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FELIX OBIDILE & ANOR v. CHIEF GABRIEL AKAJIOFOR & ORS (2019)

FELIX OBIDILE & ANOR v. CHIEF GABRIEL AKAJIOFOR & ORS

(2019)LCN/13719(CA)

In The Court of Appeal of Nigeria

On Monday, the 29th day of July, 2019

CA/E/320/2009

 

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

1. FELIX OBIDILE
2. ISAAC NNEBEDUM
(For themselves and on behalf of Umuduru in Umuabu village Ihembosi) Appellant(s)

AND

1. CHIEF GABRIEL AKAJIOFOR
2. MICHEAL ONWUZULIGBO
3. SIMEON MBANUGBO
4. LIVINUS EZEOKE
5. DANIEL EWUZIE
(For themselves and on behalf of Umudulor and Umuenenchi families in Umualor village, Ihembosi) Respondent(s)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

On the first issue as to whether the judgment of the Court below was void as a result of the incompetent originating process, the law is trite that jurisdiction is the life wire of any adjudicatory process and that any decision of a Court without the requisite jurisdiction to entertain same is liable to be set aside no matter how well decided. It is trite that once an initiating process is not signed or authenticated either by the litigating party, or the legal Practitioner on his behalf, then the process is invalid and the jurisdiction of the Court is ousted. PER UMAR, J.C.A.

WHETHER OR NOT IT IS THE PRIMARY DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE OF WITNESSES AND ASCRIBE PROBATVE VALUE TO IT

It is trite that evaluation of evidence and ascription of probative value is the primary function of the trial Court. The trial Court has pre-eminence in this area as he sees, hears and watches the demeanour of the witnesses and so is in a better position to believe or disbelieve the witnesses. MOMOH V UMORU (2011) 15 NWLR (PT 1270) SC 217; AGBI V OGBE (2006) 11 NWLR (PT. 990) 65 @ 115 C-E. Generally, an Appellate Court will not disturb the findings of fact made by the trial Court which had the opportunity of hearing and observing the demeanour of the witnesses except where the trial Court failed to properly evaluate the evidence or to make proper use of the opportunity of seeing and watching the demeanour of the witnesses and the findings of the Court are perverse that the appellate Court can intervene. In MAFIMISEBI V EHUWA (2007) ALL FWLR (PT. 355) P562 @ 605G ONNOGHEN, JSC (as he then was) held thus:
“It is settled law that the evaluation of evidence and the ascription of probative value thereto reside within the province of the trial Court that saw, heard and assessed the witnesses and that where a trial Court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the appellate Court to substitute its own views for the view of the trial Court but the Court can intervene, where there is insufficient evidence to sustain the judgment, or where the trial Court fails to make proper use of opportunity of seeing, hearing and observing the witnesses or where the findings of fact of trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the Court. PER UMAR, J.C.A.

THE BURDEN OF PLEADING TRADITIONAL HISTORY IN A CLAIM FOR DECLARATION OF TITLE TO LAND

The law has also since been settled that in a claim for declaration of title to land based on inheritance from ancestors, the party seeking the relief must plead the names or the histories of the several progenitors or the founders of the land. In the pleading traditional history, the party is expected to narrate the genealogical tree from original owner, the ancestors, in generations appurtenant to him, down the line to him. In other words, a party relying on evidence of traditional history must plead his root of title. Not only that, he must show in his pleadings who those ancestors of his were, and how they came to own and possess the land and eventually pass it to him, otherwise his claim will fail. Also, where a person traces the root of his title to a person or family, he must establish how that person or family also came to have title vested in him or it.
This Court Per MBABA, J.C.A in OKORIEOCHA & ANOR v. EMERENI & ORS (2016) LPELR-40043(CA) held thus:
.. for a party claiming title to land on traditional evidence, he has to prove how the land was founded, the original founder and the successive persons through whom title devolved, right down to the plaintiffs, and the chain of ownership must not be broken, as failure to trace the linking chain of person on whom the title devolved, right down to the plaintiff, can be fatal. PER UMAR, J.C.A.

