IFEKANDU & ORS v. AGOM & ORS (2020)

IFEKANDU & ORS v. AGOM & ORS

(2020)LCN/14288(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Monday, June 15, 2020

CA/AW/73/2014

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

AMECHI IFEKANDU 2. LAWRENCE OMEKAM ABADOM 3. GREGORY CHARLES OBIAJULU NJAKA 4. CHINYELUGO ANTHONY OKOSIEME 5. OJINAKA CHUMA OKECHUKWU 6. GREGORY AMECHI NWADIOGBU (Substituted For John Uwakwe Nnanyelugo, OnuaIgwemma And Fabian Nnoka By Order Of Court On 01/06/199). (For Themselves And On Behalf Of The Other Members Of Inosi Onira Family Of Ogbeabu Village, Onitsha) APPELANT(S)

And

BONIFACE OBIETO AGOM (Substituted For Godfrey Nwachukwu Agom By Order Of Court On 3/7/2006) (For Himself And As Representing Umuosiga Family Of Uruowulu Village, Obosi). 2. SAMUEL OSELOKA (For Himself And As Representing Umunnagbe Family Of Urunwulu Village, Obosi) 3. CHIEF ISAAC ONUIGBO 4. CHIEF DANILONZE 5. SIMON NNAOJI 6. CHIEF T.N. EZEDIGBO 7. CHIEF ISAAC EZEOKA 8. FRANCIS OBIAGWU 9. AMBROSE UDEGBOK 10. CHRISTOPHER OKOYE 11. ERNEST OTUBELU 12. CHIEF MARTINANETO (3rd, 7th, 8th And 12th Defendants Substituted For J.N. Nwadiogbu, Clement Nzekwe, Francis Obiagwu And Christopher Okoye By Order Of Court On 3/3/2008) (For Themselves And On Behalf Of Enekwa Sumpu Layout Obosi Landlords And Occupiers) 13. EZENWA VALENTINE OKAGBUE (Acting Diokpa) (14th, 15th And 16th Respondents Struck Out By Order Of Court On 26/9/2019) (For Himself And As Representing Umuchi-Mukwu Family, Joined By Order Of Court On 24/9/2009) RESPONDENT(S)

RATIO

WHETHER OR NOT FOR TRADITIONAL HISTORY TO BE RELIED UPON BY A COURT, IT MUST BE CORROBORATED

The law is trite that for traditional history to be relied upon by a Court it must be corroborated by an independent and credible witness, for the simple reason that in questions of customary law and traditional evidence, a person other than the person who assert it must also testify in support thereof. It is only then that it can safely be said that the issue of customary law and traditional evidence in the matter have been strictly proved, as required by the law. In Amos Lambe v. Karimu Jolayemi (2002) 13 NWLR (pt. 784) 343 at 357 paras A – B, this Court held thus:
“In the area of customary law and traditional evidence, it is good law that it is desirable that a person other than the person asserting it should also testify in support thereof. This is only common sense because native law and custom must be proved strictly. It will therefore be unsafe to accept the statement of the only person asserting the existence of a custom as conclusive.” PER SANGA, J.C.A.

WHETHER OR NOT THE COURT IS ONLY CONCERNED WITH THE STRENGTH OF THE TITLE PROVED BY RIVAL PARTIES IN QUESTIONS RELATING TO TITLE TO LAND

That it is trite law that in questions involving title to land, the Court is concerned only with the relative strengths of title as proved by rival parties as there is no such concept as absolute title. Cited: Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) 352 at 362 per Nnaemeka-Agu, JSC, and Arase v. Arase (1981) 5 SC 33 at 35. PER SANGA, J.C.A.

WHETHER OR NOT A TRESPASSER CAN CLAIM TO BE IN POSSESSION BY MERE ACT OF ENTRY

That a trespasser does not acquire possession of land by his act of trespass as held by the apex Court in Aromire v. Awoyemi (1972) 1 All NLR (Pt. 1) 105 at 112 per Coker, JSC, as follows:
“A trespasser cannot claim to be in possession by the mere act of entry and clearly a party in lawful possession at the time remains in possession despite a purported eviction by a trespasser.” PER SANGA, J.C.A.

WHETHER OR NOT A PLAINTIFF MUST RELY ON THE STRENGHT OF HIS CASE AND NOT ON THE WEAKNESS OF THE DEFENCE

The law is trite that in claim for declaration of title to land, the onus is on the party to prove his case, and he must succeed on preponderance of evidence on the strength of his own case and not on any real or imaginary weakness in the case of the defence. In Gilbert Oladeinde Meadows & Anor v. Rotimi Fabanwo (2013) LPELR – 22082 (CA) this Court per Pemu, JCA, held thus:
“In an action for declaration of title, a claimant can only succeed in the strength of his own case and not on the weakness of the defence. Kodilinye v. Odu 19352 WACA 336 at 337.”
Also, the Supreme Court held in His Highness Alhaji A.G. Momoh & Ors. v. His Highness, Alhaji I.M. Umoru & Ors (2011) LPELR – 8130 (SC) per Chukwuma-Eneh, JSC, as follows:
“It is settled law with regard to this case that the onus is on the plaintiffs to prove their case in accordance with their pleadings that they have acquired title to the land in dispute under native law and custom and not merely to show a better title than the defendants and to succeed on the strength of their case based on the preponderance of evidence in the case and they cannot rely on the weakness of the defence case except where such weakness support their case.”
Also in the holding by the Supreme Court, per Kabiri-Whyte, JSC, in Ahwedjo Efetiroroje & Ors v. His Highness Onome Okpalefe II (The Osuivie of Agbarho) & Ors, (1991) LPELR-1024 (SC) the learned Law Lord held inter alia, as follows:
“The law has been well settled since the judgment of Webber C.J., in Kodilinye v. Odu (supra) and subsequent decisions have followed this principle that the onus on the plaintiff in an action for declaration of title is to satisfy the Court that he is entitled, on the evidence brought by him, to a declaration of title. And for this purpose he must rely on the strength of his own case and not on the weakness of the case of the Defendant. If this onus is not discharged, the weakness of the defendant’s case will not support the case of the plaintiff. See Elufisoye v. Alabetutu (1963) NWLR 298; Oladimeji v. Oshode (1968) 1 All NLR 147.”PER SANGA, J.C.A.

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): Before the High Court of Anambra State of Nigeria, Onitsha Judicial Division, Holden at Onitsha, the Appellants as Plaintiffs instituted Suit No: 0/110/80, against the Respondents as 1st to 13th Defendants via a 3rd Further Amended Statement of Claim dated 10th March, 2008 claiming against the defendants jointly and severally for the following reliefs:
1. Declaration that the Plaintiffs are entitled to statutory right of occupancy over Ani Nwoke Land verged red on the Plan No NLS/AN683/89.
2. N40,000,000 general damages for trespass.
3. An order of injunction restraining the defendants, their servants and agents and any person claiming through or under them from entering or remaining on the plaintiffs’ Ani Nwoke Land verged red on the Plan No. NLS/AN/683/89 or from building or continuing to build any building or structure thereon, or from letting out the buildings and structures on the said land, or from doing anything on the said land or from in any manner whatsoever interfering with the plaintiffs’ right of ownership and possession of the said land. (pages 313

– 319 of the Records).

In response to the claims by the plaintiffs, the 1st and 2nd Defendants filed a 2nd Amended Statement of Defence wherein they traversed the plaintiffs’ deposition seriatim. The said 2nd Further Amended Statement of Defence of the 1st and 2nd Defendants dated 22nd July, 2011 is at pages 645 to 652 Vol. 2 of the record of appeal.

The 3rd to 12th Defendants filed a 2nd Further Amended Statement of Defence dated 13th May, 2009, filed on 27th May, 2009, containing 25 paragraphs wherein they also traversed the pleadings by the plaintiffs seriatim. The said 2nd Further Amended Statement of Defence of the 3rd to 12th Defendants is at pages 559 to 563 Vol. 2 of the Record of Appeal.

Upon being served with the Plaintiffs’ 3rd Statement of Claim, the 13th to 16th Defendants filed an Amended Statement of Defence containing a counter-claim dated and filed on 9th October, 2007. They counter-claimed against the Plaintiffs and claimed against the 1st to 12th Defendants as follows:
30. The 13th – 16th Defendants adopts all the paragraphs of their statement of defence and incorporate same by reference into this

counter-claim.
31. The 13th – 16th Defendants pleads the judgment in suit No: 0/464/84 as estoppel against the parties and prove of ownership of land against the 1st to 12th Defendants.
32. The 1st to 12th Defendants stood by and watched the 13th to 16th Defendants win the action in Suit No: 0/464/84 against the Plaintiffs.
33. WHEREFORE the 13th to 16th Defendants claim against the Plaintiffs, the Defendants and co-defendants as follows:
i. A declaration that the 13th to 16th Defendants are entitled to the statutory right of occupancy over the said part (sic) of land known as Ani Nwoke or Ugbo Okwe land shown verged green on plan No: MEC/2025/84, made by M.N. Chukwurah (Licensed surveyor) now reproduced on Plan No: PEA/AN/D03/2007.
ii. N100,000.00 (One Hundred Thousand Naira) general damages for trespass against the p, 1artiesst to 12th Defendants on the said land verged green on Plan No. MEC/2025/84 now reproduced on plan No. PEA/AN-D03/2007

iii. An order of injunction perpetually restraining the parties, the Inosi Onira Family of Ogbeabo Village Onitsha including the 1st to 12th Defendants together with and as wells as

their servants, agents and privies from committing or continuing to commit any act or further acts of trespass and interference with the 13th to 16th Defendants rights to title and possession of all that part of Ani Nwoke or Ugbo Okwe belonging exclusively to the 13th to 16th Defendants being members of Umuchimukwu Family of Ogbeabo Village Onitsha exclusively in the said land verged green on plan No. MEC/2025/85 (sic) now reproduced on plan No. PEA/AN – D03/2007.

The 13th to 16th Defendants’ Amended Statement of Defence is at pages 508 to 516; Vol. 2 of the record of appeal.

The Plaintiffs filed replies to the 3 sets of defendants Amended Statement of Defence. The Reply to the 1st and 2nd Defendants pleadings is at pages 672 – 675 of Vol. 2 of the Records, filed on 03/04/12. The Plaintiffs’ reply to the 3rd to 12th Defendants pleadings is dated 29/07/09 at pages 606 to 609 of the Records, while the plaintiffs’ reply to the Statement of Defence and Counter-Claim of the 13th to 16th Defendants dated 10/04/2008, is at pages 406 to 415 of Vol. 1 of the record of appeal.

