HYACINTH NZENWATA & ORS v. REV DR. MIKE NZENWATA (2016)

HYACINTH NZENWATA & ORS v. REV DR. MIKE NZENWATA

(2016)LCN/8099(CA)

In The Court of Appeal of Nigeria

On Thursday, the 1st day of September, 2016

CA/OW/83/2014

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES FOR DETERMINATION SHOULD EMANATE FROM GROUNDS OF APPEAL

The law appears long to have been settled on authorities too numerous to mention that issues for determination should perforce emanate from Grounds of Appeal and that once issues have been distilled from the Grounds; the Grounds become subsumed within the issues so formulated. In other words, Appeals are normally decided herein and at the Apex Court based on the issues so argued by Learned Counsel for the parties as formulated from the Grounds and no more on the Grounds of Appeal as done here by the Learned counsel for the Appellant in this Appeal. per. IGNATIUS IGWE AGUBE, J.C.A.

APPEAL: ISSUES FOR DETERMINATION; THE DUTY OF COUSELS TO EXERCISE MORE DILIGENCE IN FORMULATING ISSUES

Curiously, the Learned Counsel for the Respondent did not raise any objection as to the incompetence of the issues formulated by the Learned Counsel for the Appellant which were mere replications of the Grounds of Appeal but also endorsed the same pattern in the formulation of the Respondent?s issues for determination. This point was emphasized in the case of J.I.G. Onyia V. Louis Oniah & Ors (1989) 2 S.C.N.J 120 at 128 lines 15 -30; where Karibi-Whyte, JSC; reasoned on the above principle in page 128 lines 15-30 thus: We have on several occasions in appeals coming before this Court pointed out that Counsel should exercised more diligence in formulating issues. It seems to me necessary to out point again that the issues to be determined are not the same as the Grounds of Appeal filed. Whereas the grounds of appeal filed accentuate the defects in the judgment sought to be set aside, the issues for determination accentuate the crux of the reasons encompassing one or more grounds of appeal for the determination of the appeal. Hence, merely to repeat the grounds of appeal as Counsel to the Defendants/Appellants has done in this case is not an acceptable formulation of issues. However, only issues formulated within the parameters and con of the grounds of appeal and raising issues for determination in the judgment appealed against can come within the purview of the issues to be determined. See Attorney-General Anambra State v. Onuselogu Enterprises Ltd. (1987) 4 NWLR (pt. 66). 547? see also A.P Ltd. V. Owodunmi (1999) 1 NWLR (pt. 210)391.” per. IGNATIUS IGWE AGUBE, J.C.A.

PRACTICE AND PROCEDURE: GRANT OF RELIEF; WHETHER A COURT OUGHT TO MAKE AN AWARD TO A PARTY OF WHAT THE SAID PARTY HAS NO CLAIM
I have carefully considered the submissions of Learned Counsel for the parties on this issue and there is no doubt that it is a cardinal principle of law that a Court ought not make an award to a party of what the said party has not claimed. The authorities of Onyekwulunne v. Ndulue (Supra), Badmus v. Abegunde (Supra), Usikaro v. Itsekiri Land Trustees (Supra) and Obajinmi v. A.G Western Nigeria Supra as cited by the Learned Counsel for the Appellant, in so submitting are all on point.
As I said in the celebrated case of A.G. Kwara State & Ors v. National Judicial Council & Anor (2010) LPELR 5009 (CA) while placing reliance on the locus classicus of Ekpenyong v. Nyong (1975) 6 NSCC at 3233 Paragraphs 50-75 per Ibekwe, JSC; Ado Ibrahim & Co. Ltd v. BCC Ltd. (2007) 15 NWLR (pt. 1058) 538; Nigeria Development & Housing Society Ltd. V. Mumuni (1977) 2 S.C. 57, Union Beverages v. Owolabi (1988) 2 NWLR (pt.68)128; Makanjuola v. Balogun (1989) 3 NWLR (pt. 108) 192; and Olorunfunmi v. Ige (1993) 8 NWLR (pt. 311) 257; the Supreme Court had long established the principle of law that no Court can grant any relief not sought by a party, except where such relief is ancillary or incidental to the main Relief (s) claimed as the law is equally settled on a host of authorities that the Court is not a father Christmas or Santa Claus who goes about dolling out gratuitous gifts to litigants even without their asking. In the equally celebrated case of Awoniyi v. Registered Trustees of AMORC (2000) FWLR (pt. 25) 1617Pparagraphs D-F and G; Iguh, JSC; approved and so succinctly and admirably restated this principle of law inter alia that: ?.?.in this regard, the law is long settled that where a plaintiff claims, say, a declaration of title or whatever, and his claim is dismissed, it will be wrong to grant the declaration to the Defendant if he did not ask for it by Counter-claim. See Ntiero v. Akpan 3 NLR 10; Abisi v. Ekwealor (1993) 6 NWLR (pt. 302) 642?. See further Osuji v. Ekeocha (2009) 16 NWLR (pt. 1168) 81 (S.C); Odunze & Ors. V. Nwosu and Ors (2007) LPELR -2252 (S.C) and A.G Abia State v. AG of the Federation (2006) LPELR-613 (SC) at pages 107-108 per Tobi, JSC (now of blessed memory) who characteristically and wittingly reasoned that:
?It is elementary law that a Court of law is confined to the relief or reliefs of the plaintiff. It does not go outside the relief or reliefs to grant the plaintiff what it does ask for. A Court of law can grant all the reliefs sought by the plaintiff. It can also grant part of the reliefs. But it cannot grant reliefs not sought by the plaintiff? see generally Ojo v. Abogunrin (1989) 5 NWLR (pt. 120) 162; Ugo v. Obiekwe (1989) 1 NWLR (pt. 99) 566; Idibia v. NCC Ltd. (1997) 7 NWLR (pt. 512) 174; Udom V. E. Micheleti & Sons Ltd (1997) 8 NWLR (pt.516) 187) Olaopa v. O.A.U, Ile-Ife (1997) 7 NWLR (pt.512) 204; Ezeakabekwe v. Emenike (1998) 11 NWLR (pt. 575) 529.
The Court is not father Christmas to dole out gifts not asked for by children. Even father Christmas is generous with its gifts only on Christmas day. On the joking and jovial side, I can say that today is not 25th day of December.” per. IGNATIUS IGWE AGUBE, J.C.A.

LAND LAW: THE MANAGEMENT AND CONTROL OF ALL LAND IN THE URBAN AREA AND RURAL AREA

The Learned Counsel on both sides are ad idem from their submissions in their respective Final Addresses that by the provisions of Sections 1 and 2 of the Land Use Act, 1978, all land comprised in the territory of each State in the Federation were/are vested in the Governor of that state and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act (Section 1 of the Act).
Also as from the commencement of the Act, all land in the urban areas shall be under control and management of the Governor of each State and all other land shall, subject to the Act, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated. (Section 2(a) and (b) of the Act).
By the provisions of Sections 5 (1) and 6(1) of the Act which deal with the Principles of Tenure, Powers of the Governor and Local Governments and Rights of Occupiers:
?It shall be lawful for the Governor in respect of land, whether or not in an urban Area-
(a) to grant statutory rights of occupancy to any person for all purposes.” Section 5(1) (a)
Section 6 (1) of the Act on the other hand provides that: It shall be lawful for a Local Government in respect of land not in an urban area-
(a) to grant customary rights of occupancy to any person or organization for the use of land in the Local Government Area for agricultural, residential and other purposes.”
The combined effect of the provisions of all the Sections of the Act above quoted is that all lands in urban areas as well as the Rural Areas are either vested in the Governors or Local Government Chairmen and all citizens of this Country who hitherto owned land or not are mere beneficial occupiers or owners as the State Governor in cases of land in Urban areas hold such land in trust for them. See Savannah Bank of (Nig) Ltd. & Anor v. Ajilo & Anor(1989) LPELR-3019 (SC) Per Belgore, JSC (as he then was) at pages 84-85, Paragraphs A-C). per. IGNATIUS IGWE AGUBE, J.C.A.

CONVEYANCING AND PROPERTY LAW: THE MEANING OF BENEFICIAL OWNER AND TITLE

In the case of Lasisi Lasupo Alli v. Chief J. O. Ikusebiala (1985) NWLR (pt 4) 6430 also reported in (1985) LPELR-428(SC) where family land was sold by the Mogaji of the family and in the conveyance executed he described himself as having sold the land as the beneficial owner and the question that arose at the Supreme Court on Appeal) was whether a conveyance of family land by the head of the family in his personal capacity and as beneficial owner was void and conveyed no legal estate; Karibi-Whyte, JSC; who wrote the Lead Judgment of the apex Court interpreted the term Beneficial Owner at page 18 Paragraphs D-G thus:-
The expression beneficial owner and seised in fee simple are conveyancing terms of important legal significance. See Section 100 of the Conveyancing and Property Law Oyo State, Parker v. Judkin (1931) ALL ER Rep. 222,227 and Smart v. Coker (1962) ALL NLR 186. Where a person is described as beneficial owner it means such owner enjoys completely or all the rights and privileges legally possible for an owner to have in respect of such land. Similarly, an owner ?in fee simple means that such a person has the largest estate possible in respect of the land. Thus where a person is described in his personal capacity in a conveyance, it means invariably he was capable of conveying the estate he claims to have. See also Daniel Kalio v. Woluchem (1985) NWLR (N.4) 610, (198) 3 S.C. 109 at 149 per Karibi-Whyte, JSc. This Court per Abiru, JCA in Sule Danjuma Usman v. New Nigeria Bank Plc. & Ors (2013) LPLR -20404 (CA) at pages 49-50 Paragraph. E-F, relying on the authorities and dicta of Nasir v. Abubakar (1997) 4 NWLR (pt.497) 33 page 45 D-E and Attorney General of Lagos State v. Attorney General of the Federal (2004) 12 NWLR (pt. 833) 1 at 247 Paragraphs E-F per 1.7 Muhammad, JCA (as he then was) and Tobi, JSC (now of blessed memory) on the controversy generated herein where the Respondent claimed declaration that he is the beneficial owner of Statutory Right of Occupancy rather than that he was/is entitled to a Statutory Right of Occupancy and he rightly reasoned and held that it is trite that a claim of ownership of land is in essence a claim for declaration of title to the land, in that title to the land and ownership are synonymous.
Thus, in the Nasir v. Abubakar case (Supra) I. T. Muhammad (now JSC) had defined title in the law of real property as a means whereby the owner of land has the just possession of his property. It is said to connote the union of all the elements which constitute ownership. The right to or ownership in land and evidence of such ownership; full independent and free ownership which ownership may be held individually jointly, in common or corporate or partnership form. It is also said to become absolute title- exclusive title ? where the title excludes all others not compatible with it and as the Learned Counsel for the Claimant/Respondent had rightly submitted, an absolute ownership cannot exist at the same time in different persons or in different government or organizations.
As for the Legendary Tobi, JSC, he had defined Title to land as the highest form of land ownership in our land tenure system. Ownership according to him, is a complete and total right over property. The owner of the property is not subject to the right of another person, as long as he has the full and final right to put the property or make use of it anyway, including planning of the land, if the need arises. The owner of a property can use it for any purpose. Material or immaterial, substantial, non-substantial, valuable, invaluable, beneficial or even for a purpose detrimental to his personal or proprietary interest. In so far as the property inheres in him nobody can say anything. The property begins with him and ends with him.” per. IGNATIUS IGWE AGUBE, J.C.A.

PRACTICE AND PROCEDURE: AMENDMENT OF PLEADINGS; SITUATIONS WHERE AN AMENDMENT OF PLEADINGS SHOULD BE ALLOWED
Interpreting the Kwara State High Court (Civil Procedure) Rules which provisions were in pari materia with the above provisions, on this vexed issue of amendment and where at the Ilorin Division of this Court we were confronted with the leading authorities of both English and Nigerian Jurisdictions like Shell B.P Petroleum Dev. Co. v. Jammal Engineering (Nig) Ltd. (1974) 4 S.C. 33 at pages 74-75; where it was stated that an amendment of pleadings should be allowed unless:
(1). It will entail injustice to the rival party;
(2). The Applicant is acting malafide. (Tildesley v. Harper (1878) 10 CH. D.393. (3). By his blunder, the Applicant has done some injury to the rival party which cannot be compensated by costs or otherwise (See Irepodun-Ifelodun Local Government v. Chief Simeon Ogundahunsi Balemo 3 Ors (2007) LPELR -8493 (CA); I was minded to hold that from the leading authorities on the amendment of pleadings I found the decision in Ojah and Ors. V Ogboni & Ors (1976) 1 NMLR 95 (1976) N.S.C.C (Vol. 10) 244 ,where our Judicial Titans of the Supreme Court Sowemimo, Irikefe and Madarikan, J.J.S.C (as they were then) illuminated and instructively expounded the principles underlying the exercise of the awesome powers of the Courts discretion to grant amendment of pleadings held citing the dictum of Bowen L.J. in Cropper Vs. Smith (1884) 26 CH.D. 700 at 710 and 711 that:-
?I think it is well established principle that the object of Court is to decide the rights of the parties and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their rights
I know of no kind of error or mistake which if not fraudulent or intended to over reach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or grace?.It seems to me that as soon as it appears that the way a party has framed his case will not lead to the decision of the real matter in controversy, it is as a much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.”
In Shell v. Amba (1999) 2 SCNJ 152 at 150; (1999 3 NWLR 1); the Supreme Court reiterated on the principles above stated that where an amendment has become imperative by reason of variance between the Statement of Claim and the evidence adduced at the trial by the plaintiff, the Court has always granted it even after the completion (as in this case) of the trial and judgment reserved.
Furthermore amendment can be made where its grant does not entail further evidence or changing the character of the case for in such circumstance no prejudice will occur to the rival party see Laguro v. Toku(1992) 2 NWLR 278 at 291 per Karibi ?Whyte, JSC. per. IGNATIUS IGWE AGUBE, J.C.A.

