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GILBERT ONWUKA & ORS. V. MICHAEL EDIALA & ANOR(1989)

GILBERT ONWUKA & ORS. V. MICHAEL EDIALA & ANOR

In The Supreme Court of Nigeria

On Friday, the 20th day of January, 1989

SC.18/1987

 

JUSTICES

ANDREWS OTUTU OBASEKI    Justice of The Supreme Court of Nigeria

MUHAMMADU LAWAL UWAIS    Justice of The Supreme Court of Nigeria

CHUKWUDIFU AKUNNE OPUTA    Justice of The Supreme Court of Nigeria

ABUBAKAR BASHIR WALI    Justice of The Supreme Court of Nigeria

EBENEZER BABASANYA CRAIG    Justice of The Supreme Court of Nigeria

Between

 

  1. GILBERT ONWUKA
    2. AUGUSTINE EZEWOKE
    3. EKEZIE UWONWA
    4. JULIUS NWODA
    5. ELEMEZIE EZEWOKE
    (For themselves and as representing
    UMUEKWODI kindred of UMUOSU OBILE
    in OHAJI/EGBEMA/OGUTA L.G.A.) Appellant(s)

AND

  1. MICHAEL EDIALA
    2. LIVINUS OLIGE
    (For themselves and on behalf of UMUEZEAFOR KINDRED of OHAJI OBILE in
    OHAJI/EGBEMA/OGUTA) Respondent(s)

RATIO

WHETHER OR NOT A PERON CLAIMING TITLE TO LAND MUST PROVE THE BOUNDARIES OF THE LAND HE CLAIMS

In an action for a declaration of title to a piece of land the person claiming must prove the boundaries of the land he claims with definitive certainty such that a surveyor, taking the record, could produce a plan showing with accuracy, the land in dispute – See Kwadzo v Adjei 10 W.A.C.A. 274; Ezeokeke and ors. v. Uga and ors. (1962) 1 All N.L.R. 482; Amata v Modekwe 14 W.A.C.A. 580; Okosun Epi v. Johnny Aighedion (1972) 10 S.C. 532; Onotaire and ors v Onokpasa and anor. (1984) 12 S.C.19. PER WALI, JS.C.

CONDITIONS ATTCHED TO CUSTOMARY TENANCY

A customary tenant remains so and is subject to the conditions attached to the customary tenancy. Section 36(1) and (2) provides thus:-
“36. – (1) The following provisions of this section shall have effect in respect of land not in an urban area which was immediately before the commencement of this Decree held or occupied by any person.
(2) Any occupier or holder of such land, whether under customary rights or otherwise howsoever, shall if that land was on the commencement of this decree being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy land been granted to the occupier or holder thereof by the appropriate Local Government and the reference in this subsection to land being used for agricultural purposes includes land which is, in accordance with the customary law of the locality concerned, allowed to lie fallow for purposes of recuperation of the soil.”
In my view the words “holder” or “occupier” means the person entitled to a customary right of occupancy, that is the customary land owner other than a customary tenant. The definitions of the expressions “customary right of occupancy” and “holder” in Section 50 of the Act lend support to this view. Mere possession of a land as a customary tenant however so long, cannot mature to confer the rights envisaged in the Act. PER WALI, JS.C.

WAYS OF PROVING CUSTOMARY TITLE OF OWNERSHIP TO LAND

The accepted methods of proving customary ownership of land are-
(1) Traditional History of ownership;
(2) Where the evidence in (1) above is found to be inconclusive, then proof of acts of occupation and use of the land over a considerable long period without challenge or disturbance from any other claimant and
(3) Where (2) above fails, proof of exclusive possession without permission.
See – Ekpo v. Ita 11 N.L.R. 68; F.M. Alade v. Lawrence Awo (1975) 4 S.C.215. G. PER WALI, JS.C.

