IRODIMBA & ORS v. NDUMELE (2022)

IRODIMBA & ORS v. NDUMELE

(2022)LCN/16878(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Tuesday, April 05, 2022

CA/OW/368/2018

Before Our Lordships:

James Gambo Abundaga Justice of the Court of Appeal

Ibrahim Wakili Jauro Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

1. MR. STEPHEN IRODIMBA 2. MR. IKECHUKWU ONYEMAOBI 3. MR. DIKE NZENWA APPELANT(S)

And

1. EBENEZER NDUMELE RESPONDENT(S)

RATIO

THE BURDEN OF PROOF IN CIVIL CASES

The law is trite that the primary duty lies on the Claimant to prove his claim and unless he does this first he cannot succeed. See NKWO V. IBOE (1998) 7 NWLR (Part 558) page 354 at 363 Paragraph G. AGWU V. IBENYE (1998) 62 LRCN 4805 at 4845. PER JAURO, J.C.A.

THE POSITION OF LAW ON THE DUTY OF THE TRIAL COURT

It is trite law that it is the prerogative of the trial Court to admit, assess and evaluate evidence and when as in this case, these have been done satisfactorily, the appellate Court will not interfere or intervene to disturb the findings of the trial Court. What the appellate Court is interested in is to ensure that the conclusions reached by the trial Court are duly supported by the evidence proffered before the lower Court. See ALHAJI UMARU SANDA NDAYAKO & ORS. VS. ALHAJI HALlRU DANTORO & ORS. (2004) 13 NWLR (889) 187 at 220 B. Per EDOZIE, JSC said:
“An appellate is only concerned with whether the judgment appealed against is right or wrong not whether the reasons are. Where the judgment of Court is right but the reason are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere”.
See also ROMAINE VS. ROMAINE (1992) 4 NWLR (PT 238) 650, AKINOLA VS. OLUWO (1962) 1 SCNLR 352, EBBA VS. OGODO (1984) 1 SCNLR 372. PER JAURO, J.C.A.

THE BURDEN OF PROOF WHERE A PARTY COMPLAINS THAT THE FAILURE OF A TRIAL COURT TO DELIVER JUDGMENT WITHIN 90 DAYS CAUSES A MISCARRIAGE OF JUSTICE

The burden of proof is on the Appellants in this case complaining to show this Court how the failure of the trial Court to deliver judgment within ninety days has caused them miscarriage of justice. See OWOYEMI vs. ADEKOYA (2003) 18 NWLR (PT. 852) 307 P.343-344, paragraphs G-D. Per IGUH, JSC held that:
“It is however important to note that by virtue of Section 258(4) of the 1979 Constitution (as amended) now Section 294(1) of the 1999 Constitution of Nigeria (as amended), the onus is on the party complaining of such non-compliance with the provisions of Section 258(1) to satisfy the Court that the failure to deliver judgment within the prescribed period of time occasioned miscarriage of justice and this may not be presumed in his favour”
See also CHUKWUEDO EGWU vs. BILLION EGWU & ORS (1995) 5 NWLR (PT 396) 493 at 505.
He submitted that the Appellants have not discharged the burden of proof that they suffered miscarriage of justice in any manner of fact or evidence evaluation by the trial Court. The appellants did not show that the evidence was not properly evaluated but also that the facts were not properly remembered or summarized as to have affected the legal rights of the Appellants.

In the very recent case decided by the Lagos Division of this Court, MRS. JOSEPHINE ABAYOMI VS. SAAP-TECH NIG. LTD. (2020) 1 NWLR (PT 1706) 453 P.487, Paras C-H, My Noble Lord, Garba, JCA (now JSC) held inter alia:

IBRAHIM WAKILI JAURO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Abia State High Court (hereinafter referred to as the “lower Court”) presided over by Hon. Justice K. O. Nwosu (hereinafter referred to as the “trial Judge”) in Suit No: HU/179/2006 delivered on 26th day of January, 2017.

The Claimant by his amended statement of claim filed on 16th May, 2007, claims against the defendants as follows:
“1. A declaration that the piece or parcel of land known as Nkukumiri Umuadiele and the economic trees and plants on it situate and lying at Ekenwoha Market Road, by Quo Iboe Church Compound, opposite Mr. Ibeh’s and Mr. Nzenwa’s Compound, Umuajata Olokoro Autonomous Community, Umuahia (South) L.G.A., Abia State within the jurisdiction of the Court is the property of the Claimant.
2. A declaration that Defendants had no right to enter into the subject matter of this suit or forcefully and wilfully, cut down 38 economic trees and plants belonging to Claimant.
3. An order awarding to the Plaintiffs the sum of N5,000,000.00 (Five Million Naira) only (1) Three Million (N3,000,000.00) as special damages in the 38 economic trees comprising of 2 Udara trees, 5 Ube (Peers), 4 Mangoes trees, 3 Uha trees and 25 Banana and Plaintiff suckers at various stages of maturity. (2) Two Million Naira (N2,000,000.00) as general damages for the unlawful encroachment into the premises belonging and owned by the Claimant.
4. An order permanently restraining the Defendants, their agents, servants and/or workmen from entering, allocating or alienating any portion of the said land therein to themselves or to any person whatsoever without the consent and authority of the Claimant.