EVIDENCE: PROOF OF TRADITIONAL HISTORY; WHAT A PARTY WHO IS RELYING ON TRADITIONAL HISTORY MUST PLEAD AND PROVE

The Supreme Court per Ariwoola, JSC in the recent case of Thomas Nruamah & 4 Ors v. Reuben Ebuzoeme & 9 Ors. (2013) 221 LRCN (pt.1) 221 at 242 JJ and 243 AF; did re-emphasize this time-tested position of our law as laid down by the Supreme Court of Yore in a plethora of decided cases that:
It is trite that a party who is relying on traditional history must specifically plead and prove the following before the trial Court:
(a) Who founded the land?
(b) In what manner was the land founded?
(c) The names and particulars of successive/intervening owners through whom he claims.
See Akinloye v. Eyiyola (1968) NMLR 92; Mogaji v. Cadbury Ltd. (Supra). Olujinle v. Adeagbo (1988) 2 NWLR (pt. 75) 238; Lawal v. Olufowobi (1996) 12 SCWJ376; (1996) 10 NWLR (pt. 477) 177.”
See further the celebrated case of Nwokorobia v. Nwogu (2009) 10 NWLR (pt. 1150) 553 at 573 Para. H; 575 Para. H; 576 Para. G and 589 ? Para. E.-G per Muhkta, J.S.C (as he then was) and Chukwuma-Eneh, JSC; Ezeokonkwo v. Okike (2002) LPELR ? 1211 (SC) at 19 Paragraphs B_C per Iguh JSC, Ukaegbu & Ors . V. Nwololo (2009) LPELR -3337 (SC) at page 40, Paragraphs E-F. per. IGNATIUS IGWE AGUBE, J.C.A.

COURT: INTERFERANCE WITH AWARD OF DAMAGES; CIRCUMSTANCES WHERE AN APPELLATE COURT CAN INFERFERE WITH THE AWARD OF DAMAGES GRANTED BY TRIAL COURT

Talking specifically about interference with the award of damages, the Supreme Court had spoken through one of its fertile and erudite minds Mahmud Mohammed, J.S.C (now CJN) in the celebrated case of Martin Usong v. Hanseatic International Ltd. (2009) LPELR- 3434 (SC) at page 16 (an Appeal which incidentally emanated from my decision then of the High Court of Cross River State, Ugep Judicial Division); that:
As for the Appellant’s appeal against the reduction of his general damages, the law on powers of the Court of Appeal to interfere with the award is well settled. In order to justify the reversal or interference with the amount of damages granted by trial Court, it will generally be necessary for the Appellate Court to be convinced that:
(a). The trial Court acted upon a wrong principle of law; or (b) the amount awarded was extremely so high or very small as to make it, in the judgment of the Appellate Court, an entirely erroneous estimate of the damages to which the plaintiff is entitled. See Flint v. Lovell (1935) 11 K.B 350; ZIK?s Press Ltd. V. Ikoku (1951) 13 W.A. C.A 188; Idahosa v. Oronsaye (1959) S.C.N.L.R 407; (1959) 4 F.S.C 166 and Bala v. Bankole.
In the recent case of Saidu, H. Ahmed & Ors v. Central Bank of Nigeria (2012) LPELR? 9341(SC) per Adekeye, JSC was characteristically more elaborate on the above principle when she reasoned at page 18 inter alia:
Award of damages is an exercise of discretion by the Trial Court. An appellate Court will not interfere with an award of damages by a trial Court unless it is made under certain peculiar circumstances which include:-
1. Where the exercise of discretion by the trial Court is perverse.
2. Where the Court acted under wrong principles of law or
3. Where the Court acted in disregard of applicable principles or
4. Where the Court acted in misapprension of facts or
5. Where the Court took into consideration irrelevant matters whilst considering its award or
6. Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages?. See further UBN PLC v. Ajabule & Anor (2011) LPELR ? 8239 (SC) at 32-33 Paragraphs E-B per Fabiyi, JSC; Oduwole v. West (2010) 5SC 397 at 108; and Mobile Producing Nig Ltd. V. Udo Tom Udo (PC NO. 542) (2008) LPER ? 8440 (CA). per. IGNATIUS IGWE AGUBE, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

1. HYACINTH NZENWATA
2. ACHI IROEGBU
3. NJIMOGU OJIMADU
4. ONYEMACHI NWAOHANMUO Appellant(s)

AND

REV. DR. MIKE NZENWATA Respondent(s)

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This Appeal is sequel to the Judgment of the High Court of Abia State of Nigeria, Holden at the Umuahia Judicial Division, per Ogechi Okehelem, J; which Judgment was delivered on the 14th day of May, 2013 in the following terms at page 103 of the Records.
?I quite agree with Defence Counsel that Claimants prayer ought to be that he is entitled to the Statutory Right of Occupancy and not that he is the beneficial owner of the Statutory Right of Occupancy. This is a matter of improper couching of Reliefs which this Court can on its own take care of. Claimant has therefore proved his case on a preponderance of evidence, Defence?s evidence of traditional history is rejected.
Judgment is thus entered in favour of Claimant:
(1). I declare that the Claimant is entitled to Statutory Right of Occupancy of the land known and referred to as Okwenyi Land situate and lying at Umuolou Umuoka Mgbarakuma in Umuahia South Local Government Area; properly delineated in Survey plan No. DOK/ABSC/DSO9/2011 Exhibit ?A? before this Court and that the

Defendants have no interest in the land.
(2). As a consequence of the above, the Defendant their Agents and/or privies are hereby restrained from trespassing into the land, selling and or preparing to sell part or the whole of the land to anybody, since it is the Claimant that established a good root of title , I take him to be the one in possession. See Alade V. Awo (Supra).
(3). The Defendants are to pay the Claimant N300,000.00 damages for trespassing into the land.
I make no order as to cost.”

It would be recalled that the Respondent who was then the Claimant took out a Writ of Summons and in both the particulars and Statement of Claim dated and filed the 17th day of June, 2011 sought for the following Reliefs from the Appellants (the defendants):-
?1. Declaration that the Claimant is the beneficial owner of the Statutory Right of Occupancy of the land known and referred to as OKWUENYI LAND situate and lying at Umuoluo Umuoka Mgbarakuma in Umuahia South Local Government Area within the jurisdiction of this Court and that the Defendants have no interest in the land;
2. Perpetual injunction restraining the

Defendants, their Agents and/or privies from trespassing into the land, selling and preparing to sell part of the whole of the land to anybody;
3. N100, 000.00 damages for trespass to the land and wrongful demise of part of the land in dispute; trespass to the land to wit: farming the land and refusal to hands off the land.”

Upon being served with the originating processes, the Defendants/Appellants filed their Joint Statement of Defence dated the 11th of November, 2011 same date. The Statements of Claim and Defence were accompanied by Lists of Witnesses to be called at the trial, their respective Witnesses Statement on Oath and List of Documents sought to be relied upon by each parties. The Claimant/Respondent did not file a Reply to the Statement of Defence. (See pages 1-142 of the Records). At the hearing the Claimant/Respondent testified as CW1 and called four other Witnesses and tendered three documentary Exhibits marked ?A?, ?B? and ?C?. Exhibit ?A? is the survey plan No. DOK/ABSC/05/09/2011, a warning letter from the Law firm of Obinna Nwankpa and Co. dated 3rd September, 2007 Exhibit

?B?; and Exhibit ?C? is a Letter from Umuoka Development Union, Umuoka Village dated 24th July, 2008 and addressed to Rev. Mike Nzenwata (now Respondent).

The Defendants/Appellants on the other hand called three Witnesses and closed their case after which the respective Learned Counsel for the parties filed and exchanged their Written Addresses which were adopted on the 5th day of March, 2013 culminating in the Judgment delivered on the 14th of May, 2013.

Dissatisfied by the said Judgment, the Defendants through their Counsel gave Notice of Appeal with Seven (7) Grounds dated and filed on the 5th day of July, 2013. Below are the Grounds of Appeal as couched without their respective particulars:-
GROUNDS OF APPEAL:
?GROUND 1:
The Learned Trial Judge erred in law when he awarded the Claimant a Relief the Claimant did not claim.
?GROUND 2:
The Learned Trial Judge erred in Law when he held that the Claimant proved title to the land in disputes by traditional history.
?GROUND 3:
The Learned Trial Judge misdirected himself in law when he failed to evaluate the evidence of the 2nd

Defendant vis–vis that of the claimant on their respective claims to the land in dispute by traditional history.
?GROUND 4:
The Learned Trial Judge misdirected himself in law when he applied the Rule in Kojo II v. Bonsie (1957) 1WLR1223, 1226 to this case when there were no conflicting evidence of traditional history by the Claimant and 2nd Defendant.
?GROUND 5:
The Learned Trial Judge erred in law when he held that the Claimant was in possession of the land in dispute contrary to the Claimant?s pleading and evidence.
?GROUND 6:
The Learned Trial Judge erred in law when he held that the Claimant was entitled to damages for trespass and awarded the sum of N300,000.00 damages for trespass to the land in excess of what was claimed.
?GROUND 7 (OMNIBS):
The Judgment of the Trial Court is against the weight of evidence before it
4. RELIEF SOUGHT
That the Judgment of the Trial Court be set aside and order a retrial.”

Following the transmission of the Record of Appeal and the eventual entry of the Appeal in this Court, the Learned Counsel for the Respective parties

filed their Briefs of Argument. In the Appellant?s Brief dated and filed on the 23rd day of April, 2014 by Obioma Chiamakwalam, Esq., the Learned Counsel raised a sole issue for determination thus:
?WHETHER THE RESPONDENT IS ENTITLED TO THE JUDGMENT OF THE COURT BELOW HAVING REGARD TO THE PLEADINGS, RELIEFS SOUGHT, EVIDENCE BEFORE THE COURT AND THE STATE OF THE LAW

On the other hand, Chief B. O. C Okwonu who settled the Brief of argument of the Respondent dated the 14th of May, 2014 but filed on the 16th of May, 2014, distilled no separate issues except to adopt that of the Learned Counsel for the Appellant who nominated a sole issue and resorted to the Grounds of Appeal in his arguments.
?
Before delving into the argument of Counsel and the resolution of the sole issue, it is necessary to reflect on the brief facts of the case. The case of the Claimant (now Respondent) as can be gleaned from his Statement of Claim is that he is a Clergyman from Umuoluo, Umuoka, Mgbarakuma in Umuahia South Local Government ordinarily resident at Umuagu Mgbarakuma in Umuahia South Local Government Area within the jurisdiction of the Lower High

Court. The Defendants (now Appellants) are also indigenes of Umuoluo Umuoka Mgbarakuma in the said Local Government within the jurisdiction of the Court below.

The Claimant/Respondent had claimed that the 1st and 2nd Appellants (then Defendants) were sued in the lower Court for conniving amongst themselves to sell part of Okwuenyi Land situate and lying at Umuoluo, Umuoka Mgbarakuma in Umuahia South Local Government Area, which piece of land was given him (the Claimant/Respondent) by his (Respondent?s) father Mathew Nwankpuda Nzenwata as Azobi in the face of such a gift inter vivos also to Godwin Nwakpu Nzenwata his most Senior brother and Hyacinth Nzenwata the 1st Defendant/Appellant, his most junior brother to the 3rd and 4th Defendants having been warned earlier through a Lawyer in writing not to sell or buy.
?
He further claimed that he is the beneficial owner of that land above referred which land he showed in the Dispute plan pleaded and tendered at the hearing. He had traced the genealogical pedigree of the land to Nzenwata his grandfather who married two wives namely NWAONONIGBE and NGWAMA and begat seven sons from both wives in this

order, from Nwaononigbe; he beget Mathew Nwakpuda Nzewata his (Respondent?s father) and Jacob Onwuzuruigbo Nzenwata and from NGWAMA, he beget Ihedigbo, Eziowere, Nwogu, Elijah and Monday (Five sons altogether).

According to the Respondent, before Nzewata married Nwaonoigbe, she was previously married to Iroegbu a relation of Nzewata, who begot John Iroegbu before Iroegbu died and being a young woman Nzenwata remarried her but without adopting John Iroegbu, who grew up in Nwaonoigbe?s kitchen and at maturity assumed his rights in the estate of Iroegbu and being an only son had no person to share Iroegbu?s Estate. Nzenwata however shared the estate of his father with his brothers just as the sons of Nzenwata shared his estate and the Claimant?s father Mathew Nwakpuda Nzenwata got Okwuenyi Land as part of his share in the estate of Nzenwata.

It was the further case of the Respondent that Mathew Nwakpuda Nzenwata married only one wife and had three sons i.e. Godwin Nwakpuda Nzenwata, Rev. Dr. Mike M. Nzenwata and HYcinth Nzenwata (the 1st Defendant) and gave gifts inter-vivos a place to build called Ozobi to each of his sons

before he died. The Claimant/Respondent added that the estate of Mathew Nwakpuda Nzenwata has not been shared by his sons except the gifts inter-vivos to his said sons.

However, the 1st Defendant/Appellant had sold out more than seven plots of Mathew?s Estate after which the 1st Defendant circulated a letter and copied the family that he is not the son of Mathew Nzenwata but the son of Onwuzuruigbo the Claimants father?s brother who died without begetting a son. That letter was also pleaded and relied upon at the trial. The Claimant also claimed that the 3rd Defendant phoned him while he (Claimant/Respondent) was at Enugu in 2006 that the 1st and 2nd Defendants were coming to sell part of the Claimant/Respondent?s Ozobi Land to him (the 3rd Defendant).

