INNOCENT EZEUKWU IBETO v. PETER NWANOSIKE & ORS (2013)

INNOCENT EZEUKWU IBETO v. PETER NWANOSIKE & ORS

(2013)LCN/6634(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 10th day of December, 2013

CA/PH/128/99

RATIO

WHETHER AN APPEAL COURT IS BOUND BY THE RECORD OF APPEAL

It must be stated and it is the trite law that an Appellate Court as well as the parties are bound by the record of appeal before the court and cannot and will not be permitted to say anything outside the record of appeal. See OTUNBA OGUNTAYO vs. PRINCE FATAI ADELAJA & ORS (2009) 15 NWLR (Pt. 1163) 150 at 190 H to 191 A per OGBUAGU, JSC who said:
“It must be stressed that this is also settled that the record of proceedings binds the parties, counsel and the court until the contrary is proved see case of SOMMER vs. FEDERAL HOUSING AUTHORITY (1992) 1 NWLR (Pt. 219) 548, (1992) SCNJ 73. Therefore an Appellate court has no jurisdiction to read into the record, what is not there and equally, it has no jurisdiction to read out of the record what is there. An Appellate Court must read the record in the exact content and interpret it.”
See also (1) SOLOMON OHAKOSIN vs. COP IMO STATE & ORS (2009) 15 NWLR (Pt. 1164) 229 per KEKERE EKUN JCA now JSC and (2) U. NWORA ORS vs. ENWABUEZE & ORS (2011) 17 NWLR (Pt. 1277) 669 at 720 C-E Per CHUKWUMA ENEH, JSC. Per PETER OLABISI IGE, J.C.A

INTERFERENCE OF THE APPEAL COURT WITH FINDINGS MADE BY THE TRIAL COURT

Since the settled position of the law is that it is the prerogative of trial court to admit, assess and evaluate the evidence the Appellate court will not interfere with the findings made by the trial court where the trial court has satisfactorily made findings supported by the evidence before it. See ALHAJI UMARU SANDA NDAYAKO & ORS vs. ALHAJI HALIRU DANIORO & ORS (2004) 13 NWLR (PT. 889) 187 at 220 where EDOZIE, JSC said:
“An Appellate court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons are. Where the judgment of the court is right but the reasons are wrong, the appellate court does not interfere. It is only where the misdirection has caused the court to come to wrong conclusion that the appellate court will interfere. See ABAYE v. OFILI (1986) 1 NWLR (Pt. 15) 134 at 179; UKEJIANYA vs. UCHENDU 19 WACA 46. Per PETER OLABISI IGE, J.C.A

MEANS OF ESTABLISHING A CLAIM OF TITLE TO LAND

Now the law is firmly established that in a claim for declaration of title including entitlement to grant of customary right of occupancy to land the Plaintiff or Claimant in order to succeed must establish his right to exclusive possession with credible evidence. The Claimant must satisfy the court as to the precise nature of the title claimed whether it is by virtue of original ownership, customary grant, conveyance or sale under the customary law. This the Plaintiff can do by any of the five methods laid down by the apex court in the land and ownership must by proved in accordance with the principles and presumption governing each of the five different ways of proving ownership of land. See J. O. OSIDELE & ORS v. MOSES O. SOKUNBI (2012) 11 SCM 146 at 159 C-F per I. T. MOHAMMED JSC who said:
“It is trite that in a claim of title to land, the Plaintiff can succeed if he establishes this claim through anyone of the following:
1. By traditional evidence
2. By production of documents of title
3. By acts of ownership extending over a sufficient length of time which acts are numerous and positive enough to warrant the inference that the person is the true owner;
4. By acts of long possession and enjoyment of the land;
5. By proof of possession of connected and adjacent land in such circumstances rendering it probable that the owner of such connected and adjacent land would in addition be the owner of the land in dispute.
See IDUNDUN & ORS v. OKUMAGBA & ORS (1976) NSCC 44 (1976) 9-10 SC 227; OMOREGBE & ORS v. EMIEFUVAIWE & ORS (1985) 2 NSCC 838; AMADI v. CHINDA (2009) 10 NWLR (pt. 1148) 107; NWOKOROBIA v. NWOGU (2009) 10 NWLR (Pt. 1150) 553″. Per PETER OLABISI IGE, J.C.A

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

INNOCENT EZEUKWU IBETO Appellant(s)

AND

1. PETER NWANOSIKE
2. STEPHEN NWANOSIKE
3. CHUKWUEMEKA NWANOSIKE Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Imo State High Court of Justice contained in the judgment of Honourable Justice D. E. Njikibeako delivered on 13th day of February, 1997.

The Appellant had approached the High Court of Imo State Oguta Judicial Division on the 18th day of April, 1985 for the issuance of writ of summons against the Respondents wherein he sought for the following reliefs:
“1. DECLARATION that plaintiff is entitled to customary right of occupancy to land.
2. N500.00 damages for trespass.”