FACTS:
The claimant’s case is that he is the owner and in possession of the land in dispute known as and called “NKUKUMIRI ADELE” lying and situate along Ekeoha Road, Umuajata Olokoro, within the jurisdiction of the lower Court. That Adele, his great grandfather deforested the land in dispute. Adele married three wives, namely; Ogbedie, Ikodie and Ngaosiridinma.
(i) Ogbedie begat (a) Asagwara (who died without a surviving male issue) and (b) Ndubuka who begat Ndumele (claimant’s grandfather), Augustus and Philip. (Augustus and Philip did not marry and were not survived by any child.
(ii) Ikodie begat Uwasomba who in turn begat Owashi and Victor.
(iii) Nqaosiridinma begat Chekwe (who died without an issue) and Ikote who begat Onyemaobi who in turn begat Uqwuala (who did not marry), Joseph (Koti) the father of the 2nd Defendant/Appellant Obunda who in turn begat Ben, Ulonnam and Obi and finally Onyemaobi also begat Boy Ugwunma who never married.

In other words, Adele had five (5) children, namely; Asagwara, Ndubuka, Uwasomba, Chekwe and Ikote from three (3) wives.

It is also the case of the claimant that late Asagwara who was the blood brother of the claimant’s great grandfather never had a male issue during his lifetime. That many years after Asagwara’s death, late Joseph Onyemaobi, the father of the 2nd Defendant/Appellant with financial contribution from claimant’s father of eight pounds (Sixteen Thousand Naira) celebrated the 2nd burial rights (Okwukwu) of Asagwara.

By the custom and tradition of Olokoro people, he that celebrated the 2nd burial (Okwukwu) of a male childless person takes over his real and personal estate. The father of the 2nd Defendant/Appellant took more than four portions/parcels of land belonging to late Asagwara, leaving the Nkukumiri land in dispute which was then on pledge to the claimant’s late father, (Emmanuel Ndumele). The claimant’s father redeemed the land in dispute and took possession of it.

There were various arbitrations in the matter which ended in favour of the claimant’s father who exercised various acts of ownership of the land without let or hindrance until the 4th day of August, 2006 when the 3rd Defendant/Appellant trespassed into the land.

Joseph Onyenaobi, father of the 2nd Appellant filed Suit No. U/32/81 having suffered defeat in various arbitration panels who mediated into the land case in favour of father of the Respondent.

The case of the Defendants/Appellants is that the land in dispute was deforested by one Adiele, the great grandfather of the Claimant and the 1st and 2nd Defendants/Appellants. The said Adiele had five children from two wives. At his death, Adiele’s property was portioned among his five children. One Asagwara was the first son of Adiele, he got the lion share of Adiele’s property, but he had no male child.

When Asagwara died one Onyemaobi the father of the 2nd Defendant/Appellant buried and conducted the 2nd burial (Okwukwu) of Asagwara and inherited his property including the land in dispute in accordance with the existing custom and tradition of Olokoro Umuahia.

The said Joseph Onyemaobi who was residing in Jos left the land in dispute in the hands of the mother of the 1st Defendant. The mother of the 1st Defendant pledged the land to one Mrs. Abigail Nwabughinka Umuebuali. The 2nd Defendant’s father late Joseph Onyemaobi redeemed the land from Mrs. Abigail Nwabughinka Umuebuali, gave the 1st Defendant a part of the land and retained one part.

The Defendants have been in possession of the land. In 1971, the 1st Defendant sold part of the land to the Assemblies of God Church which they used as Parsonage, see (Exhibit ‘J’ & ‘K’). The 1st and 2nd Defendants jointly sold the land in dispute to the 3rd Defendant see (Exhibit ‘M’).

The 3rd Defendant stated that the land in dispute is situate directly opposite his residence and that he had from his childhood seen the 1st Defendant and the 2nd Defendant’s father cultivate and farm on the land in dispute and that his grandmother took a lease of the land between 1970 and 1971. The 3rd Defendant further stated that he negotiated with the 1st & 2nd Defendants and agreed at the sum of N100,000.00 (One Hundred Thousand Naira) in 2002 as the purchase price of the land in dispute and made a deposit of the sum of N45,000 in 2002, see Exhibit “L”. He completed the payment in 2006 and prepared Exhibit “M” which the 1st and 2nd Defendants signed for him. He fenced the land with a concrete fence but the Claimant and the 2nd Claimant’s witness Chief Ahiauzu Adolphus pulled down the fence hence the counter-claim.

The present claimant Ebenezer Ndumele was substituted by an order of Court for his late father Emmanuel Ndumele who was the original claimant. The claimant in proof of his case testified as CW1 and called two other witnesses as follows: Chimezie Ahizu as CW2 and Christian Kwekowe as CW3.

The Defendants in their defence of the claim and proof of 3rd defendant’s counter-claim each testified as follows: Stephen Irodinma, the first Defendant as DW1 Ikechukwu Onyemobi, 2nd Defendant as DW2, Dike Ebere Nzenwa 3rd Defendant as DW4. Defendant called one Chief Vincent Otuonye who testified as DW3.

At the conclusion of trial, the Judge in a considered judgment granted the claims of the Claimants. Dissatisfied with the judgment, the Appellants appealed to this Court vide an original Notice of Appeal containing five grounds filed on 31st January 2017. With leave of the Court, counsel amended his original Notice of Appeal wherein eleven grounds were proposed in the appeal.