WALI, J.S.C. (Delivering the Leading Judgment): In the trial Court the two actions filed by the opposing parties contesting the ownership of the same piece of land, though ascribing to it different names, were consolidated.
In suit No. HOG/9/85 filed by the plaintiffs for themselves and on behalf of Umuezeafor Kindred of Ohaji/Egbema/Oguta Local Government Area, as per their paragraph 9(a) of their Statement of Claim, the plaintiffs claim the following reliefs against the defendants:-
“(a) Declaration that the piece of land known and called “NWAOKPEKWE” land annual value N20.00 situate at Obile Ohaji in the Oguta Judicial Division and more particularly shown in plan No.ECIS/1162/81 dated 20th of May, 1981 has been in the customary possession of the plaintiffs who are consequently entitled to customary right of occupancy.
(b) N500.00 general damages for trespass to the said land.
(c) Injunction restraining the defendants by themselves, their servants and agents from entering the said land acting in any manner in violation of the plaintiffs’ customary rights of occupancy.”
In the cross-action filed as suit No.HOG/15/81 the defendants as plaintiffs claim for themselves and as representing Umuekwodi Kindred of Umuosu Obile in Ohaji/Egbema/Oguta Local Government Area, the following reliefs against the plaintiffs/defendants, as contained in paragraph 18 of the defendants/plaintiffs’ statement of claim –
“(a) Declaration that the piece or parcel of land known as and called OKWUAGBOSO land situate at Obile in Ohaji/Egbema/Oguta Local Government Area in the Oguta Judicial Division of Imo State with annual value of N30.00 (Thirty Naira) is in the customary possession and ownership of the plaintiffs, and the plaintiffs are entitled to customary right of occupancy to the said piece/parcel of land.
(b) N600.00 (Six Hundred Naira) general damages for trespass to the said land.”
Pleadings were ordered in both, the main action and the cross-action. These were subsequently filed and exchanged and issues joined.
At the end of the hearing the learned trial Judge in a considered judgment and after reviewing the evidence proffered, came to the following conclusions-
“I believe the evidence of the plaintiffs and their witnesses on these and other relevant issues and reject the evidence of the defendants and their witnesses in so far as such evidence tended to contradict the material aspects of the evidence of the plaintiffs and their witnesses. The defendants were ungrateful to the plaintiffs who had allowed some of the members of the defendants’ kindred to live on a part of the land in dispute by turning round to claim the land and in spite of the decisions of the Eze, Chiefs and elders of their community they persisted in their claim and unlawful acts over the land.
I hold that the plaintiffs have proved their case before this Court and they are entitled to their claims. Accordingly, I declare that the land in dispute as shown in Exhibit A has been in the possession of the plaintiffs and that they are entitled to a customary right of occupancy of the said land. The plaintiffs are entitled to damages for the trespass committed by the defendants upon the land in 1981 by clearing part of it for farming purposes and I award the sum of N400.00 against the defendants. The defendants are hereby restrained by themselves, their servants, agents and/or workmen from entering upon any part of the land in dispute except the buildings and adjoining premises on which some members of the Defendants’ kindred live with the permission of the plaintiffs. I dismiss in their entirety the claims of the defendants against the plaintiffs.”
Henceforth both the plaintiffs/defendants and the defendants/plaintiffs will be referred to as the respondents and the appellants respectively.
Dissatisfied with the judgment of the trial Court the appellants appealed to the Court of Appeal, Enugu on 9 grounds and claimed reliefs as follows:-
“To allow the appeal, set aside the judgment and order of Oguta High Court delivered or made on Thursday, 9th June, 1983 and substitute an order dismissing the plaintiffs’ action and ordering a retrial.”
The parties complied with the provisions of Order 6 Rules 2 and 4 of the Court of Appeal Rules, 1981 by filing briefs. On the date the appeal came up for hearing learned Counsel on both sides proffered oral arguments to emphasise and where necessary, to clarify some points raised in their respective briefs.
In a considered judgment of the Court of Appeal delivered by Olatawura, J.C.A., with which both Aseme, J.C.A. and Belgore, J.C.A. (as he then was), concurred, he described the appeal as unmeritorious and dismissed it with N250.00 costs in respondents’ favour.
A further appeal by the appellants against the dismissal of their appeal by the Court of Appeal has now been lodged in this court. Six grounds of appeal were filed. In compliance with the provisions of Order 6 Rule 5 of the Supreme Court Rules, 1985, parties filed and exchanged briefs. During the hearing of the appeal in open court learned counsel on both sides made oral submissions in further elaboration or clarification of some points raised in the briefs.
In the brief of argument filed by Mr. Ahamba, learned Counsel for the appellants, the following six issues were formulated for determination”
ISSUE I
The respondents’ plan Exhibit ‘A’ having not shown any demarcation between the defendants’ buildings and adjoining premises, and the rest of the land in dispute, was the learned trial Judge right in granting a declaration of title and an injunction in such an imprecise situation considering the decision in the case of Atekwadzo v Robert Adjei 10 W.A.C.A. 274 and the more recent Supreme Court’s decision in Elias v Omo-Bare (1982) 5 S.C.25 at 39, and if not, were the learned Justices of the Court of Appeal not in error by completely overlooking that issue
ISSUE II
Were the learned Justices of the Court of Appeal not in error when they failed to reconsider the question of law raised under section 45 of the Evidence Act, and Section 36(4) of the Land Use Act, all of which were put before the Justices by appellants’ counsel both in the grounds of appeal, and the address, considering the evidence before the court.
ISSUE III
Did the pleading and evidence of Traditional History as presented by the respondents before the High Court meet the required standard as enunciated in the case of Kalio v Woluchem (1985) 1 N.W.L.R. (Pt.4) 610 to warrant the learned Justices to sustain the trial Court’s conclusion on that issue
ISSUE IV
Is the finding that the Egbema pipe-line and a survey beacon were acts of ownership on the land in dispute by the respondents not perverse considering that the plan exhibit ‘A’ filed by the respondents did not feature any of those acts in the land in dispute Can a decision substantially rested on this finding be sustained
ISSUE V
Were the learned Justices of the Court of Appeal not in error when they failed to re-evaluate the evidence before the court considering that the learned trial Judge did not follow the principles as stated in the case of Odofin v Mogaji (1978) 4 S.C.91
ISSUE VI
Can Exhibits C and D, the so called arbitration judgments exhibit D was rejected by both parties, and exhibit C was not signed by either of the parties”
On the respondents’ side Chief Onyeama, the learned Counsel, formulated the following two issues in his brief-
“The issues for determination in this appeal are as follows:
(a) Whether the respondents (as plaintiffs) discharged the onus of proof required of a claimant for a declaratory judgment to entitle them to the declaration of customary right of occupancy granted them by the trial court and affirmed by the Court of Appeal.
(b) Whether the respondents (as plaintiffs) established a case of trespass against the appellants as defendants) to entitle the respondents to an award of damages and a grant of injunction by the trial Court and affirmed by the court below.”
Although the issues for determination were differently formulated by the appellants and the respondents in their respective briefs, the two issues formulated by the Respondents seem in my view, to have encompassed the same areas covered in the appellants’ six issues.
Learned Counsel for the appellants relates issue I to ground 2 of the Grounds of Appeal. It was his submission that in Exhibit A, the survey plan filed by the respondents, the land in dispute and the land adjoined to it, some residential houses of the appellants are demarcated within the disputed area verged pink. He said between the area where the houses featured and the rest of the land, there is no boundary feature, nor did Exhibit A feature any demarcation or the extent of the southern portion of the land the Respondents are claiming to have allowed the appellants to occupy. He therefore submitted that the trial Judge was wrong to have granted the respondents’ prayers when the evidence adduced did not only fail to prove their claim but was at variance with it and that the extent of the land claimed was not proved with the required precision. He cited the case of Kwadzo v Adjei 10 W.A.C.A. 274; Elias v Omo-Bare (1982) 5 S.C.25 at 39; Omoregie v Idugiemwanye (1985) 2 N.W.L.R. (Pt.5) 41 and Oke & ors. v Eke & ors. (1982) 12 S.C.218 at 232 to buttress his submissions.
