ENAWAKPONMWHEM AIGBOBAHI & ORS V. CHIEF EDOKPAYI AIFUWA-2006

ENAWAKPONMWHEM AIGBOBAHI & ORS V. CHIEF EDOKPAYI AIFUWA

(2006) LCN/3301(SC)

In the Supreme Court of Nigeria

Friday, February  3, 2006


Case Number:SC. 194/2001

 

JUSTICES:

SALIHU MODIBBO ALFA BELGORE, CHIEF JUSTICE NIGERIA

UMARU ATU KALGO, JUSTICE, SUPREME COURT

GEORGE ADESOLA OGUNTADE, JUSTICE, SUPREME COURT

MAHMUD MOHAMMED JUSTICE, SUPREME COURT

IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT

APPELLANTS

1. ENAWAKPONMWHEM AIGBOBAHI

2. AIGBOGUN OMONOYAN

3. ENOGHABUN EKHORAGBON

4. OSAZUWA OMONOYAN(For themselves and on behalf of Ikhuenbo Village)

AND

RESPONDENTS

1. CHIEF EDOKPAYI AIFUWA

2. OMONUWA EREBOR

3. EVBARUESE UWUMONSE

4. IGBINOVIA AIYUDUBIE

5. OKHUOROBO OSABUOHIEN(For themselves and on behalf of Iguomo village)

 

W.S. N. ONNOGHEN, JSC Delivering the Judgement by the Court: This is an appeal against the judgment of the Court of Appeal, Benin Division, in appeal No. CA/B/115/99 delivered on 14th December, 2000 in which it dismissed the appeal of the present appellants against the judgment of Edo State High Court holden at Abudu in suit No. HAB/11/87 delivered on 3rd October, 1997 in which it granted the reliefs claimed by the plaintiffs/ respondents. The claims of the respondents as plaintiffs at the High Court are as follow:

“(a) A declaration that in accordance with Bini Customary Law and tradition, the plaintiffs, the people of Iguomo village in Uhunmwode Local Governmanet Area of Edo State are persons vested with all existing right to the use and occupation of all that piece or parcel of land lying being and situated at Iguomo village, in Uhunmwode Local Government Area, verged pink in survey plan No. ISO/BD/1358/87 of 14/10/87 filed in this action.

(b) A declaration that the plaintiffs by virtue of their rights, particularly farming rights and occupation over the said land are entitled to the grant of customary rights of occupancy in respect of the said parcel of land verged pink in survey plan No. ISO/BD/1358/87 of 14/10/87 filed in this action, the said land not being in an urban area.

(c) An order of perpetual injunction restraining the defendants whether by themselves, their servants, agents and or any person claiming through or under them or whosoever from entering or remaining upon the said piece or parcel of land in purported exercise of any right in relation to the possession, use the occupation of the land or any part thereof in delegation of the plaintiffs’ right or interest as vested from time immemorial.”

On the other hand and by way of counter claim, the defendants now appellants, claimed against the respondents in the following terms:- “(a) That from time immemorial and prior to the Land Use Act, the plaintiffs have been the customary owners of ALL that area as shown in the dispute Survey plan verged pink in survey plan No. OSA/1952/89 filed with the statement of defence.

(b) That notwithstanding the change in the radical title to land by reason of the Land Use Act, the plaintiffs’ vested rights, interests and/or customary rights of use and occupation over the area in dispute remain in force and effective.

(c) An order for forfeiture of the defendants’ right over the entire land, in that the defendants being customary tenants, now claim title or ownership of the land against the plaintiffs (their overlords) and/or for failure to pay their usual or annual tributes or homage as customary tenants of the plaintiffs.

(d) An order of perpetual injunction restraining the defendants, their agents, servants or privies from further asserting their rights of ownership over the land in dispute or howsoever doing or continuing to do anything inconsistent with the vested rights of the plaintiffs over the area in dispute.”

From the reliefs reproduced supra it is very clear that the claims of the parties to ownership of the land in dispute are based on traditional history as given effect to by relevant customary law. The case of the respondent who are natives of Iguomo village is that they have been the original owners in possession of a large piece or parcel of land including the portion now in dispute between the parties, from time immemorial which land is situated and lying at Iguomo village and founded by one Imadegue who deforested and settled therein; that the Iguomo village was originally known as Imadequen but was later changed to Iguomo by Oba Ozolua when he visited the village and met only women due to the fact that the male members of the community had committed suicide before his arrival; that they had since exercised acts of ownership over the entire land by letting out portions thereof to people including members of the appellants’ community; that appellants later started to commit acts of trespass on the land resulting in the institution of the action.