By his statement of claim dated 19th day of July, 1985 and filed on 14th day August, 1985 the Appellant claimed in paragraph 18 thereof as follows:
“18. By reason of the matters aforesaid the Plaintiff has suffered loss and damage and therefore claims against the Defendants jointly and severally as follows:
i. Declaration that the Plaintiff is entitled to the grant of Customary Right of Occupancy of the said land known as and called “OKOHLA” situate at Umugabi Uzinaumu Mbgidi within Oguta Judicial Division.
ii. N5000.00 (five thousand naira) general damages for trespass.
iii. Perpetual Injunction Restraining the Defendants, their servants and agents from further act of trespass on the said land.”

The Respondents filed joint FURTHER AMENDED STATEMENT OF DEFENCE.
The matter proceeded to trial. At the end of the trial of the action the learned trial Judge found against the Appellant in a considered judgment delivered on 13th day of February, 1997. The learned trial Judge made the following findings:
“For the Plaintiff’s side only the plaintiff PW4 and his mother PW1 gave evidence of the year of Ezeukwu Ibeto’s death. Their evidence in chief was silent on the year of death of Ezeukwu Ibeto. The year was elicited from them under cross examination by defendants’ Counsel. I have summarized their evidence above. For the defendants, DW1 Chief Udogu Onunaku, DW2, Peter Nwanosike, DW4 Michael Akubuanyi, and DW6 Ignatius Mba Obinze Umunna gave positive evidence of the date of the death of Ezeukwu Ibeto. The plaintiff and the defendants belong to same family Eleberi family of Uzinaumul Mgbidi. It was strange that the Plaintiff could not invite any member of that family to tell the court when Ezeukwu Ibeto died. I watched the Plaintiff mother PW1 give evidence and it was clear to me that maternal support was all she came demonstrate. She was hiding the truth. As for the Plaintiff, he was more interested in portraying the defendants as the descendants of a slave of Eleberi. It was very remarkable that when DW2, the 1st Respondent testified no question was asked under cross examination by Plaintiff’s counsel to challenge his testimony that Ezeukwu Ibeto died in 1945. The legal implication of that failure to challenge evidence in support of a material averment in defendant’s pleadings is clear. Such evidence can be acted upon as true OMOREGBE V. LAWANI 1980 3-4 SC NZERIBE V. DARE (1994) 9 SCNJ 16 AT 172-173 and several other cases on the principle. Similarly when DW4 Michael Akubuenyi testified, Plaintiff’s counsel under cross examination asked a very surprising question (reproduced above when summarizing evidence of DW4). Suggesting that the Plaintiff was not born in 1952. It showed real confusion.

I am satisfied from evidence that Ezeukwu Ibeto was a member of Eleberi family of Uzunaumu Mbgidi and he died in their village and time of death was of common knowledge to members of his family and the Eleberi family to which the parties belong. DW1 is the village Head of Uzunaumu and DW6 is a very important member of that family. Both men impressed me as very responsible persons and spoke the truth and I believe their evidence. Equally impressive was DW4 who I am satisfied was in a position to give primary evidence of those facts. I find as a fact that Ezeukwu Ibeto indeed died in 1945 several years before the Plaintiff was born in 1952. I further believe and accept the evidence that Ezeukwu Ibeto’s widow was remarried by 1st defendant according to the customs of Mgbidi people and plaintiff is an issue of that marriage. By virtue of this finding am satisfied that the defendants have discharged the onus of proving the date of death of Ezeukwu Ibeto and the remarriage by custom of Ezeukwu Ibeto’s widow who gave birth to the plaintiff in 1952. In the circumstance the question of the plaintiff inheriting Ezeukwu Ibeto does not arise at all. This case deserves an observation in passing. I was surprised that counsel on both sides in spite of the pleadings exhibited very poor appreciation, of the core issue of date of death of Ezeukwu Ibeto who the Plaintiff claimed, was his father. The result was that the Plaintiff’s counsel played it down and did not lead his witnesses properly on that issue while the defendants’ counsel under cross examination asked questions to make up for the deficiencies in the evidence of PW1 and PW4. For example the two witnesses for the plaintiff i.e. PW1 and PW4 who gave evidence of the date of death of Ezeukwu Ibeto did so only under cross examination. Evidence in chief was conspicuously silent on the date. The noble art of cross examination was completely misused. In the final result, by virtue of my findings above the plaintiff cannot succeed and his case must fail and is hereby dismissed. The plaintiff was clearly misguided but all is not lost. I am sure time will heal the wounds inflicted on the parties by this unfortunate case. I will award only nominal cost of N200.00”

