours and tendered a Survey plan of the land which was admitted in evidence as exhibit “B.” He also tendered the record of proceedings of the Alayi/Item/Igbere District Court which decided title over the said land in their favour as against the Respondents. The said record of proceedings was admitted as exhibit C. The record of the HIGH Court Umuahia which affirmed the judgment in exhibit “C” was also tendered by him and admitted in evidence as Exhibit “D.”
The 1st Respondent while testifying before the trial court stated at page 123 lines 14 – 18 as follows:
“I know Amandi land. This Amandi land is situate at Elu Ohafia Ibina Igbere. Amakpo Village has no common boundary with the land in dispute is Amandi land (sic).”
He went on to state at page 129 lines 2 – 6 as follows:
“The matter over the land in dispute pended at the High Court Umuahia. I gave evidence at the High court during the pendency of the matter. I tendered the survey Plan of the land in dispute to the High Court.”
Under cross-examination by the Appellants’ counsel at page 136 lines 5- 33 of the records, the 1st Respondent answered as follows:
“Yes the land in dispute is on both sides of the road from Onu Ibina to Ohafia village. Yes, it is the same land called Amandi by the Plaintiffs on record. The land on the left hand side from Onu to Okafia Igbere is not in dispute. Amakpo Community owns Amandi land which was given to them by Abali. Yes the judgment covers as claimed above.”
It is therefore clear from the testimony of the 1st Respondent and that of the Appellants reproduced above, that the parties knew the identity of the land in disputes. This fact is further supported by exhibits “C’ and “D” which both parties agreed were proceedings in respect of the same land now in dispute.
On the issue of forfeiture, the Appellants’ case before the trial customary court was that, their great grandfather; Akpo deforested the land in dispute and that nobody challenged him in the process. That their ancestor (Akpor) then gave out a portion of the land in dispute to one Abali (Respondents’ ancestor) who was the son of Odumegwu. That Odumegwu married Akpo’s daughter called Ekeoha who was the mother of Abali and that it was to that Abali that Akpo gave the land for farming purposes. That the condition for the grant was that, any year Abali was to farm the land, he would pay a tribute of meat and drinks, and that when Abali died, his children took over that portion of land and were farming same upon payment of some tribute. That the father of the present 1st Respondent was also farming and paying the tribute during his lifetime. See pages 96 line 19-97 line 26 of the record of appeal. He also stated under cross-examination at page 110 lines 1-6 of the record as follows:
“We gave them two portions of land in two occasions, the first portion is where they are living now and the second portion was the one given to Abali for farming as or in-law. And this portion is the one we want them to forfeit.”
The Respondents as Defendants in the trial Customary Court presented their case through Iheke Igeoko Udor who was the 1st Defendant at the trial Court. He stated that Odumegwu and Abali is the same person. He admitted that their ancestor Odumegwu married Ekeoha, the daughter of Akpo. He denied that it was Akpo that gave their ancestor the land for farming, but that it was Odumegwu, their ancestor who settled Akpo at Amandi land. See page 124 lines 10-13 of the record of appeal. He stated at page 124 lines 19-25 as follows:
“Abali’s father-in-law lived at Amandi until his death. When Akpo died at Amandi his people left Amandi to Amakpo Igbere. Abali gave this land in dispute to his father-in-law Akpo. Akpo did not give this land in dispute to Abali. Akpo did not give my ancestor – Abali Odimegwu the present place of our abode.”
He proceeded to state at page 125 lines 18 24 of the record as follows:
“Akpo did not give Abali Odumegwu any land at all for any purposes whatsoever. There was never a time Akpo and Abali Odimegwu agreed that Abali Odimegwu should be paying him annual tribute for the land he gave to him. We have never paid any annual tribute to Akpo from the time of Abali Odimegwu to our presence (sic).”
It would be seen therefore that, while the Appellants contend that they gave the land to the Respondents the land in dispute for farming purposes upon payment of tributes, the Respondents out rightly denied that they were so given the land by the Appellants. Rather, it is their case that, it was their ancestor Abali or Odimegwu who settled the Appellants’ ancestor on the land. In that respect, the issue of payment of tribute by them could not arise.
After evaluation of the evidence by the majority members of the trial Customary Court, they held at page 289 line 33 – 290 line 3 as follows:
“The High Court Umuahia did not tell the Defendants on record to pay tribute to Plaintiffs, also Elder Akuma Ugo the oldest man of Amakpo Igbere who testified for himself and as representing Akpo family of Igbere in the Suit No. 8/61 said as unto that Akpo GAVE the Amandi land to Abali FREE OF CHARGE and for no payment of tribute. Therefore institution of payment of tribute by the modern generation of Amakpo family is a travesty of honesty in the evidence in-chief of Elder Akuma Ugo and so this honourable Court cannot order payment of tribute by the defendants on record in their use of the land in dispute.”