On the other hand, the appellants who are from Ikhuenbo village, claim that Iguomo village was a settlement made up of Oba of Benin palace servants and slaves, which was established by one Chief Ehenegha; the Chief Priest and clan head of the appellant’s community, during the reign of Oba Eresoyan; that it was the said Oba Eresoyan who sent the respondents’ ancestors as palace servants and or slaves to the said Chief Priest Ehenegha to help the latter in farming and other chores; that respondents’ ancestors and the present respondents paid traditional homage to the appellants’ but later stopped. It is important to note that though respondents claimed and testified to the existence of a boundary between the parties and other neighbouring communities, the appellants insist that there is no boundary between them because respondents live and occupy land belonging to the appellants. As stated earlier in this judgment, the trial judge preferred the traditional history of the respondents to that of the appellants and decided the case against the appellants who thereafter appealed to the Court of Appeal which dismissed their appeal resulting in this further appeal. Learned senior counsel for the appellants filed five grounds of appeal against the judgment of the Court of Appeal at pages 402-404 of the record. However, looking at the Amended Appellant’s Brief of Argument filed on 22/06/05 and relied upon in argument of the appeal on 7/11/05, two issues are formulated for the determination of the appeal. The issues, which are based on grounds 4 and 2 respectively of the grounds of appeal are as follow:-

“(1) Whether the learned justices of the Court of appeal were right in law in striking out grounds 2,4,5 of the appellants’ grounds of appeal before that court.” – the issue is said to have arisen from ground 4.

(2) Whether the learned justices of the Court of Appeal were right in law in failing to consider issue 5 raised in relation to exhibit 7 in appellants’ brief of argument.” The issue is said to have arisen from ground 2.

From the above, it is my view that no issue was formulated from grounds 1,3 and 5 of the grounds of appeal. The law is that in absence of any issue(s) being so formulated from the grounds, the said grounds of appeal are deemed abandoned and liable to be struck out. I, therefore, hold that grounds 1,3 and 5 having been abandoned by the appellants are hereby struck out. The law recognizes five distinct ways in which title to or ownership of land in Nigeria could be proved as stated by the Supreme Court in the case of Idundun V. Okumagba (1976) 9-10 S.C 227; (2001) 6 SCM 186; Vol. 1 ACLC 137. There are:-

(a) By traditional evidence

(b) By production of documents of title duly authenticated and executed.

(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.

(d) By acts of long possession and enjoyment, and,

(e) Proof of possession of connected or adjacent land 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.

In an action for declaration of title to land, as in the instant case, a plaintiff need not prove all the five ways. Where the plaintiff’s case is based on traditional evidence of ownership as the legal basis of his claim, his duty is limited to proving such traditional title and no more.

On the other hand, if a plaintiff’s claim relies on conveyance as the legal basis of ownership, his duty is simply to produce the documents of the title or the title deeds. The same thing applies where he claims through any of the other remaining three ways. Looking at the two issues formulated for determination, it is clear that none of them challenged the concurrent findings of facts of the courts particularly with respect to the traditional history or evidence of the parties. I hold the view that since there is no challenge to the findings, appellants are deemed to have accepted same and are bound by the said findings of facts. That being the case, it is very clear that the evidence of traditional history of the respondents as regards the acquisition and occupation of the land in dispute and the founding of Iguomo village which was accepted by the trial court and confirmed by the Court of Appeal remains unchallenged before this court and therefore taken as established. However, the strength of appellants case seems to reside in issue No. 2 which profers that the respondents were unable to establish the essential ingredients of the relief of declaration of customary or statutory Right of Occupancy; to wit, ascertainment of the boundaries of the land in dispute. Having said these much, I now proceed to consider the two issues for determination.

On issue No. 1, learned counsel for the appellants, A. O. Okeaya – Inneh ESQ in the Appellants’ Amended Brief of Argument filed on 22/6/05 submitted that the learned justices of the Court of Appeal erred in striking out grounds 2, 4 and 5 of the grounds of appeal before that court contrary to the decision of this court in Aderounmu V. Olowu (2000) 4 NWLR (pt. 652) at 265 – 266; that the conclusion of the lower court that the grounds struck out were vague is at variance with the holding that “ grounds 2,3 8 and 9 are grounds of facts while grounds 4 and 5 are at best grounds of mixed law and facts.” Learned counsel then urged the court to resolve the issue in favour of the appellants and remit the appeal to the lower court “ for decision on the substantive appeal.”