See Pages 114 – 116 of the Record. Aggrieved by the decision, the Appellant filed five grounds of appeal against the said judgment which read thus:
“GROUND ONE – ERROR IN LAW
That the learned trial judge erred in law by dismissing the Plaintiff’s claim for declaration of title to the customary right of occupancy over the land in dispute when the plaintiff had established titled to the customary right of occupancy over land in dispute by traditional evidence and by acts of ownership and long possession.
PARTICULARS OF ERROR
i. In Paragraphs 5, 6, 7, 8, 9, 10 and 11 of the statement of claim the Plaintiff/Appellant pleaded the traditional evidence and the various acts of ownership and long possession which were supported by the uncontroverted evidence of PW1, PW2, PW3 and PW4.
ii. The Supreme Court in the case of IDUNDUN v. OKUMAGBA (1976) 9-10 SC 227 or (1976) 1 NWLR 200 decided that ownership of land may be proved by traditional evidence or by acts of ownership and long possession among any of the five ways of proving ownership to land, which the learned trial judge wrongly failed to consider in his judgment before dismissing the plaintiff’s claim.
iii. The defence of the Defendant/Respondents that they inherited the land in dispute through Nwaegbe to whom his father Eleberi gave the land in dispute failed when it was established in evidence that Nwaegbe was not one of the sons of Eleberi and that Eleberi did not give to Nwaegbe the land in dispute.
iv. The defendants tried to hide the truth that their great ancestor was one UKWU, the slave boy of Eleberi in order to grap the land in dispute from the plaintiff which the learned trial judge wrongly failed to consider in his judgment.
v. The learned trial Judge wrongly failed to direct his mind to the fact that as the Defendants/Respondents, the descendants of UKWU could not claim ownership of the land in dispute, they had no legal right to challenge the plaintiff’s exclusive possession and better title of the land in dispute through PW1, the widow of EZEUKWU.

GROUND TWO ERROR IN LAW
That the learned trial judge erred in law by dismissing the Plaintiff’s claim for damages for trespass when the Plaintiff/Appellant had established in evidence better title to the land in dispute and exclusive possession at the material time of the act of trespass committed by the Defendants/Respondents who had no claim what-so-ever over the land in dispute.
PARTICULARS OF ERROR
i. In the judgment, the learned trial judge failed to consider the Plaintiff’s claim for damages for trespass committed on the land in dispute by the Defendants/Respondents who had no title over the land in dispute.
ii. The Plaintiff/Appellant and his mother (PW1) the widow of Ezeukwu were in exclusive occupation and possession on the land in dispute since the demise of Ezeukwu, the late husband of PW1 and Ezeukwu inherited the land in dispute from his late father Ibeto Esiohu Eleberi.
iii. The Defendants/Respondents were descendants of one “UKWU” a slave – boy of Eleberi.
iv. UKWU had no land during his life time, on his demise his son Nwuegbe inherited no land.
v. On the demise of Nwaegbe, his son Nwanosike the father of the Defendant/Respondents inherited no land and similarly, the Defendants/Respondents inherited no land from their late father Nwanosike and therefore the Defendant/Respondents could not claim ownership of the land in dispute which their late father Nwanosike did not own.
vi. The evidence before the learned trial judge disclosed that the Defendant/Respondents broke and entered into the land in dispute without the consent of the Plaintiff/Appellant who was in exclusive possession at the time of the trespass.
vii. The learned trial judge did not consider the principle of law, enunciated by the Supreme Court in the decided cases that a party who failed in his claim of title could also maintain and succeed in his claim for trespass except on a person who proved better title, see the case of (1) OJIBAH v. OJIBAH (1991) 6 SCNJ 156 at 170.
(ii) AROMIRE v. AWOYEMI (1972) ALL NWLR (Pt. 1) 101

GROUND THREE MISDIRECTION OF FACTS
That the learned trial judge misdirected himself on the facts by holding that the Defendants/Respondents were members of Eleberi family hence they had common knowledge of the date of death of Ezeukwu who was also a member of Eleberi family ignoring the evidence of PW1 as to when her late husband Ezeukwu died thereby arrived at a perverse decision that Ezeukwu died in 1945.
PARTICULARS OF MISDIRECTION
i. The Defendants/Respondents were not members of Eleberi family. They were members of UKWU family who was a slave and stranger in Uzinaumu Mgbidi.
ii. The Defendants/Respondents misled the Honourable Court by pleading and testifying that Nwaegbe, their grandfather was one of the sons of Eleberi but evidence from both parties disclosed that Nwaegbe was the son of one UKWU, and not Eleberi.
iii. The date of death of Ezeukwu was not of common knowledge to the Defendants/Respondents who were not of the same family with Ezeukwu hut a stranger in Uzinaumu Mgbidi.
iv. There was no evidence that the Defendants/Respondents kept record of dates of death of members of Eleberi family and there was no death certificate tendered to show that Ezeukwu died in 1945.
v. The Defendants/Respondents’ witnesses were not of same family with Ezeukwu and so were not in a position to know the date of Ezeukwu being strangers to the Ezeukwu family.
vi. Except DW6 the Defendants/Respondents and his witnesses were illiterates, persons who kept no record to know when Ezeukwu died.
vii. DW6 was a biased witness. The Plaintiff/Appellant sued him in court for assault on him.
viii. PW1, the widow of Ezeukwu knows when the late husband died and was in a better position than the rest of the witnesses to know when the husband died.
ix. PW1 testified that the late husband Ezeukwu Ibeto died 40 years ago as on 20/7/92 she gave evidence, it turned out to be 1952 which was the date pleaded and testified by the plaintiff.