Issues For Determination
Learned Counsel for the Appellants Mathew A. Onwukwe Esq who settled the brief of the Appellants filed on 21/12/2020 and deemed on 30/9/21 distilled the following issues for determination from the 11 grounds of Appeal he filed thus:
“i. Whether the trial Court was right to rely on acts of ownership or possession, events of recent times to declare title on the Claimant, when the Claimant/Respondent failed to discharge the onus of proof of title to the disputed land, even after observing that the Claimant/Respondent left a lacuna in his traditional evidence. (Grounds 1 and 5 of the Grounds of Appeal).

ii. Whether the Claimant/Respondent established the identity of the land in dispute by reason of Exhibit ‘A’ & ‘D’ and the evidence before the Court. (Ground 4 of the Grounds of Appeal).

iii. Whether the trial Court was right not to have considered who performed the burial rite, second burial (Okwukwu) of Asagwara in view of the custom that he who buried a childless man will inherit his estate. (Grounds 2 & 3 of the Grounds of Appeal).
iv. Whether having regard to the pleadings and evidence led, Exhibit ‘B’ and ‘C’ were properly evaluated and support the case of the Claimant/Respondent as was held by the Court below, when he found that the traditional evidence relied on by the parties were contested and therefore not proved. (Ground 6, 7 and 8 of the Grounds of Appeal.)

The Respondent’s brief was settled by Emeka O. Nwagwu SAN filed on 19/11/21. Upon receipt of the Respondent’s brief Counsel for the Appellant filed a Reply brief on 24/1/22 and was deemed on 26/1/22. The Respondent’s Counsel in his brief formulated two issues for determination and these are:-
“1. Whether the lower Court was right when it held that the traditional evidence led by the said parties to the suit is adjudged both inconclusive and conflicting and consequently considered other facts or events in recent times as established by evidence adduced by the parties wherein it found the case of the claimant more probable and granted him reliefs sought.
2. Whether there was a delay in delivery of the judgment of lower Court more than the constitutional requirement and if so, whether it occasioned miscarriage of justice.”

I adopt three of the issues as formulated by Counsel for the Appellant with some modifications which in my view are adequate in the determination of this appeal, which issues have effectively encapsulated those of the Respondent. They are viz:
“i. Whether the trial Court was right to rely on acts of ownership or possession, events of recent times to declare title on the Claimant, when the Claimant/Respondent failed to discharge the onus of proof of title to the disputed land, even after observing that the Claimant/Respondent left a lacuna in his traditional evidence.
ii. Whether the Claimant/Respondent established the identity of the land in dispute by reason of Exhibit ‘A’ & ‘D’ and the evidence before the Court
iii. Whether having regard to the pleadings and evidence led, Exhibit ‘B’ and ‘C’ were properly evaluated and support the case of the Claimant/Respondent as was held by the Court below, when he found that the traditional evidence relied on by the parties were contested and therefore not proved.

SUBMISSION OF THE APPELLANT
Issue One:
Whether the trial Court was right to rely on acts of ownership or possession, events of recent times to declare title on the claimant, when the claimant/respondent failed to discharge the onus of proof of title to the disputed land, even after observing that the claimant/respondent left a lacuna in his traditional evidence.
Learned Counsel on issue one submitted that a party seeking declaration of title to land must establish his title through any of the five ways –
“i. By traditional evidence
ii. By production of documents of title which are duly authenticated.
iii. By acts of selling, leasing and renting out all or part of the land or farming on it or a portion of it.
iv. By acts of long possession and enjoyment of the land.
v. By proof of possession of connected or adjacent land”.

He referred to Idundun V. Okumagba (1976) Sc 9/10 Sc 27. He added that the claimant relied on traditional history in proof of his title for the disputed land. And that –
“…The law is settled that when a Claimant rely on traditional history or traditional evidence or inheritance in proof of his title to land, he must plead and lead evidence of his root of title to show the persons who first founded the land and the persons who had ownership and possession of the land in dispute. In the case of THE DAGACI OF DERE & ORS V THE DAGACI OF EGWA & ORS (2006)140 LRCN 2114 @ 2179 TOBI JSC as he then was held “In land matters, it is easy for a plaintiff to claim that he owned the land from time immemorial. But that is not the end of the story. The story must go further and paint a genealogical tree of the family ownership of the land. It is usually a long story of the members of the family in ownership of the land from the past to the present…”

Counsel submitted that the Claimant/Respondent could not discharge the above onus. In his pleadings in paragraphs 4-7 of his amended statement of claim in pages 8-9 of the records and his witness deposition in paragraphs 131-133 of the records. The Claimant/Respondent attempted to plead and lead evidence of the family tree of Adele family but he left a lacuna as to how the land in dispute devolved to Asagwara and to him.

The trial Judge at page 300 of the records found as a fact that the Claimant could not prove the traditional history which he relied on to prove his title to land when he found thus:
“The foregoing illustrations go to show that the Claimants’ effort to plead and prove the family tree of Adele left a lacuna as to show the land in dispute devolved to Asagwara as submitted by the Defendant’s Counsel”.

Continuing in his judgment the trial Court said in the same manner Defendant’s pleading and evidence particularly of DW1, as DW1 lacked knowledge of the root of title of the land in dispute as argued by the Claimants’ Counsel-
“It then follows that the traditional evidence pleaded and adduced in the evidence and relied on by the Claimant and the 1st and 2nd Defendants are both inconclusive and conflicting”.