On his part, learned counsel for the respondents’, Osaro Eghobamien Esq, in the respondents’ brief filed on 30/9/04, submitted that based on the decision of this court in the case of Aderounmu V. Olowo (2000) 4 NWLR (pt. 652) 253 a ground of appeal that complains of an “error in law” and “misdirection in fact” will be struck out:-

(a) if it fails to show clearly what is complained of as misdirection or as the case may be error of fact;

(b) a ground of appeal will not be struck out simply because it is framed as an error in law and misdirection in fact;

(c) a ground of appeal that is framed as both error of law and error of fact may yet be successfully impugned if the error in law or fact is not clearly shown

It is my view that there is no difference between respondents’ counsel’s principle (a) and (c) as contained in the argument. Both of them state that once the error in law and misdirection in fact complained of in the ground of appeal in issue are clearly shown, the ground of appeal so framed is valid and ought not to be struck out.

In short, the position, in my humble view, is that once it is possible to make sense out of a ground of appeal that complains both of error in law and misdirection in fact, the ground of appeal is valid, the defect in its form notwithstanding. The rationale behind this lies in the shift in emphasis from technical justice to substantial justice – from form to substance. In other words, though a ground of appeal that complains of an error in law and misdirection in fact may be inelegant in drafting and thereby defective in form, that defect alone is not sufficient to have it struck out provided the complains therein are clear – see pages 265 – 266 of Aderounmu V. Olowu supra per Ayoola, JSC.

Turning to the grounds of appeal in issue, learned counsel for the respondents submitted that the Court of Appeal adopted the right test before coming to the conclusion that the grounds of appeal are vague and thereby struck same out. Learned counsel reproduced the grounds of appeal in question and submitted that the grounds failed to satisfy the requirement of precision and clarity thereby leaving the court and respondent in doubt as to what the complaints are; that the fact that the lower court had to formulate issues for determination clearly shows that the grounds of appeal were vague, learned counsel further submitted.

Submitting in the alternative, learned counsel stated that appellants have failed to show that there was miscarriage of justice resulting from the striking out of grounds 2, 4 and 5 and that in the absence of such a miscarriage, any alleged error is insufficient to remit the case to the lower court as contended by learned senior counsel for the appellants; that since the appeal was against the factual findings of the trial court and the lower court formulated two broad issues based on those findings, the striking out of the grounds in question have not occasioned a miscarriage of justice and urged the court to resolve the issue against the appellants. I have to note that learned counsel for the respondents has not addressed the argument of learned counsel for appellants to the effect that a ground of appeal cannot be found to be both vague and at the same time of mixed law and facts. That is the crux of the argument of learned counsel for the appellants in the issue under consideration. The principle to guide the court in deciding whether a ground of appeal is incompetent is as laid down in the case of Aderounmu V. Olowu Supra at pages 265 – 266 which has been cited and relied upon by both counsel in this appeal. In that case, Ayoola, JSC stated the law, inter alia, as follows:

“What is important in a ground of appeal and the test the court should apply is whether or not the impugned grounds show clearly what is complained of as error in law and what is complained of as misdirection or as the case may be, error of fact. The view, with which I am inclined to agree, is expressed in the Court of Appeal. See case of: Nteogwuija & ors V. Ikuru 7 ors (1998) 10 NWLR (pt. 596) 267 at 310, that the mere fact that a ground of appeal is framed as an error and misdirection does not make it incompetent. In my view, only general propositions can be made in a matter in which the question is not as to form ultimately, it is for the court before which the question is raised to decide whether viewed objectively, the ground satisfies the requirements of preciseness and clarity ….. what makes a ground incompetent is not whether it is framed as an error and a misdirection but whether by so stating it, the other side is left in doubt and without adequate information as to what the complaint of the appellants actually is.” Emphasis supplied by me. The Court of Appeal did cite and rely on the principle of law stated supra in Aderounmu’s case in dealing with the issue. However, the court in resolving the issue held at page 421, inter alia, as follows:-