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Anambra State High Court, Nnewi Judicial Division, delivered by E.A Nzegwu J. (retired) on the 31st of March, 2009

BRIEF FACTS OF THE CASE
The Respondents herein as the Plaintiffs instituted the action against the Appellants as defendants and by a 2nd further amended statement of claim sought reliefs as follows:
a. ?A declaration of title to the piece and parcel of land otherwise verged pink in the plaintiffs plan No. MEC/245/84 situates at Uhualor Village in Ihembosi the annual value of N20.00.
b. N1, 000.00 damages for trespass on the land.
c. Perpetual injunction to restrain the defendants, their servants, agents or privies from further acts of trespass on the said land.?

The Respondents? case is that Ihembosi the founder of Ihembosi town had eight sons which make up the eight distinct villages in Ihembosi town. The eight villages included Uhualor and Umuabu villages. These two villages are not only distinct and separate but are far apart from each other. The Uhualor had four sons and the four sons

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make up the four families in Uhualor village. The four families in their order of seniority are Ezeneke, Mpaji, Umuenenchi and Umudalor make up Uhualor-Mbana where the land in dispute is situate. One of the members of the Respondents family namely; Ukachukwu Onwunalugha lived and died of leprosy on the portion of the land in dispute whereof the members of the Appellant?s family were invited by the Respondents to cleans the portion where late Ukachukwu Onwunalugha lived and by custom to cultivate the portion for seven years.

The Respondents/Plaintiffs claimed that Appellants used these seven years grace as springboard to lay claim over the Appellant?s large expanse of land. The Appellants in October 1976 broke into the land in dispute, surveyed it and fixed beacons thereon and in the process destroyed some economic trees belonging to the respondents.
?
The Appellant?s case is that they inherited the land in dispute from their ancestor called ?Durunweke? who was given the land in dispute by the family. They said the land is one undivided piece or stretch of land called Ubi Durunweke or Ubieke which they inherited from

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their ancestors and over which they have been exercising different types of acts of ownership and possession. Trial in the matter lasted for over decades. At the end of trial, the trial judge Honorable Justice E.A Nzegwu delivered judgment granting declaration of title in favor of the Respondents/Claimants with damages for trespass as well as injunction against the Appellants over the disputed piece of land.

The Appellants dissatisfied with the said judgment invoked the appellate jurisdiction of this Honourable Court vide an original Notice of Appeal dated 22/6/2009 and filed on the same date. The original notice of appeal contained five grounds of appeal. The said Notice of Appeal was subsequently amended by an Amended Notice of Appeal dated 19/6/2018 and filed on 3/7/2018 this time containing 10 grounds of appeal.

In line with the rules of this Honourable Court, parties filed and exchanged their respective briefs of arguments. The Appellants? brief of argument undated was filed on 19/6/2018 but deemed properly filed and served on 30/10/2018. A Reply brief dated the 24/9/2018 and filed on the same date but also deemed properly filed and served

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on 30/10/2018. The said briefs were settled by OLISA EDE, ESQ. The Respondents? brief of argument dated 6/8/2018 was filed on 2/11/2017 but deemed properly filed and served on 09/8/2018. It was deemed properly filed and served on 30/10/2018. The said brief was settled by F.A. OGBULI (MRS).

The Appeal was taken on the 23/5/2019 wherein counsel to the parties adopted their respective briefs and made oral adumbration in respect of their various postures and contentions in the appeal.

Learned counsel to the Appellants in his brief distilled six(6) issues for the determination of this appeal to wit:
1. ?Whether the respondents proved title to the land in dispute
2. Whether the plaintiffs/respondents proved a better title to the land in dispute than that of the appellants in order to entitle them to succeed in a claim of trespass against the defendants/appellant.
3. Whether the trial Court considered all the issues raised by the appellants in this case.
4. Whether the trial Court properly evaluated the evidence raised by the appellants in this case.
5. Whether the judgment is not against the weight of evidence

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considering the totality of the evidence before the trial Court.
6. Having regard to Section 2 and 24 of the Legal Practitioners Act LFN 2004, whether there was a valid claim and valid 3rd further or further amended statement of claim and in the circumstances whether the judgment of the Court of 31st March 2009 is not null and void for lack of jurisdiction of the court to entertain the suit.?