In reply to the above submissions, learned Counsel for the respondents contended that the identity of the land in dispute is no longer in issue since that has either been sufficiently proved or admitted by the appellants. He referred to Exhibits A and J – plans filed by the respondents and the appellants respectively and submitted that the position of the houses built by the appellants’ kindred with the respondents’ permission as shown in Exhibit A was not contested in Exhibit J, nor did Exhibit J indicate any extent of the land allowed to the appellants or members of their kindred. He said the case of Kwadzo v Adjei and a host of others (supra) cited by the appellants did not apply as the identity of the land is no longer in dispute. In support of his own submission, learned Counsel cited and relied on Okparaeke v Ogbuanu W.A.C.A. 53, Kalio v Kalio (1975) 2 S.C.15 at 21 and Ezeudu v Obiagwu (1986) 3 S.C.1 at 27-28.
As regards the order of injunction prayed for by the respondents in paragraph 15(c) of their Statement of Claim, learned Counsel for the respondents urged the court to exercise the powers conferred on it by Section 22 of the Supreme Court Act No. 12 of 1960 to grant the prayer in relation to the open spaces of NWAOKPEKWE land not covered by the appellants’ buildings as no grant was made to them of the adjoining land. He relied in support of this submission on the cases of Gbadamosi v Bello (1985) 2 S.C. 168 at 176-7 and Ketu v Onikoro (1984) 10 S.C.265 at 268-269.
On Issue II which is related to Ground 1 of the Grounds of Appeal, learned Counsel for the appellants attacked the judgment of the Court of Appeal in which the finding by the trial Court vis-a-vis the non-applicability of Section 36(1) and (4) of the Land Use Act 1978, and Section 45 of the Evidence Act was upheld. He submitted that the claims of both the appellants and the respondents were based on the provisions of the Land Use Act, 1978 that is, claim for declaration to a customary right of occupancy and to that effect, specifically referred to section 36(1) and (4) of the Act, supra. He submitted that in Exhibit A, the survey plan filed by the respondents, both the areas in which Michael Ediala, the 1st respondent, has his plantation and the appellants have their houses, have been clearly shown to be within the area of the land in dispute and therefore, whether it was by grant or inheritance, the appellants have been in occupation and undisputed control of that portion of the land, that is the southern part, since there was no demarcation between the said area occupied by the appellants and the rest of the land in dispute. He also submitted that the existence of the appellants’ houses on the land in dispute is further evidence that it is a developed land and referred to section 50 of the Land Use Act, 1978.
On Section 45 of the Evidence Act, learned Counsel referred to Exhibit J which is the appellants’ survey plan and Exhibit A and submitted that the two plans show that on the northern boundary of the disputed land, is a piece of land described in both plans as “Land of Umuckwodi” which is in proximity with the said disputed land, and without evidence of boundary features, is so connected with it in both locality and similarity so that what is true of one is equally true of the other. As for the eastern boundary of the land in dispute both the appellants and the respondents show in their respective plans a piece of land which the appellants called “land of Umuekwodi not in dispute” while the respondents called it “land of Umuagumagu. It was his submission that the respondents did not call any member of Umuagumagu to support their claim while the appellants adduced evidence of ownership. As regards the southern boundary, he submitted that, apart from the (appellants’) residences within the land in dispute, they have some other residences on a piece of land not in dispute which is also proximate and connected to the land in dispute. He said on the preponderance of evidence, the balance is clearly in the appellants’ favour since they have proved to be in possession of the three sides of the land in dispute and therefore Section 45 of the Evidence Act should have been applied in their favour.
In reply, learned Counsel for the respondents said it is common ground that the houses belonging to some of the members of the appellants’ kindred are inside the disputed land verged pink in both Exhibits A and J. It is not also in dispute that the respondents’ cocoa and palm plantations are inside the disputed area depicted in Exhibits A and J, and this shows therefore that both the appellants and the respondents are in concurrent possession of some parts of the said land. It was his contention that the appellants, in treating the effect of section 36(4) of the Land Use Act laid emphasis on the words “held” and “occupied” rather than on the word “vest” and that since both the appellants and the respondents were in possession of parts of the land in dispute, it was proper for the learned trial Judge to make a finding in which of the two contending parties the title of the disputed land was vested. He submitted that it was only after making such a finding that the issuance of a certificate of occupancy to the successful party by the Local Government could arise. In support of this he put reliance on Melifonwu v Egbuji (1982) 9 S.C.145 at 155. He also submitted that from the evidence presented before the trial Court, the learned trial Judge was perfectly right to declare title in favour of the respondents and to award damages for trespass. He also contended that the appellants’ assumption of the terms of the grant is speculative since their claim in the trial court was on ownership of the disputed land and not that they were customary tenants. In support of the above contention he referred to and relied on Overseas Construction Co. Ltd. v Creek Enterprises Ltd. (1985) 12 S.C.158 at 179 and Ehimare v Okaka Emhonyon (1985) 2 S.C.49 at 62.
On the application of section 45 of the Evidence Act, learned Counsel referred to the various portions of the evidence accepted by the learned trial Judge as establishing physical possession, control and exercise over a reasonable portion of the land in dispute and submitted that section 45 of the Evidence Act could in no way help the appellants’ claim. He said since the finding of the learned trial Judge that-
“I have mentioned earlier on that parties almost agreed as to the boundaries and extent of the land in dispute except for a part of the Western boundary where the defendants claim more land than the plaintiffs. The plaintiffs at the Western boundary did not show that they have boundary with Egbema people. They indicated on the whole Western boundary that they have boundary on the Southern part with Muoneke and on the Northern part with their land of the same name as the land in dispute which is not in dispute. I find that the land in dispute is as shown in the plaintiffs’ plan”, was not challenged by the appellants, they could not raise the issue of applicability of section 45 of the Evidence Act in their favour.
On Issue III which is related to Ground 4 of the Grounds of Appeal, it was the contention of the learned Counsel for the appellants that since the respondents are relying on inheritance as the root from which they derived title to the disputed land the genealogy to show who succeeds who should have been reflected in their pleadings, and this they failed to do. He submitted that with such insufficient pleadings by the Respondents, the learned trial Judge ought to have dismissed their claim and he quoted and relied on Kalio v Woluchem (1985) 1 N.W.L.R. (Pt.4) 610 particularly at 628 as his authority for making the submission.
In reply, learned Counsel for the respondents submitted that the facts in Woluchem’s case supra, are not the same with the facts in this case and it cannot therefore apply. He referred to paragraph 6 of the respondents’ claim wherein he said the respondents stated their ancestors who had made use of the land in dispute in the past before and relied on the unchallenged evidence of P.W.1 in proof of that. He submitted further that the appellants’ pleadings in HOG/15/81 and HOG/9/81 as regards their traditional history are in conflict and so was the evidence led in proof of that. He cited Akpapuna v Nzeka (1983) 7 S.C.1 at 25 and Kojo v Bonsie (1957) 1 W.L.R. 1223 at 1226 in support.
Issues Nos. IV and V and VI which relate to Grounds 3, 5 and 6 respectively deal with the evaluation and sufficiency of the evidence on which both the trial Court and the Court of Appeal rested their judgments. Learned Counsel for the appellants submitted that the evidence on acts of ownership accepted and relied upon by the trial Court in making a finding in respondents’ favour was neither cogent nor sufficient to justify it and that it was perverse. He relied on the following authorities-
Overseas Construction Ltd. v Creek Enterprises Ltd. (1985) 3 N.W.L.R. (Pt.B) 407; Kate Enterprises Ltd. v Daewoo Nig. Ltd. (1985) 2 N.W.L.R. (Pt.5) 116; Nnajiofor and ors. v Ukonu and ors. (1985) 2 N.W.L.R. (Pt.9) 686 and a host of others. He urged this Court to dismiss the appeal for want of merit.
In an action for a declaration of title to a piece of land the person claiming must prove the boundaries of the land he claims with definitive certainty such that a surveyor, taking the record, could produce a plan showing with accuracy, the land in dispute – See Kwadzo v Adjei 10 W.A.C.A. 274; Ezeokeke and ors. v. Uga and ors. (1962) 1 All N.L.R. 482; Amata v Modekwe 14 W.A.C.A. 580; Okosun Epi v. Johnny Aighedion (1972) 10 S.C. 532; Onotaire and ors v Onokpasa and anor. (1984) 12 S.C.19.
In paragraphs 3 and 4 of the respondents’ Statement of Claim the following facts were pleaded –
“3. The land which is the subject-matter of this action is known and called “NWAOKPEKWE” land and is situate in Obile Ohaji aforesaid within the jurisdiction and is more particularly shown in plaintiffs’ Plan No. ECIS/1162/81 dated 20th of May, 1981 and therein verged Pink. At the hearing the plaintiffs will rely on the features shown on the said plan in proof of their case and will seek by leave of court a consolidation of this action and Suit No.HOG/15/81 Gilbert Onwuka & ors. v. Michael Ediala & ors.