Pleadings having been filed and exchanged, the

matter went to hearing. The plaintiffs called 5 witnesses and a surveyor who testified as PW6 and tendered the survey plan pleaded by them in their Amended Statement of Claim which was admitted in evidence and marked as Exhibit P7. The 1st to 12th Defendants called 9 witnesses who testified as DW1 to DW9 respectively. DW8 is a surveyor who tendered survey plan No. MEC/2025/84 which was marked as Exhibit ‘D1’. He also gave his expert opinion on Exhibit P7, which in his opinion is not a reliable document because of the superimposed plan on the said Exhibit P7. Thereafter, counsel to the parties addressed the Court and the matter was adjourned for judgment.

Judgment was delivered on 29/10/2013. In his judgment (pages 938 – 954 of the Record), the learned trial Judge V.N. Agbata J., reviewed the oral and documentary evidence adduced before him. On the two survey plans tendered by the plaintiffs (Exhibit P7) and by the Defendants (Exhibit D1) the learned trial Judge held thus:
“Which of the two conflicting survey plans do I accept as the truth of the matter as opposed to the other? In order to assist the Court resolve the riddle,

the testimony of DW8 appears very much handy. DW8 is a surveyor of the highest qualifications and experience. His expert opinion of Exhibit P7 particularly with respect to the superimposition of the Nkisi Water Works Forest Reserve Survey Plan (Exhibit P4), is that it is not a reliable document. Despite the rigorous cross-examination by counsel, I have no cause to doubt the credibility and the high competence of DW8. I feel constrained to accept his expert opinion on that question as correct and unassailable.
I am therefore of the most humble opinion that since Exhibit P7 is unreliable with respect to the superimposition, according to DW8 a highly qualified expert in that filed, it is also unreliable for all purposes. The obvious implication is that when the plaintiffs set out to prepare the survey plan, Exhibit P7, they intended to distort the facts with respect to the features that exist on the land in dispute and also the boundaries thereof. Consequently, the statements on the face of Exhibit P7 I view it with a lot of reservations. It is a false statement. Thus, the testimonies of PW2, PW3 and PW4, as boundary neighbours of the land in dispute, are

nothing to write home about. They are not witnesses of truth.”

While pronouncing on the quality of the oral evidence adduced by the parties, the learned trial judge held thus:
“Quite apart from the above, the plaintiffs failed to call as witnesses any of the persons whom they let portions of the land in dispute as tenant farmers. The same goes for the persons whom the parties said that they engaged to construct roads for them on the land in 1979 when the 1st to 12th defendants disrupted the work. It is my view that the case of the plaintiffs is full of flaws and contradictions. It cannot stand, particularly in the face of the formidable challenge of the 1st to the 12th defendants.”

On the 13th to 16th Defendants, the learned trial Judge pronounced thus:
“Also, the presence of the 13th to 16th defendants in this contest cast serious aspersions on the character of the plaintiffs as much as it does to that of the said 13th to 16th defendants. Pleadings of the parties revealed that the 13th to 16th defendants brought Suit No: 0/464/84 against the plaintiffs over a portion of land in dispute. That was whilst the present

suit was already pending in Court. In doing so, both the plaintiffs and the 13th to the 16th defendants carefully avoided getting the 1st to the 12th defendants involved in the matter. They also carefully avoided informing the Court of the existence of the present suit.
It seems to me that the plaintiffs and the 13th to the 16th defendants connived to do so in order to gain an undue advantage over the 1st to the 12th defendants. It was a grand and well thought out design by the plaintiffs herein before mentioned. Once again, this singular act has cast aspersions on the characters of the aforesaid plaintiffs and their witnesses as witnesses of the truth. When, however, their inglorious gimmick became obvious as the hearing of the suit progressed, the 13th to the 16th defendants developed cold feet, threw in the towel and ran away. They did not have the courage to fight to the end. The 13th to the 16th defendants, no doubt are meddlesome interlopers; seeking to reap where they never sowed.”

While pronouncing on the evidence of the plaintiffs vis-à-vis that of the 1st to the 12th defendants the learned trial Judge held thus:

“Be that as it may, it is common ground that the land in dispute is completely build up. All of the houses thereon, without exception, belong to the 1st to the 12th defendants. Not even a single of those houses belongs to any of the plaintiffs and the 13th to the 16th defendants. It is an elementary principle of the law that possession is 9/10th of the law. On the basis of the evidence before me, therefore, the 1st to 12th defendants were persons who, at all times material to this suit have exercised maximum acts of ownership and possession over the land in dispute…
It is my humble opinion that when placed on the imaginary balance, the case of the 1st to the 12th defendants far outweighs that of the plaintiffs. The 13th to the 16th defendants on their own part, abandoned the case half way and went away. They led no evidence at all. There is, therefore, nothing in their favour to be placed on the imaginary balance.
Consequently, the claims of the plaintiffs are hereby dismissed. Also, the counter-claims of the 13th to the 16th defendants are equally dismissed. The cost of N50,000.00 is hereby awarded against the plaintiffs. Also, the costs of

N50,000.00 is awarded against the 13th to the 16th defendants.”

This judgment by the lower Court aggrieved the plaintiffs. They filed a Notice of Appeal on 17/12/2013 containing 7 grounds of appeal as reflected at pages 955 – 956 of Vol. 2 of the Records.

The Appellants’ Amended Brief of Argument was filed on 04/10/2019, it was settled by Professor G.M. Nwagbogu. Learned counsel formulated five issues out of the 7 grounds of appeal as follows:
1. Whether the Appellants led credible evidence in support of their claim to title and possession of the land on dispute. (Grounds 1, 2 and 3).
2. Whether the trial Court failed to make crucial findings of facts on issues properly joined by the parties, leading to miscarriage of justice. (Grounds 4 and 7).
3. Did the Appellants on a balance of probability prove their claim to title and ownership of the land in dispute? (Grounds 3 and 4).
4. Did the Appellants prove the boundaries and features of the land in dispute? (Ground 5).
5. Was there any justification in law for the strictures by the trial Court on both the Appellants and the 13th Defendant on issue not relevant

to the determination of Suit No: 0/110/80, and upon which no evidence was led in support? (Ground 6).

The 1st to 12th Respondents’ Brief of Argument dated 16/10/2019 and filed on 15/10/2019, was prepared by Ikechukwu Onuoma Esq. In the said Respondents’ Brief, learned counsel put forward their argument to support their Respondents’ Notice to contend that the judgment by the lower Court should be affirmed on grounds other than those relied upon by the trial Court. The said Respondents’ Notice dated 3rd February, 2014 was filed on 17th July, 2017. Ikechukwu Onuoma Esq., of counsel to the 1st to 12th Respondents argued the Respondents’ Notice in issue 1 of the three issues they formulated for determination.
The three issues are as follows:
1. Whether the trial Court was right to apply the Rule in Kojo II v. Bonsie, in finding for the 1st to 12th Respondents.
2. Whether the Appellants established their claim to the land in dispute to be entitled to a declaration of title in their favour.
3. Whether the learned trial Court was justified in his comments on the conduct of the Appellants and the 13th to 16th

Defendants/Respondents in bringing and prosecuting Suit No: 0/464/84.

Upon being served with the Respondents’ brief, including the argument in support of the Respondents’ Notice, the Appellants did not deem it necessary to file a Reply Brief. I will consider the arguments canvassed by the Respondents in their Respondents’ Notice on their merit before delving into the issues canvassed and argued by the parties in their respective briefs.

RESPONDENTS’ NOTICE:
The issue formulated by learned counsel to the Respondents to argue the Respondents’ Notice contending that the judgment by the lower Court should be affirmed on grounds other than those relied upon by the learned trial Judge is couched as follows:
“Whether the trial Court was right to apply the Rule in Kojo II v. Bonsie in finding for the 1st to 12th Respondents.”

In his submission while arguing this issue, learned counsel to the 1st to 12th Respondents (hereinafter referred to as Respondents) contended that the traditional history presented by the appellants was not cogent and/or plausible. That the lower Court ought to have disbelieved the

appellants’ traditional history and found for the Respondents without resort to the Rule in Kojo II v. Bonsie, since it was not necessary. Learned counsel submitted that the Rule in Kojo II v. Bonsie (1957) 1 WLR 1223; (2001) Vol. 86 LRCN 1492, was propounded by Lord Denning M.R., when delivering the judgment of the Privy Council, wherein he held thus:
“Where there is conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way to test the traditional history is by reference to the facts in recent years as established by evidence by seeing which of the two competing histories is the more probable.”

Learned counsel cited and relied on the following authorities: Etim & Ors. v. Umoh & Anor (2014) LPELR – 22730 (CA) and Mogaji v. Cadbury Nigeria Ltd (1985) 16 NSCC (Pt. 11) 959 at 990 – 991. He submitted that the rationale behind this principle is the difficulty associated with tracing of traditional histories; being mainly a product of oral tradition, and the inaccuracies associated with it.

That it may be that one side is mistaken in their account, yet both sides may be honest in their belief. In such a case therefore, the demeanour of a witness is of little or no guide in ascertaining the truth. Thus the best recourse for the Court is to refer to facts in recent time established by evidence, so as to determine which of the competing traditional histories is more probable. Learned counsel cited in support of his submission the decision by this Court in Umegbu & Ors v. Ugboaja (2011) LPELR – 5086 (CA) per Ogunwumiju, JCA, where the learned Law Lord held as follows:
“Thus the rule in Kojo II v. Bonsie is not intended to be applied where one side has, as in the instant case, completely failed to put forward a traditional history capable of being tested and compared with the other side which has pleaded and led evidence of traditional history. See Eboade v. Atomesin (1997) 5 NWLR (Pt. 506) 490 at 490. See also Omoregbe v. Edo (1971) 1 All NLR 282; Alade v. Awo (1975) 4 SC 215 at 288.”

Learned counsel to the respondents submitted that the Rule does not become automatically applicable wherever or whenever there are two

versions of traditional history in evidence. That for the Rule to apply, the two traditional histories must both be cogent and plausible. There must be in existence, side by side, two sets of evidence of traditional history, one by each party, which are in themselves credible and plausible but are in conflict with each other, such that the Court is unable to realistically and justifiably prefer one to the other. That in such case, either of the two stories may rightly be regarded as likely to be true as they are both probable. It is thus necessary in such instance, that none of the stories in that situation is arbitrarily rejected, rather, each is tested against recent acts of possession or ownership to determine which of the two stories is correct. Cited: Owoeye v. Oyinlola (2014) All FWLR (Pt. 721) 1458, 1488 – 1489 paras G – F; Matanmi v. Dada (2013) All FWLR (Pt. 682) 1638 at 1651. That the Rule is not applicable where the traditional history of one side is incredible, improbable or inconclusive.