The Respondents? counsel on the other hand distilled three issues for determination to wit:
1. ?Whether the trial Court was right when it held that the respondents proved title or better title than the appellants to the land in dispute and consequently granted all the reliefs claimed by the respondents.
2. Whether the trial Court properly evaluated the evidence as presented by both parties and ascribed probative value to it.
3. Whether the judgment of the trial Court is null and void for lack of jurisdiction of the Court to entertain the suit.?
?
In this appeal, after due consideration of all the issues submitted by counsel to the parties, I am of the opinion that the meat of the Appellant?s complaint can be

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crystalized and effectively treated under the below stated issues to wit:
1. ?Whether the judgment of the trial Court is null and void for lack of jurisdiction of the Court to entertain the suit?
2. Whether the trial Court was right when it held that the respondents proved title or better title than the appellants to the land in dispute and consequently granted all the reliefs claimed by the respondents

APPELLANT?S ARGUMENT:
It is the contention of learned counsel for the Appellants that the further further amended statement of claim at page 9 of the record of appeal dated 7/2/1998 upon which evidence was led and judgment of the Court based upon was not signed by C.O. Aanh Esq. He submitted that the effect of this is that the lower Court had no jurisdiction to entertain the suit in the first place. He referred to SECTION 2 AND 24 OF THE LEGAL PRACTITIONERS ACT LFN 2004; SLB CONSORTIUM LTD. N.N.P.C (2011) 9 NWLR (PT. 1252) 317. For this reason, he submitted that the proper order is for this Honourable Court to strike out the suit for lack of jurisdiction as there was no valid claim before the Court below.

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On the other issues which largely deals with evaluation of evidence, learned Counsel for the Appellants submitted that the trial Court chiefly relied on evidence of some alleged acts of ownership and long possession by the Respondents on the land in dispute and presumption under Section 46 of the Evidence Act to hold that the respondents have made out a prima facie case that the land in dispute belongs to them. He contended that where a party relies on traditional history in addition to acts of ownership and long possession predicated on the traditional history as pleaded, he is not entitled to declaration based on the evidence of acts of ownership and long possession where the evidence of traditional history is unavailing. He cited: EZUKWU VS UKACHUKWU (2005) FWLR (PT 250) 43 AT 64. NWOKIDU IREJU VS OKANU (2010) 26 WRN 23 60 (35-40) PER ADEKEYE JSC AND OLUBODUN VS LAWAL (2008) 51 WRN 1 AT 46 (15-20).

Counsel further submitted that the Respondents? alleged acts of ownership on the land in dispute were not proved. He argued that the Respondent claimed they farmed the land in dispute but have no single farm of their on the land as shown in Exhibit

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?A?(Survey plan). He submitted that the Respondents did not call any of their alleged tenants to testify to this important fact. They said they built numerous houses on the land but the PW1 admitted under cross examination that they have no single house on the land in dispute. Counsel submitted that whereas in presence case two different families jointly file an action in which they seek for declaration of title to a land in dispute, they cannot successfully rely on the presumption under Section 46 of Evidence Act for the declaration sought except the two families jointly own another piece of land which is different from the land in dispute but connected or adjacent to it. He cited the case ofUGOJI VS ONUKOGU (2006) 15 WRN 1 AT 18 TP 19.

Counsel submitted that the trial Court failed to consider some vital issues raised by the Appellants in defence. First; in their bid to prove they are the owners of the land in dispute, the Respondents who admitted that the Appellants have been farming the land in dispute contended they brought the Appellants family into the land to clear the land and cultivate for seven years on the alleged compound of one

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Ukachukwu Onwunalugha whom they claimed died a leper. Counsel submitted that the Appellants denied this averment and went on to bring out issue of inconsistency in the evidence of the Respondents with regards to whether any such event ever took place. Counsel submitted that the Appellants have always maintained that the land in dispute is their own and that when they were surveying the land, some members of the Respondents families provided Kola for them and commended them for carrying out the survey of the land. He contended that the Respondents did not challenge or contradict this piece of evidence.