The Claimant/Respondent further claimed that he came back and consulted Barrister Nwankpa who wrote the Defendants not to sell or buy and fixed a signpost of ?NOT FOR SALE? and in his absence, they pulled it down thereby committing trespass on the land. The 1st Defendant/Appellant then proceeded to sell part of the land to the 3rd Defendant, Njiogu Opinadu and Onyemachi

Nwaohamuo and he (Respondent) reported the 1st Defendant/Appellant and 3rd and 4th Appellants to Umuoka Union but the Appellants refused to appear. The Respondent later reported the matter to the Police at Apururi and Area Command Headquarters but the youth Chairman advised the Respondent in writing to sue the Defendants to Customary Court but the case was not heard for want of jurisdiction.

The Respondent was also said to have taken the Appellants to the Mgbarakuma Union and a warning letter from the Defence Counsel deferred the hearing before he went to Amuzu Okonko which started hearing the matter and on an attempt to visit the locus inquo same was frustrated by fighting. The visit was rescheduled but the Respondent was advised to sue in a Court of Competent Jurisdiction.
?
He gave the boundary Neighbours to disputed land as Njimogu and Nwaohamuo Compound, Nkpa Ogbuchi Land, Umuoriaku Land and Eziowere Nzenwata Land and claimed finally that Iroegbu?s Land is not in the same location with Nzenwata?s land but that the former is across the road. He also stated that he neither condoned nor acquiesced in the actions of the Defendants as he

had taken one action or the other before filing the action now on Appeal; hence the Reliefs as sought in page 6 of the Records.

On the part of the Appellants, they acknowledged the land mentioned in the Respondents Dispute plan N0.DOK/ABSC/DS/09/2011 dated 11/7/11 and relied on same plan. Having denied each and every material allegation of fact in the Claimants Statement of claim as if same were set down and traversed seriatim. As regards Paragraphs 3 and 4 of the Statement of Claim, the Defendants pleaded that the Original Okwenyi Land was originally deforested by Oluo and same was shared among his five sons namely Iroegbu (Grandfather of 2nd Defendant?s). Ukagoanya, Obguechi, Nzenwata (Grandfather of Claimant and 1st Respondent) and Ibe. All these parts according to the Defendants/Appellant, still retain the name ?OKWUENYI? as attested to by the Claimant/Respondent in Paragraph 3 of his Statement of Claim where he made mention of ?part of Okwuenyi land?.
?
It is their further case that over the years, these constituent parts of Okwuenyi Land were rebaptized with second names to distinguished them from other parts of the

greater Okwuenyi land inherited by other sons and descendants of Oluo. For instance, they stated, the land in dispute became otherwise known as Azu Uto Nwaoharmuo or Nwaoharmuo?s backyard. They denied that there is any part of Okwuenyi land called/Christened Ogwuenyi Umuora as the portion of the land in dispute fell within the Iroegbu lineage and not Nzenwata lineage of the Respondent and 1st Appellant. According to them, Iroegbu?s Land/Inheritance fell to John who was his only son and father of the 2nd Defendant.

The 2nd Defendant is said to have other brothers called Chibuike, Udo, Luke, Ifeanyi, Ikechi. Iroegbu his son John and these six sons have farmed on the disputed land from time immemorial till date of dispute without any dispute, without any molestation or dispute. It is their further case that the disputed land was never sold to anybody but is still being farmed by the 2nd Defendant and his siblings rather, in the distant part, the land was pledged to one man from Abam Ubakala (named simply as Ekwueme) and the details are unknown to the parties as this transpired several years ago.
?
They continued that the 2nd Defendant raised

his family in Port Harcourt being a worker with shipping line. While he was away at Port Harcourt, Nzenwata managed his estate and upon return, 2nd Defendant demanded for the return of his estate including the disputed land.
A dispute was said to have ensued as a result of this demand which was looked into by a panel of elders from Umuoka Village of the parties in this suit. The two wives of John Iroegbu followed up the demand against Mathew Nzenwata and won. The dispute went further before one Akuma Ukwu 1 of Mgbarakuma and once again Mathew lost against the wives of John Iroegbu.
?
The Defendant?s/Appellant further averred in their Statement of Defence that Nzenwata, grandfather of the Respondent and 2nd Appellant obtained their inheritance of the Original Okwuenyi Land in another section far flung from the land in dispute. According to them Nzenwata had six sons namely; Eziowere, Mathew, Ihedigbo, Onwuzunigbo, Ihunanya (Elijah and Monday and when Nzenwata?s estate was shared, Mathew inherited part of Nzenwata?s share of Ukwenyi land from his father which his son the late Godwin Mathew Nzenwata sold to one Chief Ibekwe from

Umunwana Ubakala. He is said to be in possession of same today without any dispute from anybody which said land is far off from the disputed land. Onwuzuruigbo also inherited a portion which was sold to one Mrs. Ahiwe who built a Church meeting Hall thereon.

They admitted Paragraphs 5 and 6 on the genealogy of the family that owns the land, as well as Paragraph 7 of the statement of claim but made it categorically clear that any gift given the Claimant could not have been any part of the land in dispute which returned to the wives of John Iroegbu after the aforementioned arbitration. The Defendant/Appellant also stated that the Respondent has other surviving siblings ? the 1st Defendant/Appellant and three married sisters all except Doreen (who is mentally unstable) are averse to the spurious claim of the Claimant/Respondent over the disputed land.
?
They further admitted Paragraph 8 of the Statement of claim that the estate of Mathew Nzenwata has not been shared but put the Respondent to the strictest proof of Paragraph 9 of Statement of Claim as the 1st Defendant/Appellant claimed that he solely buried his late uncleOnwuzurigbo as well as his

wife who were not survived by any son and by virtue of this, the 1st Appellant assumes the rights of his late uncle according to the tradition of the umuoka people.

Finally, they denied Paragraphs 10 and 11 of the Statement of Claim and also denied receiving any letter from any Barrister Nwankpa.

In the determination of this Appeal, I have noticed that the Learned Counsel for the Appellant adopted the Novelle procedure of arguing the Appeal on the Grounds of Appeal rather than on the issues distilled from the Grounds of Appeal. The law appears long to have been settled on authorities too numerous to mention that issues for determination should perforce emanate from Grounds of Appeal and that once issues have been distilled from the Grounds; the Grounds become subsumed within the issues so formulated. In other words, Appeals are normally decided herein and at the Apex Court based on the issues so argued by Learned Counsel for the parties as formulated from the Grounds and no more on the Grounds of Appeal as done here by the Learned counsel for the Appellant in this Appeal.
?Curiously, the Learned Counsel for the Respondent did not raise any

objection as to the incompetence of the issues formulated by the Learned Counsel for the Appellant which were mere replications of the Grounds of Appeal but also endorsed the same pattern in the formulation of the Respondent?s issues for determination. This point was emphasized in the case of J.I.G. Onyia V. Louis Oniah & Ors (1989) 2 S.C.N.J 120 at 128 lines 15 -30; where Karibi-Whyte, JSC; reasoned on the above principle in page 128 lines 15-30 thus: ?We have on several occasions in appeals coming before this Court pointed out that Counsel should exercised more diligence in formulating issues. It seems to me necessary to out point again that the issues to be determined are not the same as the Grounds of Appeal filed. Whereas the grounds of appeal filed accentuate the defects in the judgment sought to be set aside, the issues for determination accentuate the crux of the reasons encompassing one or more grounds of appeal for the determination of the appeal. Hence, merely to repeat the grounds of appeal as Counsel to the Defendants/Appellants has done in this case is not an acceptable formulation of issues. However, only issues formulated within

the parameters and con of the grounds of appeal and raising issues for determination in the judgment appealed against can come within the purview of the issues to be determined. See Attorney-General Anambra State v. Onuselogu Enterprises Ltd. (1987) 4 NWLR (pt. 66). 547? see also A.P Ltd. V. Owodunmi (1999) 1 NWLR (pt. 210)391.”
Nnaemeka ?Agu, JSC of blessed memory also had cause to deprecate the methods adopted by the Learned Counsel for the Appellant and Respondent herein where like this case, after formulating the nine issues for determination in the appeal some of which did not arise from the Grounds filed; he proceeded to argue the nine grounds of appeal one after the other and the Learned Law Lord (see Ugo v. Obiekwe (1989) 2 SCNJ 95 at 104 lines 5-34) repeated what he said in Standard Consolidated Dredging & Construction Co. Ltd. V Katoncrest (Nig) Ltd. (1986) 5 NWLR (pt. 44) 791 at 799; that the above manner of wording the issues for determination in both briefs raised two necessary questions viz:-
(i). What is the meaning of ?issues arising for determination? in a Brief and (ii) what are the objects and

purpose?
On the meaning of ?issues?, he borrowed the words of Buckley, L.J.; in Howell v. Daring & Ors. (1915) 1 K.B. 54, at page 62 thus:
?The word can be used in more than one sense. It may be said that every disputed question of fact is in issue. It is in a sense, that is to say, it is in dispute. But every question of fact is ?in issue? and which a jury has to decide is not necessarily ?an issue? within the meaning of the rule. An issue is that which, if decided in favour of the plaintiff, will in itself give a right to relief, or would, but for some other consideration, in itself give a right to relief; and if decided in favor of the defendant will in itself be a defence.”
The erudite Law Lord also reasoned that the same is applicable to an Appellant?s Brief, mutatis mutandis for it is not every fact in dispute or indeed every ground of Appeal that raises an issue for determination. According to him, while some times one such fact or ground may raise an issue, more often than not, it takes a combination of such facts or grounds to raise an issue. The acid test, he added, is whether

the Legal consequences of that ground or facts as framed by the Appellants, if decided in favour of the Appellant, will result in a verdict in his favor. Quoting Lord Diplock?s dictum in Fidelitas Shipping Co. Ltd. V. V/O Exportchleb (1966)1 Q.B. 613 at page 642 that:
?But while an issue may thus involve a dispute about facts, a mere dispute about facts divorced from their legal consequences is not ?an issue?, the Learned apex Court Justice of blessed memory further posited that:-
?The issues, as framed, appear to have served no purpose whatsoever in the appeal. For after framing the nine issues, Counsel went back to argue his grounds of appeal one after another. He made no references to the issues framed, in his argument. The proper practice is of course, that after framing the issues, the statement of facts and argument to follow should be based on, and be referable to the issues as framed and not on the grounds of Appeal. This is the only way where by Counsel can derive maximum benefit from his brief? See also Osadare & Ors V. Liquidator, Nigeria Paper Mills Ltd & Anor (2011) LPELR- 9269 (CA).

that as it may, and notwithstanding the wrong procedure adopted by the Learned Counsel in the formulation of the issues for determination, since the Learned Counsel for the Respondent has acquiesced in the erroneous method without filing any preliminary objection nor even objecting viva voce on the competence of the issues formulated by the Learned Counsel for the Appellant; I propose to convert the Grounds of Appeal as reproduced in the Learned Counsel to the Appellants Brief of argument into questions/issues for determination thus:
ISSUE NUMBER 1: ?WHETHER THE LEARNED TRIAL JUDGE ERRED IN LAW WHEN HE AWARDED THE CLAIMANT A RELIEF THE CLAIMANT DID NOT CLAIM? (GROUND 1 OF THE GROUNDS OF APPEAL)?

Arguing this case, the Learned Counsel for the Appellant cited and relied on the authorities of Onyekwulunne v. Ndulue (1997) 7 NWLR (pt. 512) 277; Badmus v. Abegunde (1991) 71 LRCN 2912, Usikaro v. Itsekiri Land Trustees (1991) 2 NWLR (pt. 172) 150 and Obajimi v. AG (Western Nigeria) (1967) 1 ALL NLR 31 at 34 on the cardinal principle of our Law that a Court ought not to award to a party what he did not claim and drew our attention to the Claim of

the Respondent at page 6 of the Record of Appeal as well as the Judgment of the Court below at page 103 of the Records. He therefore argued that this formed part of their argument at page 76 of the Records (the Defendant?s Final Address) where he contended that the 2 expressions in Paragraph 4.0.6 (b) and (c) and in the Brief of the Appellant that is to say that the Claim/Relief of the Claimant/Respondent at page 6 of the Records and the declaration granted the Respondent in the Judgment at page 103 of the Records are not the same.
?
It was the contention of the Learned Counsel for the Appellant that the Learned Counsel for the Respondent did not ask for an amendment of Relief Number 1 (ONE) as sought in the Court below notwithstanding that a party can amend his pleadings even at the point of the Judgment and the Learned Trial Judge agreed with the contention of Counsel for the Defendants in this respect at page 103 of the Records on the variance between what was sought in Relief Number 1 (ONE) of the Respondent and what was granted him by the Court. He therefore submitted that contrary to the findings of the Court as quoted in Paragraphs 4.0. (9) of

the Appellant?s Brief, the Learned Trial Judge descended into the arena of conflict by REDRAFTING that head of the Claimants claim and entered judgment in favour of the Claimant in terms at variance with the Respondent?s Relief Number 1 (ONE).

We were therefore urged to so find/hold that the Learned Trial Judge was without power to amend a claim (that is to make a case) on behalf of a party and then proceed to grant the party the amended version on the authorities of GS Pascuto v. Adecentro Nig. Ltd. (1997) 11 NWLR (pt. 529) 467 and Commissioner for Works, Benue State v. DEVCON Dev. Consultant Ltd (1988) 3 NWLR (pt. 83) 407; thereby in so doing granting the Claimant/Respondent, Relief not sought and contrary to the Judicial pronouncements as highlighted in Paragraph 4.01 of the Appellant?s Brief.

ARGUMENT OF LEARNED COUNSEL TO THE RESPONDENT ON ISSUE NUMBER ONE (1)
Reacting to the above arguments of the Learned Counsel for the Appellants, the Learned Counsel for the Respondent on the contrary, contended that it is a misconception on the part of the Appellant to so argue because the Respondent made his claim clear in his

Statement of Claim, Pleadings, Statement on Oath and evidence under Cross-examination at pages 1,2,4 and 17 of the Record of Appeal on which they relied.