The Court relied on the case of IBIDOKUN V. ADARALODE (2001) 12 NWLR (pt. 727) page 268 at 304 and held “That where there are two competing and conflicting version of traditional history in land dispute and it is difficult or impossible for the Court to ascertain which version represents the truth, the Court can rely on acts of ownership or possession or other facts of events done by either party in recent times to ascertain the probable” at page 301 of the records.

The law is trite that the primary duty lies on the Claimant to prove his claim and unless he does this first he cannot succeed. See NKWO V. IBOE (1998) 7 NWLR (Part 558) page 354 at 363 Paragraph G. AGWU V. IBENYE (1998) 62 LRCN 4805 at 4845.

Counsel submitted that the learned trial Judge having found as a fact that there is a lacuna in the traditional evidence of the claimant or that the Claimant having failed to prove his traditional history which he pleaded and relied on was in error to rely on acts of ownership or possession or other facts of events done by either party in recent times to ascertain which is more probable.

He added that the principle in KOJO II VS. BONSIE (1957) 1 WLR 1223 which the learned trial Judge relied on can only apply where the traditional histories of the parties are credible but the principle is inappropriate when the Claimant failed to prove his traditional history. See the case of AGWU V. IBENYE (1998) 62 LRCN 4805 AT 4845 where the Supreme Court per KUTIGI, JSC as he then was relied on the case of FASORO & ANOR V. BEYIOKU & ORS. (1988) 2 NWLR (PT. 76) at page 263 held –
“Where a party’s root of title is pleaded, that root has to be established first before any consequential acts flowing therefrom can properly qualify as acts of ownership therefore when the Plaintiffs/Respondent pleaded traditional evidence as their root of title, they either succeed in proving the traditional history or fail”.

Based on the above, counsel urged the Court to resolve issue one against the Respondent.

Issue Two
Whether the Claimant/Respondent established the identity of the land in dispute by reason of Exhibit ‘A’ & ‘D’ and the evidence before the Court.
It is the law that a claimant in a suit for declaration of title must show exactly the defined area to which the claimant relates. See Musa Iyaji V. Sule Eyigebe (1987) 3 NWLR pt. 61 pg. 523 at 529. Learned Counsel submitted that the Claimant/Respondent by paragraph 11 of his amended statement of claim at page 9 of the records pleaded Survey Plan No: HAS/AB103/2005 bearing the name of Ebenezer Ndumele admitted as Exhibit ‘D’ shown at page 325 of the records and Plan No: HAS/ABD 033/2006 with the name of Emmanuel Ndumele admitted as Exhibit ‘A’ shown at page 311 of the records. The Amended Statement of Claim was filed in May 2007 yet Exhibit ‘D’ bore the name of Ebenezer Ndumele when he was not yet a party to the suit.

The only description of the land in dispute is found in paragraph 37(1) at page 12 of the records, which was said to be Nkukumiri Umuadiele land lying at Ekeoha Market Road by Qua Iboe Church compound opposite Mr. lbe’s and Mr. Nzenwa’s Compound, Umuajata Olokoro. He added that the parties joined issues on the identity and description of the land in dispute.

In order to prove the description and identity of the land in dispute, the Claimant/Respondent tendered Exhibit ‘A’ and ‘D’. Under cross-examination, the CW1 at page 137 of the record stated-
“It is not true that the land in dispute is personage coming from Ahiaukwu there is somebody before the Assemblies of God Church. The name of the person is Ijeoma Odoke”.

At page 143 of the records the CW2 described the land in dispute as bounded as follows: (a) on the East, Qua Iboe Mission, (b) on the North, Assemblies of God Church Parsonage, (c) on the South, Mr. Nwabukwu of Umuokorente, Umudu Umuajata Olokoro, (d) on the West, Mr. Uwasomba relation to Emmanuel Ndumele but under cross-examination in page 147 of the records. The CW2 stated
“It is not true that after the land in dispute/you get Qua Iboe school”.

The learned trial Judge in his judgment at page 301 of the records observed that-
“And a Claimant in an action for declaration of title can discharge the onus of showing with certainty the area of land he claims by filing survey plan reflecting the features and precise boundaries thereof. In the instant case, the Claimant pleaded and tendered Exhibit A and D… the Defendants apparently relied on the survey plan in Exhibit M… and argued that by paragraphs 7 & 12 of the 1st & 2nd Defendants Statement of Defence, the identity of the land in dispute is in issue. I find and hold that from the evidence adduced by both oral and documentary by the parties, the identity of the land in dispute has been established or cannot be said to be unknown to the parties”.

Learned Counsel submits that the trial Judge could not have arrived at the above findings regarding the description and identity of the land in dispute if he had considered the main contradiction and discrepancies between the identity of the land in dispute in Exhibit ‘A’ and ‘D’ and the evidence of CW1 and CW2. And that the law is that in a description or identity of land in dispute, the description of the land in the plan must accord with the description of the parties both in their oral evidence and in the pleadings. See the case of UKAEGBU V. NWOLOLO (2009) 169 LRCN 210 at 247 Para F–P were it was held:
“That a Plaintiff failing to prove (how much more satisfactorily), the boundaries of the land he asserts to be in dispute (as in the instant case leading to this appeal) and also, if a Plaintiff did not properly and satisfactorily describe the land in dispute and If the description contradicts the plan (as in this case leading to this appeal) he fails in the declaration of title he seeks. This is also because inaccurate plan should and will defeat a Plaintiff’s Claim”

Counsel urged the Court to set aside the finding of the trial Court that the Claimant/Respondent has established the identity of the land in dispute moreso in view of the discrepancies between Exhibit “A” and “D”.