GROUND FOUR ERROR IN LAW
That the learned trial judge erred in law by failing to consider the material contradictions in the evidence of the 1st Defendant which were also at variance with his pleadings before deciding that Ezeukwu Ibeto’s widow was remarried by 1st Defendant and that Plaintiff was an issue of that marriage and thereby arrived at a perverse decision occasioning miscarriage of justice.
PARTICULARS OF ERROR
i. The Defendants pleaded in paragraph 13 (b) of the Amended Statement of Defence that the 1st Defendant married and performed ceremonies of marriage of PW1, Ezeukwu Ibeto widow before the members of UMUAGOBI KINDRED UZINAUMU.
ii. In evidence in chief the 1st Defendant told the court that he married and performed ceremonies of marriage of PW1, Ezeukwu Ibeto’s widow before the Elders of Eleberi family.
iii. In cross-examination, 1st Defendant stated that he married and performed the ceremonies of married of PW1, the Ezeukwu Ibeto’s widow at UMUEHI MGBIDI before the parents of PW1 and paid bride price. He did not state the amount of bride price paid and the nature of marriage ceremonies performed before the parents at UMUEHI MGBIDI.
iv. DW.6 testified that the 1st Defendant did not perform any marriage ceremony for PW.1. That the 1st Defendant only performed the burial rites of the late Ezeukwu Ibeto as his brother and took over the widow (PW.1) as his wife.
v. The 1st Defendant and the late Ezeukwu Ibeto were not brother and were not of same status.
vi. The 1st Defendant lied to the court that Eleberi was his great ancestor and that Nwaegbe his grandfather was the son of Eleberi with the intention to claim the land in dispute.
vii. Also in order to claim the land in dispute 1st Defendant alleged that the Plaintiff was his son and that he remarried the mother.
viii. The learned trial judge should have rejected the evidence of 1st Defendant as unreliable and therefore not to be believed.
ix. At paragraph 8 of the Amended Statement of Defence, Defendants pleaded that IBETO was the father of EZEUKWU, the late husband of PW1, the mother of Plaintiff. But in evidence DW.2, the 1st Defendants, stated that NWANOSIKE, his father, was also the father of EZEUKWU and the court wrongly held that the 1st Defendant and Ezeukwu were brother hence he remarried his widow PW1.
x. The 1st Defendant (DW.2) was a stranger in Ibeto Esiobu Eleberi family where Ezeukwu Ibeto Esiobu belonged.
xi. DW.1, Chief Udogu Onunaku admitted during cross-examination that by their custom, a stranger could not take over the widow of the family where the where the stranger sojourned.
xii. By custom, DW2 (1st Defendant) being a stranger, and a descendant of UKWU, a slave, could not marry PW1, the widow of Ezeukwu a free-born and a descendant of Eleberi – a chief leader of his community then.

GROUND FIVE
That the judgment was against the weight of evidence.
PARTICULARS
i. The land in dispute developed from Eleberi, the original owner to son Esiobu and to Esiobu’s son Ibeto and Ibeto’s son Ezeukwu Ibeto and finally to Ezeukwu’s widow PW1, and her son Plaintiff.
ii. The Elders of Uzinaumu arbitrated over the ownership of the land between the Plaintiff and the Defendants and decided in favour of the Plaintiff that the Defendants had no moral or legal right by custom to inherit the properties of Ibeto Esiobu when the Plaintiff the grand son of Ibeto Esiobu is living.
iii. The Defendants were strangers in Uzinaumu Mgbidi and therefore had no claim over the land in dispute as found by the Elders of Uzinaumu Mgbidi.”

Appellant’s Brief of Argument dated 8th day of December, 2004 was filed on the same date at Port-Harcourt Division of this court. The Respondents filed their Brief of Argument dated 27th day of January, 2005 on 28th of January, 2005 at the Registry of Port-Harcourt Division of this court.

On the 30th day of September, 2013 the Learned Counsel to the parties adopted their Briefs of Argument in this appeal.