I understand the trial court to mean that elder Akuma Ugo’s testimony on behalf of the Appellants in exhibit C cannot be resiled from by the Appellants. In other words, that the Appellants are bound by the testimony of Elder Akuma Ugo in Exhibit C, that the land was granted by the Appellants’ great ancestor to the Respondents’ great ancestor free of charge. That view of the trial Customary Court was affirmed by the court below. See also page 286 lines 5- 18 of the record of appeal. The trial Customary Court had held also at page 25 lines 14 – 24 of the record as follows’
“The first and earliest evidence in-chief in a matter relating to Amandi land with the defendants on record is that of the old man called Akuma Ugo in which he said that Akpo shared or gave Amandi land to Odumegwu for residence and that AKPO GAVE another portion of AMANDI LAND FREE OF CHARGE TO ABALI for FARMING “A GIFT FREE OF CHARGE’ is “an outright gift.” It is a gift which is not controlled by rules, regulations, and or conventions, it is a gift which one uses without consulting others. Neither revocation nor reclamation nor forfeiture of the gift is customary.”
It is clear therefore that the trial Customary Court rejected the evidence led by the Appellants that their great ancestor granted Abali, the Respondents’ great ancestor, the land in dispute upon payment of meat and drinks as tribute before farming same. The court below endorsed the position of the trial customary court, when it held at page 81 line 23 – 82 line 5 as follows:
“…I also find that the rejection of the evidence led by the plaintiffs that the Defendants were required to pay tribute was not perverse as there was sufficient evidence to hold the contrary. It is my view and I hold that having regard to the accepted evidence by the trial court that it is established that some equities have endured (sic) to the benefit of the Defendants/Respondents for which forfeiture cannot be ordered as the Defendants are not mere tenants on the land. The trial customary court was therefore right when it refused to order forfeiture and dismissed the Plaintiffs’ claim.”
I had pointed out earlier in the course of this judgment that, the findings of fact above is that of two lower courts. I had also pointed out that Exhibit C adjudged title to the land in dispute on the Appellants, and which was affirmed on appeal by Exhibit “D” which has not been appealed against. I had again pointed out that from the tenor of the testimony of Akuma Ugo in Exhibit “C” the grant to the Respondents cannot be interpreted to mean “an outright gift” to the Respondents. In my view, the correct issue to be determined here, is whether from the totality of the evidence adduced at the trial, the grant to the Respondents was contingent upon payment of tribute.
The trial court was of the view, and which the court below affirmed, that the grant was not subject to payment of any tribute. The concurrent findings of the two lower courts were hinged mainly, if not solely, on the testimony of Akuma Ugo who represented and testified for the appellants in Exhibit “C”. In other words, the statement of Akuma Ugo is the foundation upon which the trial court made its findings which was affirmed by the court below. Learned Counsel for the Respondents submitted that the evidence by Akuma ugo in exhibit “C” was evidence against interest. The law is that an admission by a party against his interest is admissible against that person. Though in law, admission per se does not constitute conclusive evidence of the matters admitted, they may operate as estoppels against such person, for they stand against such person making the admission. In other words, a statement, oral or written made by a party in a civil proceeding, and which statement is adverse to his case, is admissible against him in the proceedings as evidence against him of the truth of the facts ascertained in the statement. See ODI v. IYALA & ORS (2004) 8 NWLR (Pt. 875) p.283, SEISMOGRAPH SERVICES NIG. LTD v OGBENEGWEKE (1927) 9-10 S.C.P. 146 and AKINTOLA v BALOGUN (2000) NWLR (Pt. 642) P. 553. See also section 27 of the Evidence Act, 2011.
Based upon the above stated principle therefore, it would appear that the two lower courts treated the testimony of Akuma Ugo in Exhibit “C” as binding on the Appellants. It should however be noted that, it is the law that, evidence given by a witness in a previous case cannot be accepted as evidence in a subsequent proceedings except in condition where the provisions of section 46 of the evidence Act, 2011 apply. By Section 46 of the Evidence Act 2011 (supra), evidence by a witness in a judicial proceeding, or before any person authorized by law to take it, is admissible for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness cannot be called for any of the reasons specified in section 39, of the Evidence Act, or is kept out of the way by the adverse party. The conditions specified under section 39 are that:
(a) the maker of the statement is dead; or
(b) he cannot be found; or
(c) he has became incapable of giving evidence; or
(d) his attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court to be unreasonable
Before such evidence can be relied upon under section 46 of the Evidence Act; the following conditions must be satisfied:
(a) the proceedings was between the same parties or their representatives interest;
(b) the adverse party in the first proceeding had the right and opportunity to cross-examine; and
(c) the questions in issue were substantially the same in the first as in the second proceeding.