 “I have carefully examined the additional grounds of appeal in accordance with the principles laid down by the Supreme Court in Ogbechie V. Onochie (1986) 2 NWLR (pt. 23) 481 and I have come to the conclusion that grounds 2,3,8, and 9 are grounds of facts while grounds 4 and 5 are at best grounds of mixed law and fact.” By holding supra, the lower court clearly stated that it could and did understand what grounds 2,3,4,5, and 9 and complaining about; and concluded that while grounds 2, 3 and 9 are grounds of facts, grounds 4 and 5 are of mixed law and facts. I hold the view that by so holding, the Court of Appeal meant that there was no ambiguity in the grounds of appeal complained of neither can they be said to be vague or imprecise. If the court had ended there, there would have been no problem. It went on at page 422 to hold thus:

“I find that grounds 2,4, and 5 of the additional grounds of appeal are vague. The preliminary objection partially succeeds and I accordingly strike out grounds 2,4 and 5 as well as issue No. 2 formulated from ground 4.” I agree with the submission of learned counsel for the appellants that the above conclusion of the lower court is at variance with the earlier holding by that court that the affected grounds are of facts and mixed law and facts. I hold the view that the earlier holding could not have been possible if the lower court had found the impugned grounds to be imprecise, vague or ambiguous. I, therefore, hold that the lower court erred in striking out grounds 2, 4 and 5 in the circumstances of this case. Learned counsel for the appellants has submitted that if this court finds and holds that the lower court erred in striking out the grounds of appeal complained of, it should remit the appeal to the lower court “for decision on the substantive appeal,” while counsel for the respondents submitted that for this court to remit the appeal for rehearing, appellants must show that the decision of the lower court has occasioned a miscarriage of justice, which they have failed to do in this case, and that since the lower court formulated two broad issues to encompass the complaints in the impugned grounds of appeal, the appellants were not denied their right to fair hearing. I have gone through the appellants’ brief and the oral submissions of learned counsel for the appellants and have not seen where learned counsel has argued that the error in the lower court striking out the impugned grounds without more resulted in any miscarriage of justice. From a long line of decisions of this court, miscarriage of justice can be said to be such a departure from the rules which permeate all judicial process as to make what happened not in the proper sense of the word judicial procedure at all. What constitutes a miscarriage of justice vary, not only in relation to particular facts, but also with regard to the jurisdiction invoked by the proceedings in question. A finding that a different result necessarily would have been reached in the proceedings affected by the miscarriage is not required before one could reach the conclusion that there has been a miscarriage of justice in the proceedings. It is enough if what is done is not justice according to law see Nnajifor V. Ukonu (1986) 4 NWLR (pt. 36) 505. Adigun V. A-G Oyo State (1987) 1 NWLR (pt. 53) 678; Okonkwo V. Udoh (1997) NWLR (pt. 519) 16.

Can it be said that the erroneous striking out of the impugned grounds of appeal resulted in a miscarriage of justice? I had earlier stated in this judgment that the case was fought and won on the traditional history of the parties as to how they came into ownership and possession of the disputed land. The appeal before the lower court was therefore on the findings of facts made by the trial court in relation, primarily, to the traditional evidence. At page 282, the learned trial judge found as follows:

“On the whole, the plaintiffs have presented a more impressive case of their traditional history which the court finds as being credible, cogent and compelling that sustain a claim of declaration of title to land.” At page 383, the lower court reiterated the fact that the appeal raised mainly factual disputes by stating thus:

“This case was fought on the basis of traditional history” and proceeded, after striking out the impugned grounds of appeal, to formulate two broad issues for the determination of the appeal. The issues are as follow:

“(1) Whether the evidence adduced by the defendants on traditional history is more probable than that of the plaintiffs as to entitle them to judgment on the counter claim.

(2) Whether the trial court adequately considered the evidence adduced and drew the proper inferences and conclusions.”

Having regard to the findings by the lower court that the impugned grounds of appeal are of facts and mixed law and facts and the fact that the case was fought on the basis of traditional history which is a question of facts, I hold the view that the two issues formulated by the lower court and reproduced supra are very wide and enough to and did encompass the complaints in the impugned grounds of appeal, which were in reality variations of the complaints of facts in the grounds of appeal not struck out by the lower court, thereby leading to one issue for determination – which is simply: which evidence of traditional history should the court believe or is more probable. I, therefore, hold the view that no miscarriage of justice has been occasioned by the erroneous striking out of grounds 2, 4 and 5 of the grounds of appeal. As a result, the invitation by learned counsel for the appellants to remit the case to the lower court for “decision on the substantive appeal” is hereby declined for being inappropriate in the circumstances. Issue one is therefore resolved against the appellants.