The Appellant formulated two issues for determination of this appeal viz:
“1. Whether the learned trial judge rightly dismissed all the reliefs claimed by the Appellant as to title to the Customary Right of Occupancy of the land in dispute, N5000.00 (Five Thousand Naira) general damages for trespass into the land in dispute and perpetual injunction.
2. Whether the learned trial judge rightly held in the judgment that the Defendant/Respondents and Ezeukwu Ibeto were of same blood relations of Eleberi family of Eleberi family hence the Defendants/Respondents knew the actual date of death of Ezeukwu Ibeto as common knowledge of members of same family”

The Respondent also formulated two issues for determination namely:
“Whether considering the recondite issues joined by the parties in their pleadings i.e.
a) Date of death of EZEUKWU IBETO
b) Was there any lavaritic marriage between the 1st defendant and Oshiji Ngamdiero (PW1) after the death of EZEUKWU IBETO in accordance with custom?
c) Paternity of innocent Ezeukwu Ibeto (Plaintiff/Appellant) born while the Lavaritic marriage between the 1st Defendant and Oshifi Ngandieno was subsisting? Was it necessary for the trial court to evaluate the evidence of traditional history, acts of ownership and long possession put forward by the parties as proof of title to the land in dispute?
ii. Whether the findings of facts made by the learned trial judge did occasion miscarriage of justice?”

I am of the view, that this appeal can be decided on the two issues formulated by the Appellant. The issues will be treated seriatim.

ISSUE 1
WHETHER THE LEARNED TRIAL JUDGE RIGHTLY DISMISSED ALL THE RELIEFS CLAIMED BY THE APPELLANT AS TO TITLE TO THE GRANTS OF THE CUSTOMARY RIGHT OF OCCUPANCY OF THE LAND IN DISPUTE, N5000.00 (FIVE THOUSAND NAIRA) GENERAL DAMAGES FOR TRESPASS INTO THE LAND IN DISPUTE AND PERPETUAL INJUNCTION.

The Learned Counsel to the Appellant rehashed the facts as contained in the Appellant’s pleadings and evidence led before the lower court. That the case of the Appellant was predicted on the plank of traditional history and acts of long possession of the land in dispute. Appellant stated that he successfully traced his root of title to one ELEBERI who according to him was his founding ancestor, who acquired the land in dispute by deforestation of the virgin bush. That there was uncontroverted evidence from him that the land devolved from his founding ancestor ELEBERI to his son ESIOBU and from ESIOBU to IBETO his son and from IBETO to EZEUKWU IBETO and his son INNOCENT EZEUKWU IBETO to the Appellant and the mother PW1 OSHIJI NGANDIERO EZEUKWU IBETO.
Appellant stated that after the demise of his own father himself and his mother continued to farm on the land in dispute for many years without any interference from Respondents. That PW1, PW2 and PW3 all testified in line with Appellant’s pleading and that PW4 testified that the Respondents belong to UKWU family who was a slave and had no land and that DW1 confirmed that Respondents are descendants of UKWU. That DW6 admitted that NWAEGBE was the son of UKWU and not son of ELEBIRI. Appellant contended that the admission of DW1 and DW 6 supported the case of Appellant that the Respondent are the children of a slave known as UKWU.

That this UKWU a slave was the father of NWAEGBE who was the grandfather of the Respondent. That PW1 inherited the land when her husband Ezeukwu Ibeto died when Appellant was then three months old. That when Appellant became of age his mother, PW1 surrendered the land to him and Appellant thus took over effective possession of the land.

That the respondents lied when they claimed that PW1 the mother of Appellant remarried 1st respondent after the death of Ezeukwu Ibeto the husband of PW1. The Appellant believed that the respondent’s interference on the land in dispute was an act of trespass as according to Appellant, Respondents had no title or a better title than the Appellant.

That the learned trial Judge was misled by the Respondents on the alleged remarriage of PW1 to 1st Respondent, who the Respondents claimed was the father of the Appellant whereas the Appellant’s father according to the Appellant was late EZEUKWU IBETO who PW1 said died 40 years ago when she testified in 1992.

On method of proof of ownership of land Appellant relied on the case of IDUNDUN v. OKUMAGBA (1976) 9 -10 SC 227.

The Appellant stated that the learned trial Judge failed to consider the Appellant’s claim for general damages and perpetual injunction. That trial judge ought to have found that Appellant had better title to the land relying on the case of AROMIRE v. AWOYEMI (1972) 1 ALL NLR (Pt. 1) 101 at 112. That the evidence led by Appellant showed he was in exclusive possession of the land in dispute before Respondents trespassed on same. He cited the case of OJIBAH v. OJIBAH (1991) 6 SCNJ 156 at 170.

The learned counsel to the Appellant E. C. Ajoku Esq. submitted that the failure on the part of learned trial Judge to consider the evidence of traditional history led by Appellant resulted in a miscarriage of justice.