Issue Three
Whether having regard to the pleadings and evidence led, Exhibit ‘B’ and ‘C’ were properly evaluated and support the case of the Claimant/Respondent as was held by the Court below, when he found that the traditional evidence relied on by the parties were contested and therefore not proved.
On Exhibit ‘B’ & ‘C’ Counsel submitted that the trial Court was in error when he relied on Exhibit ‘B’ & ‘C’ as acts of recent occurrence and acts of possession.

Counsel submitted that at the hearing on the 17th October, 2011 the learned trial Judge admitted Abia Okonko Society Olokoro branch peace settlement dated 3rd July, 1987 as Exhibit ‘C’ in place of Okonko Society in general pleaded by the claimant in his amended statement of defence is presumed to have been made on that date. See Section 157 of the Evidence Act 2011.

And that Exhibit ‘C’ was not pleaded because Abia Okonko Society Olokoro branch peace settlement is not the same thing as Okonko Society in general, therefore the trial Court was in error to have admitted Exhibit ‘C’. See the case of CHIEF BUSARI ADEPOJU AKANDE V. ALHAJI H. ALAGA (1988) 4 NWLR (Pt. 86) Page 1 @ Page 9 Paragraph E at 13 paragraph C-D. See also the case of OSHO V. APE (1998) 60 LRCN 4077 the Supreme Court held that where an unpleaded evidence as alleged in the instant case is admitted, the receipt of such unpleaded evidence goes to no issue as admissible evidence. He submitted further that the trial High Court did not properly evaluate Exhibit ‘C’.

The Court is invited to evaluate Exhibit ‘C’ relying on Iwuoha at pg. 16 last paragraph.
“The fact that the Claimant refused to produce Exhibit ‘B’ when notice was given to him and could not tender the said 1994 Okonko judgment Exhibit ‘B’ in Exhibit ‘H’ ought to have given the trial Judge cause not to attach weight to Exhibit ‘B’ in view of the above we invite the Court of Appeal to have a second look at Exhibit ‘B’ with a view to properly evaluate of Exhibit ‘B’.

The learned trial Judge while attempting to evaluate and draw inference from or between Exhibit ‘B’, ‘C’ and ‘F’ stated at page 304 of the records-
“The facts that Exhibit ‘B’ and ‘C’ post date the said suit of 1981 both parties had admitted there was such arbitration without pleading the specific dates which is of no moment since both parties admitted the verdict were in writing have founded the specific date. Moreover in the absence of any evidence adduced by the Defendant that the said Exhibits were fraudulently obtained, I have no basis to hold the said Exhibit irrelevant that they were made for the purpose of this suit as argued by the Defendant’s Counsel”.

The learned trial Judge also at page 305 of the records found that the forebears of the parties voluntarily submitted to Exhibit ‘B’ and ‘C’.

In the inference of the trial Judge, it means that since the defendants could not produce any Okonko judgment, any Okonko judgment produced by the claimant will suffice.

He urged that the finding of the Court on Exhibit ‘B’ & ‘C’ is perverse and urged that this issue be resolved in favour of the Appellants.

Submission of The Respondent
“Whether the lower Court was right when it held that the traditional evidence led by the said parties to the suit is adjudged both inconclusive and conflicting and consequently considered other facts or events in recent times as established by evidence adduced by the parties wherein it found the case of the claimant more probable and granted him reliefs sought”.
Counsel submitted that in civil cases burden of proof is not static as it is determined on preponderance of evidence and balance of probabilities. He referred to Sections 131(1) and (2), 133 (1) of the Evidence Act 2011 and also Section 134 of the Evidence Act 2011.

Submits that it is trite law that it is the prerogative of the trial Court to admit, assess and evaluate evidence and when as in this case, these have been done satisfactorily, the appellate Court will not interfere or intervene to disturb the findings of the trial Court. What the appellate Court is interested in is to ensure that the conclusions reached by the trial Court are duly supported by the evidence proffered before the lower Court. See ALHAJI UMARU SANDA NDAYAKO & ORS. VS. ALHAJI HALlRU DANTORO & ORS. (2004) 13 NWLR (889) 187 at 220 B. Per EDOZIE, JSC said:
“An appellate is only concerned with whether the judgment appealed against is right or wrong not whether the reasons are. Where the judgment of Court is right but the reason are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere”.

See also ROMAINE VS. ROMAINE (1992) 4 NWLR (PT 238) 650, AKINOLA VS. OLUWO (1962) 1 SCNLR 352, EBBA VS. OGODO (1984) 1 SCNLR 372.

The lower Court at its judgment at pages 295-306 of the record of appeal carefully assessed and evaluated the evidence led by all the parties in fact at page 299 of the record of appeal in its judgment held as follows:
“It is settled law that there are five ways of proof of ownership of land, proof of any five of ways being sufficient”.
See IDUNDUN VS. OKUMAGBA (1976) 10 NSCC P.445 at pg. 453.