It is clear that all the above stated conditions must be satisfied. In the instant case, it is obvious to me that the third (3rd ) condition did not exist for the trial court to rely on in making its finding. I say, so because, the issue in Exhibit “C” was for declaration of title, which the court found in favour of the Appellants and affirmed by Exhibit “D”. The two courts in Exhibits “C” and “D” did not pronounce on the issue of forfeiture of the land in dispute, after confirming the radical title to the land on the Appellants. There was therefore no pronouncement on the nature of the grant by the Appellants to the Respondents. I therefore find that, that finding of the trial court which the court below affirmed was erroneous having not been based upon a proper appraisal of the evidence on record.
Now, apart from the bare denial of the Appellants’ claim, the attitude or reaction of the Respondents was to deny or rather claim title to the land, and thereby challenged the Appellants’ title even in the face of the judgments in exhibit “C” and “D.” However, I am of the firm view that despite the denial by the Respondents, their witness appear to me to have admitted the nature of the relationship between them and the Appellants. Under cross examination at page 136 line 30 – 137 line 14 the Respondents’ witness stated thus:
“Q.(5) The judgment of the High Court Umuahia shown in exhibit “D” covers both the land on the land left (sic) and right Onu Ibina to Okafia Igbere.
A. Yes the judgment covers as claimed above.
Q.(6) After the judgment exhibit “D” have you people paid any tribute to the Plaintiffs on record.
A. We have not paid the tribute because we have not farmed the land as the Plaintiffs have not allowed us to farm it.
Q.(7) which part of the land you have not farmed. The left hand side or the right hand side from Onu Ibina to Okafia Igbere or both sides.
A. We have not farmed both sides and that is why we have not paid any tribute to the Plaintiffs on record.”
Based on the above evidence of the 1st Respondent, I am of the view that the Respondents have either wittingly or unwittingly admitted the payment of tribute in the relationship between them and the Appellants. The two lower courts were therefore in error in holding that the Appellants had not proved that the grant of the land in dispute to the Respondents was subject to payment of tributes.
The crucial issue however, is whether, the Appellants had proved that the Respondents had breached the terms of the grant as to warrant the order of forfeiture in their favour. Here, the case of the Appellants at the trial court on record is that, the Respondents broke into and entered the land in dispute in 1997 and planted cassava thereon. The trial court found at page 288 lines 20-31 that at the locus in quo the 1st Appellant admitted that it was the Appellants that planted the cassava which is the cause of action in this case. The Appellants did not show or demonstrate that that finding of the trial customary court, which the court below affirmed is perverse. Indeed, that finding of the, two lower courts is supported by the evidence on record. I cannot therefore disturb that finding. This is more so in view of the testimony of the 1st Respondent under cross-examination, which I had earlier reproduced, that they have not paid the tribute because the Appellants have not allowed them to farm the land. This piece of evidence was neither controverted nor contradicted. I therefore hold that the court below was right in affirming the decision of the trial customary court to refuse to order forfeiture of the land in dispute due to failure of Respondents to pay tribute.
The trial customary court also found at page 288 lines 25-30 that, at the visit to the locus in quo, the Appellants were unable to show the court any damage to the land in dispute verged green. It therefore means that the appellants failed to establish that the Respondents entered into the land contrary to the terms of grant of the land. In fact they failed to establish by the evidence on record that the Respondents trespassed into the land in dispute. On the whole therefore, I hold that, the court below was right when it affirmed the decision of the trial court refusing the Appellants’ claim for forfeiture of the land in dispute. Issue No.1 is therefore answered or resolved against the Appellants.
Having resolved as above, issues 2 and 3 have been resolved in favour of the Appellants. Issue 1 has been resolved against the Appellants. This appeal has therefore succeeded in part. To that extent the order of the trial court dismissing the Appellants claim for forfeiture, damages for trespass and injunction, affirmed by the court below, is hereby affirmed by me. However, the order restraining the Appellants from disturbing the Respondents in their use of Amandi Land is hereby set aside.
I make no order as to costs.

MOJEED A. OWOADE, J.C.A: I have had the privilege of reading in draft the Judgment of my learned brother HARUNA S. TSAMMANI, JCA. I agree with the reasoning and conclusion and I abide with the consequential orders.

TIJJANI ABUBAKAR, J.C.A: I had the privilege of reading before now the judgment just delivered by my learned brother, H. S. Tsammani, JCA.
My learned brother admirably considered and resolved all the pertinent issues that arose for determination in this appeal. I agree with his reasoning and conclusions thereon. I have nothing else to add.
I also agree with the consequential orders made thereon.

Appearances

O.A. Obianwu; SAN with Chudi Agor; Esq and U.K. Anyanwu; Esq.For Appellant

AND

C.A.O Metu; Esq.For Respondent