The bone of contention by the Respondents’ counsel is that in this suit the scenario anticipated by the Privy Council in Kojo II v. Bonsie

(supra) does not arise. That there are no two equally credible and plausible traditional histories to warrant the application of the Rule inKojo II v. Bonsie. Learned counsel gave a brief summary of the appellants’ recital of their traditional history as contained in their pleadings. That the people of Onitsha led by Ezechima had fought and conquered the Oze People who were the previous occupants of present day Onitsha. That upon their defeat, the said Oze People were banished from the land about 400 years ago. Following the conquest, various families of Onitsha and sons of Ezechima, namely Oreze, Dei, Chimaevi occupied various portions of the land and became the owners thereof. That the appellants claimed that the land in dispute was the portion of Onitsha land occupied and owned by Dei, the ancestor of the Inosi Onira family.

Learned counsel to the respondents painstakingly pointed out the inconsistencies that plagued this traditional account by the appellants of how the land in issue belong to them. Learned counsel pointed out that the traditional history presented by the appellants had clearly limited the area of land allegedly acquired by their

ancestors after conquest to the present day Onitsha. He quoted paragraph 4 of the appellants’ pleadings to support his submission. Learned counsel then categorically stated that the land in dispute from the uncontroverted evidence on record is situated at Obosi and not at Onitsha. That DW9 in his testimony under cross-examination, speaking of the land in dispute (now known as Enekwa Sunmpu Layout) stated thus:
“… we have polling booths and polling units for elections conducted in Nigeria. Our voting areas were designated by the Govt as wards in Obosi in Idemili Local Government Area.”

Learned counsel, rightly in my view, submitted that the designation of wards by INEC for the purposes of conduct of general elections is an act of the Federal Government. Therefore, the fact that the land in dispute is in Obosi, Idemili Local Government Area, not Onitsha, ought to be taken judicial notice of by the lower Court which it did. That even if the lower Court was to believe the appellants’ account of alleged conquest of Oze people by one Ezechime, that belief would be limited only to some land in “the present area of

Onitsha”. It cannot extend to the land in dispute which by an Act of the National Assembly is located at Obosi town in Idemili L.G.A. That the appellants did not adduce evidence to explain why the land they claim to be located in present area of Onitsha should be designated by the Federal Government as a ward (polling unit) in Obosi. That the only reasonable inference to be drawn from the above unchallenged evidence is that the land in dispute is not within the area of the alleged conquest of Oze people by Ezechima, the ancestor of the appellants. That this inference was buttressed by the evidence of the 1st Appellant under cross-examination when he confessed thus:
“… I don’t know whether Oze people at any time occupied the land in dispute.” (page 904 of the Records).

It is the contention by learned counsel to the respondents that the learned trial Judge ought immediately, on the above evidence, to have rejected the traditional history of the appellants as not being cogent, credible and conclusive, and recourse to the Rule in Kojo II v. Bonsie, would not have arisen. That the incredibility of the appellants’

traditional history was further showcased in the evidence of PW1 (1st Appellant) wherein he showed little or no knowledge of the actual area of land his ancestors allegedly acquired when he testified thus:
“It is over 500 years ago when Ezechima migrated from Benin. They came and settled here in Onitsha. I don’t know whether they occupied up to the place called Nkpor junction. I don’t know whether (they) occupied up to the place called ‘afor Nkpor’ (page 903 of the Records).”

Learned counsel to the respondents submitted that another area of inconsistency in relation to the founding and devolution of the land in dispute is the pleadings by the appellants in paragraphs 4, 6 and 7 of their Amended Statement of Claim vis-à-vis the testimony of PW4 during cross-examination wherein he testified thus:
“Chief Jagwu was the first person who founded the land in dispute. Thereafter, his children inherited from him.”

The said Chief Jagwu, by the evidence of PW4 was from Alaba family. That this is a glaring contradiction in the story of the Appellants which totally robs it of credence such that the trial

Court ought to have wholly rejected their traditional history as being untrue and unbelievable without resort to the Rule in Kojo II v. Bonsie. Learned counsel urged the Court to so hold. Learned counsel to the respondents pointed to another evidence that contradict the appellants’ traditional history that their ancestor Ezechima invaded the present Onitsha town more than 400 years ago. The respondents produced Exhibit D4 a map made in 1883 obtained from the Public Records London, which shows clearly that at that time Onitsha was not in existence along the coastal area of the River Niger. But Obosi (corruptly spelt Abutshi) is prominently reflected on the said map. That DW6 who is from Oze testified that the Appellants’ ancestors never conquered his people.

Learned counsel submitted further that the Appellants did not call any witness from Oze or from any family in Onitsha to corroborate their story. That none of their witnesses corroborated their evidence of traditional history. That it is only the 1st Appellant (PW1) who told that story which was “fatally discredited under cross-examination”. That the law is trite that for

traditional history to be relied upon it must be corroborated by an independent and credible witness. Cited: Amos Lambe v. Karimu Jolayemi (2007) 13 NWLR (Pt. 784) 343 at 357. That the traditional history of the Appellants, apart from not being cogent and reliable, it was not corroborated as required by law. Learned counsel urged the Court to hold that the learned trial Judge ought not to have invoked the Rule in Kojo II v. Bonsie as it was inapplicable in the circumstances. Learned counsel urged the Court to dismiss the Appellants’ claim in its entirety as did the trial Court, albeit on the ground raised in the Respondents’ Notice.

Learned counsel to the Respondents further submitted that as opposed to the unproven traditional history of the Appellants, the 1st and 2nd Respondents pleaded and gave credible, unchallenged evidence of how the land devolved on the 1st Respondent from his ancestor; one Osiga. That they traced their genealogy from Osiga and his direct sons’ to the 1st Respondents. That the same Ani Ugbokwe land founded by Osiga is the land designated Enekwa Sumpu Layout now put in dispute by the Appellants. That the

traditional history of the 1st Respondent is an unbroken account of the devolution of the land in dispute from the original founders to the present owners in possession. That it was precise, concise and conclusive without any contradiction. That it was not debunked under cross-examination by the Appellants as it was corroborated by their witnesses. That the traditional history put forward by the Appellants in proof of their case is not cogent and reliable as it was inconclusive. That the lower Court ought to have dismissed the claim of the appellants. Cited Izuoji v. Ajukwara (1998) 1 NWLR (Pt. 533) 255 at 263 and 268; Aikhionbare v. Omoregie (1976) 12 SC II; Fasoro v. Beyioku (1988) 2 NWLR (Pt. 405) 507. Learned counsel urged the Court to affirm the judgment of the lower Court on the grounds raised in the Respondents’ Notice and to dismiss this appeal.

As I noted above, the Appellants upon service on them of the Respondents’ Notice did not deem it necessary to counter it by filing a Reply brief. Be that as it may, I will objectively consider the submission by the Respondents vis-à-vis the pleadings by the parties and the evidence

adduced in support thereof to reach my decision on the Respondents’ Notice.

Finding on Respondents’ Notice:
Order 9 Rule 2 of the Rules of this Court 2016 provides thus:
“A Respondent who desires to contend on the appeal that the decision of the Court below should be affirmed on grounds, other than those relied upon by that Court, must give notice to that effect specifying the grounds of that contention.”

The Respondents, in compliance with this provision filed the Notice of Intention to contend that the judgment by the lower Court should be affirmed on grounds other than those it relied upon. It is dated 3/2/2014 and filed on 17/7/2017. Learned counsel to the Respondent argued the Notice to contend at pages 5 to 11 of their brief of argument.

In his judgment delivered on 29th October, 2013, (pages 938 – 954 of the Records) the learned trial Judge held, inter alia at page 948 thus:
“Unfortunately, however, I am of the most humble opinion that the aforesaid respective traditional evidence of the parties are materially in conflict, one against the other. The law is since settled that when

traditional histories or traditional evidence of the parties are found to be contradictory one against the other, in their material particulars, the Court is not entitled to pick and choose one against the other. In such circumstances, it would be wrong to prefer one such traditional history or traditional evidence to the other. This is the well known rule in Kojo v. Bonsie. It makes sense and, therefore, good, law because, in such circumstances, the credibility of the witnesses is not a relevant factor. It is therefore said that parties normally have sentiments or emotions for their cases and such sentiments or emotions almost always give rise to a slant which may not necessarily be a product of lies, as far as the witness is concerned.”

It is this reliance on the authority of Kojo II v. Bonsie, by the lower Court that gave rise to the filing of the Respondents’ Notice. In Otuaha Akpapuna & Ors v. Obi Nzeka & Ors (1983) LPELR – 384 (SC), the apex Court while pronouncing on the application of the Rule in Kojo II v. Bonsie, held, per Irikefe, JSC, at pp 20 – 21 paras F-B as follows:
“… Kojo vs. Bonsie

(1957) 1 W.L.R p. 1223, at p. 1226-7 where lord Denning in delivering the judgment of their Lordships of the Privy Council stated thus: “Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanour is a little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is the more probable.”
It follows therefore that for the Rule in Kojo II v. Bonsie to apply, there must be two traditional histories; one from each of the competing parties, and the traditional histories must be such that the Court is not able to decide which of the two stories is more probable. It means that if the trial Judge is able to believe one of the traditional histories against that of the other then the Rule in Kojo II v. Bonsie will not apply. In Chief D.M. Okochi & Ors v. Chief Amukali Animkwoi & Ors (2003) LPELR – 2455 (SC)

the Supreme Court per Tobi, JSC, (of the blessed memory) expatiated on the origin of the Rule in Kojo II v. Bonsie and when it can be applicable when he held thus:
“The rule in Kojo v. Bonsie was propounded by lord Denning. The Law Lord who did not see much help from the demeanour of witnesses in cases involving traditional history which was handed down by word of mouth from generation to generation, said at page 1223: The dispute was as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard, it must be recognized that in the course of transmission from generation to generation, mistakes may occur without any dishonest motive whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both honest in their belief. In such a case, demeanour is little guide to the truth. The best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is

the more probable…”
This Rule in Kojo II v. Bonsie is firmly entrenched in our judicial system and was followed by this Court and the Supreme Court in a plethora of cases, some of which are: Aikhionbare v. Omoregie (1976) 12 SC 11; Chukwueke v. Nwankwo (1985) 2 NWLR (Pt. 6) 195; Kasali v. Lawal (1986) 3 NWLR (Pt. 28) 305; Dibiamaka v. Prince Osakwe (1989) 3 NWLR (Pt. 107) 101; Mr. Mathias Alagwuonye & Ors v. Moses Mbadiegwu & Anor (2017) LPELR 42793 (CA); In Ejike Joe Ajala v. Ogbonna Okogbue & Anor (2010) LPELR – 4082 (CA), this Court per Ogunwumiju, JCA at pp. 12 – 13 paras C – D held thus:
“…Thus for the Rule in Kojo II v. Bonsie to be applicable, there must be conflict in traditional history of both parties, and the evidence of both sides must not suffer from any material defect. See Chief Okoko v. Mark Dakolo (2006) 7 SCNJ 284.”
Thus where there are two competing traditional histories in respect of the title to the land in dispute and the two histories are equally credible, the Court will consider the traditional histories by reference to the acts of recent possession within