In the instant case, the parties pleaded and relied on traditional evidence, while the 3rd defendant’s counter claimant pleaded and adduced additional evidence of production of document, Exhibit “M” from the state of the pleadings and evidence thereof, the validity of 3rd defendant’s documents of title depends on whether 1st and 2nd defendants from whom he purchased the land in dispute had valid title to the land in dispute as argued by counsel to the claimant.

The lower Court also decided at page 301-302 of the record of appeal as follows: “Apart from pleadings and leading evidence of acts of ownership and possession by way of cultivating the land in dispute and redeeming the land in dispute by other parties, i. e. the claimant, 1st and 2nd Defendants, none of them can be said to have established the pledge and redemption in the light of fact that each contested that fact. I am bound in the circumstance to consider other facts or events in recent times as established by evidence adduced by the parties in order to find which of the traditional history of the land in dispute is more probable.”

The lower Court at page 303 of the record of appeal in its judgment further held as follows:
“In the light of the foregoing and reading paragraphs 24 and 25 of the claimant’s counsel amended statement of claim together means that Mr. Joseph Onyemaobi took out the said law Suit No. U/32/81 (Exhibit “F”) when he was not satisfied with the arbitrations in favour of the claimant pre 1981. I had found earlier that the only verdicts pleaded and tendered in support are EXHIBIT ‘B’ and EXHIBIT ‘C’ of the claimant while “B” is dated 5-6-1994, EXHIBIT ‘C’ is dated 3-7-97.

Each of the documents speak for itself. For the avoidance of doubt, the other arbitrations both parties admitted are Umudo Okoriko Society, Ndi Enyi Amagwo and Okonkwo Society in general. …”
Moreover, in the absence of any evidence adduced by the defendants that the said exhibits were fraudulently obtained. I have no basis to hold the said exhibits irrelevant that they were made for the purpose of this suit as argued by the defendant.”

The honourable lower Court was therefore correct when it held itself bound and stated the law correctly when it held:
“that it was bound in the circumstance to consider other facts or events in recent times as established by evidence adduced by the parties in other to find which traditional history of the land is more probable”

Submits that the law is that where the claimant and defendants base their claims on traditional history as in the present case, and the evidence of the parties conflicts, and the trial Court does not find either conclusive, then he has to make use of events of recent years to decide which traditional history will prevail. See ALHAJI SARATU ADELEKE vs. ANUSI IYANDA (1994) NWLR (PT 366) P.133, Paras H:
“where the traditional histories of the parties conflict are in conflict and the trial Court did not find any of the two conclusive, the trial Court has a duty to decide which of the traditional histories to accept after considering each. In doing this, the trial Court would have to resort to a consideration of events in recent years”.
See also KOJO II vs. BONSIE 1 WLR 1223.

And that the decision of the trial Court flowed logically from conclusions of fact and law made by it.

Indeed, the Appellants in Ground V of the amended notice of appeal captured it appropriately when Appellants submitted rightly that the lower Court applied the principle of KOJO II VS. BONSIE 1 WLR 1223 (supra). It is not correct as submitted by the Appellants at page 6 of their Appellants’ brief on their ISSUE 1 that reliance on the principle in KOJO II vs. BONSIE (supra) can only be made when the traditional evidence presented by the parties are credible. This is turning the law upside down. See also the case of AKPAPU NA & ORS VS. NZEKA & ORS. (1983) ANLR 350 at 351. Per IREKEFE, JSC at page 362 held as follows:
“The learned trial Judge took the view, as he was entitled to do, that the traditional evidence in the case was inconclusive, and based his decision in the dismissing the respondent’s case on the inadequacy of evidence of acts of ownership by the respondents within recent times.”
This accords in my view with the decision in KOJO vs. BONSIE (1957) 1WLR P.1223 at P.1226-7 where LORD DENNING in delivery 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 or more 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 misdemeanor is a little guide to the truth. The best way is to test the traditional history by reference to facts in recent years as established by evidence and by seeing which of the two competing histories is more probable”.
In the case of EZENEKWE & ANOR vs. EZEJEGBU (2015) LPELR 40697 CA, this Court had this to say:
“I must reiterate the legal principle that it is only where there is a conflict which arises in traditional history proffered by respective parties, that the test in KOJO ll vs. BONSIE (supra) will be resorted to in determining the true story”

The Appellants relied on Section 294(1) of the 1999 Constitution of Nigeria (as amended). For purposes of argument on this issue, we shall herein produce the provisions of Section 294(1) and 294(5) of the 1999 Constitution of Nigeria (as amended).
S.294(1): Every Court established under the constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof
S.294(5): The decision of a Court shall not be set aside or treated as a nullity solely on the grounds of non-compliance with the provisions of Sub-Section(1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.

Counsel submitted that it is not the law that once a delay in the delivery of judgment is established, an appeal will be allowed and an order of retrial made. The determinant factor is not the length of time alone but the effect it has produced in the mind of the trial Court.
The burden of proof is on the Appellants in this case complaining to show this Court how the failure of the trial Court to deliver judgment within ninety days has caused them miscarriage of justice. See OWOYEMI vs. ADEKOYA (2003) 18 NWLR (PT. 852) 307 P.343-344, paragraphs G-D. Per IGUH, JSC held that:
“It is however important to note that by virtue of Section 258(4) of the 1979 Constitution (as amended) now Section 294(1) of the 1999 Constitution of Nigeria (as amended), the onus is on the party complaining of such non-compliance with the provisions of Section 258(1) to satisfy the Court that the failure to deliver judgment within the prescribed period of time occasioned miscarriage of justice and this may not be presumed in his favour”
See also CHUKWUEDO EGWU vs. BILLION EGWU & ORS (1995) 5 NWLR (PT 396) 493 at 505.
He submitted that the Appellants have not discharged the burden of proof that they suffered miscarriage of justice in any manner of fact or evidence evaluation by the trial Court. The appellants did not show that the evidence was not properly evaluated but also that the facts were not properly remembered or summarized as to have affected the legal rights of the Appellants.