Counsel submitted that the trial Court failed to properly evaluate the evidence proffered before the Court and this occasioned miscarriage of justice against the Appellant. Corollary to this issue learned Counsel submitted that the Court overlooked the Respondents? inability to prove their alleged acts of ownership and possession. It is also contended that the trial Court deliberately refrained from examining the evidence that Umudalor and Umuenenchi families do not own land in common but have separate portions which only have common boundary with the

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land in issue. He urged the Court to resolve this issue in the negative.

RESPONDENT?S ARGUMENT
On the issue of the validity of the originating process before the Court below, leaned counsel for the Respondents submitted that throughout the trial, the Appellants never raised the issue of the incompetence of the processes filed by the Respondents therefore the Appellants are precluded from raising such for the first time in this appeal. She referred to HERITAGE BANK LTD. V BENTWORTH FIN. (NIG.) LTD. (2018) 9 NWLR (PT. 1625) 420.

On whether the Court below was right in granting the reliefs of the Respondents, counsel submitted that the Respondents relied on traditional history, acts of possession and ownership of land in dispute and acts of ownership of possession of adjacent lands in proving ownership to the land in dispute before the Court below. He submitted that the cases of NWOKIDU IREJI VS OKANU AND OLUBODUN VS LAWAL cited by the Appellants do not support the argument of the Appellants as those cases also propounded that where traditional history is inconclusive, the court can also decide the case on numerous and positive acts of

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possession and ownership. Counsel further submitted that the trial Court was right to have proceeded to consider the acts of possession and ownership of the Respondents and also rightly invoked the presumption under Section 46 of the Evidence Act 2004 in granting the claim of the respondents. She submitted that the Respondents pleaded and led evidence that the houses and other lands of the Respondents not in dispute surround the land in dispute. It is the contention of counsel that the Appellants also agreed and admitted in both their pleadings and evidence of PW2 that the Respondents live around the land in dispute. Learned Counsel submitted that the Respondents fulfilled all the conditions as stated in IDUNDUN V OKUMAGBA (1976) 9-10 SC; for granting a declaratory relief.

The Appellants? counsel committed pages 1 to 6 of his Reply brief to address the submissions and arguments of counsel to the Respondents on the jurisdiction of the Court below to entertain and decide a suit on an incompetent statement of claim.

RESOLUTION:
On the first issue as to whether the judgment of the Court below was void as a result of the incompetent

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originating process, the law is trite that jurisdiction is the life wire of any adjudicatory process and that any decision of a Court without the requisite jurisdiction to entertain same is liable to be set aside no matter how well decided. It is trite that once an initiating process is not signed or authenticated either by the litigating party, or the legal Practitioner on his behalf, then the process is invalid and the jurisdiction of the Court is ousted. I have examined the process vehemently challenged by the Appellants and it crystal clear that same was not signed by C.O. Anah Esq. However, the facts and circumstances of this matter is quite different from the cases canvassed by learned counsel for the Appellants. From my observation, the said process as contained in page 7 ? 9 of the record was dated 7th March, 1998 and filed on the 17th March, 1998. It is instructive to state that the Legal Practitioners Act mandating a legal practitioner to sign and affix his seal to any Court process prepared by him was enacted in the year 2004, hence cited as the Legal Practitioners Act LFN 2004. I am of the opinion that this Act of the National Assembly does

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not have a retrospective effect. The unsigned process in contention cannot therefore be caught by the provisions of Section 2 and 24 of the Legal Practitioners Act LFN 2004 or the copious decisions of the Supreme Court as canvassed by the Appellants. See HERITAGE BANK LTD. V BENTWORTH FIN. (NIG.) LTD. (2018) 9 NWLR (PT. 1625) 420. On the strength of the above, this issue is resolved against the Appellants and in favour of the Respondents.