living memory by the parties as a test of which of the stories is more probable. The application of this Rule is based on the existence of competing, equally plausible and credible traditional histories in respect to the land in dispute. In Umegbu & Ors. v. Ugboaja (2011) LPELR-5086 this Court per Ogunwumiju, JCA, held thus:
“Thus the rule in Kojo II v. Bonsie, is not intended to be applied where one side has, as in the instant case, completely failed to put forward a traditional history capable of being tested and compared with the other side, which has pleaded and led evidence of traditional history. See Eboade v. Atomesin (1997) 5 NWLR (Pt. 506) 490 at 493. See also Omoregbe v. Edo (1971) 1 All NLR 282; Alade v. Awo (1975) 4 SC 215 at 228.”
Therefore, the Rule in Kojo II v. Bonsie is not automatically applicable whenever there are two versions of traditional history in evidence. For the rule to apply, the two traditional histories must both be cogent and plausible. There must be in existence side by side two sets of evidence of traditional history, one by each party, which are in themselves credible and plausible but are in

conflict with each other, to the extent that the Court is unable to realistically and justifiably prefer one to the other. In such circumstance, either of the two stories may rightly be regarded as likely to be true since they both are probable. It is thus necessary in such instance, that none of the stories in that situation is arbitrarily rejected rather each is tested against recent acts of possession or ownership of the land in dispute to determine which of the two stories is correct.
I have carefully considered the traditional histories put forward by the parties before the lower Court. It is my finding that the scenario that arose before the Privy Council in Kojo II v. Bonsie where there were two traditional histories, one from each of the competing parties, such that the Court was unable to decide which of the two stories to believe, does not arise in the instant suit. This is because the traditional history as pleaded by the Appellants as Plaintiffs in their pleadings and the evidence adduced in support thereof can best be described as “fantastic” or unbelievable for the following reasons:
1. In their traditional history, the

appellants had deliberately or inadvertently limited the area of land in dispute, which was allegedly confiscated by their ancestor Ezechima when he migrated from Benin, crossed the River Niger to the present area of Onitsha where he allegedly met the people of Oze, conquered and drove them away before occupying the land. In other words, the appellants’ pleadings in paragraph 4 of their 3rd Further Amended Statement of Claim and their evidence placed the land in dispute at Onitsha town. But the Respondents in their pleadings and evidence in support thereof placed the land in dispute at Obosi in Idemili Local Government Area and not at Onitsha. To strengthen their pleadings the Respondents’ witness DW 9 while testifying under cross-examination stated thus:
“We have polling booths and polling units for elections conducted in Nigeria. Our voting areas where designated by the government as wards in Obosi in Idemili Local Government Area.”
This Court have no choice but to take judicial notice of the fact that the land in dispute is lying and situate at Obosi as delineated by the Independent National Electoral Commission (INEC).

Onitsha and Obosi are different towns in Anambra State of Nigeria. The Appellants failed to adduce evidence to explain why the land they claimed to be located at Onitsha should be designated by the INEC as a polling unit at Obosi. The only inference to be drawn by this faux pas by the Appellants is that the land in dispute is not within the area of the alleged conquest of Oze People by Ezechima. It is not surprising therefore that the 1st Appellant (the star witness of the Appellants) who testified as PW1 confessed under cross-examination thus:
“I don’t know whether Oze People at any time occupied the land in dispute.” (page 904 of the Records).
Also at page 903 of the Records the said PW1 displayed crass ignorance of the land in dispute when he testified thus:
“It is over 500 years ago when Ezechima migrated from Benin. They came and settled here in Onitsha. I don’t know whether they occupied up to the place called Nkpor junction. I don’t know whether they occupied up to the place called ‘afor Nkpor’.”
PW4, Bernard O. Nnamua Ogo, inflicted more damage to the Appellants’ case in relation to

the founding and development of the land in dispute as pleaded in paragraphs 4, 6 and 7 of their extant statement of claim when in his testimony under cross-examination blurted as follows:
“Chief Jagwu was the first person who founded the land in dispute. Thereafter his children inherited him.” (page 915 of the Records).
The said Chief Jagwu by the evidence of PW4 was from the Alabo family which is not the Inosi Onira family of the Appellants. This is a glaring disconnect in the Appellants’ traditional history. The learned trial Judge ought to have rejected the appellants’ traditional history, on this point alone, for being unbelievable without need to resort to the Rule in Kojo II v. Bonsie.
2. Exhibit D2 is a map made in 1883 obtained by the respondents and tendered in evidence during trial. It was obtained from the Public Records London. It shows clearly that by 1883 (about 137 years ago) Onitsha was not a town along the coastal area of the River Niger. On the other hand, Obosi (spelt Abutshi) is prominently reflected on the said map. The Appellants did not challenge the genuiness of Exhibit D2. This document further

destroyed the Appellants’ traditional history of having occupied the whole area of present day Onitsha by conquest as far back as 400 years ago.
3. Mr. Kenneth Onyeike who testified as DW6 during trial is from Oze. He flatly denied the Appellants’ traditional history that their ancestors ever conquered and drove his people away from their land (which is the land in dispute) or any other land for that matter.
The Appellants’ traditional history was further weakened by their failure to call any witness from Oze or from any other family at Onitsha to corroborate their story that their ancestor Ezechima conquered the people of Oze at Onitsha. None of their witnesses corroborated their traditional history in their evidence. It was only the 1st Appellant who testified as PW1 that narrated the appellants’ traditional history which was discredited during cross-examination.
The law is trite that for traditional history to be relied upon by a Court it must be corroborated by an independent and credible witness, for the simple reason that in questions of customary law and traditional evidence, a person other than the person who

assert it must also testify in support thereof. It is only then that it can safely be said that the issue of customary law and traditional evidence in the matter have been strictly proved, as required by the law. In Amos Lambe v. Karimu Jolayemi (2002) 13 NWLR (pt. 784) 343 at 357 paras A – B, this Court held thus:
“In the area of customary law and traditional evidence, it is good law that it is desirable that a person other than the person asserting it should also testify in support thereof. This is only common sense because native law and custom must be proved strictly. It will therefore be unsafe to accept the statement of the only person asserting the existence of a custom as conclusive.”
On the necessity of the need for traditional history to be corroborated before a Court can rely on it, the apex Court in Oba R.A.A. Oyediran of Igbonla v. His Highness Oba Alebiosu II &Ors (1992) LPELR – 2868 (SC) per Kutigi, JSC, (later CJN) held as follows:
“I think the learned trial Judge rightly observed in his judgment on pages 109 – 110 that: “The evidence of the traditional history narrated by the parties

is very difficult to believe… Moreover, the party has in his evidence in chief given a long history of the tradition of Ejuland but none of his witnesses corroborated his evidence… In my view, a person who claims and rests his case on a long standing tradition must have his evidence corroborated by his other witnesses if he wants the Court to believe him no one can claim an exclusive knowledge of a long standing tradition said to be prevailing in his area”. I have no doubt in my mind at all that in areas of customary law and traditional evidence it is good law that it is desirable that a person other than the person asserting it should also testify in support thereof. This is only common sense. Native law and custom must be strictly proved. It will therefore clearly in my view be unsafe to accept the statement of the only person asserting the existence of a custom as conclusive.”
See also Chief Adisa Agbaosi & Anor v. Mrs. Clara Abiodun Imevbore & Anor (2013) LPELR-20681 (CA) per Iyizoba, JCA.
For the reasons stated above, the Respondents’ Notice to contend that the lower Court ought not to have relied on the

authority of Kojo II v. Bonsie to resolve conflict in the evidence of traditional history by the parties in this suit is meritorious, and I so hold. The Supreme Court lucidly pronounced on cases where the Rule in Kojo II v. Bonsie will not be applicable to resolve conflict in traditional history in Chief Joseph Taiwo & Ors. v. Mr. Nicholas Ogundele & Ors (2012) LPELR-7803 (SC) per Muntaka-Coomassie, JSC, as follows:
“With tremendous respect to the Justices of the lower Court, I must state that it is not in all cases where there is evidence of conflicting traditional history before the Court that the rule in Kojo II v. Bonsie will be applicable. Such cases include: (i) Where there is a concurrent findings of the two lower Courts on a question of fact, the rule will not apply. See Onigbede v. Balogun (2002) 6 NWLR (Pt. 762) 1 at 17 (ii) Where there is a fundamental contradiction on the traditional history of a party, the rule will not apply. Sanusi v. Adebiyi (1997) 11 NWLR (Pt. 530) 565 (iii) Where the traditional history is based for instance, on fiction and mysticism beyond the comprehension of the Court and therefore incapable of being

assigned any probability of truth, the rule will not apply. Ogbuokwelu v. Umeanafunkwa (1994) NWLR (Pt. 341) 676. (iv) In a matter of proving customary law or native law and custom which is required in law, to be proved by anybody who asserts its existence by credible evidence rather than by speculation, the rule is not applicable. Giwa v. Erinmilokun (1961) SCNLR 377, Ozogaba II v. Ekpenga (1962) 1 SCNLR 423 at 426; and Onyejekwe v. Onyejekwe (1999) 3 NWLR (pt. 596) 483”. The case in hand falls within the case, where the rule is not applicable. Thus the rule in Kojo II vs. Bonsie which is based on inference has no application to this case which requires the native law and custom of Odofin of Ijabe Chieftaincy to be proved strictly by cogent and reliable evidence of not only one witness but should be corroborated by an independent witness. See Olarewaju v. Oyeyemi (2001) 2 NWLR (Pt. 696) 229.”
As opposed to the unproven traditional history of the Appellants, the 1st and 2nd Respondents pleaded and gave credible unchallenged evidence that the 1st Respondent’s ancestor Osiga was the first of the four sons of Nnagbe. Osiga lived with his

father and three brothers during his childhood in the area called Odume Obosi. When Osiga, a farmer and a hunter became an adult, he left Odume Obosi to continue hunting in other areas. He came upon a vast thick forest portions of which he cleared, built and settled. He named that area of land Ani Ugbokwe. He did not meet any person or group of persons at Ani Ugbokwe upon his arrival thereon. The 1st and 2nd Respondents traced their genealogy from Osiga and his direct sons to the 1st Respondent. The said Ani Ugbokwe founded by Osiga is the land in issue in this suit now called Enekwa Sumpu Layout.