“The provisions of Section 294(5) of the Constitution of Nigeria are clear and plain that the decision of a Court shall not be set aside or treated as nullity solely on the ground that it was not delivered within the period of ninety days prescribed under Section 294(5) of the Constitution unless an appellate Court reviewing the decision by way of appeal is satisfied that the party complaining of non-compliance has suffered a miscarriage of justice thereby. Put differently, by the saving provisions of Section 294(5) of the Constitution, a judgment or decision of a Court shall only be set aside or treated as a nullity when appellate Court is satisfied in reviewing the decision by way of an appeal that the party complaining of non-compliance with the provisions of Sub section 294(1)of the constitution has suffered miscarriage of justice as a result of non-compliance”.
See OGUNDELE VS. FASU (1999)12 NWLR (PT. 632) 662, OGUNDAYOMI VS. AKINBOLU (2011) LPELR 4538.

Submits further that the Appellants did not formally complain to the Abia State High Court Registry that the record they compiled is incomplete. The Appellants who now in their argument in their Appellants’ brief alleged incomplete record ought to formally file an application to impeach the record of proceedings by filing an application to that effect. See the case of BAMI DELE VS. BELLO (2020) 15 NWLR (PT. 1748) 506 P.530, paragraphs E-G.
See also O.O.M.F LTD. VS. NACB LTD. (2008) 12 NWLR (PT. 1098) 412. Per ONNOGHEN, JSC (Chief Justice of Nigeria) held that:
“Parties and the Court are bound by the record of Court, which in the instant case, did not contain any evidence of the grant of respondents’ motion for extension of time to file a defence. Granted that the record was in fact incomplete as contended by Learned counsel for the respondents, there exists established procedure to be adopted when challenging the correctness or otherwise of the record of Court, which is definitely not by stating so in a brief of argument…”.

Counsel added that the Appellants did not say they could not produce the alleged missing records, themselves as supplementary record or the Registry failed to produce same. In any case, they came with the records which show that they were not in Court during adoption of addresses.

Reply Brief
Learned Counsel in his reply brief submitted that the Claimant tried to shift the burden of proof on the Defendant/Appellant when the burden is on the Claimant/Respondent relying on Nwosu & Ors. V. Okoye & Ors. (2009) 170 LRCN 107 at pg. 137–138. He added that it is only after the Claimant has discharged the legal burden that the evidential burden shift to the Defendant. On the case of Strabag Construction Nig. Ltd. V. Ibitokun (2010) ALL FWLR Pt. 535 pg. 203 Counsel for the Appellant submitted that it is not applicable to the matter as the Claimant did not answer or deny the fact of partitioning of Adele family land as such operates as admission by the Respondent and therefore the Appellants need not prove same. Finally Learned Senior Counsel submitted that the Court will not interfere with finding of fact as long as the conclusion is supported by evidence. He cited Agala v. Egwere (2010) ALL FWLR pt. 532 pg. 1609 at pg. 1630 para B–E. and that Counsel submitted that the evidence of the Claimant especially Exhibit B and C relied on fully the lower Court failed the test in the above case.

RESOLUTIONS
Issue One
As to whether the trial Court was right to rely on acts of ownership, events of recent times to declare title on the claimant when both parties failed to discharge the onus of proof of the land, it is the Law that Civil cases are determined on preponderance of evidence and balance of probabilities. See Sections 131 (1) (2), 133 (1) and also Section 134 of the Evidence Act 2011. Courts are enjoined to put evidence of the parties on an imaginary scale to see on which side the scale preponderates. See Chiadi V. Aggo (2018) 2 NWLR Pt. 1603 pg. 175 at 211 at 222 para. It per Akaahs, JSC.

Above all it is the primary responsibility of the trial Court to evaluate evidence given in a case before it and make findings on them. This is because it is only the trial Court that has the advantage of seeing the witnesses, assessing their demeanour while testifying. And in the absence of strong reasons an appeal Court will be slow to interfere with such findings. Statoil (Nig) Ltd. V. Inducon (Nig) Ltd. (2021) 7 NWLR pt. 1774 pg. 1 at 55–56 paragraphs H–A per M. D. Mohd, JSC;Obi V. Uzoewulu (2021) & NWLR pt. 1778 pg. 352 at 373 para. G–H. per Aboki, JSC. Where evidence is properly evaluated by the trial Court, the appeal Court will not disturb those findings.

It is not disputed that the Learned trial Judge found the evidence of both the claimant and the 1st and 2nd defendants inconclusive as such he made recourse to acts of ownership or possession or other facts or events done by either party in recent times to ascertain the probable citing Ibidokun V. Adora Lode (Supra). Learned Counsel for the Appellant submits that the Claimant must prove his claims or he fails relying on Nkwo V. Iboe (1998) 7 NWLR Pt. 558 pg. 354 at 363 paragraph 6. Counsel also referred to the decision in Kojo II V. Bonsie (Supra) which the trial Judge relied on not to be the law.