In reply to the Appellant’s submissions on issue 1, the Respondents learned Counsel F. U. UNYIMADU Esq. started by drawing attention to what he considered to be relevant principles of law for resolution of issue one. He submitted that a trial court is bound to make specific findings on issues joined on the pleadings but that where, a case could be decided on a set of facts the court does not need to go further, and that in civil matters cases are decided on preponderance of evidence based on balance of probabilities. He relied on the cases of:
1. ATANDA v. AJANI & ORS (1989) 3 NWLR (pt. 111) 511 at 531 and 539.
2. ACB PLC v. OBMIAMI BRICK & STONE (1993) 5 NWLR (part 294) 399 at 415.
3. MOGAJI v. ODOFIN (1978) 4 SC 91.

The Respondents commended the approach adopted by the trial court in reaching conclusion in this case as according to Respondents the approach met the end of justice in this matter. They quoted another portion of the findings of the trial court on page 109 of the record wherein the learned trial judge decided to limit onus of proof to when EZEUKWU IBETO died and whether DW1 was in fact remarried to 1st Defendant. That the learned trial Judge needed not go into issues concerning traditional history having evaluated the relevant evidence on the issues posed by the learned trial Judge himself. That the learned trial Judge evaluated the evidence on the following crucial issues viz:
a) On what date did EZEUKWU IBETO die?
b) Was the widow of EZEUKWU IBETO Oshiji Ngandiero remarried by 1st Respondent under Lavaritic marriage according to their custom?
c) Is the Plaintiff a child arising from that marriage having been born in 1952?

That parties are bound by their pleadings relying on EMEGUOKWE v. OKADIGBO (1973) 4 SC 113. That the learned trial Judge made findings that:
i. EZEUKWU IBETO died in 1945
ii. That several years later, Appellant was born in 1952.
iii. That EZEUKWU IBETO’s widow was remarried by 1st Defendant according to Mgbidi People’s custom and Appellant was a product of the later marriage to 1st Defendant.

That all these findings have punctured the case of Appellant since according to Respondents the whole essence of tracing traditional history in a land dispute is to connect or link the lineage of inheritance from father to son down the line. That the Plaintiff having been found to be the son of 1st Respondent, Appellant’s case of traditional history of inheritance has been defeated. He relied on the case of SANUSI v. AMEYOGUN (1992) 4 NWLR (Part 237) 527 at 533. He urge this court to dismiss the argument of the Appellant.

On what a Claimant who relies on traditional history as root of his title must establish to entitle him to the relief sought. See the Supreme Court case of ALHAJI GANIYU MUYIBI BAKARE ISEOGBEKUN & ORS v. ALHAJI SIKIRU GBORIGI ADELAKUN & ANOR (2013) 2 NWLR (PT. 1337) 140 at 165 B-D where MUKHTAR, JSC now CJN who read the leading judgment held:
“The Plaintiffs did not prove their title to the land for they have not testified as to how the said land in dispute devolved on the said Ajegun Bashua. The position of the law is that a party who hinges his claim on declaration of title to land vide traditional history he must establish how his ancestor, the original owner acquired the land by settlement, conquest or grant. Authorities abound that a claim predicated on traditional history, or evidence must be proved by any of these methods and traditional evidence adduced must be cogent, uncontradicted evidence that must also be conclusive if the party is to succeed see AIKHONBARE v. OMOREGBE (1976) 12 SC 11; KODILINYE vs. MBANEFO ODU 2 WACA 336 and EBOHA vs. ANAKWERIZE (1967) FNLR 279, 1967 SCNLR 97”

By his submissions the Appellant is inviting this court to interfere with the evaluation of the evidence before the trial court and the findings of the learned trial Judge. The Appellant is of the view that the learned trial Judge did not fully appreciate the evidence given by the parties.

The position of the Appellate Court concerning evaluation of evidence adduced and ascription of probative value or weight to such evidence is the primary duty of the trial Judge who saw and heard the witnesses. The trial judge has always being in the best position to assess the worth, credibility and the demeanour of witnesses. See HALIMA HASSAN TUKUR vs. GARBA UMAR UBA & ORS (2013) 4 NWLR (Pt. 1343) 90 at 129 E-H where ARIWOOLA, JSC held;
“However, when the evaluation of evidence by a particular trial judge is in issue or being challenged, the guiding principles are as follows:
i. Whether the evidence is relevant.
ii. Whether the evidence is credible
iii. Whether the evidence is conclusive
iv. Whether the evidence is probable than that given by the other party. See MOGAJI vs. ODOFIN (1978) 4 SC 91.
Therefore it is the primary responsibility of the trial court to fully consider in totality the evidence of both parties placed before the court. In doing this, the trial judge shall put the evidence on the imaginary scale of justice and weigh it to determine the party in whose favour the scale tilts by making necessary finding of facts and then come to a logical conclusion. But when the trial court saddled with the responsibility of evaluating evidence fails to do so, or to do so properly, then an appellate court is entitled to intervene and reevaluate such evidence. Otherwise, the appellate court has no business interfering with the findings of trial court on such evidence. See AGBI & ANOR v. OGBE & ORS (2006) 7 SCM 1; (2006) 7 NWLR (Pt. 990) 65; FAGBENRO v. AROBADI & ORS (2006) 3 SCM 99, (2006) 7 NWLR (PT. 978) 172; BASHAYA v. STATE (1998) 5 NWLR (PT. 550) 351; OJOKOLOBO vs. ALAMU (1998) 9 NWLR (Pt. 565) 226; SHA vs. KWAM (2000) 5 SC 178; (2000) 8 NWLR (Pt. 670) 685; MILITARY GOVERNOR OF LAGOS STATE & ORS vs. ADEBAYO ADEYIGA & ORS (2012) 2 SCM 183 at 210 (2012) 5 NWLR (Pt. 1293) 291.”