On issue 2, learned counsel for the appellants submitted that the lower court erred in failing to consider issue 5 in relation to exhibit 7 particularly as it is the law that a court must decide issues put properly before it, relying on Tunbi V. Opewole (2000) I.S.C. 1 at 8; Osandu V. Soleh Boneh (2000) 5 NWLR (pt. 656 322 at 357 – 352. Learned counsel further submitted that by failing to consider the said issue No. 5, the lower court abdicated its constitutional duty and disregarded the rules of practice and procedure, and urged this court to invoke its powers under section 22 of the Supreme Court Act and decide the issue on the evidence on record. Learned counsel stated that the purport of exhibit 7 was to get the police to maintain law and order in the area in dispute so as to enable the Surveyor – General to properly ascertain the boundaries. That this piece of evidence shows that the parties themselves were not certain as to the exact point of the boundary between them.

That for a party to have a declaration of title, he must, amongst other, be certain as to the exact area being claimed, relying on Emiri V. Imiyeh (1999) 4S.C. (pt.1) at 13; Bello V. Fayose (1999) 7S.C (pt. 11) 6 at 9. Learned counsel then submitted that the lower court erred in failing to appreciate the purport of exhibit 7 and in doing so affirmed the error of the trial court in granting a declaration to the respondents when they failed to establish their boundary, and urged the court to resolve the issue in favour of the appellants and allow the appeal. On his part, learned counsel for the respondents submitted, firstly by way of preliminary objection that the issue cannot be canvassed in this court without a ground of appeal challenging the issues as formulated by the lower court; that the issue as formulated being wide enough to include issue No. 5 and the appellants not haven complained against the formulation are estopped from contending that a particular issue was not considered.

Learned counsel however concedes that by ground 7 of the grounds of appeal, appellants raised a complaint that the lower court failed to consider exhibit 7 but that the complaint is different from the one to the effect that the court did not adequately cover all the issues. Secondly, taking the issue on the merit, learned counsel submitted that appellants’ issue No. 5 was considered by the lower court particularly as the issues formulated by that court included the said issue No. 5 as can be seen at page 422 of the record; that failure by the lower court to mention exhibit 7 is not indicative that the issue of boundary was not considered; that granted that the lower court did not consider the issue, which respondents’ counsel did not concede, the non consideration has not led to any miscarriage of justice, learned counsel further submitted and urged the court to resolve the issue against the appellants and dismiss the appeal.

On the preliminary objection, I hold the view that it is misconceived, having regard to ground 2 of the grounds of appeal to be found at pages 402 and 403 of the record. Ground 2 states thus:- “2. The learned justices of the Court of Appeal erred in law in failing to consider and/or consider adequately and determine Ground 7 and the issue raised thereon in relation to exhibit 7 in the Appellants’ Brief of Argument having held in the lead judgment as follows:- “I hold that the remaining grounds 3, 6, 7, 8 and 9 are valid”.

PARTICULARS

(i) Ground 7 of the appellants grounds of appeal was held to be valid by the Court of Appeal.

(ii) The ground was argued in Appellants’ Brief and before the court

(iii) The ground and issue raised therefrom is fundamental in relation to the legal effect, inferences and conclusions to be drawn from exhibit 7 regarding boundaries of the land in the area in dispute between the parties.

(iv) The ground and issue raised therefrom was not considered and/or adequately considered and determined by the Court of Appeal.

(v) In law, an appellate court is enjoined to adequately consider and clearly determine and resolve all matters and crucial issues specifically raised and argued before it.”

From the above, it is clear that appellants are not complaining about the formulation of issues by the lower court – their complaint being simply that the said court did not consider or adequately consider issue No. 5 based on ground 7 dealing with exhibit 7 on boundaries of the land in dispute. I hold the view that the ground and the issue 2 formulated therefrom and being presently under consideration are valid before this court; appellants do not need to question the validity of the issues formulated by the lower court before complaining against the non or adequate consideration of that issue by the lower court. The complaint of the appellants gives rise to the issue as to whether or not the appellants’ issue No. 5 dealing with exhibit 7 on boundaries of the land was considered or adequately considered by the lower court.  If it was, then that is the end of the matter. Counsel must always bear in mind that this is the court of last resort in some appeals in this country and that the attitude of this court has changed from doing technical justice to doing substantial justice. This attitude envisages the possibility of hearing everyone on any complaint so as to enthrone and sustain the rule of law. Parties are therefore encouraged to ventilate their grievances before the courts which are enjoined to do substantial justice in relation thereto without recourse to form or technicalities. This attitude does not, however, give licence to the parties, in the formulation of their cause or grounds of appeal or issues arising therefrom, to present to the court anything that is incapable of any meaningful interpretation or understanding in the name of cause of action, ground of appeal or issue formulated for determination. In the present appeal, I hold the view that the preliminary objection of the respondents’ counsel is misconceived and is consequently discountenanced.