This traditional history by the 1st Respondent is an unbroken account of the devolution of the land in dispute from the original founder to the present owners in possession. It is precise, concise and conclusive without any contradictions. It was not debunked under cross-examination by the Appellants and it was corroborated by the respondents’ witnesses particularly DW1 in his testimony at pages 783-785 of the Records. The law is trite that where traditional history put forward by a party is not cogent or reliable the Court ought to dismiss the claim for

declaration of title. See Sunday Ukwu Eze & Ors. v. Gilbert Atasie & Ors (2000) LPELR – 1190 (SC) per Uwaifo, JSC, Ugochukwu Maneke & Ors v. Mr. Samuel Nwanne & Ors. (2017) LPELR – 42789 (CA). In Alhaji Mohammed Buhari Awodi & Anor v. Mallam Saliu Ajagbe (2014) LPELR-24219 (SC) the Supreme Court held thus:
“In a claim for title to land based on traditional history, the party has to plead and prove each of the following: (1) The person who founded the land and exercised acts of possession. (2) How the land was found, and (3) The person on whom the title to the land devolved from its founders to the party. See Obioha v. Duru (1994) 10 SCNJ 48 at 61. The pleading of the devolution as well as the evidence in support must be reliable and credible or plausible otherwise the claim for title will fail. See Eze v. Atasie (2000) 6 SCNJ 209 at 218; Elias v. Omo-Bare (1982) 5 SC 25. The party must rely on his pleading, he cannot plead traditional history and abandon his pleading to rely on acts of ownership over a long period of time. See Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 160” per Ngwuta, JSC, (p. 48 paras B-E).”

A trial Court therefore, ought to accept evidence of traditional history that is conclusive and reject that which is ex facie incredible. In Umenn Adozie Ogbuokwelu & Ors. v. James Umeanafunkwa & Anor. (1994) LPELR 2296 (SC) the apex Court held per Onu, JSC, thus:
“If the evidence of traditional history is conclusive, a learned trial Judge is entitled to accept it as against the evidence of traditional history which is in conflict and which is not supported by evidence of recent acts of possession. See Olujebu of Ijebu v. Oso the Eleda of Eda (1972) 5 SC 143 at 151 and F.M. Alade v. Lawrence Awo (1975) 4 SC 215 at 228. Indeed a trial Court is entitled to reject evidence of traditional history which is ex facie incredible…”
See: William Akaose & Ors v. Onyebuchi Okoye & Ors (2016) LPELR – 40172 (CA); Chief Joseph Taiwo & Ors. v. Mr. Nicholas Ogundele & Ors. (2012) LPELR – 7803 (SC) and Ariolu v. Ariolu (2011) All FWLR (Pt. 599) 1152 at 1171.
It is my finding that the traditional history presented by the Appellants was not cogent and plausible, and thus cannot support their

claim for declaration of title to the land in dispute. The learned trial Judge ought to have disbelieved them and enter judgment in favour of the Respondents without recourse to the Rule in Kojo II v. Bonsie. The Respondents’ Notice is meritorious and is hereby allowed.

Upon pronouncing on the Respondents’ Notice above and considering that this Court is the penultimate Court, I find it necessary to consider and make my findings known on the issues formulated by learned counsel to the parties in their respective briefs. I noted that learned counsel to the Appellants argued issues 1, 2 and 3 together.

ISSUES 1, 2 AND 3:
In his submission, while arguing these issues learned counsel to the appellants contends that his clients pleaded facts relating to the founding of Onitsha dynasty which led to the founding of lands that today constitutes Onitsha town. That their portion of lands is among those founded by their ancestor Ezechima. That in paragraphs 4, 5, 6, 7 and 8 of their pleadings the appellants pleaded the history leading to the founding of the lands in dispute. That these averments were supported by the evidence of PW1 at paras 8,

12, 13 and 14 of his written deposition. Learned counsel reiterated the trite position of the law that a claimant who relies on traditional history to prove title to land must not only plead the founder of the land, how he founded it and the particulars of the intervening owners but also lead evidence in support thereof. Cited in support of this submission the authorities of Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417; Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386.

That the appellants during trial of this suit, not only pleaded facts in support of these three factors of traditional evidence, but also adduced evidence in support thereof. That the oral evidence of PW1 on the founder of the land, Ezechima, and the intervening owners through whom the appellants inherited the land in dispute was not discredited even during cross-examination. That the lower Court ought to have accepted same. That on their part the Respondents pleaded and relied on the same root of title anchored on traditional history. Learned counsel referred to paragraphs 4(a)(b)(c)(d) and (e) of the pleadings of 1st and 2nd Defendants and paragraphs 4, 4(a), 5(a)(b) and (c) of the

pleadings of the 3rd to 12th Defendants. He also cited the averments of DW 1 in his deposition on oath at paragraphs 4, 5, 6 and 7. That the learned trial Judge without evaluating the evidence of rival traditional histories of the parties before him concluded that both versions were in conflict. That the respondents in their evidence omitted to state the traditional history of the 2nd Respondent which cast doubt on the authenticity of the devolution of the land in dispute by the said Respondents. That the version of history narrated by the Appellants ought to have been accepted as true and correct by the lower Court.

On conflict in evidence of traditional histories of the parties, learned counsel to the appellants threw a poser thus: what was the nature of the evidence that would have determined which of the versions is more probable? That in concluding that the evidence in recent years show that the 1st and 2nd Respondents’ family are the ones in possession of the land, having exercised maximum acts of ownership and possession, the lower Court forgot some basic principles of law which if it had adverted its mind to, would have guided it in relation

to the evidence given by the parties and the proper findings and conclusions to make. That it is trite law that in questions involving title to land, the Court is concerned only with the relative strengths of title as proved by rival parties as there is no such concept as absolute title. Cited: Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) 352 at 362 per Nnaemeka-Agu, JSC, and Arase v. Arase (1981) 5 SC 33 at 35.

Learned counsel also cited: Ibeziako v. Akunwata Nwagbogu (1972) All NLR (Pt. 1)639 at 654; Nzekwu v. Nzekwu (1989) 1 WLR (Pt. 104) 373 at 425. Learned counsel also cited and copiously quoted the holding by the Supreme Court inUdeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 162 paras E – G per Nnaemeka-Agu, JSC, where the learned Law Lord

pronounced thus:
“It is true that as a general proposition, where a party is admitted to be in possession of land in litigation between the parties, the onus is on the other side which is asserting to the contrary to prove that he is not the owner of the land: See Section 145 of the Evidence Act, also Onobruchere v. Esegine & Anor (1986) 2 SC 385 (1986) 1 NWLR (Pt. 18) 799. But the real problem of such cases is that quite often, as in this case, there is a tendency to confuse possession with mere occupation…”
“’Occupation’ as used in relation to land entails mere physical control of the land in the time being. It is a matter of fact. Such a control may have originated from permission from the true owners, it may have been by stealth, or it may be tortuous trespass. Possession of land, on the other hand, may sometimes entail or even coincide with occupation of it, but is not necessarily always synonymous or conterminous with it. A man such as a landlord who collects rents from his tenants may be in legal possession of the land even, though he does not set his foot on it. This is why distinction is often made

between defacto possession, which is mere occupation and de jure possession which entails possession.”

Learned counsel submitted further that the lower Court made no specific finding on the issue of Government acquisition of the northern portion of the land in dispute for a Forest Reserve at Nkisi Water Works. That the Respondents did not join issues with the Appellants on this question of Government acquisition of the said land for a Forest Reserve. That their denial was evasive and not specific as contained at paragraph 12 of their pleadings. That the said paragraph 12 failed to answer the point in substance i.e whether there was a Government acquisition of the northern portion of the land in dispute or not. That this failure ought to be deemed as having been admitted and established as a fact by minimum evidence and ought to have been relied upon in the determination of not only the Government acquisition of the northern portion, but also the possession, ownership and title of the land in dispute. Cited: Dagash v. Bulama (2004) 2 NWLR (Pt. 892) 144; FBN Plc. v. Akinyosoye (2005) 5 NWLR (Pt. 918) 340; Balonwu v. Obi (2007) 2 NWLR (pt. 1028) 488 at

537, 549, 550 and 551.

That assuming the Respondents joined issues on this vital issue of Government acquisition, they failed to lead any direct evidence in rebuttal other than the opinion of DW8 who did not produce any plan or visited the land in dispute. Learned counsel submitted that Exhibits P2, P3, P4, P6 and P7 established the following:
1. That Anambra State Government acquired some portions of land for the purpose of establishing a Forest Reserve at Nkisi Water Works in 1986. (Exhibit P2 and P3).
2. That the northern portion of the land in dispute in both Exhibit P1 and D1 was acquired by the said Government and included in the said Forest Reserve at Nkisi Water Works.
3. The plan of the entire Nkisi Water Works Forest Reserve is as shown in Exhibit P4.
4. The connect or bridge or relationship between the lands acquired by the State Government for the Forest Reserve (in particular the Appellants’ northern portion) is demonstrated by the superimposition of Exhibit P4 on Exhibit P1 to produce Exhibit P7.
5. The owners of the land acquired by the State Government are stated and shown in the second schedule of Exhibit P3.

Appellants’ Ogbeabu Village (Family) was included as one of the land owing families/villages of the lands so acquired in Exhibit P3.
7. Appellants’ family of Inosi Onira is in Ogbeabu Village, Onitsha.
8. None of the owners of the lands mentioned in Exhibit P3 is from Obosi town.
9. 1st and 2nd Defendants/Respondents families are nowhere mentioned or stated among the owners of the land so acquired in Exhibit P3.
10. The acquisition of these lands by the state Government reserved certain rights to the original land owing families, including the Appellants’ Inosi Onira family in Ogbeabu Village, Onitsha as shown in the Second Schedule in Exhibit P3.
11. Other land owing families stated in the second schedule include the Appellants’ neighbours, viz Alabor family of Umuaroli Village, umualibo family of Ogboli Olosi Village and Umuifejiofor family of Umudei Village, all in Onitsha and not Obosi.

That this is where Exhibit P6 tendered in evidence by PW2 of Umualibo family of Ogboli Olosi Village, Onitsha becomes relevant. The said exhibit shows clearly that this boundary family had in the past

resisted the claim of Obosi people over their own portion of land PW3 and PW4 also gave evidence as boundary neighbours for Umuifejiofor family of Umuedei village and Alabor family of Umuaroli Village respectively. That on Exhibit P7 which the lower Court held was discredited on account of the testimony of Dw8, the said lower Court did not give any reasons for ‘accepting lock stock and barrel” the evidence of the DW8, other than that he is a surveyor of the highest qualification and experience. That the learned trial Judge did not in the course of his consideration and evaluation of the evidence of superimposition say why or give reasons why his expert opinion on the credibility of Exhibit P7 should be made the basis for rejecting this vital piece of evidence. Cited: Union Bank of Nigeria & Anor v. Erigbuem (2003) FWLR (Pt. 180). That DW 8 did not produce any survey plan in respect of the land in dispute to counter Exhibit P7. That rejection of the said Exhibit P7 by the learned trial Judge occasioned a miscarriage of justice since it has probative value and the weight attached to it was in no way undermined by the opinion of DW8. That the

exhibit proved the connection and relationship between the northern portion of the appellants’ land affected by the area verged green and the rest of the land in dispute verged pink. That the learned trial Judge was not bound to accept the evidence of DW8 on the genuineness of Exhibit P7. Cited: Oando (Nig) Ltd v. Adijere (2013) 15 NWLR (Pt. 1377) 374 at 394.