Further references were made to Paragraphs 003 and 004 of the Claimant?s address at pages 83 and 84 of the Records. He submitted that the Learned Counsel for the Appellants did not appreciate the implications of Order 36 Rule 8 of the High Court/Civil Procedure Rules assuming but not conceding that there was an error in couching the amendment by the Learned Trial Judge. It was his further submission that the orchestrated amendment in the face of the claim, pleadings and evidence before the Court is not one that could have occasioned miscarriage of justice. Consequently we were urged to find as a fact that Ground1 (ONE) of the Grounds of Appeal has failed and thus, the Appeal should be dismissed.

RESOLUTION OF ISSUE NUMBER ONE (1)
I have carefully considered the submissions of Learned Counsel for the parties on this issue and there is no doubt that it is a cardinal principle of law that a Court ought not make an award to a party of what the said party has not claimed. The authorities of

Onyekwulunne v. Ndulue (Supra), Badmus v. Abegunde (Supra), Usikaro v. Itsekiri Land Trustees (Supra) and Obajinmi v. A.G Western Nigeria Supra as cited by the Learned Counsel for the Appellant, in so submitting are all on point.
As I said in the celebrated case of A.G. Kwara State & Ors v. National Judicial Council & Anor (2010) LPELR 5009 (CA) while placing reliance on the locus classicus of Ekpenyong v. Nyong (1975) 6 NSCC at 3233 Paragraphs 50-75 per Ibekwe, JSC; Ado Ibrahim & Co. Ltd v. BCC Ltd. (2007) 15 NWLR (pt. 1058) 538; Nigeria Development & Housing Society Ltd. V. Mumuni (1977) 2 S.C. 57, Union Beverages v. Owolabi (1988) 2 NWLR (pt.68)128; Makanjuola v. Balogun (1989) 3 NWLR (pt. 108) 192; and Olorunfunmi v. Ige (1993) 8 NWLR (pt. 311) 257; the Supreme Court had long established the principle of law that no Court can grant any relief not sought by a party, except where such relief is ancillary or incidental to the main Relief (s) claimed as the law is equally settled on a host of authorities that the Court is not a father Christmas or Santa Claus who goes about dolling out gratuitous gifts to litigants even without their

asking. In the equally celebrated case of Awoniyi v. Registered Trustees of AMORC (2000) FWLR (pt. 25) 1617Pparagraphs D-F and G; Iguh, JSC; approved and so succinctly and admirably restated this principle of law inter alia that: ?.?.in this regard, the law is long settled that where a plaintiff claims, say, a declaration of title or whatever, and his claim is dismissed, it will be wrong to grant the declaration to the Defendant if he did not ask for it by Counter-claim. See Ntiero v. Akpan 3 NLR 10; Abisi v. Ekwealor (1993) 6 NWLR (pt. 302) 642?. See further Osuji v. Ekeocha (2009) 16 NWLR (pt. 1168) 81 (S.C); Odunze & Ors. V. Nwosu and Ors (2007) LPELR -2252 (S.C) and A.G Abia State v. AG of the Federation (2006) LPELR-613 (SC) at pages 107-108 per Tobi, JSC (now of blessed memory) who characteristically and wittingly reasoned that:
?It is elementary law that a Court of law is confined to the relief or reliefs of the plaintiff. It does not go outside the relief or reliefs to grant the plaintiff what it does ask for. A Court of law can grant all the reliefs sought by the plaintiff. It can

also grant part of the reliefs. But it cannot grant reliefs not sought by the plaintiff? see generally Ojo v. Abogunrin (1989) 5 NWLR (pt. 120) 162; Ugo v. Obiekwe (1989) 1 NWLR (pt. 99) 566; Idibia v. NCC Ltd. (1997) 7 NWLR (pt. 512) 174; Udom V. E. Micheleti & Sons Ltd (1997) 8 NWLR (pt.516) 187) Olaopa v. O.A.U, Ile-Ife (1997) 7 NWLR (pt.512) 204; Ezeakabekwe v. Emenike (1998) 11 NWLR (pt. 575) 529.
The Court is not father Christmas to dole out gifts not asked for by children. Even father Christmas is generous with its gifts only on Christmas day. On the joking and jovial side, I can say that today is not 25th day of December.”

Now the grouse of the Appellant on this issue is that in Relief (1) of the Claimant/Respondent at page 6 of the Record of Appeal, he had claimed for: ?A declaration that the Claimant is the beneficial owner of the statutory right of Occupancy of the land known and referred to as OKWUENYI LAND situate and lying at Umuoluo Mgbarakuma in Umuahia South Local Government Area within the jurisdiction of this Court and that the Defendants have no interest in the land?. Whereas the Learned Trial Judge

at page 103 of the Judgment re-couched the said Relief (1) in the following terms:
?I declare that the Claimant is entitled to the statutory right of Occupancy of the land known and referred to as Okwuenyi Land situate at Umuoluo Umuoka Mgbarakuma in Umuahia South Local Government Area, properly delineated in survey plan NO.DOK/ABSC/DSO9/2011 Exhibit A before this Court and that the Defendants have no interest in the land.”

A perusal of page 76 of the Records would actually reveal that the Learned Counsel for the Defendant?s/Appellant?s had argued in Paragraph 3.01 (a)-(f) that the Claimant requested the Court below for a declaration that he was the Beneficial OWNER of the Statutory Right of Occupancy of the land in dispute and that pursuant to the Land Use Act, all land within an Urban Area is vested in the Governor of the State where in the land is situated. An individual according to Learned Counsel on the authority of AG (Lagos State) v. Sowande (1992) 8 NWLR (pt.261) 592, becomes a beneficial owner of a Statutory Right of Occupancy not by Order of Court or declaration; but by a validly assigned Certificate of Occupancy (C

of O) evidencing the grant of that right by the Governor of the State where in the land is situate.

The Learned Counsel had further argued that an individual can apply to a Court for a declaration that he is entitled to the Statutory Right of Occupancy over a specific parcel of land which if granted may form the basis of an application to the Governor for a grant of the Right of Occupancy. It was then therefore submitted that if the first arm of the Reliefs sought by Appellant was to be granted by the Court below, the Respondent as Claimant ought to have tendered evidence of an already assigned Statutory Right of Occupancy to enable the Court to establish that the Claimant/Respondent was/is the beneficial owner of disputed land.
?
He finally argued that although the Claimant/Respondent pleaded in Paragraph 4 of his Statement of Claim that he is the beneficial owner of the said disputed land, the entire gamut of his evidence and his witnesses fell short of his assertion and the failure or short coming was fatal to his (Claimant?s) case as regards that first arm of prayer/Reliefs sought. He therefore urged the Court below to found that the first

arm of the Claimant/Respondent?s Relief failed and should be dismissed. In his reply to the above argument of the Learned Counsel for the Defendant/Appellants, the Learned Counsel for the Claimant/Respondent at page 84 of the Records of Appeal in his Final Written Address argued that upon commencement of the Land Use Act, the Act created a Sole, Right i.e. Right of Occupancy stratified into Two (2) major interests in realty Land in Nigeria by Designation. According to the Learned Counsel for the Claimant/Respondent, the import of such designation or stratification is that all land in Urban designated Areas offer a right of Occupancy referred to as ?Statutory Right of Occupancy? whilst all right all lands in areas not designated as urban areas were referred to as ?Customary Right of Occupancy? (Section 5(i) and 6(i) of the Land Use Act refer).
?
The Learned Counsel for the Respondent had further argued that as a matter of practice, the designation of an area determines the attendant Right of Occupancy but however posited that of particular relevance here is that the Applicant for Statutory or Customary Right of Occupancy may not

be the beneficial owner of either of the rights. He posed the question as to what right is sought to be protected in a declaration of title which he answered that it is simply the Beneficial interest of the Claimant. He then posited that at every material particular time, two (2) competing/conflicting beneficial interests over a particular piece of land cannot exist in the face of proper prior settlement of an estate.
?
He in the light of the above submitted that the Court below in the face of the fact that the land in dispute is by law on designation, that of Statutory Right of Occupancy that it was called upon to declare that the Claimant and no other person given the gift inter-vivos by his late father is the beneficial owner of the Statutory Right of Occupancy and not the Defendants of who they back. The Learned Counsel further urged the Court below to note that at the point of the gift inter-vivos, the father of Claimant stopped being the beneficial owner having transformed by gift the unexpired residue of his beneficial interest to his son, the Claimant. He explained that while the estate of Nzenwata is yet to be shared, it is of utmost importance to

prove the beneficial owner in an atmosphere of Joint Beneficial interest, as a result of the unsettled estate.

On the above score, the Learned Counsel for the Claimant/Respondent urged the Court below to discountenance the submissions of the Learned Counsel for the Defendants/Appellants and dismiss same as a misconception calculated to mislead the Court below in its administration of justice.

Ruling on the contentions of the parties the Learned Trial Judge reasoned at pages 102-103 lines 36 and 37 to lines 1-18 thus:
?Before I conclude, let me say that a Certificate of Occupancy is conclusive evidence of any right interest or even valid title to land. Claimant obviously had none as he did not tender any. He merely called himself beneficial owner. ?This means such owner enjoys completely all rights and privileges legally possible for an owner to have in respect of such land?. Per Karibi-Whyte, JSC in Alli v. Ikusebiala (1985) NWLR (pt.4) 630.
I quite agree with Defence Counsel that Claimants prayer ought to be that he is entitled to Statutory Right of Occupancy and not that he is the beneficial owner of the Statutory Right

of Occupancy. This is matter of improper couching of reliefs which the Court can on its own take care of. Claimant has therefore proved his case on a preponderance of evidence, defences evidence of traditional history is rejected. Judgment is thus entered in favour of the Claimant?.
(1) I declare that the Claimant is entitled to the Statutory Right of Occupancy of the land known and referred to as Okwuenyi land situate and lying at Umuoluo Umuoka Mgbarakuma in Umuahia South Local Government Area. Properly delineated in Survey Plan NO. DOK/ABSC/DSO9/2011 Exhibit ?A? before this Court and that the Defendants have no interest in the land.”

the Act, all land in the urban areas shall be under control and management of the Governor of each State and all other land shall, subject to the Act, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated. (Section 2(a) and (b) of the Act).
By the provisions of Sections 5 (1) and 6(1) of the Act which deal with the Principles of Tenure, Powers of the Governor and Local Governments and Rights of Occupiers:
?It shall be lawful for the Governor in respect of land, whether or not in an urban Area-
(a) to grant statutory rights of occupancy to any person for all purposes.” Section 5(1) (a)
Section 6 (1) of the Act on the other hand provides that: ?It shall be lawful for a Local Government in respect of land not in an urban area-
(a) to grant customary rights of occupancy to any person or organization for the use of land in the Local Government Area for agricultural, residential and other purposes.”
The combined effect of the provisions of all the Sections of the Act above quoted is that all lands in urban areas as well as the Rural Areas are

either vested in the Governors or Local Government Chairmen and all citizens of this Country who hitherto owned land or not are mere beneficial occupiers or owners as the State Governor in cases of land in Urban areas hold such land in trust for them. See Savannah Bank of (Nig) Ltd. & Anor v. Ajilo & Anor(1989) LPELR-3019 (SC) Per Belgore, JSC (as he then was) at pages 84-85, Paragraphs A-C). When the Respondent Claimed as beneficial owner of the Statutory Right of Occupancy of the land situate at Umuoluo Umuoka in Umuahia South Local Government which is part of the Capital of Abia State, he may have technically wrongly couched his first Relief but this is certainly a slip by the Learned Counsel who prepared the Statement of Claim and the Court was duty bound in the interest of justice to effect the appropriate amendment.
?
By pleading that he is the beneficial owner, the Claimant/Respondent was merely exercising a recognized right in equity as owner of the land bequeathed on him by his father inter-vivos, even though the legal title may be vested now on the Governor who holds same in trust for him. See the definition of ?Beneficial

owner? at page 1130 of Blacks Law Dictionary 7th Edition by Bryan A. Garner Editor-in chief et al. In the case of Lasisi Lasupo Alli v. Chief J. O. Ikusebiala (1985) NWLR (pt 4) 6430 also reported in (1985) LPELR-428(SC) where family land was sold by the Mogaji of the family and in the conveyance executed he described himself as having sold the land as the ?beneficial owner? and the question that arose at the Supreme Court on Appeal) was whether a conveyance of family land by the head of the family in his personal capacity and as beneficial owner was void and conveyed no legal estate; Karibi-Whyte, JSC; who wrote the Lead Judgment of the apex Court interpreted the term ?Beneficial Owner? at page 18 Paragraphs D-G thus:-
?The expression ?beneficial owner? and ?seised in fee simple? are conveyancing terms of important legal significance. See Section 100 of the Conveyancing and Property Law Oyo State, Parker v. Judkin (1931) ALL ER Rep. 222,227 and Smart v. Coker (1962) ALL NLR 186. Where a person is described as ?beneficial owner? it means such owner enjoys completely or all the rights

and privileges legally possible for an owner to have in respect of such land. Similarly, an owner ?in fee simple? means that such a person has the largest estate possible in respect of the land. Thus where a person is described in his personal capacity in a conveyance, it means invariably he was capable of conveying the estate he claims to have?. See also Daniel Kalio v. Woluchem (1985) NWLR (N.4) 610, (198) 3 S.C. 109 at 149 per Karibi-Whyte, JSc. This Court per Abiru, JCA in Sule Danjuma Usman v. New Nigeria Bank Plc. & Ors (2013) LPLR -20404 (CA) at pages 49-50 Paragraph. E-F, relying on the authorities and dicta of Nasir v. Abubakar (1997) 4 NWLR (pt.497) 33 page 45 D-E and Attorney General of Lagos State v. Attorney ?General of the Federal (2004) 12 NWLR (pt. 833) 1 at 247 Paragraphs E-F per 1.7 Muhammad, JCA (as he then was) and Tobi, JSC (now of blessed memory) on the controversy generated herein where the Respondent claimed declaration that he is the beneficial owner of Statutory Right of Occupancy rather than that he was/is entitled to a Statutory Right of Occupancy and he rightly reasoned and held that it is trite that a

claim of ownership of land is in essence a claim for declaration of title to the land, in that title to the land and ownership are synonymous.
Thus, in the Nasir v. Abubakar case (Supra) I. T. Muhammad (now JSC) had defined ?title? in the law of real property as a means whereby the owner of land has the just possession of his property. It is said to connote the union of all the elements which constitute ownership. The right to or ownership in land and evidence of such ownership; full independent and free ownership which ownership may be held individually jointly, in common or corporate or partnership form. It is also said to become absolute title- exclusive title ? where the title excludes all others not compatible with it and as the Learned Counsel for the Claimant/Respondent had rightly submitted, an absolute ownership cannot exist at the same time in different persons or in different government or organizations.
As for the Legendary Tobi, JSC, he had defined Title to land as the highest form of land ownership in our land tenure system. ?Ownership? according to him, ?is a complete and total right over property.