4. The land in dispute called “NW AOKPEKWE” land is made up of the areas verged Yellow and Green in plaintiffs’ plan. In addition to the name “NW AOKPEKWE”, the area verged Green is also called ALA OKWOR ORDA because of its nearness to Aba Nwaeke stream.”
The learned trial judge after a narration of the evidence relating to the issue of the identity of the land in dispute, observed thus-
“The plans tendered by the parties exhibits A and J are on the same scale. The two plans agree as to boundaries of the land F in dispute on the south, where both show the land of Jude Ogbonna as adjoining the land in dispute; on the East, where both show the road from Asaa to Egbema as forming the boundary; on the North, where both show the land of Umuekwodi as having boundary with the land in dispute and part of the western boundary where both plans indicate that the land in Muoneke forms the boundary. The only difference is that on part of the Western boundary – the area to the North where the plaintiffs in exhibit A show that their land of the same name “Nwaokpekwe” has common boundary with the land in dispute, the defendants’ plan, Exhibit J. shows that the defendants have boundary with the Ihedike Nwauba and Elechi Nwauba of Umuaba – Aga Egbema. One thing is clear from the two plans and that is that the defendants’ plan exhibit J. includes more land to the West than the plan of plaintiffs’ Exhibit A. The cocoa and palm plantations of the 1st plaintiff are shown on the Southern portion of the land. Both in Exhibits A and J some houses of the defendants’ people are very close to the cocoa plantation of the 1st plaintiff.
The land of P.W.3 Robinson’ Muoneke shares common boundary with the land in dispute to the Southwest. The P.W.3 testified that the plaintiffs sold the land to him in 1965. He has palm and rubber plantations on his said land. The defendants agreed that the plaintiffs sold the said land to the P. W.3 and said the land belonged to the plaintiffs before the sale. Apart from the extended area of land on a part of the Western boundary shown in the defendants’ plan, Exhibit J, there is a measure of agreement between the parties as to the extent of the land in dispute. The evidence of the parties before me does not show that any of the parties made the extent of the land an issue in this case.
…………………………………
Learned Counsel for the defendants did refer to the evidence of D.W.1 and D.W.5 – boundary witnesses from Egbema and to the fact that apart from P. W.3 the plaintiffs called no other boundary witness. I have mentioned earlier on that the parties almost agreed as to the boundaries and extent of the land in dispute except for a part of the Western boundary where the defendants claimed more land than the plaintiffs. The plaintiffs at the Western boundary did not show that they have boundary with Egbema people. They indicated on the whole Western boundary that they have boundary on the Southern part with Muoneke and on the Northern part with their land of the same name as the land in dispute which is not in dispute.”,
and then concluded –
“I find that the land in dispute is as shown in the plaintiffs’ plan. I do not therefore, see the relevance of the evidence of D.W.1 and D.W.2”
The plan of the land in dispute filed by both respondents and the appellants were admitted in evidence as Exhibits A and J respectively. The respondents gave evidence in respect of the boundaries of their land and in this regard the following excerpt of the 1st plaintiff/respondent’s evidence is relevant. He said –
“I have boundaries on this land in dispute, which is situate in Umuezeafor Obile, with the following: Jude Ogbonna of Umuogidi, Umuagumagu Obile, Umuosu Umuekwodi the defendants and our other land not in dispute. The road from Asaa to Egbema runs by the Eastern boundary of the land and forms its boundary on that side.”
Both Exhibits A and J correspond on the location, size, number and shape of the residences built by the appellants on the land in dispute. The two plans also demarcated identically the position, size and shape of the cocoa and palm plantations of the respondents on the disputed land. Exhibits A and J were drawn to the same scale. The respondents called the land in dispute “Nwaokpekwe”, whereas the Appellants called it “Ikwuagbaoso.” In Exhibit A, the respondents demarcated on the Northern boundary, the land of the appellants not in dispute and called it “Land of UMUOSU Umuekwodi”, while the appellants called the same piece of land in Exhibit J “AKWUNIWUGWU UMUEKWODI.” On the Southern boundary both Exhibits A and J showed Jude Ogbonna’s land while on the cast, both demarcated a motor road called Asaa-Egbema as the boundary.
On the Southwest boundary, both Exhibits A and J showed the palm plantations of Robinson Muoneke (P.W.3), and on the West boundary. Exhibit A. showed other parts of the respondents’ land not in dispute i.e. “Nwaokpekwe” which the appellants called in Exhibit J “land of Ihedike Nwauba and Elechi Nwauba of Umuaba – Aga Ebema.” I agree with the conclusion of the Court of Appeal on this issue when it said –
“From the Statement of Defence filed in HOG/9/51, the appellants now before the court while seeking a consolidation of Suit HOG/9/81 with HOG/15/81 pleaded that the land in dispute is the same. The two plans are drawn to the same scale 1:250m
……… Chief Ahamba in comparing the boundary position of the land in dispute pointed to the north of the land in dispute and that the respondents had conceded that the appellants own the land in the North of the land in dispute. He (sic) submission in respect of paragraph 6 of the Statement of Defence in HOG/15/81 appears to me misleading in fact it is the opposite of the meaning placed on it by learned counsel. They never admitted the land on both sides of the road to Umuosu Farm land belongs to the appellants. The learned trial Judge gave adequate consideration after a careful comparison of the two plans, to the said plans and his conclusions on Exhibits A and J cannot be faulted.”
The fact that the appellants ascribed different names to some portions of the land within the vicinity of the land in dispute would not and did not help their case having regard to the oral and documentary evidence that had sufficiently identified the land in dispute. See Aromire & ors. v Awoyemi (1972) 1 ALL N.L.R. (Pt.1) 101 at 113 where this court said-
“Finally, we observe that it was sought by learned Counsel for the plaintiff to place reliance on the differences of the names being ascribed to different portions of land in the vicinity such as Obele Oniwala, Obele-Odan and Obele Oniwala Court and so on. We are not impressed by the distinctions which are sought to be thereby introduced for very often among the members of the community concerned the same place bears different names and it is only fair to rest identification on places on plans produced in the case. i.e. exhibit A and exhibit E. We think that in this case different names have been applied to the same areas with an alarming degree of imprecision.”
This ground fails and it is dismissed.
On issue No.2 which is related to Ground 1, learned Counsel for the appellants made heavy weather of the applicability of Section 36(1), (4) and Section 50 of the Land Use Act, /978 and Section 45 of the Evidence Act.
It was the appellants’ contention that the claims of the parties were based on the Land Use Act. 1975. That was not disputed as the suit was filed in the trial High Court in 1981. On that date the Land Use Act had become applicable to all land in Imo State of Nigeria and by virtue of section 1 of the Act, same has been vested in the Governor of that State on that date. This provision takes away the freehold title vested in individuals or communities but not the customary right of use and control of the land. Section 36(1) does not enlarge the right of a customary tenant to any piece of land in non-urban area which was, at the commencement of the Act in his possession and occupation. A customary tenant remains so and is subject to the conditions attached to the customary tenancy. Section 36(1) and (2) provides thus:-
“36. – (1) The following provisions of this section shall have effect in respect of land not in an urban area which was immediately before the commencement of this Decree held or occupied by any person.
(2) Any occupier or holder of such land, whether under customary rights or otherwise howsoever, shall if that land was on the commencement of this decree being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy land been granted to the occupier or holder thereof by the appropriate Local Government and the reference in this subsection to land being used for agricultural purposes includes land which is, in accordance with the customary law of the locality concerned, allowed to lie fallow for purposes of recuperation of the soil.”
In my view the words “holder” or “occupier” means the person entitled to a customary right of occupancy, that is the customary land owner other than a customary tenant. The definitions of the expressions “customary right of occupancy” and “holder” in Section 50 of the Act lend support to this view. Mere possession of a land as a customary tenant however so long, cannot mature to confer the rights envisaged in the Act.
The respondents are not asking for forfeiture of the areas granted by them to the appellants and which the latter developed with the permission of the former, by building their houses thereon. Their complaint is related to the adjoining land on which the appellants have started trespassing by clearing it in preparation for farming the same. One can only develop what is lawfully given to one but not otherwise.