The major complaints against the judgment of lower court by the Appellant are:
i. That the Appellant and his witnesses gave evidence tracing the history of land in dispute from the founder Eleberi to the son Esiobu and from Esiobu to the son Ibeto and from Ibeto to Ezeukwu Ibeto and that the land devolved on PW1 and later to Plaintiff yet the trial judge did not consider them.
ii. That the learned trial judge failed to consider Appellant’s claim for N5,000 (five thousand) naira damages and an order for perpetual injunction.

I have carefully gone through the record of proceedings particularly in the evidence of witnesses for the two sides to this appeal and the judgment of the Court. I am of the view that allegations against the learned trial Judge are unfounded. The learned trial Judge really appreciated the case of the Appellant that he was claiming the land in dispute through the person he called his direct father in person of late EZEUKWU IBETO as his inheritance. The learned trial Judge also adverted his mind to the fact that the Defendants now Respondents pleaded that the Plaintiff was never the child of EZEUKWU IBETO who died in 1945 but the child of 1st Respondent through the fact of having remarried the mother of the Appellant, PW1, Oshiji Ngandiero in accordance with Mgbidi custom. The Defendants stated both in their pleadings and evidence that 1st Respondent is the father of Plaintiff now Appellant and that he was born in 1952, years after the demise of EZEUKWU IBETO. The Respondents also led evidence to show that the Respondent and late Ezeukwu Ibeto belong to the same ELEBERI FAMILY and that the land in dispute is their family land.

The learned trial Judge then believed that if the 1st Respondents is his true father then the Appellant had no right to claim the land in dispute as his own since what the Respondent are saying is that they have common ancestor ELEBERI and that one of the children ELEBERI, NWAEGBE ELEBERI was the father of the Respondent. That Eleberi outrightly gave a portion of his farmland to Nwaegbe Eleberi part of which is now in dispute. That Nwaegbe to whom the land was given was the grandfather of the Respondent.

The learned trial judge was right in identifying that scenario as the real issue to determine in the case. Having found in favour of the Respondent there was no need for him to now decide issue of claims for trespass and perpetual injunction. The learned trial Judge accepted the evidence of the Respondents that the Plaintiff was born in 1952 years after the demise of EZEUKWU IBETO whom the trial Judge found was dead in 1945.

The foundation of the Appellant’s case, having crumbled by the learned trial Judge’s finding all the ancillary claims for damages for trespass and injunction automatically fizzled out.

I have in the course of this judgment quoted extensively from the judgment of the trial judge on pages 114-116 of the Record. One can glaringly see from there that the learned trial Judge properly evaluated the evidence before him and excellently assessed the evidence and demeanor of the witnesses for the Appellant and the Respondents. The learned trial Judge was more impressed by the Respondents evidence as he was entitled to do. There is no evidence on record to show that the findings of the learned trial judge was perversed. The evidence of traditional history of inheritance heavily relied upon by Appellant has been found to the untrue.
Appellant’s root of title has been dislocated by the overwhelming evidence of the Respondents and there witnesses. The findings of the lower court cannot be faulted.

Issue 2
WHETHER THE LEARNED TRIAL JUDGE RIGHTLY HELD IN THE JUDGMENT THAT THE DEFENDANTS/RESPONDENTS AND EZEUKWU IBETO WERE OF THE SAME BLOOD RELATIONS AND MEMBERS OF ELEBERI FAMILY HENCE THE DEFENDANTS/RESPONDENTS KNEW THE ACTUAL DATE OF DEATH OF EZEUKWU IBETO AS COMMON KNOWLEDGE OF MEMBERS OF THE SAME FAMILY”

It is the submission of the Appellant that going by the evidence of PW1, OSHIJI NGANDIERO, mother of the Appellant and wife of late EZEUKWU IBETO she told the court in 1992 when she (PW1) testified that the husband died forty (40) years ago and that meant that Late EZEUKWU IBETO died in 1952.