I shall therefore consider whether the trial Court was right when it held that the Respondents better title than the Appellants to the land in dispute and consequently granted all the reliefs claimed by the Respondents. Over the years, the law has crystalized in this jurisdiction that title to land may be proved by 5 main methods as laid out in the case of IDUNDUN & ORS V. OKUMAGBA (1976) LPELR-1431 (SC). It is also important to state that all the five methods as stated by the Apex Court in its decision (supra) need not be established jointly before proof of the said ownership can be said to have been established as only one of the methods is sufficient if the party seeking the declaratory relief leads cogent,

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satisfactory and conclusive evidence.

The law has also since been settled that in a claim for declaration of title to land based on inheritance from ancestors, the party seeking the relief must plead the names or the histories of the several progenitors or the founders of the land. In the pleading traditional history, the party is expected to narrate the genealogical tree from original owner, the ancestors, in generations appurtenant to him, down the line to him. In other words, a party relying on evidence of traditional history must plead his root of title. Not only that, he must show in his pleadings who those ancestors of his were, and how they came to own and possess the land and eventually pass it to him, otherwise his claim will fail. Also, where a person traces the root of his title to a person or family, he must establish how that person or family also came to have title vested in him or it.
This Court Per MBABA, J.C.A in OKORIEOCHA & ANOR v. EMERENI & ORS (2016) LPELR-40043(CA) held thus:
.. for a party claiming title to land on traditional evidence, he has to prove how the land was founded, the original founder

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and the successive persons through whom title devolved, right down to the plaintiffs, and the chain of ownership must not be broken, as failure to trace the linking chain of person on whom the title devolved, right down to the plaintiff, can be fatal.?

During trial at the Court below, PW1 gave a whole account history of the land as shown on page 52 of the record which also reflected in the judgment. I wish to reproduce part of his testimony for emphasis:
?As owners of the land, the members of Umudalo family granted a portion of the land to one Mr. Ukachukwu Onwunalugha to set up a living house. As Onwunalugha was living on the land granted to him, he felt sick of leprosy and leprosy was a dreadful diseases in those days, and he died of leprosy. Because of dreadful nature of that disease, people were afraid to enter his compound and it grew into a thick bush lasting up o 16 years. We invited Umuduru family who were not afraid to enter such bush because they are native doctors. The Umudunu family we invited are the defendants in this suit. We invited them into the land to come and clear the bush in Onwunalugha?s compound and we

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agreed with to clear it and cultivate for it for 7 years and leave the land for us but at the expiration of the 7 years, they asked for extension but we refused.
Conversely, DW2 while given evidence stated on record as thus:
?This land in dispute is part of the share of Uhualo and Umuabu. Uhualo and Umuabu were farming on their share of the land and when a person comes of age he is shown a portion where he could up his own building and farm thereon. The Umualo and Umuabu do not own land in common now. The result of the system whereby one is given a portion of land to build and farm on is that at the death of the person to whom the grant was made, his children will inherit the portion granted to their father. As a result of this system, one can own land either at uhualo or Umuabu, depending on where the person was granted land.”

On the issue of the founder of the land, it is averred in paragraph 4 to 6 of the further amended statement of claim as follows:
?Uhualor is a village in Ihembosi town and is made of four failies, namely; Ezeneke, Mpaji, Umuenenchi and Umudalor in their order of seniority. Uhualor the founder of

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Uhualor village had four sons again in their order seniority namely; Ezeneke, Mpaji, Enenchi and Dalo.
Ezeneke and mpaji make up Uhualor-Ngo wile Umuenenchi and umudalor make up Uhualor-Mbana. The land in dispute aforesaid is situated at Uhualor Mbana.
The four children of Uhualor shared their father?s property each getting a share of his father?s land including Dalo and Enenchi.”

According to the Defendant/Appellants in their pleading at paragraph 9;
?The land in dispute is the defendants land and has been so from time immemorial. It is a portion of land given to the ancestor of the defendants by name Duru Nweke and from whom the family of the descendants derives its name of Umudurunweke.”
This Court in YUSUF & ORS VS. AKANDE AND ORS (2011) LPELR – 5114 (CA) held thus:
“A plaintiff who claims a declaration of title to land has the duty to prove his title by credible evidence, notwithstanding any weakness in the defence, unless the case of the defendant actually supports the plaintiff’s claim. See the cases Akinduro vs. Alaya (2007) 15 NWLR (Pt.1057) 312; Odunze vs. Nwosu (2007) 13 NWLR (Pt.1050) 1;