Learned counsel submitted that the lower Court ought to have resolved the conflict in traditional evidence in favour of the Appellants since they are the ones who have been shown to be in legal dejure possession of the entire land in dispute. That the lower Court ought also to have held that the 1st to 12th Respondents were at best in mere occupation of the land in dispute which is nothing more than de facto possession having been obtained by tortuous trespass as shown by the evidence of PW1. That apart from Exhibits D4 and D5 (receipt and layout plan) the respondents did not lead any other credible evidence in support of their alleged ownership and possession of the land in dispute. That legally, respondents’ possession, no matter how long, cannot ripen into title or apart from equity,

defeat the appellants’ established possession, ownership and title over the land in dispute.

That appellants’ pleadings of material facts for the proof of title to the land in dispute through possession and ownership of the contiguous northern portion is contained in paragraph 13 of their pleadings and paragraphs 19, 20, 21, 22 and 23 of the deposition of PW1 supported by Exhibits P2, P3, P4 and P7. That these evidence remained unchallenged, unrebutted and uncontroverted. Learned counsel submitted that they have discharged the burden placed on them pursuant to Section 143 of the Evidence Act and urged the Court to accept the evidence adduced by the appellants as proof of title and ownership over the land in dispute. Cited: Mogaji v. Cadbury Nigeria Ltd (1985) 2 NWLR (Pt. 7) 393; Buraimoh v. Bamgbose (supra) at 367 paras C – D and Anukam v. Anukam (2008) 5 NWLR (pt. 1081) 455 at 476. Learned counsel urged the Court to resolve issues 1, 2 and 3 in favour of the Appellants.

Learned counsel to the Respondents’ issue 2 is couched as follows:
“Whether the Appellants established their claim to the land in dispute to be entitled

to a declaration of title in their favour.”

In his submission while arguing this issue, learned counsel to the Respondents contended that the Appellants were unable to establish by cogent and credible evidence their title to the land in issue. That the learned trial Judge was therefore right when he found that on the imaginary scale of justice, the Respondents’ case far outweigh that of the Appellants and dismissed their case. That in an action for declaration of title to land, the party must prove his title by one or more of the five methods recognized by the law as pronounced in Idundun v. Okumagba (1976) 9 – 10 SC 223.

That the first step to prove title to land, the plaintiff must prove clearly the area of land to which his claim relates, as well as the exact location and boundaries of the land in dispute. Cited: Ogunyomi v. Ogundipe (2011) All FWLR (Pt. 594) 199; Olufosoye v. Olorunfemi (1989) 1 NWLR (pt. 95) 26 at 42; Awotola v. Aro (2006) 4 NWLR (Pt. 971) 481 at 498; Ogedengbe v. Balogun (2007) 9 NWLR (Pt. 1039) 38 at 393. Learned counsel quoted the appellants’ claim in paragraphs 12, 13 and 17 of their 3rd Amended Statement of

Claim where they pleaded that the land in dispute is clearly situate within Onitsha town as distinct from the respondents’ claim that their land is in Obosi town. Learned counsel also quoted the evidence of PW1 while describing the boundaries of the land in dispute. That the Respondents disputed the physical location of the land shown on the Appellants’ survey plan and specifically put in issue the relative location of the land comprising the Nkisi Water Works Reserve vis-à-vis their land now in dispute. Learned counsel quoted the Respondents’ pleading of the boundaries of the land in dispute. That pursuant to the diverse description of the land in dispute between the parties, the following conclusion can be made:
1. The Respondents’ land which was put in dispute by the Appellants is called Ani Ugbokwe (Not Ani Nwoke) and is presently known as and called Enekwasumpu Layout, Obosi, most of which is presently occupied by the 3rd – 12th Respondents.
2. The land in dispute is in Obosi town, Idemili LGA not Onitsha.
3. While the Appellants may have a land at Onitsha, (part of which was designated by the

Government as Nkisi Water Works Forest Reserve), the said land is not located at the present land in dispute. That Nkisi is a long stream that flows through several towns, communities and lands from its source to the point where it flows into the River Niger.
4. That in their effort to prove that the land designated Nkisi Water Works Forest Reserve forms part of the land in dispute, the Appellants attempted to superimpose the said Nkisi Water Works Forest Reserve Plan (Exhibit P4) on their survey plan (Exhibit P1) thus producing Exhibit P7. That during trial, it was proved that the land in Exhibit P4 is not related in its physical location to the land in Exhibit P1. That Exhibit P7 was made by surveyor Alex Anugo Okeke who testified for the Appellants as PW6, while Surveyor E.E. Ezeanaka testified for the 3rd – 12th Respondents as DW8, in his testimony, which learned counsel argued was not impeached, rather, same was confirmed under cross-examination at pages 933 – 934 of the record of appeal.

Learned counsel submitted that it is the evidence of DW8 that dealt an irreparable mortal blow on the entire case of the Appellants which was

desperately hung on Exhibits P2, P3, P4 and P7. That during trial, the appellants exclusively relied on the said Exhibits to anchor their whole case, which came crashing down like the proverbial house of cards with the unimpeached evidence of DW8 which established that the land in dispute is located at a place that is totally different and unrelated with the land in dispute contained on Exhibit P7. That the testimony of DW8 was corroborated by the evidence of the Appellants surveyor who testified as PW6. Learned counsel quoted the testimony of PW6 during cross-examination as reflected at page 925 of the record of appeal. That it is therefore not surprising that the learned trial Judge found the superimposed survey plan (Exhibit P7) to be totally unreliable going by the evidence of the two surveyors and he rightly rejected same. That the Appellants failed to establish the location, identity, extent and boundaries of the land in dispute. Rather than establishing their claim, the Appellants evidence shows clearly that the lands shown in their Exhibits P1 and P4 are not the same with the lands depicted in the Respondents’ Exhibit D1.

On proof of acts of

ownership and possession, learned counsel to the Respondents submitted that without prejudice to their submission on issue 1 above, even if this Court is to hold that the learned trial Judge was right in applying the Rule in Kojo II v. Bonsie, he ultimately came to the right conclusion when he decided that Respondents were the persons who, at all times material to this suit, exercised maximum acts of ownership and possession over the land in dispute. That in paragraphs 10 of their pleadings, the Appellants created the impression that they exercised unfettered acts of ownership and possession over the land in dispute by surveying parceling and allocating portions to themselves without interference from any quarters. Yet in his testimony, PW1 made a turn-around from their pleadings by saying that:
“No members of our family has certificate of occupancy over any part of the disputed land because they invaded the place with thugs whilst we were surveying it for parcellating it and we then took out the present suit.”

That the Appellants did not tender any survey plan or layout showing the alleged parcellation to support their claim. Learned

counsel to the Respondents referred the Court to their evidence during trial that showed that they had been in possession and occupation of the land in dispute before the Nigeria Civil War. That the Appellants who claim to have acquired the land in dispute over 400 years ago (as at the time of trial) were unable to show one single act of ownership or possession exercised by them on the land in dispute.

On proof of traditional history, learned counsel to the respondents stated the trite position of the law that a party in a claim of title to the land in dispute is obliged to prove his title to that land by any of the five established methods as held in Ayanwale v. Odusami (2012) All FWLR (Pt. 610) 1246 at 1260-1261. That the party must succeed on the strength of his case as held by the apex Court in Rabiu v. Adebajo (2012) All FWLR (Pt. 643) 1836 at 1850; Anyafulu v. Meka (2014) All FWLR (Pt. 731) 1510 at 1530. That where the evidence of title adduced by a defendant is better, more credible and preferable to that of the plaintiff, then the plaintiff’s case is bound to fail since the scale of justice would then preponderate in favour of the Defendant. Cited Rabiu v. Adebajo (supra).

On the issue of government acquisition of the northern portion of the land in dispute for the Nkisi Water Works Forest Reserve and the effect of the said acquisition on the land in dispute, as alleged by the Appellants, learned counsel to the Respondents submitted that, that argument by the Appellants cannot be sustained. That the lower Court found the superimposition of the land acquired by the government (Exhibit P4) on Appellants’ plan (Exhibit P1) to produce Exhibit P7. That the essence of the superimposition is to show the relative contiguity of the land so acquired as the northern portion of the land now in dispute and thus establish a consequential Appellants’ right and interest over the land in dispute. That the learned trial Judge however, found that Exhibit P7 has been so discredited in evidence that it cannot be relied upon to make any findings in respect of the Appellants’ claim to the land in dispute. Learned counsel quoted the holding by the learned trial in that respect.

That the clear implication of the finding by the lower Court is that the Appellants cannot rely on their alleged

right over the land acquired by government for the Nkisi Water Works Forest Reserve to establish the title over the land in dispute, since available expert evidence of the two surveyors showed clearly that the two lands are not related and Exhibit P7 cannot be relied upon. Learned counsel stated the trite position of the law that in a claim for declaration of title, the onus is on the plaintiff to prove his case, and he must succeed on preponderance of evidence on the strength of his own case and not on any real or imaginary weakness in the case of the defence. Cited: Obiaso v. Okoye (1989) 5 NWLR (Pt. 119) 80 at 89; Woluchem v. Gudi (1981) 5 S.C. 291 at 294; Matanmi v. Dada (2013) All FWLR (Pt. 682) at 1647).

Learned counsel urged the Court to consider this submission and find that the learned trial Judge was right in holding that the Appellants did not prove their claims for declaration of title to the land in dispute and therefore rightly dismissed same. Urged the Court to resolve this issue in favour of the Respondents.

Findings:
I have already made my findings on the Respondents’ Notice above wherein I upheld the submission by learned

counsel to the Respondents that the learned trial Judge ought not to have applied the Rule in Kojo II v. Bonsie (supra) in reaching the decision, in his judgment, that the traditional histories presented by the parties are equally plausible and credible. I held that the traditional history presented by the Appellants was not cogent and plausible to support their claim for a declaration of title to the land in issue. I also affirmed the judgment by the lower Court on grounds other than those it relied upon. I reviewed the pleadings by the parties and the evidence adduced in support thereof before upholding the Respondents’ Notice. Be that as it may, I am obliged to state my findings based on the submission by learned counsel while arguing the issues formulated in their respective briefs.