The owner of the property is not subject to the right of another person, as long as he has the full and final right to put the property or make use of it anyway, including planning of the land, if the need arises. The owner of a property can use it for any purpose. Material or immaterial, substantial, non-substantial, valuable, invaluable, beneficial or even for a purpose detrimental to his personal or proprietary interest. In so far as the property inheres in him nobody can say anything. The property begins with him and ends with him.”

The Claimant/Respondent claimed ownership and title of the disputed land and it is immaterial whether he described himself as beneficial owner having sought for a declaration of title and if the evidence established the essential element of his entitlement to declaration of the Statutory Right of Occupancy, the Court/Learned Trial Judge below by the awesome powers conferred on him by the Constitution, statute and the Rules of Court had the power which he rightly exercised in amending the pleadings of the Respondent provided no injustice was occasioned the Appellant, as the facts of this case have shown. See Order 26

Rule 1 of the Abia State High Court (Civil Procedure) Rules, 2005 which were applicable as at 2011 when the Suit was initiated in the High Court of Abia State. That Rule provides without any equivocation that:
?1. The Court or Judge in Chambers may at any time, and on such terms as to cost or otherwise as the Court or Judge may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.”
Interpreting the Kwara State High Court (Civil Procedure) Rules which provisions were in pari materia with the above provisions, on this vexed issue of amendment and where at the Ilorin Division of this Court we were confronted with the leading authorities of both English and Nigerian Jurisdictions like Shell B.P Petroleum Dev. Co. v. Jammal Engineering (Nig) Ltd. (1974) 4 S.C. 33 at pages 74-75; where it was stated that an amendment of pleadings should be allowed unless:
(1). It will entail injustice to the rival party;
(2). The Applicant is acting malafide. (Tildesley v. Harper (1878) 10 CH. D.393.<br< p=””

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(3). By his blunder, the Applicant has done some injury to the rival party which cannot be compensated by costs or otherwise (See Irepodun-Ifelodun Local Government v. Chief Simeon Ogundahunsi Balemo 3 Ors (2007) LPELR -8493 (CA); I was minded to hold that from the leading authorities on the amendment of pleadings I found the decision in Ojah and Ors. V Ogboni & Ors (1976) 1 NMLR 95 (1976) N.S.C.C (Vol. 10) 244 ,where our Judicial Titans of the Supreme Court Sowemimo, Irikefe and Madarikan, J.J.S.C (as they were then) illuminated and instructively expounded the principles underlying the exercise of the awesome powers of the Courts discretion to grant amendment of pleadings held citing the dictum of Bowen L.J. in Cropper Vs. Smith (1884) 26 CH.D. 700 at 710 and 711 that:-
?I think it is well established principle that the object of Court is to decide the rights of the parties and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their rights
I know of no kind of error or mistake which if not fraudulent or intended to over reach, the

Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or grace?.It seems to me that as soon as it appears that the way a party has framed his case will not lead to the decision of the real matter in controversy, it is as a much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.”
In Shell v. Amba (1999) 2 SCNJ 152 at 150; (1999 3 NWLR 1); the Supreme Court reiterated on the principles above stated that where an amendment has become imperative by reason of variance between the Statement of Claim and the evidence adduced at the trial by the plaintiff, the Court has always granted it even after the completion (as in this case) of the trial and judgment reserved.
?Furthermore amendment can be made where its grant does not entail further evidence or changing the character of the case for in such circumstance no prejudice will occur to the rival party see

Laguro v. Toku(1992) 2 NWLR 278 at 291 per Karibi ?Whyte, JSC.
I am not oblivious of the fact that in this case, it was the Learned Trial Judge who suo motu amended the Relief in question without any application from the Respondent in which case the authorities of G.S Pascuto v. Adecentro Nig. (Supra) and Commissioner for Works, Benue State v. DEVCON Dev. Consultants Ltd.(Supra) would have applied to hold the Learned Trial Judge guilty of making a case on behalf of the Respondent by the amendment of Relief Number 1 of the Respondent or granting the Respondent the relief not sought. See Hunmuani Ajoke v. AmusaYesufu Oba and Anor, (1962)/ALL NLR 73 at 75 where the Federal Supreme Court held that prudence requires that it should be an invariable rule of practice for the Judge to write the parties to address him before he amends the Writ or pleadings of his own motion.
Where as in this case, the Court below in its bid to amend the Relief to, be in tandem with the evidence led as to the capacity under which the Respondent sued, such amendment is allowed in law. See Gbogbolulu v. Hudo (1941) 7 WACA 164, Ezera v. Ndukwue (1961) ALL NLR 564 more

particularly, where the issue of the Relief sought by the Respondent had been raised in the course of the trial and Counsel for the parties addressed the Court on it as reflected earlier on in this Judgment and the Court merely incorporated the pleadings as that which has emerged in the course of the case as an issue between the parties; such an amendment was grantable as the Learned trial judge had done in the interest of justice. See finally on this point the dictum of Niki Tobi, JSC (of blessed memory) in S.P.D.C.N Ltd. V. Edamkue (2009) 14 NWLR (pt. 1160)1 at 36 Paragraphs B,D and E; that amendment in the course of proceedings is an inherent right of the Court and accordingly if a trial Judge embarks on an amendment for the purpose of determining in the existing Suit the real issue (s) in controversy between the parties, an Appellate Court will not interfere.
In the said case, just like this case, the amendment was made to reflect the representative capacity under which the first plaintiff should have sued and such amendment was held justified by the evidence led which was dictated by the Justice or merit of the case.
?
Accordingly, since in this

case the Respondent mistakenly sued for a declaration that he is a beneficial owner of a disputed land but evidence led revealed rather that he was suing for a declaration that he was entitled to grant of Statutory Right of Occupancy and the Learned Counsel on both sides more so had addressed copiously on the issue at the trial Court, the amendment effected was in the interest of justice and without prejudice to the Appellants who were not misled by such amendment.

This issue is therefore resolved against the Appellants and in favour of the Respondent.

ISSUE NUMBER 2 (TWO): ?WHETHER THE LEARNED TRIAL JUDGE ERRED IN LAW OR WAS RIGHT TO HAVE HELD THAT THE CLAIMANT PROVED TITLE TO THE LAND IN DISPUTE BY TRADITIONAL HISTORY? (GROUND 2 OF THE GROUNDS OF APPEAL)?

On this ground the Learned Counsel for the Appellant referred us to the holding of the Court below at page 100 of the Record of appeal that:- ?Both (parties) are relying on the traditional history?.? and submitted that on the authorities of Adebayo v. Ighodalo (1996) 5 NWLR (pt 540) 507, 517, 526; Fasoro v. Beyioku (1988) 2 NWLR (pt.68)1 ALL

NLR 394 that nowhere in the Respondent pleading were the facts/essential requirements of traditional history pleaded and proved nor fulfilled. Reference was made in this regard to pages 4-6 of the Record of Appeal and page 10 thereof where the Respondent traced his root of title to Nzenwata his grandfather who had shared the Estate of his father with his brothers.

In the view of Learned Counsel for the Appellants, the Claimant/Respondent?s evidence of traditional history failed to state who founded the land, how he founded the land and how title to the land devolved on him which lapse was not made up by his witnesses or by documentary evidence.

Finally on this issue, the Learned Counsel for the Appellants posited that it is trite that a Claimant must succeed on the strength of his case and so having failed to lead sufficient evidence of his Claim by traditional title, the Claimant is not entitled to the declaration of title to the land in dispute. We were urged to so hold.

ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENT.
In response to the argument of the Learned Counsel to the Appellant above proffered, Learned Counsel for the

Respondent enumerated the five ways of proving title to land as laid down in Fashoro v. Beyioku (1988) 2 NWLR (pt.876) 263 and Idundun v. Okumagba (1976) 1 NWLR 200. On the contention of the Appellant that the Respondent did not establish traditional title to the land sought, we were again referred to Paragraphs 3-6 of the Claimants Statement of Claim at pages 4-6 of the Records and pages 10-12 thereof in respect of the evidence in-Chief of the CW1 and pages 45-46 the Cross?examination of the CW1 which he relied upon to further state on the authority of Ezema v. Ezeja (1995) 9 NWLR (pt. 419) 300; that it is the duty of the trial Court not to rely on credibility or demeanor of Witness in the resolution of conflict but to adhere to recent acts or factual evidence of contemproraneity in terms of acts and events which backs up the party whose version will be more probable.

We were therefore urged to hold that the Learned Trial Judge did not err along the line and dismiss the Appeal as Ground 2 has failed.

RESOLUTION OF ISSUE NUMBER 2 (TWO):
In the resolution of this Issue, I must agree with the submissions of Learned Counsel for the Appellants

on a careful perusal of pages 100/9 of the Records/Judgment of the Lower Court, that the Court in lines 37 and 38 after evaluation of the evidence of parties and their witnesses had remarked that:
?This leaves me with conflicting Claims. Both are relying on traditional history, both could be said to be credible and plausible but are in conflict.”

The Learned Trial Judge continued still at the same pages of the Records/Judgment in lines 1-3 thereof that:?I am unable to realistically and justifiably prefer one to the other, either of the stories is likely to be true, or probable however, let me say that I have my reservations about the truth in the pleadings and testimony of the defendants.”

Nevertheless, after having recourse to the Rule in Kojo II v. Bonsie (1957) 1 WLR 1223, which he applied to the conflicting traditional evidence of the parties and their witnesses by juxtaposing them against recent acts of possession, the Learned Trial Judge in his wisdom came to the inevitable conclusion at page 102 lines 1-9 of the Records thus:
?Claimant neither condoned nor acquiesced the actions of the Defendants as he

took one action after the other before filing this Suit. From 2006 Claimant boldly and fearlessly exercised acts of ownership, the length of time is sufficient enough under the circumstances of this case.
I therefore hold that the Claimant has established his title to the disputed land through numerous and positive acts of ownership extending over a sufficient length of time. I can safely infer that he is the true owner ? See Anyanwu v. Mbara (1992) 5 NWLR (pt. 242) at 386, Eze v. Atasie (2000) 10 NWLR (pt. 676) page 470.”

On the other hand, the Learned Counsel for the Appellant has also rightly referred us to the authorities of Fashoro v. Beyioku (1988) 2 NWLR (pt. 876) 263 and the oft-cited case of D. O. Idundun & Ors. V. Daniel Okumagba (1976) 1 NMLR 200, (1976) 9-10 S.C. 224 at 227; where the five methods of proving title to land were enumerated to include:-
1. By Traditional evidence.
2. By Production of title documents duly authenticated and executed.
3. By acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference of ownership which acts include selling,

leasing, farming on it and warding off trespassers from the land.
4. By acts of long possession and enjoyment of the land to the exclusion of other persons; and
5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected and adjacent land would in addition be the owner of the disputed land.
See Agunbiade v. Sasegbon (1968) NMLR 223; Atanda v. Ajani (1989) 3 NWLR (pt. 111) 511; Alade v. Awo (1975) 4 S.C. 215 and Ikegwuoha v. Ohawuchi (1996) 3 NWLR (pt.435) 146.

In the case at hand, it is indubitable that the Claimant/Respondent claimed that the land was a gift inter-vivos by his father Mathew Nwakpuda Nzenwata as Ozobi.
?
As stated earlier, the Claimant pleaded in Paragraph 4 of his Statement of Claim that he is the beneficial owner of the Statutory right of Occupancy over that portion of land known and referred to as Okwuenyi Land situates and lying at Umuoluo Umuoka Mgbarakuma in Umuahia South Local Government Area. Furthermore, he traced the genealogical pedigree of his said father to his grandfather Nzenwata who married two wives whose children he enumerated. Nzenwata

was also said to have shared the estate of his father with his brothers just as the sons of Nzenwata shared his estate and the Claimant?s father Mathew Nwakpuda Nzenwata got Okwuenyi Land as part of his share in the estate of Nzenwata.

Mathew Nwakpuda married only one wife and had three sons – Godwin Nwakpuda Nzenwata, Rev. Dr. Mike M. Nzenwata and Hycinth Nzenwata (the 1st Defendant/Appellant), to whom their said father gave each gift inter-vivos a place to build called Ozobi. See Paragraphs 5-8 of the Statement of Claim. At page 10 of the Record of the Appeal (his Statement on Oath) the Claimant /Respondent averred that: ?The root of my title to the land is traced from Nzenwata my grandfather, who shared the estate of his father with his brothers?. The Learned Counsel for the Appellants was right when he relied on the authorities of Adebayo v. Ighodalo (1996) 5 NWLR (pt. 450) 507, 517, 526; Fasoro v. Beyioku (Supra) at 263 and Dacosta v. Ikomi (1968) 1 ALL NLR 394; on the facts which a party relying on traditional evidence in a Claim for declaration of title (as the Respondent did in the Lower Court), was expected to plead and prove.