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Ogunjemila vs Ajibade (2010) 11 NWLR (Pt.1205) 559 at 581; Balogun vs. Yusuf (2010) 9 NWLR (pt. 1200) 515.”Appellant had tried to point out what they claimed to be contradictions in the evidence of the Respondents as to traditional history presented by the Defendants (Respondents); that they said Elem, their ancestor deforested the land in dispute, but later, under cross examination, said it was Chieze. Such weakness even, if established, cannot accrue to the benefit of the Appellants, who had a duty to establish their claim of title, via traditional history, by credible evidence. The Respondents did not counter-claim in this case and so they had no burden to establish their claim, in the circumstances, to enhance the claim/case of the Appellants. See Eyo vs Onuoha (2011) 3-4 MJSC 46 at 71; Agboola vs. UBA & 2 Ors (2011) 2-3 MJSC (Pt.11) 150 at 179. In Obiazikwor vs. Obiazikwor (2007) 27 WRN 106 at 132, it was held: “Contradictions in the evidence of a defendant, who by the pleadings has not the initial burden to prove his case, can only be material in the determination of the case, if the plaintiff has, in the first place, proved his case. Where a

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plaintiff has not proved his case, contradictions in the evidence of the defendant will not avail or help the Plaintiff in sustaining his claim.” (Per Abba Aji, JCA). See also Hamza vs Kure (2010) NWLR Pt (1203) 650.” Per MBABA, J.C.A. (Pp. 30-33, Paras. E-A)?

The grouse of the Appellants issues are merely centered on the evaluation of the evidence placed before the Court below. It is trite that evaluation of evidence and ascription of probative value is the primary function of the trial Court. The trial Court has pre-eminence in this area as he sees, hears and watches the demeanour of the witnesses and so is in a better position to believe or disbelieve the witnesses. MOMOH V UMORU (2011) 15 NWLR (PT 1270) SC 217; AGBI V OGBE (2006) 11 NWLR (PT. 990) 65 @ 115 C-E. Generally, an Appellate Court will not disturb the findings of fact made by the trial Court which had the opportunity of hearing and observing the demeanour of the witnesses except where the trial Court failed to properly evaluate the evidence or to make proper use of the opportunity of seeing and watching the demeanour of the witnesses and the findings of the Court are perverse that the

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appellate Court can intervene. In MAFIMISEBI V EHUWA (2007) ALL FWLR (PT. 355) P562 @ 605G ONNOGHEN, JSC (as he then was) held thus:
“It is settled law that the evaluation of evidence and the ascription of probative value thereto reside within the province of the trial Court that saw, heard and assessed the witnesses and that where a trial Court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the appellate Court to substitute its own views for the view of the trial Court but the Court can intervene, where there is insufficient evidence to sustain the judgment, or where the trial Court fails to make proper use of opportunity of seeing, hearing and observing the witnesses or where the findings of fact of trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the Court.?

In this regard, the question therefore is whether (1)

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there was insufficient evidence to sustain the judgment of the lower Court or (2) whether the trial Court failed to make proper use of the opportunity of seeing, hearing and observing the witnesses or (3) whether the finding of fact of the trial Court cannot be regarded as resulting from the evidence or (4) whether the trial Court drew wrong conclusions from accepted evidence or has taken erroneous view of the evidence adduced before it or (5) whether its findings are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the Court.

I have carefully considered this claim of the Appellants. It raises serious concern that Appellants could not establish their family linkage to their acclaimed Ancestor; Durunweke. It is not enough to propound an ancestral progenitor; a party who relies on traditional history of ownership of land must lead evidence pointing to the fact that they possess common origin traceable to their Ancestor who founded the land in dispute. A shallow claim to a patrimony cannot be relied upon in matters of succession of which the Court is expected to find in favor of such Claimants.<br< p=””