I find it necessary to once again hold that since the appellants are seeking for, inter alia, declaration of title to the land, damages for trespass and/or injunction, it is necessary for them to give a precise identity and boundaries of the land they are claiming. The logic of this is that a Court cannot make an order in vaccuo nor would it issue a declaratory or

injunctive order which cannot lend itself to execution with a reasonable degree of certainty. In Alhaji Ganiyu M.B. Iseogbekun & Anor v. Alhaji Sikiru Gberigi Adelakun & Ors. (2012) LPELR – 15516 (SC) the Apex Court held thus:
…”The reason for the desirability of the establishment of the identity of the land in dispute is to ascertain the property involved in a litigation, so as to avoid the granting of a piece of land or part thereon to a party who is not entitled to it. The law is settled on the principle of law that a party who seeks title to land vide any of the five ways of seeking such, must prove the identity of the land in respect of which he seeks remedy… See Nwogo v. Njoku 1990 3 NWLR part 140, page 570; Epi v. Aigbedion 1972 10 SC 53 and Adeleke v. Balogun 2000 4 NWLR part 651 page 113.” Per Mukhtar, JSC, (later CJN) at page 25 paras B – E.
The learned Law Lord was more succinct at pages 31 – 32 paras., E – A when he held thus:
“In a claim for declaration of title to land, the law is trite that a party who claims such remedy in Court must prove its case with cogent,

uncontradicted evidence that remains credible and reliable.”

In the instant suit, the Appellants as plaintiffs are seeking for:
Declaration that the plaintiffs are entitled to statutory right of occupancy of all that land known and called Ani Nwoke situated at Onitsha and delineated on Survey Plan No: SE/AN9/81 and therein verged pink.

In paras 12, 13 and 17 of their 3rd Further Amended Statement of Claim, the Appellants as plaintiffs pleaded thus:
12. The 1st and 2nd defendants are the people of Umuosiga and Umunnagbe families of Uruowulu Village, Obosi, Obosi town is more than eight Kilometers South of the land in dispute. The land of various other Onitsha families surrounds the land in dispute.
13. The norther portion of the land in dispute on which the Forest Department planted gmelina trees was part of the land the Anambra State Government of Nigeria Constituted the Nkisi Water Works Forest Reserve in 1986. The Government reserved certain rights to the owners of parts of the land constituting the said Forest Reserve.
17. In 1929, Onyechi Akunna, now late, of Umualibo family of Ogboli Olosi Village, Onitsha, sued one Chief

Kodilinye and John Ikogu of Obosi for lying false claim over Umualibo family lands or Aritori 2 and Ugwuocha in Suit No: 14 of 1929: Onyechi Akunna v. Chief Kodilinye and John Ikogu. The said Aritor and Ugwuocha land are in boundary with the Plaintiffs’ land in dispute.

The 1st Appellant as PW1 in his evidence of the boundaries in dispute stated thus:
“I know the boundaries of the land in dispute. If you stand on the old Onitsha-Enugu Road facing the land in dispute on the northern side is the Nkisi River. Eastern side on the right hand side near to Nkisi River, we have a boundary with Umualibo family of Ogboli Olosi Village, Onitsha, at the Centre of the land still on the eastern side is the Umuifejo family land of Umudei Village, Onitsha. On the Souther-east is the land of Umualobo family of Ogboli Olosi Village Onitsha. On the left hand side i.e Western side, we have boundary with Umalabor family of Umaroli Village, Onitsha. On the Southern part, we have boundary with Kwazie Onuora family of Ogboli Eke Onitsha.”

On the other hand, the Respondents joined issues with the Appellants as to the boundaries, extent and the identity

of the land in dispute. They disputed the physical location of the land shown on the Appellants’ Plans as being in dispute and specifically put in issue the location of the land comprising the Nkisi Water Works Reserve vis-à-vis their land now in dispute. The Respondents pleaded the boundaries of the land in dispute thus:
“…Further, the land in dispute is bounded by portions of land belonging to other families of Obosi. In the Western boundary of the land in dispute is the land of the Umu-Agbakwu family of Obosi, in the northern boundary, there is the Nkisi River which constitutes a natural boundary. Across the Nkisi River is the land of Oze people. In the East of Ani Ugbokwe is the land of Nkpor people. In the south is the Nwaenem family of Obosi.”

Pursuant to the foregoing and based on the evidence adduced during trial, I have reach the following conclusions:
1. The land in dispute is Ani Ugbokwe as described by the Respondents and not Ani Nwoke as described by the Appellants. The land is presently called Enekwasumpu Layout, Obosi, most of which is now occupied by the 3rd to 12th Respondents.
2. As I held in

my decision on the Respondents’ Notice, the land in dispute is not at Onitsha but is situate at Obosi town in Idemili Local Government Area. While the Appellants restricted the land in dispute to Onitsha town, by their pleadings and evidence, the Respondents adduced evidence to show that the land in contest, which they now occupy is at Obosi. In his testimony under cross-examination, DW9 testified thus:
“We have polling booths and polling units for elections conducted in Nigeria. Our voting areas were designated by the government as wards in Obosi in Idemili Local Government Area.”

It is trite that the Independent National Electoral Commission (INEC) is responsible for designating wards for purposes of election as provided in the Electoral Act, 2010 (as amended). All Courts in the country, including this Court are bound to take judicial notice of that fact. It is therefore obvious that Obosi is a town in Idemili Local Government Area not at Onitsha town.
3. It is obvious that the Appellants have a land at Onitsha part of which is designated by the state government as Nkisi Water Words Forest Reserve, the said land is not

located on the land in dispute. By their pleadings and evidence adduced the Respondents put the location of the land in dispute in issue when they stated that the land in dispute is not surrounded by the land belonging to other Onitsha families and the said Forest Reserve Public Notice of 1965 and the subsequent Order of 1986 do not relate to the 1st Respondent’s land now in dispute.
4. In their effort to prove that the land designated as Nkisi Water Works Forest Reserve is part of the land in dispute, the Appellants attempted to superimpose the said Nkisi Water Works Forest Reserve Plan (Exhibit P4) on their survey plan (Exhibit P1) thus producing Exhibit P7. Unfortunately for the Appellants the two Surveyors who testified as PW6 (Surveyor Alex Anugo Okeke) and DW8 (Surveyor E.E. Ezeanaka) stated that the land in Exhibit P4 is not related in physical location to the land in Exhibit P1. PW6 during cross-examination on page 925 of the Record stated thus:
Q. Kindly measure on Exhibit P7 the distance between the northern limit of the area verged orange and the Nkisi stream indicated in blue?
A. Using the scale on the plan, the points I have

measured have a distance of about 125 meters.
Q. Measure the distance between the northern boundaries of the area verged orange and Nkisi Stream indicated in blue at two different point in Exhibit P7?
A. I need a rectangular scale to be able to do it in that manner. But approximately, the distance between the two point I have indicated in red ink is about 280 meters.
Q. In superimposition of two plans reflecting the same physical locations, the common features or points on the two plans ought to tally?
A. It is true with allowable accuracy and precision.

I have also read and digested the evidence of DW8 as contained in his deposition at pages 818 of the Records and his testimony at page 934 of the Records wherein he stated thus:
“A survey plan is a representation of a physical location on the surface of the earth. When two surveyors carry out a survey of a physical location on the surface of the earth, the two survey plans produced should reflect identical features. When two plans are drawn on the same scale, one can be placed on the other point for point and feature for feature. That is the essence of superimposition.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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When two plans are drawn on the same scale and they do not align point for point and feature for feature, it means that they do not represent the same physical location on the surface of the earth.
In the two plans that were superimposed to produce Exhibit P7 have Nkisi River as a common feature. Nkisi River travels a long area beginning from Onitsha to many other communities. Different locations can therefore be produced having Nkisi River.
I see Exhibit P7. One of the plans used in the superimposition shows the water (sic) cause of Nkisi River in orange while the other survey plan shows the water cause of Nkisi River in blue. The two water causes do not align. If the two plans had reflected the same physical location, the water cause would have aligned. My conclusion is that the two plans dealt with different physical locations.”

This elucidating exposè by the DW8 dealt a fatal blow to the case of the Appellants which was firmly embedded on Exhibit P2, P3, P4 and P7. The evidence of DW8 clearly established that the land in dispute is located at a place totally different and unrelated with the land, the subject matter of Exhibits P2,

P3 and P4 which confirms that the land in dispute is located at Obosi town and not Onitsha town as I pronounced in the Respondents’ Notice above. The learned trial Judge was perfectly right when he found Exhibit P7 to be totally unreliable going by the evidence of PW6 and DW8.

As for the submission by the Appellants’ that there was nothing that link the family of the 2nd Respondent as part owners of the land in dispute, I agree with the submission by the Respondents that the said 2nd Respondent of the Umunnagbe family did not apply to be joined as defendants in this suit. They were ab initio sued by the Appellants who displayed a lack of knowledge of the land in dispute. By the pleading of the 1st and 2nd Respondents at para 4 (a) – (e) at pages 661 – 663 of the record of appeal, the land in dispute belongs to the 1st Respondent’s Umuosiga Family and not the 2nd Respondents’ Umunnagbe Family. The land is not jointly owned by the two families. The only relationship between the 1st and 2nd Respondents is that both Umuosiga and Umunnagbe descended from one ancestor – Nnagbe. They pleaded at para 4(e) of their 2nd Amended

Statement of Defence (pages 661- 663) of the Records that:
“The 1st and 2nd Defendants’ Further aver that members of Umunnagbe sons of Nnagbe have no interest in the Ani Ugbokwe land in dispute. The land in dispute has been from time beyond human memory, the property of the members of Umuosiga family of Uruowulu of the Obosi which they inherited from their great ancestors Osiga.”
In his testimony as DW2, the 2nd Respondent stated that:
“We the members of Umunnagbe family have no interest in the Ani Ugbokwe of the Umuosiga family in dispute in this case. The Umunnagbe family are the descendants of the other three sons of Nnagbe who stayed back with Nnagbe at Odume Obosi while Osiga left to settled at Ani Ugbokwe in dispute for farming and hunting…” (page 784 of the Records).

Therefore, the absence of the 2nd Respondent’s interest in the land in dispute has been sufficiently pleaded and proven by evidence. The choice to sue the 2nd Respondents’ family over the land in dispute that solely belongs to the 1st Respondents’ family is entirely that of the Appellant. They cannot turn round at

this stage to use it in trying to fault the traditional history of the 1st Respondent.