The Supreme Court per Ariwoola, JSC in the recent case of Thomas Nruamah & 4 Ors v. Reuben Ebuzoeme & 9 Ors. (2013) 221 LRCN (pt.1) 221 at 242 JJ and 243 AF; did re-emphasize this time-tested position of our law as laid down by the Supreme Court of Yore in a plethora of decided cases that:
?It is trite that a party who is relying on traditional history must specifically plead and prove the following before the trial Court:
(a) Who founded the land?
(b) In what manner was the land founded?
(c) The names and particulars of successive/intervening owners through whom he claims.
See Akinloye v. Eyiyola (1968) NMLR 92; Mogaji v. Cadbury Ltd. (Supra). Olujinle v. Adeagbo (1988) 2 NWLR (pt. 75) 238; Lawal v. Olufowobi (1996) 12 SCWJ376; (1996) 10 NWLR (pt. 477) 177.”
See further the celebrated case of Nwokorobia v. Nwogu (2009) 10 NWLR (pt. 1150) 553 at 573 Para. H; 575 Para. H; 576 Para. G and 589 ? Para. E.-G per Muhkta, J.S.C (as he then was) and Chukwuma-Eneh, JSC; Ezeokonkwo v. Okike (2002) LPELR ? 1211 (SC) at 19 Paragraphs B_C per Iguh JSC, Ukaegbu & Ors . V. Nwololo (2009) LPELR -3337

(SC) at page 40, Paragraphs E-F.

Although I agree with the submission of the Learned Counsel for the Appellants that in the instant case the Claimant did not plead specifically who founded the land and how it was founded but definitely the Claimant and the Appellants, particularly the 1st and 2nd Appellants, traced the origin of the disputed land to a common ancestry. Whereas the Claimant claimed that he inherited the land from Nzenwata his grandfather from whom their Respondent and 1st Appellant?s father (Mathew) derived his title which eventually devolved on the Claimant inter-vivos, the DW1 in both the Defendants Joint Statement of Defence and Statement on Oath pleaded and testified that the Original Okwuenyi Land was originally deforested by one Oluo from whom Umuoluo derived its name.
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He confirmed that Oluo was the father of five sons namely Iroegbu (the grandfather of the 2nd Defendant/Appellant Achi Iroegbu), Ukasoanya, Ogbuehi, Nzenwata (Grandfather of the Claimant and 1st Defendant) and Ibe and that the deforested land was shared among the aforementioned five sons. Moreover, all these shared parts still retain the name Okwuenyi as

attested to by the Claimant in Paragraphs 3 of his Statement of Claim and indeed the CW3?s evidence. It is not therefore correct to contend as the Learned Counsel for the Appellants has submitted that the claimant did not prove how the land devolved on him or that the lapse in so failing was not made up for by the other Witnesses. This is because as can be gleaned from the Statement on Oath of the Claimant at pages 10 to 11 of the Records, he did testify that the land the subject matter of the Suit (now on Appeal) is his as it came to him as a gift inter-vivos from his father Mathew Nwakpuda Nzenwata as Ozobi.

On the origin of the land and how the 2nd Defendant/Appellant who the 1st claims as being the owner of the land is related to him and the 1st Defendant, the Claimant (if I may use his exact words) averred thus:-
?The root of my title to the land is traced from Nzenwata my grandfather, who shared the estate of his father (which must be Oluo) who had shared the estate of his father with his brothers. Nzenwata had a relation called Iroegbu who married a woman called Nwaononigbe and through her begot a son called John Iroegbu before he

died. His widow Nwaononigbe being so young with only an issue, was not allowed to go away. Nzenwata my grandfather re-married her without adopting John Iroegbu, though he later grew up in his mother?s kitchen and when he attained maturity, he took over the estate of his father with no contender or body to share with.
Through Nwaonoigbe, Nzenwata begot two sons, Mathew Nwakpuda Nzenwata my father and Jacob Onwuzuigbo Nzenwata, my father?s brother who died without begetting a male issue and my father buried him. My grandfather later married another woman called Ngwama through whom he begot five sons namely; Ihedigbo, Eziowere, Nwogu, Elijah and Monday. My father being the oldest son of his brothers when he died and at a ripe time shared the estate of his father with his brothers which included Okwuenyi land. The land in question i.e. Okwuenyi land was one of the numerous shares of my father from the estate of my grandfather. My father Mathew Nwakpuda Nzenwata married only one wife and begot 3 sons i.e. Godwin Nwakpuda Nzenwata, myself Rev. Dr Mike M. Nzenwata and Hyacinth Nzenwata i.e. the 1st Defendant, the first son is dead.
Our father

gave each of us, his three sons Ozobi, not in same location the first defendant has sold his own ozobi and seven other lands of the estate of my father single handedly without accounting to the family. Our father died 28th February, 1986 and we are yet to share his estate.”

At page 12 of the Record the Respondent continued in his Statement on Oath and maintained that:
?The 1st Defendant asked the second defendant to claim that the land belongs to his father Iroegbu. I wish to state here that IROEGBU?S ESTATE is not in the same location with the land of Nzenwata, Iroegbu?s estate in Umuoluo Umuoka is across the road from the location of Nzenwata?s estate particularly the Okwuenyi land in question.”

At pages 45-46 of the Records, the evidence of the Claimant/CW1 on the origin of the land and how he inherited same from his father the son of Nzenwata, was neither challenged nor contradicted under cross-examination. Rather, the Learned Counsel for the Defendants/Appellants? questions were centered on ephemerals instead of the crux of the claim of the Respondent and the defence of the Defendants. The

authorities are all agreed that the purpose of cross-examination is to demolish the foundation upon which an opponent?s case is erected by discrediting him/witnesses and in so doing strengthening the others case and weakening that of his adversary. Cross-examination has also been described as a potent weapon or instrument in the hands of a party to challenge his opponent?s case (see WAEC v. Shionebo (2000) 12 NWLR (pt. 994) 258 at 267, Onwumere v. Ogwunedu (1987) 2 NWLR (pt. 62) and Otoki v. Oyewole Edun Alakija (2012) LPELR- 7994 (CA), which if tactfully employed can serve as a lethal tool for the perforation of falsehood. See Oforlete v. The State (2000) 3 NSCQR 243 and Ayam v. The State (2013) 15 NWLR (pt. 1376) at 34.
Cross-examination being the barometer with which to gauge the evidence?in?chief of Witnesses and test their veracity, sometimes evidence elicited in the heat of such exercise may in the eyes of the law be more reliable and efficacious (particularly where it is hinged on pleaded facts), than evidence?in?chief. See Adeosun v. Governor, Ekiti State (2012) 4 NWLR 9 (pt. 1291) 1 and Okuleye v. Adesanya

(2014) 4 NWLR (pt. 1422) 521.

Where however, as in this case, the Cross-examination of the Claimant/CW1 by Learned Counsel for the Appellants was lethargic and half-hearted without touching on the pith and substance of the Claimants case that he inherited the disputed land from Mathew Nkpuda Nzenwata inter-vivos, the pleadings of the Claimant/Respondent and his Statement on Oath which he adopted as his evidence ? in- chief remained unchallenged. To clear the point I have been belaboring to make, upon the copious pleadings of the Claimant in his Statement of claim and his evidence on Oath which I had earlier reproduced, the following questions and answers between the Learned Counsel for the Appellants and the CW1 are recorded at page 46 of the Records where after the Claimant had stated that; ?CW1: I front loaded a photography of Umuoka?s Unions letter to me addressed to me by the Executive of the Communities? and Chiakwalam Esq not objecting, the Court admitted the letter and marked same as Exhibit C; AND the Cross-examination of the CW1 by Defence Counsel went on this way:
?Q. This letter written by your lawyer Nwankpa

what was the mode of service to the Defendant.
A: The Secretary of Bar. Nwankpa took the letter to the house of the Defendant where he delivered it.
Q. Did the Defendant subscribe to receive the letter in writing?
A. Yes
Q. Do you have proof of this, where he wrote down that he received Exhibit B.
A. He signed for the secretary of Nwankpa for that Chambers; not for me.
Q. AS you are seated there you do not have proof in writing that the defendant ?
A. The secretary did not give it to me, I don?t have it as I am seated there.
Q: Exhibit C was written to you after the 1st Defendant refused to appear before the Union.
A: Yes
Q. In your List of Documents you described this document as the Umuoka Unions reaction to the 1st Defendants behavior.
A. Yes, that is what I wrote.
Q. None of the signatories to the Exhibit is a Witness for you in this matter.
A. They are my witnesses
Q. Ebere J. Osuagwu is in the list of witnesses is he the same as Justus E. Osuagwu
A. Yes?

Incidentally, the said Justus Ebere Osuagwu and P.A.N. Ijioma who signed the

said Exhibit ?C? as Chairman and Secretary testified as CW2 and CW3 respectively, see pages 13 and 14 ? 15 off the Records where their Statement on Oath are reproduced and 47 -48 as well as pages 49-50 of the Records where they adopted the said Statement and were cross-examined and they remained steadfast that they deliberated on the dispute and visited the locus and found out that the land in dispute belongs to the Claimant/Respondent.

The Witnesses were not shaken nor contradicted on the origin of the land and the fact that the Respondent inherited same from his father Mathew Nwakpuda Nzenwata.
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I reiterate that the question of founder of the land, how it was founded and how title devolved on the Respondent has been cleared even by the pleadings and evidence of the 1st Defendant/DW1 who is of the same father and mother with the Respondent. The above apart, the Respondent tendered the Dispute plan (Exhibit A) showing the land and his boundary neighbours which was admitted without objection from the Defendants and their Learned Counsel. See pages 20, 45 and 94 of the Records. Besides, in Paragraphs 2 of the Statement of Defense, the

Defendant/Appellants had admitted which facts need no further proof that:
?2. The Defendants know the land in dispute delineated on the Claimants survey plan DOK/ABSC/DS/09/2011 dated 11/7/11 and rely on the same plan?.
I am not oblivious of the long established principle of law as consecrated in the cause clbre of Kodilinye v. Mbanefo Odu (1935) 2 W.A.C.A 336 per Webber C. J, at pages 337 and 338 and followed in a long line of cases of both antiquated and recent pedigree that generally the onus lies on a party seeking declaration of title (in this case the Claimant/Respondent) to satisfy the Court with cogent and convincing evidence brought by him that he is entitled to the declaration sought and that in so doing he must rely on the strength of his own case and not on the weakness of the Defendant?s case.
Thus, where this onus is not discharged, the weakness of the Defendant?s case will not assist him and the proper judgment is the dismissal of the Plaintiff/ Claimant?s case. See Onubruchere v. Esegine (1986) 1 NWLR (pt. 19) 799; Kuma v. Kuma (1934) WACA 366 at 337 Cobblah v. Gbeke (1947) 12 WACA

294 at 295; Nwokafor v. Udegbe (1963) 1 ALL WLR 107; Mogaji v. Odofin (1978) 4 S.C 91, Bello v. Eweka (1981) 1 S.C 101 at 117 -120; Nruamah v. Ebuzoeme (Supra) at 242 Paragraphs P-Z; and Tukuru & Ors. V. Sabi & Ors. (2013) vol. 22 LRCN (pt. 1) 65 at 84JJ.
It has also been held in spite of the above settled principle that though the Plaintiff/Claimant must succeed on the strength of his case only, he may rely on the evidence of the Defendant which supports his case. see Abbey v. Alex (1991) 73 LRCN 3471 at 3493. In the instant case, the Respondent had led un-contradicted, cogent and credible evidence sufficient enough to ground his traditional title and the Learned Trial Judge who upon the contra-wise evidence of the 1st and 2nd Appellants that the portion of the land in dispute fell within that inherited by the 2nd Appellant from John Iroegbu, applied the Rule in Kojo II v. Bonsie (1957) 1 WLR 1223 and came to the inevitable conclusion that the Claimant/Respondent established his title to the disputed land. This issue is therefore resolved against the Appellants and in favour of the Respondent.

ISSUES NUMBER 3 AND 4:
?WHETHER THE

TRIAL JUDGE MISDIRECTED HIMSELF IN LAW AND FAILED TO EVALUATE THE EVIDENCE OF THE 2ND DEFENDANT (ACHI IROEGBU) VIS–VIS THAT OF THE CLAIMANT ON THEIR RESPECTIVE CLAIMS TO THE LAND IN DISPUTE? (GROUNDS 3 AND 4 OF THE NOTICE OF APPEAL)?

This issue questions the lack of evaluation of evidence of the 2nd Defendant/Appellant as against that of the Claimant/Respondent. The Learned Counsel for the Appellants has argued on the authorities of Ezemonye Okwara v. Dominic Okwara (1997) 11 NWLR (pt. 527) 160 at 169 -170 and Attorney General of Oyo State v. Fair-Lakes Hotels Ltd (1989) 5 NWLR (pt. 121) 255; on the primary duty of a trial Court to evaluate all evidence before it, whether given by expert or not before coming to a conclusion as to the preponderance of the evidence adduced by the parties. He referred us back to Paragraphs 4.0.2 (k) of his Brief of Arguments on what the Respondent as Claimant offered as traditional history in pursuit of his claim to the land in dispute as well as the root of title of the 2nd Defendant as pleaded in Paragraphs 5, 7 and 8 of their Joint Statement of Defence at pages 25 and 26 of the Records which according to

the Learned Counsel was not challenged by the Respondent as he did not file a Reply to the Statement of Defence.