</br<

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The Appellants contended that the last person that lived on the land was one ?Nnoli Anyile? who died in 1927 but did not state who his offspring was and how he relates to the Appellants. The Appellants had a duty to prove their chain of history from their Ancestor whom they claimed founded the land which devolved on them.
Thus; from the forgoing, I intend to concur wholly with the trial Court that both parties gave inconsistent accounts or had difficulty given accurate genealogical history of their ancestors. In the circumstance, this Court could look at other available ways of proving title as stem from the evidence led by the parties. The most appropriate consideration from the evidence led in this case is to determine who has the surrounding or adjoining lands or properties to the land under contention. This is another acceptable means of establishing ownership to the land where evidence led points to those facts.
DW1 in his testimony gave evidence that he knew some persons from Uhualor and Umuenenchi family who own land in Umuabu. According to the witness, such persons inherited those lands from their forefathers. DW1 admitted that

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Umuabu village is a distinct village from Umualor village but denied that the plaintiffs live around the land in dispute in their own village in Uhualo which evidence contradicts Exhibit ?A? and ?C? (plaintiff and defendant?s survey plans).
It is interesting to know that these plans obviously demonstrate that the Respondent?s houses and lands surround the land in dispute as found by the trial Court. This fact was not debunked in cross examination. It is also the evidence of PW1 that the Respondents, as the owners of the land in dispute from time immemorial have exercised rights of ownership over the land without let or hindrance from neither the Defendants/Appellants nor any other claimants. As the trial Court rightly found, such acts of ownership including farming, planting and reaping the fruits of the economic trees are strong evidence of acts of possession and ownership that inure in Respondents favor.
?The Supreme Court had laid down the principle which this Court has followed in several cases that; where a land in dispute is contiguous to the undisputed property of a party, that will give rise to the

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invocation of the presumption of ownership of adjacent land under Section 46 of the Evidence Act. The method of establishing ownership to land by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected land would in addition be the owner of the land in dispute is the last of the five methods of proving ownership to land as set out in the IDUNDUN VS OKUMAGBA (supra).
Thus; 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 ranks as a means of proving ownership of the land in dispute.
?The law is trite that for the provisions of Section 45 of the Evidence Act to apply, there must be an admission by the Appellants, or a finding by the trial Judge, that the land in dispute was surrounded by other lands belonging to the Respondents. Not only was this fact not disproved by the Appellants, there was also an admission to that effect on the part of the Appellant as can be seen from the Survey plans that the Respondent?s houses littered around the

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land in question.
Furthermore, as the learned trial Judge could observe, and did make findings on this crucial point, the inference under Section 45 of the Evidence Act that the Appellants were not the owners of the disputed land was properly drawn.
Indeed, the Appellants in their pleadings before the Court below plead the names and history of his several ancestors and; they did not establish by evidence the names and histories of their family tree and how they got to the land whether by conquest or by traditional grant by a progenitor. This, they had to do to assert right of ownership over the land which would supplant the Respondent?s claim of acts of possession. IDUNDUN V. OKUMAGBA (supra).
In the sum total, it is my considered view that the Appellants failed to establish better title to the land in dispute than the Respondents. In consequence therefore, this appeal appears unmeritorious. It is hereby accordingly dismissed. The judgment of the lower Court, per E.A Nzegwu J. delivered on 31/3/2009 in suit No. HN/38/76 is hereby affirmed. Parties shall bear their respective costs.

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IGNATIUS IGWE AGUBE, J.C.A.: I have read the illuminating and erudite Judgment of my Learned brother A. S. UMAR, JCA in advance and I agree totally with his reasoning and conclusion that this Appeal is unmeritorious and should be and is accordingly dismissed.

I adopt the Lead Judgment as mine as my Learned Brother has appropriately dealt with the salient issues that fell for determination and there is nothing to add to a well researched Judgment.
Accordingly, I abide by the consequential Order as to costs.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ OMAR, JCA and I totally endorse the reasoning and conclusion therein.
?I equally find no merit in this appeal and it is accordingly dismissed.

 

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Appearances:

Olisa Ede, Esq.For Appellant(s)

F. A. Ogbuli (Mrs.)For Respondent(s)

 

Appearances

Olisa Ede, Esq.For Appellant

 

AND

F. A. Ogbuli (Mrs.)For Respondent