A person or Community that had title to a parcel of land before the coming into force of the Land Use Act, 1978 is deemed to be a holder of a right of occupancy, statutory right of occupancy or customary right of occupancy, depending on the status of the land – whether it is in urban area or in non-urban area. See Section 34(2), (3) and (6) and Section 36(2), (3) and (4) of the Land Use Act.
On section 45 of the Evidence Act, for it to apply in favour of the party pleading it, there must be proof or admission by the other party that the land in dispute is surrounded by other lands belonging to the party craving its aid. See D.O. Idundun & ors v. Daniel Okumagba (1976) 9-10 S.C.227 at 249 and Ededem Archibong v. Ntoe Asim Ita 14 W.A.C.A. 520.
In the instant case, the respondents had led evidence, both oral and documentary, in proof of their customary title to the land in dispute. There was evidence of repeated acts of ownership by the respondents with respect to other places connected with the land in dispute as to give rise to the inference that they are the owners. In Jones v. Williams 2 M & W 326 at 331, it was held that –
“evidence of acts in another part of one continuous hedge adjoining the plaintiffs land was admissible in evidence on the ground that they are acts as might reasonably lead to the inference that the entire hedge belonged to the plaintiff.”
In my opinion the learned trial Judge, on the evidence evaluated and accepted by him in preference to that of the appellants as regards the numerous lets of user, was right to draw the inference of customary ownership by the respondents of the land in dispute. It is not enough for the appellants in an action like this one, to show possession of some portions within and surrounded by the respondents’ land as shown in Exhibit A and then argue that they have proved their case; and having failed to prove their case the proper judgment should be for the respondents and not an order for a retrial. This ground also fails and same is accordingly dismissed.
In issue No.3 which is related to ground 4, it was the contention of the appellants that having regard to paragraph 6 of the respondents’ Statement of Claim the evidence adduced did not prove averments contained therein. He relied on Kalio v Woluchem (supra).
In paragraph 6 the respondents pleaded thus-
“6. Some of the plaintiffs’ ancestors who made customary use of the land in dispute include Oparaocha Eze, Olunwa Oparaocha, Ediala Olunwa and Ezekwe Oparaocha. During the lifetime of the plaintiffs’ ancestors the ancestors of the defendants did not challenge the rights of the plaintiffs’ ancestors to the diverse use into which they put the land in dispute.”
The accepted methods of proving customary ownership of land are-
(1) Traditional History of ownership;
(2) Where the evidence in (1) above is found to be inconclusive, then proof of acts of occupation and use of the land over a considerable long period without challenge or disturbance from any other claimant and
(3) Where (2) above fails, proof of exclusive possession without permission.
See – Ekpo v. Ita 11 N.L.R. 68; F.M. Alade v. Lawrence Awo (1975) 4 S.C.215. G
Examining the pleadings and the evidence adduced in support of the traditional history. I do not think that it was insufficient. The evidence of 1st plaintiffs witness, as head of the respondents’ family stated how the land descended to them. He said-
I am the head of Umuezeofor Kindred. Before I became head of Umuezeofor, Ezekwe Oparaocha was the head. One Owuru was the kindred head before Ezekwe Oparaoeha. Ediala my father was the head before Owuru. Orunwa was the head before my father. My kindred lands have not been shared.”
There was evidence also of occupation and use of the land over a considerable long period without let or hindrance from the appellants. The learned trial Judge considered the evidence adduced by both parties on this issue and came to the following conclusions:-
“The evidence of the parties before me does not show that any of the parties made the extent of the land an issue in this case.
Each of the parties relied on traditional history and long possession. The plaintiffs gave evidence that they have from time immemorial exercised maximum acts of ownership and possession over the land in dispute, farming thereon, establishing plantations, thereon and exploiting timber from the land. The plaintiffs said the area of the land they sold to P.W.3, Robinson Muoneke, was part of the land in dispute before it was carved out and sold to P.W.3. The P. W.3 himself said since the land was sold to him by the plaintiffs and he took possession of it, he had been seeing the plaintiffs use the land in dispute.
The defendants have with equal vigour testified that they inherited the land in dispute from their ancestors and have exercised maximum acts of ownership and possession over the land, farming thereon, exploiting timber and renting to non-members of their kindred for farming purposes. The defendants said that some members of their kindred have their houses on a part of the land in dispute. The defendants also claimed that in 1949 and again in 1976 they allowed the 1st plaintiff to establish cocoa and palm plantations respectively on parts of the land in dispute. The plaintiffs have denied that the defendants permitted the 1st plaintiff to establish cocoa and palm plantations on the land in dispute. Rather the plaintiffs asserted that they allowed some members of the defendants’ family to erect buildings on part of the land in dispute. The 1st plaintiff’s cocoa plantation is very close to the houses of the Defendants’ people. The plaintiffs are in effect saying that the defendants’ people who live on the land in dispute are their tenants. The defendants have also said that their farm road passes through the land in dispute. According to exhibit J, what is shown as the defendants’ farm road is the road leading from Asaa to Egbema. The P.W.2 testified that during the arbitration he and his chiefs and elders held between the parties over the land in dispute the defendants insisted that since their road runs through the land they should own the land. The 1st plaintiff testified that his cocoa plantation is 15 acres and his palm plantation is 17 acres. If the defendants were broadminded enough to grant 15 acres of land to the 1st plaintiff to plant cocoa would they have granted to him an area of land very close to their home-stead I think not. If indeed they granted him the area on which he planted palm trees in 1976 as the defendants claimed how did they turn round to write to the Small Holder Oil Palm Project that the land was in dispute, a letter the 1st defendant admitted they wrote There is no evidence before me that the negotiation for the grant broke down or that he went beyond the grant. What sounds more understandable to me is the evidence of the 1st plaintiff that when he received exhibit E his people threatened to ask out the defendants’ people who live on part of the land in dispute and as a result of this threat the defendants’ people wrote Exhibit F withdrawing their former complaint. On this claim and counterclaim as to who allowed the other to use part of the land in dispute, I prefer the evidence of the plaintiffs that they allowed some persons from the Defendants’ kindred to build on part of the land in dispute.”
In Kojo II v Bonsie (1957) 1 W.L.R. 1223 it was held that-
“Where there is a conflict of traditional history which had been handed down by words of mouth one side or the other must be mistaken, yet both may be honest in their belief. In such a case, the demeanour of witnesses is of little guide to the truth. The best way is to test the traditional history by reference to facts in recent years as established by evidence and by seeing which of the two competing histories is more probable.”
The respondents had led evidence in proof of their customary title to the land in dispute. This evidence, which was accepted by the learned trial Judge and subsequently affirmed by the Court of Appeal was not so impossible.
Where there are concurrent findings of facts by the lower Courts, this court is always reluctant to interfere with such findings unless they are found to be erroneous or perverse. See Lucy Onowan & anor. v Iserhien In Re Lucy Onowan (1976) 9-10 S.C.95 and Okolo v Uzoka (1978) 4 S.C.77; Fashanu v Adekoya (1974) 1 ALL N.L.R. (Pt.1) 35.
The ground fails and it is dismissed.
Issues Nos. IV, V and VI relate to Grounds 3, 5 and 6 respectively. They are also related to the evaluation and sufficiency of evidence. I find it unnecessary to over burden myself by going through these grounds as the issues raised and canvassed therein have been sufficiently covered in my consideration of the other grounds.
In the course of presenting his oral submissions before this Court in elaboration of his written brief, learned Counsel for the respondents conceded that the injunction granted him by the trial court is contrary to the claim of respondents and to that extent he has urged this court to exercise the powers conferred on it by section 22 of the Supreme Court Act, 1960, to vary it.
Accordingly it is varied as follows:-
That the defendants/appellants, by themselves, their servants or agents are hereby restrained from violating their customary right by farming on the said land in dispute or acting in any manner in violation of the Plaintiffs/Respondents’ customary rights.
Save as varied supra, the judgment and orders of the trial court subsequently affirmed by the Court of Appeal are hereby confirmed.
The appeal fails and is accordingly dismissed with N500.00 costs to the Respondents.