The Learned Counsel then relied on the cases of S.N Maliki v. Micheal Imuodu Institute for Labour Studies (2009) ALL FWLR (pt. 491) 979 at 1011 and Mojekwu v. Ejikeme (2000) 5 NWLR (pt.657) 402; on the effect of a party?s failure to traverse an averment in the pleadings of the opposing party.

According to Learned Counsel for the Appellants who placed reliance on the provisions of Section 123 of the Evidence Act, 2011 on the principle that admitted facts needed no further proof, the 2nd Defendant still went further to assert his title in Paragraph 4 of his Deposition on Oath at page 31 of the Records which was corroborated by 1st Defendant?s (DW1) blood brother of the Respondent (Paragraphs 3 of the DW1?s Deposition at page 29 of the Records) as well as Onyemaechi Nwaohanmuo (DW3) a cousin to the Claimant (Paragraph 4 of his Deposition at page 33 of the Records refers). Further reference was made to page 100 of the Records the testimony of the DW1 under cross-examination.
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Surprisingly, the Learned Counsel for the

Appellants maintained, the Learned Trial Judge failed to evaluate the afore-stated evidence of the 2nd Defendant/Appellant along with that of the Claimant/Respondent on their respective traditional histories. It was the contention of the Learned Counsel for the Appellants that if the Court below had so done, he would have found out that the Claimant did not furnish any traditional evidence to warrant the application of the Rule in Kojo II v. Bonsie (Supra) to this case. He recited the conditions for the applicability of the Rule and posed the question whether the circumstances exist in this case to warrant the applicability of the Rule which he answered in the negative as according to him there was no credible and plausible evidence of traditional history from the Claimant/Respondent to warrant the application of the Rule and eventual holding of the Court that the Respondent had established title to the disputed land by numerous and positive acts of ownership extending over a sufficient length of time (page 102 of the Records refers).

On the whole, we were urged to hold that the Court below misdirected itself when it resorted to the Rule in Kojo II v.

Bonsie (Supra) as there was no conflicting evidence of traditional history by virtue of the Claimant?s failure to plead and lead credible evidence to that effect whereas the 2nd Defendant established his title to the land by traditional history evidencing his claim. In the light of the foregoing, we were therefore urged to hold that the Claimant/Respondent was not entitled to the Judgment of the Lower Court.

ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENT ON ISSUES 3 AND 4.
Responding to the above argument, the Learned Counsel for the Respondent posited that the Grounds/Issues as formulated by the Learned Counsel for the Appellants were misconceived by reason of the pleadings in Paragraphs 3,4,5,6,7,8,12 and 13 of the Respondent?s Statement of Claim which disclose that the 1st and 2nd Defendants have a relationship tied around Nzenwata, we were urged to note that the pleadings of the Claimant/Respondent as highlighted in the above paragraphs of the Statement of claim were not denied by the Defendants/Appellants in their Statement of Defence. He further referred us to Paragraph 6 thereof to urge us to find as a fact that the 2nd Defendant

does not know his father John Iroegbu and by Paragraphs 6 of the Statement of claim which was not denied in his Statement of Defence, the 1st Defendant and Claimant/Respondent the sons of Nzenwata take through their father Nzenwata. The Learned Counsel again urged us to look at the evidence- in-Chief of Claimant and his Cross-examination alongside that of the 2nd Defendant and their Statement of Defence in order to ascertain that the 2nd Defendant?s history was not refuted or denied as stated by the Claimant so that the safest root of the title pleaded by the Claimant is from his grandfather Nzenwata. He argued that the averments of the 2nd Appellant that he did not know Iroegbu and Nzenwata provided a conflicting status to the traditional evidence of both parties, hence the application of the Rule in Kojo II v. Bonsie on the test for conflicting traditional histories by the Learned Trial Judge in favour of the Claimant. On the authority of Ezema v. Eseja (Supra) we were urged to dismiss the Appeal and uphold the Judgment of the trial Court.

RESOLUTION OF ISSUES 3 AND 4
The law is settled and there are authorities galore on this principle that

the evaluation of evidence and ascription of probative value to the testimonies of witnesses is within the exclusive domain of trial Courts which have the rare opportunity/advantage of hearing and watching the demeanour of those witnesses. Thus, once trial Courts have dispassionately evaluated the evidence and justifiably ascribed probative value to proved facts, Appellate Courts have no business interfering with such findings of facts as the trial Court would have made and substituting their opinions for those of the trial Courts.
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However, the Supreme Court has laid down exceptional circumstances under which an Appellate Court may exercise its power to interfere with the evaluation of evidence and ascription of probative value to such evidence where for instance:
1. The findings of facts are perverse;
2. Where the findings are not supported by evidence;
3. Where the findings are not a result of proper exercise of judicial discretion;
4. Where the Court failed to make use of its advantage of seeing and hearing the witnesses;
5. Where the trial Court has drawn wrong conclusions from proved facts and
6. Where the trial Court

misapprehended the law or misapplied the law to proved facts. See E. A. Oshe, SAN v. Okin Biscuits Ltd. & Anor (2010) LPELR- 2798 (S.C); Olodo & Ors v. Josiah & Ors. (2010) 18 NWLR (pt. 1225) 653 S.C.; Ogbechie v. Onochie (1988) 1 NWLR (pt. 470) 370. Onwubuariri & Ors. V. Igboasoyi & Ors (2011) LPELR -754 (S.C), Olalomi Industries Ltd. V. NIDB Ltd. (2009) LPELR-2564 (SC) following the celebrated cases of Ebba v. Ogodo (1984) 1 SCNLR372; Balogun v. Agboola (1974) 1 ALL NLR NLR (pt.2) 66. Nwosu v. Board of Customs & Excise (1985) 5 NWLR (pt. 93) 225. Nneji v. Chukwu (1996) 10 NWLR (pt. 378) 265. See further the recent case of Mathew v. Otabor (2015) 14 NWLR (pt. 1479) 360 at 381-382 Paragraphs E-A following Edjekpo v. Osia (2007) 8 NWLR (pt. 1037) 635; Are v. Ipaye (1990) 2 NWLR (pt. 132) 298. Woluchem v. Gudi (1981) 5 SC. 291 and Adebayo v. A.G. Ogun State (2008) 7 NWLR (pt.1085) 201.

I had earlier held on the previous Issue and I reiterate that it was the primary duty of the Court below to evaluate the evidence of the parties and their Witnesses and where the Claimant gave evidence in proof of his claims based on the traditional

history of how he inherited the land from his father inter vivos while the 1st and 2nd Defendants who are of the same great grandparents pleaded and gave evidence that the land in dispute fell within the portion inherited by John Iroegbu from whom the 2nd Appellant (Achi Iroegbu) derived his title, the Learned trial Judge conscious of the conflicting Traditional histories of the Claimant and the Defendants, rightly in my view applied the Rule in Kojo II v. Bonsie (Supra) and held that the balance of justice tilted in favour of the Claimants/Respondents.

From the body of the Learned Trial Judge?s Judgment, the Learned Counsel for the Appellants cannot seriously contend that the Lower Court did not evaluate the evidence of the 2nd Defendant as shall be demonstrated anon. A careful perusal of the Records (see pages 98-99 thereof), would reveal that the Learned Trial Judge carried out a dispassionate appraisal of the evidence of the DW2/2nd Defendant/Appellant before ascribing probative value to the evidence of whom to believe and disbelieve and consequently awarding the disputed land to the Claimant/Respondent.
?
As rightly noted by the Learned

Counsel for the Appellants, the 2nd Defendant in his witness Statement on Oath had in Paragraphs 2 to 5 thereof stated thus:
?2. The Original Okwuenyi land, deforested by one Oluo, was shared among his five sons namely Iroegbu (my grandfather), Ukasoanya, Ogbuehi, Nzenwata (Grandfather of the Claimant and 1st Defendant), and Ibe. All these parts still retain the name ?Okwuenyi?. The Claimant attest to this in Paragraph 3 of his statement of claim where he made reference to part of Okwuenyi land.
?4. The Land in dispute belongs to me and my siblings of Iroegbu lineage and not Nzenwata lineage. Iroegbu?s inheritance fell to John who was his only son. John my father had five other sons namely Chibuike, Udo, Luke, Ifeanyi, Ikechi. It was never sold to anybody instead; I have been farming on it with my siblings.
5. Nzenwata, grandfather of the Claimant and 2nd Defendant obtained his inheritance of the original Okwuenyi land in another section far flung from the land in dispute. Nzenwata had 6 sons namely, Eziowere, Mathew, Ihedigbo, Onwuzuruigbo, Ihinnaya (Eijah) and Monday. When Nzenwata?s estate was shared .

Mathew inherited part of Nzenwata?s share of Okwuenyi?s land from his father which his son the late Godwin Mathew Nzenwata Claimant?s elder brother, sold to one Chief Ibekwe from Umunwana Ubakala. The Chief is in full possession of it today without any dispute from anybody. This portion is far from the land in dispute Onwuzuruigbo also inherited a portion which was sold to one Mrs. Ahiwe who built a Church Meeting Hall thereon.”

In Paragraphs 5, 7 and 8 of the Statement of Defence, the Defendants had pleaded the root of their title as reproduced from Paragraph 2 of the 2nd Defendant/Appellant?s Written Deposition adding that:
?7. The portion of Okwuenyi land in dispute fell to Iroegbu lineage and not to Nzenwata lineage of the Claimant and 1st Defendant. Iroegbu?s inheritance fell to John who was his only son and father of the 2nd Defendant.
?8. The 2nd Defendant has other brothers namely Chibuike, Udo ,Luke, Ifeanyi, Ikechi, Iroegbu his son John and these 6 sons have farmed on the land in dispute from time immemorial till today without any molestation or dispute.”

It would be recalled

that under Cross-examination and in spite of the pleadings and evidence of the DW1 and DW2 that the land in dispute fell within the portion John Iroegbu inherited from his father, the said DW2/2nd Appellant at page 63 of the Records stated as follows:-
“Q. Did you hear that the sons of Olua shared his estate?
A. Yes
Q. It would be correct to say that of Olua?s estate shared by Oluo?s son, Nzenwata got his share at Okwuenyi.
A. All the sons of Oluo got shares at Okwuenyi.
Q. In your evidence you did not tell this Court that a road cuts across Okwuenyi.
A. I did not
Q. You also did not say that Nzenwata annexed the estate of Olua, Iroegbu?s share so to say.
A. I did not say so.
Q. Put: the share of the Iroegbu?s in Olua?s estate is across the road quite apart from far Nzenwata?s share and, location.
A. Yes that is correct.?

Finally, at page 27 when asked by Counsel for the Respondent:
“Q. You are meddlesome interloper in the estate of Nzenwata.
A. Yes I am a meddlesome interloper, Nzenwata?s estate does not concern me? .

As I said earlier, the

Learned Trial Judge just as he evaluated the testimonies of all the witnesses and the parties did so copiously at page 98-99 of the Records in his Judgment and reproduced near verbatim, the Statement on Oath of the 2nd Appellant and at page 100 held that:
?From the summarized evidence, Claimant is relying on one of the 5 different ways of proving title as stated in the case of Idundun v. Okumagba (1976) 9- 10 S. C. 27 i.e. traditional history tied to a gift inter vivos?
Defendants on the other hand are also relying on traditional evidence. They traced their root to one Oluo who appears to be their progenitor. Claimant did not deny this; it is just that rather than tracing root from his great grandfather, he started from his grandfather. The question now is who has traced or established a good root of title to the disputed land being that both parties have anchored their case on traditional evidence. Once this is so sorted out or settled, there will be no need for further evidence of possession. See Alade v. Awo (1975)

4 SC 215. Like I said earlier defence started from Oluo their progeniture who had five sons, Iroegbu (grandfather to 2nd Defendant, Ukasoanya, Ogbuechi, Nzenwata (grandfather to Caimant and 1st Defendant) and Ibe. It is their contention that it was Iroegbu grandfather to 2nd Defendant who got Okwuenyi land when their progenitor Oluo?s estate was shared, and that is how it devolved to his son John who is father of 2nd Defendant.”

From the above underlined portions of the judgment, it is clear that the trial Judge did evaluate the evidence of the DW2 and found that he was left with conflicting claims. As he rightly found later (see page 100/9 of Records/Judgment lines 37 and 38 to 101/10 lines 1-3 thereof); having not been able to realistically and justifiably prefer one of the versions of the traditional evidence to the other, since either of the stories was likely to be true or probable, he had to exercise his vintage position as a Trial Judge who had the opportunity of watching the demeanor and hearing the witnesses to doubt the veracity of the pleadings and testimony of the Defendants having resorted also to acts of recent memory.
?
At the

same page in lines 4-20, the Learned Trial Judge had cause to invoke the Rule in Kojo II v. Bonsie (1957) 1 WLR 1223 as was followed per Mukhtar, JSC (as he then was) in the case of Eyo v. Onuoha (2011) LPELR(2003) S.C at 251 who held that:
?For the Rule to apply there must exist side by side two stories of tradition, one by each party which is on its own credible or plausible but it is in conflict one with the other, such that the Court is unable to realistically and justifiably prefer one to the other. In that case either of the two stories may rightly be regarded as likely to be true, or that they are probable. It follows that none of the stories is arbitrarily rejected, but each is tested against recent acts of possession and ownership to determine which of the two stories is more probable. Once this is ascertained, the story that is less probable is rejected.” See further Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (pt.9) 395; Okarowebi v. Mbadugha (1999) 7 NWLR (pt. 558) 471 at 481. Eze v. Atasie (2000) 10 NWLR (pt. 676) 470 at 492.