The Learned Counsel to the appellant therefore, submitted that the learned trial Judge was wrong to hold that the late husband died in 1945. That the Appellant and Respondents could not be members of the same family because the Respondent are children of a slave known as UKWU.

That the learned trial Judge failed to consider that the fact that the Respondents misled the court in their pleading and evidence that Nwaegbe their grandfather was a son of ELEBERI and not UKWU. That it was the deceit on the part of the Respondents that made the learned trial Judge came to, the wrong conclusion that both Appellants belonged to the same family. That DW6 who testified against the Appellant was biased against the appellant on account of a case of assault pending in a court between them and that Defendants witnesses were illiterates and could not have been able to remember 1945 or people that died in 1945.

The Respondents found fault with the submissions of the Appellant on issue two. The Respondents submitted that the findings of the trial Judge that the Appellant and Respondents belong to ELEBERI FAMILY of UZINAUMI MGBIDI was amply supported by evidence. They relied on the evidence of 1st Defendant who testified as DW2 on pages 71-79 of the record as saying that he is a descendant of NWAEGBE who was also called UKWUOMA who was one of Eleberi’s Son. The Respondent submitted that the 1st Respondent and the Appellant belonged to the same lineage. That the Appellant on page 11 of his Brief of Argument quoted the trial judge out of con. That the learned trial Judge did not say what the Appellant postulated on page 11 of his Brief.

I entirely agree with the Respondents that the Appellant actually read the finding of the trial Judge on page 115 lines 1-6 out of con. The learned trial judge never said that the parties, that is Appellant, Respondents and DW1 belonged to ELEBERI FAMILY. What the learned trial Judge said on page 115 lines 1-16 of the Record of appeal reads thus:
“I am satisfied from the evidence that Ezeukwu Ibeto was a member of Elebari family of Uzunaumu Mgbidi and he died in their village and time of death was of common knowledge to members of his family and the Eleberi family to which the parties belong. DW1 is the village head of Uzunaumu and DW6 is a very important member of that family”

The learned trial judge was and is right in believing the pieces of evidence led by the DW1 and DW6. There is nothing in the printed record to show that the DW6 was biased against the Appellant. Again the finding of the learned trial judge under issue two is supported by the evidence proffered before him. Issue 2 is therefore resolved against the Appellant.

On the whole the appeal lacks merit and same is hereby dismissed in its entirety. The judgment of Imo State High Court of Justice Oguta Judicial Division contained in the judgment of Hon. Justice D. E. NJIRIBEAKO delivered on the 13th day of February, 1997, is hereby confirmed. The Appellant shall pay costs assessed at N50, 000.00 (fifty thousand naira) in favour of the Respondents.

UWANI MUSA ABBA AJI, J.C.A.: I was privileged to read in advance, the lead judgment of my learned brother, P. O. Ige, JCA just delivered, and I entirely agree with the reasoning and conclusion arrived at therein by my learned brother that the appeal lacks merit.

My learned brother meticulously and comprehensively considered the issues presented to us for determination and resolved them accordingly. I entirely agree with the resolution of the issues which I adopt as mine. I have nothing more to add. I too find no merit in the appeal and I accordingly dismiss same and affirm the judgment of the lower court delivered on the 13/2/1997.
I endorse the consequential orders made in the lead judgment inclusive of orders as to costs.

PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of reading the draft judgment of my learned brother PETER O. IGE, JCA. This appeal emanates from the judgment of the Imo State High Court delivered on the 13th day of February 1997 by Hon. Justice D E. Njiribeako. The Plaintiff/Appellant herein sought the following reliefs in the High Court:
“1. A declaration that plaintiff is entitled to customary right of occupancy to land.
2. N5, 000.00 (Five thousand Naira) damages for trespass.”

The Appellant relied on the various methods of proof of ownership of land and cited the case of IDUNDUN v. OKUMAGBA (1976) 9 – 10 SC, 227. The law has however been firmly established that in a claim for title to land the plaintiff can only succeed through any one of the following methods:
“1. By traditional evidence
2. By production of documents of title.
3. By acts of ownership extending over a sufficient length of time which acts are numerous and positive enough to warrant the inference that the person is the true owner.
4. By acts of long possession and enjoyment of the land
5. By proof of possession of connected and adjacent land in such circumstances rendering it probable that the owner of such connected and adjacent land would in addition be the owner of the land in dispute.”

The learned trial Judge in his considered judgment was right in believing the pieces of evidence produced by the various defence witnesses, before him. I am in total agreement with his findings. On the whole, I too am of the view that this appeal lacks merit and is hereby dismissed. The judgment of the lower court delivered by D.E. Njiribeako J. on the 13th day of February 1997 is hereby confirmed by me. I abide by my Lord’s order as to costs.

Appearances

L. C. Alinnor (Jnr) with D. U. Alinnor EsqFor Appellant

AND

F. U. Uyimandu Esq with F. O. IjomaFor Respondent