OBASEKI, J.S.C.: I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Wali, J .S.C. and I find that his opinion on all the issues for determination in this appeal accords with mine. I hereby accordingly adopt them as my own and will dismiss the appeal for those reasons.
Both parties to this appeal claimed title to the same parcel of land called ‘Nwaokpekwe’ by the plaintiffs/respondents and ‘Okwuagboso’ by the defendants/appellants. The plaintiffs filed suit No. HOG/9/85 setting out their claim therein. The defendants filed a cross action HOG/15/81 similarly setting out their claim to the same piece of land. The plaintiffs’/respondents’ claim was declared proved and they were declared entitled to customary right of occupancy of the said land. The defendants’/appellants’ claim was consequently dismissed. The appeal of the defendants/appellants to the Court of Appeal was unsuccessful and being dissatisfied with the decision, they have further appealed to this court.
Although the appellants formulated 5 issues for determination and the respondents formulated two there is really only one main issue for determination. It is
“whether, on the facts found from the evidence accepted by the learned trial Judge, affirmed by the Court of Appeal, the appellants were entitled to a declaration of entitlement to a customary right of occupancy in respect of the land in dispute.”
This issue has been examined and dealt with exhaustively in the judgment of my learned brother, Wali, J.S.C. and I agree with him that there is no merit in the appeal.
Subject to the variation made by my learned brother to the order of injunction granted with which I agree, I hereby dismiss the appeal with N500.00 costs to the respondents. The order of injunction is varied to read:
“That the defendants/appellants by themselves, their servants or agents are hereby restrained from farming the said land or acting in any manner in violation of the plaintiffs’/respondents’ customary rights of occupancy.”