Having so done the Learned Trial Judge found that the evidence before him of acts of possession

and ownership on the side of the Claimant are as follows:-
1. Claimant stated that in 2006, while he was at Enugu that the 3rd Defendant phoned him informing him that 1st Defendant wanted to sell part of his Ozobi land to him the 3rd Defendant. Following that call, Claimant returned home and caused his lawyer to write to the Defendant warning them not to sell the land.
2. The Claimant also fixed a sign post of ?NOT FOR SALE? on the land which according to the Learned Trial Judge is an act of Ownership and possession.
3. The Claimant/Respondent also reported the matter to APUMIRI Police Station and he was advised by the Police to sue which act on the part of the Learned Trial Judge is that of someone who feels he has a legal right that ought to be protected, relentlessly fighting for what belongs to him.
4. The Claimant further took the Defendants to the Customary Court as well as to the Mgbarakuma Union and also before the OKONKO OLOKORO, all in the fight for what he believes belongs to him.
5. At all times material to this case, it was the Respondent who was on the offensive while the Defendants were on the defence.<br< p=””

</br<

6. It was also the Claimant/Respondent who brought the Appellants to the Court below.
7. Under Cross ? examination the Respondent testified that he had asked someone to farm on the land, on his behalf and all the crops belong to him which also is an act of ownership and possession.
8. The Claimant/Respondent neither condoned nor acquiesced in acts trespass of the Defendants as he took one action after the other before filing this Suit.
9. From 2006, the Claimant/Respondent boldly and fearlessly exercised acts of ownership, the length of time which is sufficient enough to warrant the inference of his ownership of the land.

Upon the afore-stated findings, the Learned Trial Judge rightly held that the Respondent had established his title to the disputed land through numerous acts of ownership and extending over sufficient length of time for him the Learned Trial Judge on the authority of Anyanwu v. Mbara (1992) 5 NWLR (pt.242) at 386 and Eze V. Atasie (2000) 10 NWLR (pt.676) at 470 to infer ownership in his favour.
?
Apart from the above findings, the Learned Trial Judge buttressed this position by the inconsistencies in the

evidence of the defence witnesses. Contrary to the contention of the Learned Counsel for the Appellants that the evidence of the DW2 was not evaluated, the Learned Trial Judge at page 102 lines 10-21 held thus:-
?My position is reinforced by the inconsistencies in the evidence of the Defence Witnesses. I had observed that the DW2 was not a witness of truth in my record book, as a result of the way he was answering questions and prevaricating. DW1 in giving evidence was inconsistent, he agreed to circulating a document to his community in 1987 that he is no longer the son of his father, Mathew Nzenwata but Onwuzuruigbo his uncle who died without issue. He gave evidence that he single-handedly buried his uncle and so inherits the assets and liabilities where as his uncle?s property is not in issue. He kept harping on this; he could not possibly have buried his uncle being 17 years old, according to his story, when his uncle died. On a later day, he said he was 22years when his father died. I have found him to be a very unstable Witness.”

To further buttress the fact that the Learned Trial Judge evaluated the evidence of the DW2 as far

as the land in dispute is/was concerned, he further reflected this as page 102 lines 22-31 of the Records thus:
?Defence in their pleadings stated that Nzenwata managed Iroegbu?s estate while Iroegbu worked in Port-Harcourt. On Iroegbus return, he demanded the return estate where upon a dispute ensued which was looked into by a panel of elders from Umuoka, that the two wives of Iroegbu followed up this demand against Mathew Nzenwata ad won. This dispute went further before one Akuma Ukwu 1 of Mgbarakuma and once again Mathew lost to the wives of John Iroegbu. Defendants failed to substantiate this evidence, coupled with the fact that it is unconnected, not properly linked with the facts of this case, no proper nexus whatsoever was drawn to the land in dispute.”

There is no appeal against this copious findings of the Learned Trial Judge and as the Learned Counsel for Respondent has righty argued, the answers to cross-examination by the DW2 which were full of either lack of knowledge of the facts/history of the land and equivocations and at last his admission that he was a meddlesome interloper on the land the Claimant inherited from

Nzenwata for which he had no business, justified the findings in favour of the Claimant/Respondent. The Court therefore evaluated the evidence of the DW2 along with that of DW1-DW3 and found no truth in them and the Learned Counsel for the Appellant was most uncharitable to the Court below to have submitted that the Court did not evaluate the evidence of the DW2. (See pages 64 and 65 of the Records). The Learned trial Judge finally nailed the case of the Defendants when he held at page 102/11 of the Records/Judgment in lines 32-37 that:
?Also, defence lamely tried to raise a defence that the land in dispute is another land altogether, which shares boundary with the land in dispute. This was after relying on Claimant?s survey plan. All these made me not to believe them, I took their testimony with a pinch of salt.”

Notwithstanding the fact that DW1 is a blood brother to the Claimant and did testify that the land in question belongs to the 2nd Defendant, the Learned Trial Judge who had the opportunity of hearing and seeing the witnesses did not believe the Defendant/Appellant upon the very unassailable reasons the Learned Trial

Judge had advanced as earlier been highlighted. Besides, from the evidence of the Respondent and his witnesses, it is clear that the DW2 connived with the DW1 to dispose of the Respondents legacy. See the evidence of CW3 at pages 49-50. Even the CW2 and CW4 who were Chairman and Secretary?General of Umuoka Village who had arbitrated on the dispute, confirmed that the disputed land belongs to the Respondent.

From all indications, the Learned Trial Judge did not misdirect himself when he resorted to the Rule in kojo II v. Bonsie (Supra) and as such did not therefore erroneously hold that the Claimant established his title to the disputed land through numerous and positive acts of ownership extending over sufficient length of time. Judgment was righty entered in favour of the Claimant/Respondent.
?
From the totality of the pleaded facts and the evidence led by the respective parties as well as their respective Witnesses nay the submissions of the Learned Counsel on their behalf, I am therefore of the candid view that the circumstances under which this Court can interfere with the evaluation of evidence and ascription of probative value to the

testimonies of the Claimant/Respondent and his Witnesses do not exist most especially as the findings of the Learned Trial Judge were not perverse nor was any miscarriage of justice occasioned the Appellants by the Judgment of the Learned Trial Judge. See, Ukaegbu v. Nwololo (2009) 3 NWLR 194, Idiong v. Idiong (2012) 13 WRN 169 at 185, Eluemunoh v. Chizor Obidigwe & Ors. (2012) 7 WRN 36 at 56 and Dr. Olatubosun V. Mr. Michael Okafor (2012) LPELR-2986 (CA).

This Issue shall also be resolved against the Appellant.

ISSUE NUMBER 5: ?WHETHER THE LEARNED TRIAL JUDGE ERRED WHEN HE HELD THAT THE CLAIMANT WAS ENTITLED TO DAMAGES IN TRESPASS AND AWARDED THE SUM OF N300,000.00 DAMAGES FOR TRESPASS TO THE LAND IN EXCESS OF WHAT WAS CLAIMED? (GROUND 5 OF THE GROUNDS OF APPEAL)?

On this issue, the Learned Counsel for the Appellants had argued that the Claimant claimed the sum of N100,000.00 (One Hundred Thousand Naira) only as damages for trespass to the land in dispute and wrongful demise of part of the land in dispute to wit farming on the land and refusal to hands-off the said land (pages 4-7 of the Records refer); but that the Learned trial

Judge awarded the sum of N300,000.00 (Three Hundred Thousand Naira) an amount greater than what was claimed. He relied on the cases of NCHC Ltd. V. Owoyele (1988) 4 NWLR (pt 90) 588; SCOA v. Abumchukwu (1973) 4 SC 51 and Ekpenyong v. Nyong (1975) 2SC 71 at 80; where the Supreme Court had pronounced variously on the impropriety of awarding damages greater than what is claimed.

On the authorities of Aniekan Amos Peters v. COP (2001) FWLR (pt.49) 1449, Umoetuk v. Union Bank Plc (2001) FWLR (pt.81) 1849 and Odogu v. AG (FED) (1996) 6 NWLR (pt. 450) 508; we were urged to interfere with the damages awarded by the Trial Court seeing that the Court below exercised its discretion in this regard under a mistake of law.

In the light of the foregoing, and the errors committed by the Trial Court, we were urged to allow the Appeal and dismiss the Suit of the Claimant/Respondent in its entirety.

ARGUMENT OF LEARNED COUNSEL TO THE RESPONDENT ON ISSUE NUMBER 5
In reaction to the above argument of his Learned Colleague for the Appellants, the Learned Counsel for the Respondent conceded to the fact that the Claimant/Respondent claimed the sum of N100,

000.00 (One Hundred Thousand Naira) only as damages but contended that to the Courts in practice, the award of damages is discretionary as they may be reduced or made punitive either way. As for the case at hand, he further contended that the Issue of damages is not sufficient to deny the Respondent the fruit of his Judgment.

On another score, it was further posited that, this Court is seised with the Jurisdiction to reduce the damages and uphold the substratum of the Judgment of the Lower Court.

RESOLUTION OF ISSUE NUMBER 5
There is considerable force in the Learned Counsel to the Appellants? submission and the authorities of NCHC Ltd. V. Owoyele (1988) 4 NWLR (pt.90) 588; SCOA v. Abum Chukwu (1973) 4 SC. 51 and Ekpenyong v. Nyong (1975) 2 SC 71 and a plethora of other authorities including the ones mentioned in Issue Number 1 (ONE) as resolved earlier, that a Court of Law must not grant a party what he did not claim just as it should not make an award in excess of what is specifically claimed as in this case. As was said earlier, a Court is not a father Christmas that splashes gratuitous gifts to people without their asking.
?
As

regards award of damages the authorities are however settled that they are at the discretion of the Court and an Appellate Court can only interfere with such exercise of discretion where the discretion like every other judicial discretion is not judicially or judiciously exercised. Talking specifically about interference with the award of damages, the Supreme Court had spoken through one of its fertile and erudite minds Mahmud Mohammed, J.S.C (now CJN) in the celebrated case of Martin Usong v. Hanseatic International Ltd. (2009) LPELR- 3434 (SC) at page 16 (an Appeal which incidentally emanated from my decision then of the High Court of Cross River State, Ugep Judicial Division); that:
?As for the Appellant?s appeal against the reduction of his general damages, the law on powers of the Court of Appeal to interfere with the award is well settled. In order to justify the reversal or interference with the amount of damages granted by trial Court, it will generally be necessary for the Appellate Court to be convinced that:
(a). The trial Court acted upon a wrong principle of law; or (b) the amount awarded was extremely so high or very small

as to make it, in the judgment of the Appellate Court, an entirely erroneous estimate of the damages to which the plaintiff is entitled. See Flint v. Lovell (1935) 11 K.B 350; ZIK?s Press Ltd. V. Ikoku (1951) 13 W.A. C.A 188; Idahosa v. Oronsaye (1959) S.C.N.L.R 407; (1959) 4 F.S.C 166 and Bala v. Bankole.
In the recent case of Saidu, H. Ahmed & Ors v. Central Bank of Nigeria (2012) LPELR? 9341(SC) per Adekeye, JSC was characteristically more elaborate on the above principle when she reasoned at page 18 inter alia:
?Award of damages is an exercise of discretion by the Trial Court. An appellate Court will not interfere with an award of damages by a trial Court unless it is made under certain peculiar circumstances which include:-
1. Where the exercise of discretion by the trial Court is perverse.
2. Where the Court acted under wrong principles of law or
3. Where the Court acted in disregard of applicable principles or
4. Where the Court acted in misapprension of facts or
5. Where the Court took into consideration irrelevant matters whilst considering its award or
6. Where the amount awarded is

ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages?. See further UBN PLC v. Ajabule & Anor (2011) LPELR ? 8239 (SC) at 32-33 Paragraphs E-B per Fabiyi, JSC; Oduwole v. West (2010) 5SC 397 at 108; and Mobile Producing Nig Ltd. V. Udo Tom Udo (PC NO. 542) (2008) LPER ? 8440 (CA).

In the instant case, the Claimant (now Respondent) had in the third Relief of his Statement of Claim specifically sought for N100,000.00 (One Hundred Thousand Naira) damages against the Defendants/Appellants for selling part of the said Okwuenyi Land and trespassing into the said Land by farming there on against the interest of the Claimant. (See page 6 of the Records). At page 12 of the Records, the Respondent in the last line of his Statement on Oath also prayed the Lower Court:
?Thirdly to order the Defendants to pay N100, 000.00 damages.?

However, contrary to the above pleadings and evidence, the Learned Trial Judge awarded the Respondents his Relief Number 3 in the following terms:
?(3) The defendants are to pay the Claimant N300,000.00 damages for trespass into the

land?. Definitely and without mincing words, the above order/award of damages is a discretion so injudiciously exercised as it was not only perverse but it breached all known principles of discretion in the award of damages by a Court.

Accordingly, I find/hold that all the exceptional circumstances as enumerated by the dictum of Adekeye, JSC in the Ahmed v. Central Bank case (Supra) exist to warrant the interference by this Honourable Court to reduce the damages of N300,000.00 (Three Hundred Thousand Naira) awarded in favour of the Respondent to the sum of N100,000.00 since what was awarded the Respondent was ridiculously higher than the sum as claimed by him. This Issue is resolved in favour of the Appellant.

However, notwithstanding the resolution of Issue Number 5 against the Respondent, since all other Four Issues were resolved against the Appellant, the Appeal on the substratum of the Suit is hereby dismissed with N50, 000.00 in favour of the Respondent.

PETER OLABISI IGE, J.C.A.: My learned brother, AGUBE, JCA, obliged me a copy of the judgment which he has just delivered. He has efficiently

considered all the issues submitted for the determination of this appeal. I adopt both his reasoning and conclusion in this appeal as mine.

FREDERICK OZIAKPONO OHO, J.C.A.: I agree.

Appearances:

Obi Chianakwalam, Esq.For Appellant(s)

Chief Bro. C. OkwuonuFor Respondent(s)

Appearances

Obi Chianakwalam, Esq.For Appellant

AND

Chief Bro. C. OkwuonuFor Respondent

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HYACINTH NZENWATA & ORS v. REV DR. MIKE NZENWATA (2016)

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