Looking at the merits of the issue; it is very clear from the record that the lower court did consider issue No. 5 raised in appellants’ brief of argument before that court, in its judgment now on appeal. It has earlier on been stated in this judgment that the learned justices of the Court of Appeal formulated two broad issues for determination; issue two of which dealt with evaluation of evidence including the evidence on boundaries by the trial court. At page 422 of the record, the Court of Appeal stated thus:

“A further consideration of the remaining issues reveals that issue No. 1 and 6 are the same while issue No. 5 is the same with issue No. 7. So in essence, it can be said that the appellant formulated two issues for determination and they are as follows:

1. Whether the evidence adduced by the defendant on traditional history is more probable than that of the plaintiffs as to entitle them to judgment on the counter claim.

2. Whether the trial court adequately considered the evidence adduced and drew the proper inferences and conclusions.”

It is not disputed by the parties that the thrust of exhibit 7 and issue No. 5 pertains to the boundaries of the disputed land thereby making it part and parcel of issue No. 2 supra which deals with evaluation of evidence and appropriation of evidencial values by the trial court. I hold the view that the trial court properly evaluated the evidence pertaining to boundaries and came to the right conclusion when it held at page 268 of the record thus:-

“In view of my preceding remarks, I am satisfied that the document exhibit 5 categorically establishes the boundary between Iguomo and Ikhueniro and in this regard, I accept the testimony of the first and sixth plaintiffs’ witnesses that Iguomo community has a common boundary with Ikhueniro as shown in exhibit 1 and I so hold.” I further hold that the lower court is right in confirming the findings of the trial court supra by holding at page 431 inter alia, “That it cannot therefore be said as Appellant’s counsel has argued that the respondents as plaintiffs could only establish mere acts of possession or user of land which was based on undefined traditional boundaries.” It has to be noted that what an appellate court considers in its decision are the issues formulated for determination not the ground or grounds of appeal or every question that arises from the ground(s) of appeal – see Ibori V. Agbi (2004) 6 NWLR (pt. 868) 78 (pt. 111); (2004) 3 SCM 1 It is trite law that a party seeking a declaration of title to land must show with certainty the land to which his claim relates, failing which his claim must fail. Apart from the above holdings, I am of the firm view that exhibit 7 is of no moment in the determination of the issue as to whether the respondents established with certainty the area of land in relation to which they sought declaration of title. The fact that exhibit 7 seems to suggest that the exact point of the boundary between the parties was not certain as seen by the Oba of Benin, the author of that exhibit, does not mean that the parties to the dispute do not have exact points they claim as constituting their boundaries. These points are shown in the respective survey plans filed along with the statements of claim and defence respectively. It is the features on these survey plans and the testimonies by the witnesses that the court evaluates before deciding the matter one way or the other.

Even before the Oba of Benin, the fact that there was a dispute as to ownership of the land in dispute leading to the Oba appointing the Surveyor – General to carry out a survey of the land and determine the boundary does not mean that each party to that dispute did not state where their boundary was. The only issue to be determined where there is such a dispute as to boundary is whose version of the boundary is more probable. In the present case, there is abundant evidence from which the trial court determined the issue of boundary between the parties not withstanding exhibit 7. The first witness to the plaintiff, one Francis Useghese Iyawe at page 83 of the record stated as follows:-

“The boundaries line to the house is defined by an ancient footpath which the plaintiff called Iro. The northern boundary is further determined by two prominent juju shrine …. The two prominent shrines are on the right hand side of the Iro on the way to Benin City. The footpath, i.e. Iro forms the boundary between Ikhuenebo and Iguomo. To the east, the boundary is defined by old Benin/Asaba Road which consitute the boundary between Ikhueniro and Iguo

COUNSELS

K.S. Okeaya-Inneh S.A.N. (A.O. Okeaya-Inneh with him) for the appellants.

A.O. Egbobamien (Jnr.), for the respondents.

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