UWAIS, J.S.C.: I have had the advantage of reading in draft the judgment read by my learned brother Wali, J.S.C. I entirely agree that the appeal has no merit and that it should be dismissed.
There have been concurrent findings of facts by the lower Courts on the issues of fact raised by the appellants and since the appellants have failed to show that the findings on the facts are either erroneous or perverse, there is no basis on which this court could interfere with the concurrent findings.
I agree with the submission of the learned Counsel for the respondents that the order of injunction granted by the learned trial Judge against the appellants is vague and does not correspond with the relief sought. And that this court in the exercise of its powers which are conferred upon it by Section 22 of the Supreme Court Act, 1960 should vary the order. Accordingly, I endorse the varied order as contained in the judgment of my learned brother Wali, J.S.C.
In the result, the appeal fails and it is hereby dismissed with N500.00 costs to the respondents. The decisions of the High Court and the Court of Appeal are upheld except as related to the order of injunction granted against the appellants which has been altered.

OPUTA, J.S.C.: I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother, Wali, J.S.C. and I am in full and total agreement with him that this appeal should be dismissed.
The parties representing Ohaji Obile and Umuosu Obile Communities in Ohaji/Egbema/Oguta Local Government Area of Imo State sued one another in two separate Suits – HOG/9/81 and HOG/15/81 in the Oguta Judicial Division of the Imo State High Court. These Suits were consolidated and heard by Ukattah, J. After due hearing on relevant and available evidence the learned trial Judge, after an extensive review of the evidence “preferred the evidence of the plaintiffs (now respondents in this Court) and their witnesses to the evidence of the defendants (now appellants) and their witnesses” and made the following findings of fact:
1. That the land claimed by the plaintiffs as shown in their plan exhibit A – plan No. ECIS/1162/81 is the land of the plaintiffs which they have possessed and enjoyed from time immemorial and which descended to the present generation of plaintiffs’ Kindred from their ancestors.
2. That the land in dispute is as shown in the plaintiffs’ plan EX.A.
3. That the land the plaintiffs sold to Muoneke was originally part of the land in dispute before it was carved out by the plaintiffs and sold to Muoneke P.W.3 in 1965.
4. That some of the members of the defendants’ family who live on a small portion of the land in dispute were permitted to do so by the plaintiffs and that they are the plaintiffs’ customary tenants.
5. That the cocoa and palm plantations of the 1st plaintiff on the land in dispute were established by him as of right and not with the permission of the defendants.
6. That the defendants entered on parts of the land in dispute in 1981 and cleared the same for farming purposes without the permission of the plaintiffs.
7. That the dispute between the parties over the land in dispute was gone into with the consent of the parties by P. W.1 and his elders and P.W.2 and his Chiefs and elders respectively and that it was the defendants who reported the matter to the P.W.2. In each of the two arbitrations the case went against the defendants.
These were formidable findings of fact.
Based on those findings the learned trial Judge then held that “the plaintiffs have proved their case before this Court.” He then declared title in the land in dispute to reside in the plaintiffs and that they have been in continuous possession and therefore are entitled to a Customary Right of Occupancy of the said land.” He also awarded the plaintiffs N400.00 damages “for the trespass committed by the defendants upon the land in 1981 by clearing part of it for farming purposes.”
He also granted the injunction claimed by the Plaintiffs In the following terms:
“The defendants are hereby restrained by themselves, their servants, agents and/or workmen from entering upon any part of the land in dispute except the buildings and adjoining premises on which some members of the defendants’ kindred live with the permission of the plaintiffs.”
Since this was a consolidated suit the learned trial Judge then dismissed “in their entirety the claims of the Defendants against the plaintiffs.”
Dissatisfied and aggrieved by the above judgment the Defendants of the Umuekwodi kindred of Umuosu Obile appealed to the Court of Appeal, Enugu Division. In a lead judgment by Olatawura, J.C.A. to which Aseme and Belgore JJ.C.A. concurred, the Court of Appeal dismissed the defendants’ appeal and affirmed the decision of Ukattah, J. The defendants still aggrieved and still dissatisfied have now appealed to this court on 4 grounds of Misdirections and Errors in Law.
Before embarking on an examination of the Issues for Determination one has got to make some general observations namely:
1. The main issues for determination before the trial Court were issues of fact. The ownership of the land in dispute must in point of fact be resolved by witnesses called on both sides to establish such ownership.
2. In such cases much will depend on the confidence reposed in the witnesses called to establish each party’s case, by the trial Judge who alone had the advantage of seeing those witnesses, hearing them testify and watching their demeanour in the witness box.
3. Where questions of fact and the credibility of witnesses are involved an appellate court has very little room to maneouvre. In exercising its duty an appellate court’s role is subject to the inevitable qualification of its position and the disadvantage of not having seen or heard the witnesses.
Therefore in cases (like the one now on appeal) which turn on the conflicting testimony of witnesses and the belief to be reposed in them an appellate court can never recapture the initial advantage of the trial Judge who saw, heard and believed.
4. When (again as in this case) there are concurrent findings of two courts below, this court will not interfere without clear proof that those findings were perverse or a violation of some essential principle of law or procedure substantial enough to lead to a miscarriage of justice if left uncorrected.
It is under the ominous shadow of the above principle that I will now consider the Issues for Determination as formulated in the Briefs filed in this appeal.
I will deal with Appellants’ Brief first:
Issue No. I
“The respondents’ plan Exhibit A having not shown any demarcation between the defendants’ buildings and adjoining premises, and the rest of the land in dispute, was the learned trial Judge right in granting a declaration of title and an injunction in such an unprecise situation considering the decision in the case of Ate Kwadzo v Robert Adjei 10 W.A.C.A. 274 and the more recent Supreme Court decision in Elias.v Omo Bare (1982) 5 S.C. 25 at 39 and if not were the learned Justices of the Court of Appeal not in error by completely over looking that issue”
It is true that the first duty of a plaintiff claiming a declaration of title to land is to show clearly the precise area to which his claim relates:- Baruwa v Ogunshola (1938) 4 W.A.C.A. 159. Once a plan is tendered in a case the decision in Kwadzo v Adjei 10 W.A.C.A. 274 will not apply. In this case, the plaintiffs tendered and relied on their plan Ex. A. Where however parties claim land on either side of a common boundary, the plan tendered should accurately and with particularity and precision show the precise features of their common boundary: Udekwe Amata & ors v Udogu Modekwe & ors (1954) 14 W.A.C.A. 580; Vincent Okorie v Philip Udom & ors (1960) 5 F.S.C.162. In this case the finding of fact of the learned trial Judge was that the Plaintiffs/Respondents owned the whole land in EX.A including where they allowed some members of the defendants’ family to live on as their customary tenants. With the finding that the defendants/appellants are tenants on the land in dispute, Issue No.1 will not arise. The appeal on this issue fails on the question of title.
I will discuss the issue of injunction later on in this judgment.
Issue No.2.
“Were the learned Justices of the Court of Appeal not in error when they failed to reconsider the questions of law raised under Section 45 of the Evidence Act and Section 36(4) of the Land Use Act……………………….
It is true that acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of that particular piece or quantity of land with reference to which such acts are done but also of other lands so situated or connected therewith by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.
Section 45 Evidence Act reproduced above clearly show that such act may be evidence that what is true of one piece of land may be true of the other. But have we not passed the stage of “evidence of ownership”, the stage of “what is likely to be true as to one piece of land is likely to be true of the other” I think we have. After considering all the evidence including I suppose the evidence of ownership of other lands which will call in aid Section 45 Evidence Act, the learned trial Judge held at p.110 of the record of proceedings:-
“I believe the evidence of the plaintiffs and their witnesses… and reject the evidence of the Defendants and their witnesses… The defendants were ungrateful to the Plaintiffs who had allowed some of the defendants’ kindred to live on part of the land in dispute by turning round to claim the land in dispute and in spite of the decisions of Eze, Chiefs and elders of their community they persisted in their claim and unlawful acts over the land.”
Now having disbelieved the defendants and their witnesses, and having found as I reproduced above “that the land claimed by the plaintiffs as shown in their plan exhibit A – plan No. ECIS/1162/81 is the land of the plaintiffs “, it is no longer open to the defendants/appellants to urge this court to infer, from acts of possession and enjoyment of other lands connected with locality and similarity, that the land found by a competent court to belong to the plaintiffs no longer belongs to them. This court has not been, and even the court below had not been asked to reverse this finding of the trial court. Not if a finding like the above is not challenged on appeal, that finding stands rightly or wrongly for the purpose of the appeal Nwabueze v Obi-Okoye (1988) 10-11 S.C.N.J. 6 at p.n. The courts below having held that the land in dispute belongs to the plaintiffs any further consideration of Section 45 Evidence Act becomes merely academic. In addition Chief Onyeama for the plaintiffs/respondents submitted that from the evidence of the 1st defendant at p.81 lines 5-22 it is apparent that the land to the North of the land in dispute on which the Appellants based their application of Section 45 is also in dispute between themselves and the people of Umuagwumagwu. Ex nihilo nihil fit and no inference of ownership of one disputed land can be drawn from another equally disputed land no matter how similar or how closely connected by geography and locality both may be.
Another submission of Chief Ahamba relates to Section 36(4) of the Land Use Act No.6 of 1978which stipulates:
36-(4) Where the land is developed, the land shall continue to be held by the person whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a customary right of occupancy issued by the Local Government, and if the holder or occupier of such developed land at his discretion, produces a sketch or diagram showing the area of land so developed the Local Government shall if satisfied that, that person immediately before the commencement of this Decree has the land vested in him register the holder or occupier as one in respect of whom a customary right of occupancy has been granted by the Local Government.
I have underlined certain phrases in the above section, namely:- “person whom it was vested immediately before the commencement of the Decree”, “holder of the land.” The main scheme of the Land Use Act is to vest all land comprised in the territory of each State in the Military Governor of that State – see Section 1. By Section 40 of the Act No.6 of 1978 what a former owner would now be entitled to would be a Statutory Right of Occupancy and that is the highest right of any person to land under the Act. Section 36(4) will have to be read to reflect the spirit and intendment of the Land Use Act. In fact its very name reflects what can be granted under it namely user of the land not title to the land which now vests in the Military Governor. In the law of property the word “vests” has acquired a specialised meaning as where the title to property comes to the heir upon the death of the owner intestate. It also means to clothe with possession; to deliver full possession of land or an estate; to give seisin etc. The plaintiffs who had been adjudged owners are the ones who under the Land Use Act can be clothed with full possession and be granted under Section 36(4) a Customary Right of Occupancy not the defendants/appellants. It was not the aim of the Land Use Act to convert a tenant into an owner merely by the fact that such tenant was in occupation of his landlord’s land before the inception of the Act. Issue No.2 fails. With the findings of fact of the learned trial Judge which have not been appealed against Issues No. III, No. IV and No. VI are non issues. They also fail.
The only remaining Issue is No. V which is formulated thus:
Issue No. V as formulated is as follows:
“Were the learned Justices of the Court of Appeal not in error when they failed to re-evaluate the evidence before the court considering that the learned trial Judge did not follow the principles as stated in the case of Odofin v. Magaji (1978) 3 S.C.91”
This Issue (No. V) as formulated above talks of “Re-evaluation of evidence.” Re-evaluation suggests and presupposes a prior evaluation. If evidence has already been evaluated by the trial Court, on what grounds, on what basis, on what principles would an appellate court undertake another re-evaluation of the same evidence Before tackling this main issue, it may be necessary to dispose of a subsidiary but related issue: What does evaluation of evidence consist of What is the meaning of the expression evaluation To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for etc. Thus if a plaintiffs case is supported by witnesses, while the defendant’s case is supported by 6 witnesses then the numerical expression, the quantum of evidence, the amount, would be 4 to 6. If cases are decided solely by the number of witnesses called by either side, then in the above instance the plaintiff will lose, having a preponderance of 6 witnesses to 4 witnesses in the scale against him.
Now talking of scale naturally leads one to the famous dictum of Fatayi Williams, J.S.C.(as he then was) in A.R. Mogaji & ors v Madam Rabiatu Odafin & ors (1978) 4 S.C.91 at 93:-
“When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which have been given to the totality of the evidence before him, (the trial Judge) ….. Therefore in deciding whether certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial Judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it ….” (italics ours).
This scale though imaginary is still the scale of justice, and the scale of truth. Such a scale will automatically repel and expel any and all false evidence. What ought to go into that imaginary scale should therefore be no other than credible evidence. What is therefore necessary in deciding what goes into the imaginary scale is the value, credibility and quality as well as the probative essence of the evidence.
If any evidence is disbelieved then such evidence has no probative value and should not therefore go into our imaginary scale.
Even in Mogaji’s case supra cited to back up the complaint of the failure of the Justices of the Court of Appeal to re-evaluate the evidence in the case now on appeal, even in that case, this Court held at p.94:-
“Therefore in determining which is heavier, the Judge will naturally have regard to the following:-
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable than that given by the other party”
In the case now on appeal the learned trial Judge reviewed the evidence of each witness, given in Chief as well as under cross-examination; he then considered the various submissions of counsel for the parties on the various issues agitated and related these to the evidence led and then at p.109, he stated:
“After a thorough review and evaluation of the evidence of the parties and their witnesses, I have come to prefer the evidence of the plaintiffs and their witnesses to the evidence of the defendants and their witnesses.”
It is after this, that the learned trial Judge recorded the 7 findings of fact I reproduced earlier on in this judgment. There is no doubt therefore that he did put the evidence of the parties in the imaginary scale before he was able to prefer one to the other.
My only quarrel with the judgment of the learned trial Judge is that he recorded his findings before indicating what side he believed. This is a very wrong approach. After a review of the evidence of witnesses who gave conflicting accounts, the trial Judge ought to have indicated what side he believed before recording his findings because it is on the credibility of those witnesses that proper findings can be made. If a witness is not believed no finding of fact can be founded on his evidence. In Adeyeye v Ajiboye (1987) 3 N.W.L.R. (Pt.61) 432 at p.451, I referred to what I thought was the proper approach to the issues of fact and findings of fact by trial Courts viz:
“The proper approach for any trial court is first set out the claim or claims; then the pleadings, then the Issues arising from those pleadings. Having decided on the issues in dispute the trial Judge will then consider the evidence in proof of each issue, then decide on which side to believe and this has got to be a belief based on the preponderance of credible evidence and the probabilities of the case.
After this the trial Judge will then record his logical and consequential findings of fact. It is after such a finding that the trial court can then discuss the applicable law against the background of his findings of fact.”
I made similar comments in Stephen v The State (1986) 5 N.W.L.R. (Pt.46) 978 at p.1005. But be that as it may, the learned trial Judge did at p.110 indicate that he believed the plaintiffs and their witnesses on the relevant issues and that he rejected the evidence of the defendants and their witnesses “where such evidence tended to contradict the material aspects of the plaintiffs and their witnesses.” In this case therefore the judgment of the learned trial Judge may be described merely as inelegant but it cannot be said that this lack of elegance occasioned a miscarriage of justice: Amokomowo v Andu (1985) 1 N.W.L.R. (Pt.3) 530 at p.539. Now no appellate court can reevaluate the credibility of witnesses it never saw or heard. Therefore in cases like the one now on appeal, which turn on the conflicting testimony of witnesses and the belief to be reposed in them, no appellate court can ever recapture the initial advantage of the trial Judge who saw, heard and believed. In such a case any re-evaluation of the evidence will be a fruitless exercise bound to founder on the rock of credibility.
I will now come to the injunction complained of in the appellants’ Brief under Issue No.1. In that injunction the appellants, their servants and agents and/or workmen were restrained from “entering upon any part of the land in dispute except the buildings and adjoining premises on which some members of the defendants’ kindred live.” Now an injunction is normally granted to prevent a recurrence of the wrong complained of in the action. In this case the trespass pleaded in paragraph 9 of the Statement of Claim was that in 1981 the defendants/appellants cleared some portions of the land in dispute in preparation for farming. This is the interference complained of. This should be what ought to be restrained by an order of injunction. Rather the learned trial Judge made an order which is so wide and so extensive as to amount to an impossibility considering that the defendants/appellants do live on the land in dispute with the permission of the plaintiffs/respondents. There was no order for forfeiture. How then can the defendants/appellants “be restrained from entering upon any part of the land in dispute.” How will they get in and out of their houses on the land in dispute What will be the definition and delimitation of the phrase “adjoining premises” used in the injunction award
An order of injunction should neither be vague nor uncertain. It should be clear and precise and it should inform the defendants what the opinion of the court is as to the limits of their rights and/or privileges in and over the land in dispute. The order should not, as in this case, be such as to expose the defendants/appellants to the consequences of violating a vague and imprecise injunction: Cother v. Midland Railway Co. 41 E.R. Ch. 1025; Karama & ano. v. Aselemi & ors. 4 W.A.C.A. 150. Chief Onyeama for the Plaintiffs/Respondents rightly conceded that the injunction granted in this case was vague and that it will thus be difficult to enforce. The appeal partially succeeds on this ground. The order of injunction is hereby modified to reflect the finding of the learned trial Judge that:
“the defendants entered on parts of the land in dispute in 1981 and cleared same for farming purposes without the permission of the plaintiffs.”
The defendants/appellants are therefore hereby restrained not from mere entering into the land in dispute but from entering therein and doing thereon any farming in violation of the plaintiffs/respondents’ rights or without the express permission of the plaintiffs/respondents.
In the final result and for the reasons given above and also for the fuller reasons in the lead judgment of my learned brother, Wali, J.S.C., which I now adopt as mine, I too will dismiss this appeal. I abide by all the consequential orders in the lead judgment.

CRAIG, J.S.C.: I have had the advantage of a preview of the judgment just delivered by my learned brother, Wali, J.S.C. and I am in complete agreement with the views expressed therein.
For the reasons given in the lead judgment, I too would dismiss the appeal and make the same consequential orders as have been made by my brother, Wali, J.S.C.
Appeal Dismissed.

 

Appearances

Chief M. I. Ahamba For Appellant

 

AND

Chief I. A. Onyeama For Respondent