The submission by the Appellants that although the Respondents (particularly the 3rd to 12th Respondents) who are in occupation of the land in dispute are trespassers in mere ‘occupation’ rather than possession and that they (Appellants) are in ‘constructive possession’ through the said Respondents is untenable. This is because the 1st Respondent’s presence on the land was fully explained by their evidence of traditional history e.g letting to tenants, farming tenants on the land, securing a Government approved layout and conveyance of portions thereof to the 3rd to 12th Respondents etc. These facts were well established through uncontradictory evidence. The Respondents uninterrupted presence on the land in dispute for several decades is therefore neither an act of trespass nor mere occupation as alleged by the Appellants. The Appellants have shown no better title to defeat or even compete with the factual and legal possession of the Respondents in that respect. Therefore, the Appellants’ submission in that respect is hereby discountenanced.

and they cannot rely on the weakness of the defence case except where such weakness support their case.”
Also in the holding by the Supreme Court, per Kabiri-Whyte, JSC, in Ahwedjo Efetiroroje & Ors v. His Highness Onome Okpalefe II (The Osuivie of Agbarho) & Ors, (1991) LPELR-1024 (SC) the learned Law Lord held inter alia, as follows:
“The law has been well settled since the judgment of Webber C.J., in Kodilinye v. Odu (supra) and subsequent decisions have followed this principle that the onus on the plaintiff in an action for declaration of title is to satisfy the Court that he is entitled, on the evidence brought by him, to a declaration of title. And for this purpose he must rely on the strength of his own case and not on the weakness of the case of the Defendant. If this onus is not discharged, the weakness of the defendant’s case will not support the case of the plaintiff. See Elufisoye v. Alabetutu (1963) NWLR 298; Oladimeji v. Oshode (1968) 1 All NLR 147.”
I will finally cite and rely on the apex Court’s decision in the case of: Alhaji Fatai Alani Matanmi & Ors. v. Victoria Dada & Anor

(2013) LPELR – 19929 (SC) per Fabiyi, JSC, as follows:
“I agree with the learned counsel that the plaintiffs must establish their claim on the strength of their case. They cannot place any reliance on the weakness of the defence, if any. The burden of proof on the plaintiffs in establishing their declaratory relief to the satisfaction of the Court is quite heavy in the sense that such a declaratory relief is not granted even on admission by the defendant where the plaintiffs fails to establish their entitlement to the declaration sought by their own evidence. See: Nwokidu v. Okanu (2010) NWLR (Pt. 1181) 362; Dantata v. Mohammed (2000) 7 NWLR (pt. 664) 176; Ekundayo v. Baruwa (1965) 2 NLR 211 and Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 at 373.”

Upon considering the pleadings and the evidence of the parties before him, it is my finding that the learned trial Judge was right when he held that the Appellants have not proved their claim to a declaration of title to the land in dispute and therefore rightly dismissed same. The issues as argued by learned counsel to the parties are resolved in favour of the Respondents.

Issue 4 canvassed by the Appellants is:
Did the Appellants prove the boundaries and features of the land in dispute?

I have made my findings known on this issue above that the Appellants did not prove the boundaries and features of the land in dispute especially when Exhibit P7 is carefully considered. Rather it is the Respondents that prove the boundaries and features of the land in dispute which is situate at Obosi town and not Onitsha town. I also resolve this issue against the Appellants.

The last issue formulated by the learned counsel to the Appellants as their issue 5 is:
5. Was there any justification in law for the strictures by the trial Court on both the Appellants and the 13th Defendant on an issue that is not relevant to the determination of Suit No: 0/110/80, and upon which no evidence was led in support?

Learned counsel to the Respondents reframed this issue as follows:
Whether the learned trial Court was justified for his comments on the conduct of the Appellants and the 13th to 16th Defendants in bringing and prosecuting Suit No: 0/464/84.

In his submission on this issue, learned counsel to

the Appellants was irked by the comments made by the learned trial Judge in his judgment as it pertains to the Appellants and 13th to 16th Defendants at pages 951 – 952 of the Records. That the main reason why the learned trial Judge made his remarks is that the Appellants and 13th to 16th Defendants, (who in their pleadings joined issues with the Appellants and the 1st and 2nd Respondents) connived to gain an undue advantage over the 1st to 12th Respondents when they engaged each other in what turn out to be a bogus litigation in another High Court at Onitsha in Suit No: 0/464/84 during the pendency of this suit. That the said 13th to 16th Defendants however abandoned their case midway into the trial of this suit without calling evidence to support their pleadings. That inspite of this position the lower Court made the remarks about connivance above. That judicial determination, either in the form of declaration or any other pronouncement, must be based or anchored on proven evidence. Cited: Mojekwu v. Iwuchukwu (2004) 11 NWLR (pt. 883) 196 at 216; Owners of M/V Gongola Hope & Anor. v. Smurfit Gases Nig. Ltd. & Anor. (2007) All FWLR (Pt. 388)

1005 and Ogunyade v. Oshunkeye & Anor (2007) All FWLR (PT. 389) 1179 Paras A- D.Learned counsel asked: Where did the Court below find the evidence to conclude that the Appellants and these defendants/respondents were in collusion to short change the 1st to 12th Respondents? He answered in the negative. That the lower Court relied on its sentiments as well as conjectures to embark on what is really not an issue, since suit No: 0/464/84 had been concluded and judgment given before the trial in the instant suit. That there was no iota of evidence upon which the lower Court could have made the remarks it made. That the lower Court relied on the pleadings of the 13th Defendant which remained moribund and the said lower Court ought to have allowed this sleeping dog to lie. He urged the Court to hold that the castigation of Appellants and 13th Defendant by the learned trial Judge was clearly unwarranted and unjustified in law. Urged this Court to set aside this portion of the judgment.

In his submission on this issue, learned counsel to the Respondents argued that the comments by the learned trial Judge at pages 951 – 952 of the Records

(which he quoted verbatim) are justified. Learned counsel gave a history of how the 13th to 16th Defendants applied to be joined in this suit before the lower Court on 24/9/2007. After the joinder they filed an Amended Statement of Defence and a counter claim. That the Respondents’ witness DW1 Chief Ernest Nwankwo Ojiaku Iyasele (Traditional Prime Minister of Obosi town) in his averments (paras 22, 23, 35, 38, 42 and 44) testified and made the allegation of collusion between the Appellants and the 13th to 16th Respondents to sideline the 1st to the 12th Respondents and even the lower Court by instituting Suit No: 0/464/84 during the pendency of this suit No: 0/110/80. That the learned trial Judge rightly deduced or inferred collusion between the Appellants and the 13th to 16th Defendants to institute Suit No: 0/464/84 for the purpose of this case and to obtain judgment that could overreach the Respondents. That the comments by the learned trial Judge were made after he made his pronouncement on the substantive issues arising in the case before him. That they are observations made by the Judge in passing which cannot be a ground of appeal. Cited:

Nwankwo v. E.D.C.S.U.A. (2007) 5 NWLR (Pt. 1027) and Akibu v. Oduntan (2000) 13 NWLR (Pt. 685) 44.

Findings:
Upon considering the submission by learned counsel on this issue (which I consider to be a storm in a tea cup) my finding is that the observation made by the learned trial Judge that gave rise to this issue is at page 951 – 952 of the Records where the learned trial Judge observed thus:
“By instituting the said suit No: 0/464/84 and causing same to be heard by the Court in the absence of the 1st to the 12th defendants, the plaintiffs and the 13th to the 16th defendants, created more confusion in this matter and thus caused additional difficulties for the Court. When, however, their inglorious gimmick became quite obvious as the hearing of the suit progressed, the 13th to the 16th defendants developed cold feet, threw in the towel and ran away. They did not have the courage to fight to the end. The 13th to the 16th defendants no doubt, are meddlesome interlopers; seeking to reap where they never sowed.”

It is clear that by the time the learned trial Judge made this observation, he had already made his findings on the

substantive suit. The decision by the learned trial Judge to dismiss the Appellants’ case was not based on this observation as can be seen in my holding above. The observation by the learned trial Judge is in my view, an obiter dictum, a comment or an observation which for all intents and purposes is not binding on the parties. How or why the Appellants couched a ground of appeal and formulated an issue out of an observation or obita dicta of the learned trail Judge is beyond my comprehension. Even if this issue is to be resolved in favour of the Appellants, it will not change the decision of this Court on the ratio decidendi by the lower Court in its judgment. In Mobil Producing Nigeria Unlimited v. Okon Johnson & Ors. (2018) LPELR-44359 (SC) the apex Court per Okoro, JSC, held thus:
“An obiter dictum is an expression of opinion made in the process of writing a judgment by a Judge which is not necessary or relevant to the decision and as such cannot form part of the ratio decidendi of the judgment. An obiter dictum does not have the status of ratio decidendi in a judgment of a Court. It does not decide the live issues in the matter. Put

differently, an obiter dictum is a statement made in passing which does not reflect the ratio decidendi; that is, the reasoning or ground upon which the case is decided…Even in the Supreme Court, an obiter dictum is clearly not binding on us or indeed on the lower Courts, for obiter dicta, though they may have considerable weight, are not rationes decidendi and are therefore not conclusive authority and are not appealable..”
This issue was formulated by the Appellants from ground 6 of their Notice of Appeal. The observation by the learned trial Judge that gave rise to the framing of ground 6 by the Appellants is a mere observation which does not affect the substance of the judgment in any manner, in other words the observation is an obiter dictum which cannot be used to attack the judgment of the lower Court. Thus the said ground 6 in the Appellants’ notice of appeal is incompetent. Being an incompetent ground of appeal, it is only natural that it be struck out. Accordingly, ground 6 in the Appellants’ Notice of Appeal is hereby struck out. That being the position of the law, this issue formulated out of ground 6 is also

incompetent and is also struck out since you cannot put something on nothing and expect it to stand.UAC v. Mcfoy (1961) 3 All E.R.116. See also Rt. Hon. Michael Balonwu & Ors. v. Governor of Anambra State & Ors (2009) LPELR – 729 (SC) per Mohammed, JSC; Miss Nkiru Amobi v. Mrs. Grace O. Nzegwu & Ors. (2013) LPELR – 21863 (SC) per Kekere-Ekun, JSC, and Toby, JSC, in General Muhammadu Buhari v. Independent National Electoral Commission & Ors. (2008) LPELR-814 (SC) where the learned Law Lord (of blessed memory) pronounced thus:
“The law is trite that, a ground of appeal cannot be based on an obiter dictum. A ground of appeal is based on a ratio decidendi. An obiter dictum is a general principle of law, not binding on Courts, a ratio decidendi is.”

This issue is also resolved in favour of the Respondents.

Finally, the judgment of this Court is that this appeal is bereft of merit. It is hereby dismissed. The judgment delivered by the lower Court in Suit No: 0/110/80 on 29th October, 2013 is upheld. Cost of Five Hundred Thousand Naira (N500,000) is awarded against the appellants, jointly and severally in

favour of the Respondents.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: My Lord, B.G SANGA, JCA, obliged me with the draft of the lead judgment just delivered.
I agree with His Lordship that this appeal, being unmeritorious, should be dismissed.
Accordingly, I hereby enter an order dismissing this appeal.
I abide by the order as to costs made by my learned Brother in the lead judgment.

RITA NOSAKHARE PEMU, J.C.A.: I had read in draft the lead judgment just delivered by my brother BITRUS GYARAZAMA SANGA, JCA.
I agree with his reasoning and conclusion. I also dismiss the appeal.
I affirm the judgement of the Court below in Suit No. 0/110/80 delivered on the 29th of October, 2013.

Appearances:

PROFESSOR G.M. NWAGBOGU, with him, V.A. IKEME For Appellant(s)

ONUMA Esq., with him, C. NWABAN and M. OJI For Respondent(s)