Let me quickly add here that of the five ways of proving title the law does not stop a Claimant from relying on only one of the ways. A party can rely on as many as the ways he can prove his claim. See Ibude V. Saidi (2021) 10 NWLR Pt.1785 pg. 567 at 583 paragraphs B–F per Okoro, JSC.

I find the lower Court indeed to have appraised the evidence before arriving at the conclusion it did. What the appellate Court is interested in is ensuring that conclusions of the trial Court are supported by the evidence before the Court. See ALHAJI UMARU SANDA NDAYAKO & ORS vs. ALHAJI HALIRU DANTORO & ORS (2004) 13 NWLR (889) 187 at 220 B. Per EDOZIE, JSC said:
“An appellate is only concerned with whether the judgment appealed against is right or wrong not whether the reasons are. Where the judgment of Court is right but the reason are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere”.
See also ROMAINE VS. ROMAINE (1992) 4 NWLR (PT 238) 650, AKINOLA VS. OLUWO (1962) 1 SCNLR 352, EBBA VS. OGODO (1984) 1 SCNLR 372.

In the instant appeal, the parties pleaded and relied on tribunal evidence while the 3rd defendant (counter claimant) pleaded and adduced additional evidence of production of document Exhibit ‘M’ and this is dependant on the whether the 1st and 2nd defendants from whom the 3rd defendant purchased the land in dispute had valid title to the said Land. The finding of the trial Court at page 301-302 is therefore apt when it held –
“Apart from pleadings and leading evidence of acts of ownership and possession by way of cultivating the land in dispute and redeeming the land in dispute by other parties, i. e. the claimant, 1st and 2nd Defendants, none of them can be said to have established the pledge and redemption in the light of fact that each contested that fact. I am bound in the circumstance to consider other facts or events in recent times as established by evidence adduced by the parties in order to find which of the traditional history of the land in dispute is more probable.”

At page 303 the Judge continued-
“In the light of the foregoing and reading paragraphs 24 and 25 of the claimant’s counsel amended statement of claim together means that Mr. Joseph Onyemaobi took out the said law Suit No. U/32/81 (Exhibit “F”) when he was not satisfied with the arbitrations in favour of the claimant pre 1981. I had found earlier that the only verdicts pleaded and tendered in support are EXHIBIT ‘B’ and EXHIBIT ‘C’ of the claimant while “B” is dated 5-6-1994, EXHIBIT ‘C’ is dated 3-7-97.
Each of the documents speaks for itself. For the avoidance of doubt, the other arbitrations both parties admitted are Umudo Okoriko Society, Ndi Enyi Amagwo and Okonkwo Society in general. … “
Moreover, in the absence of any evidence adduced by the defendants that the said exhibits were fraudulently obtained. I have no basis to hold the said exhibits irrelevant that they were made for the purpose of this suit as argued by the defendant.”

Thus, the lower Court was right when it made reference to events of recent years as to which traditional history will prevail. The case of Alh Saratu Adeleke (Supra) cited by learned senior counsel is apt in the circumstances. I am equally fortified by the decision in AKPAPUNA & ORS VS. NZEKA & ORS (1983) ANLR 350 at 351. Per IREKEFE, JSC at page 362 held as follows:
“The learned trial Judge took the view, as he was entitled to do, that the traditional evidence in the case was inconclusive, and based his decision in the dismissing the respondent’s case on the inadequacy of evidence of acts of ownership by the respondents within recent times.”
This accords in my view with the decision in KOJO VS. BONSIE (1957) 1 WLR 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 or more 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 misdemeanor is a little guide to the truth. The best way is to test the traditional history by reference to facts in recent years as established by evidence and by seeing which of the two competing histories is more probable”.
In the case of EZENEKWE & ANOR vs. EZEJEGBU (2015) LPELR 40697 CA, this Court had this to say:
“I must reiterate the legal principle that it is only where there is a conflict which arises in traditional history proffered by respective parties, that the test in KOJO II vs. BONSIE (supra) will be resorted to in determining the true story”

Thus, from the above one is not left in doubt that indeed the trial Court gave a dispassionate consideration of the evidence before it to which I find no reason to interfere with same. Issue one is resolved against the Appellants.

Issue Two
On the identity of the Land in dispute indeed the Learned trial Judge gave consideration to Exhibit ‘A’ & ‘D’ when he held amongst others at page 301 of the record of proceedings–
“And a Claimant in an action for declaration of title can discharge the onus of showing with certainty the area of land he claims by filing survey plan reflecting the features and precise boundaries there-of. In the instant case, the Claimant pleaded and tendered Exhibit A and D… the Defendants apparently relied on the survey plan in Exhibit M… and argued that by paragraphs 7 & 12 of the 1st & 2nd Defendants Statement of Defence, the identity of the land in dispute is in issue. I find and hold that from the evidence adduced by both oral and documentary by the parties, the identity of the land in dispute has been established or cannot be said to be unknown to the parties”.

The finding of the trial Judge cannot be faulted having weighed the evidence before him and came to the conclusion to which the evidence preponderates on the side of the party with a more probable case. As earlier observed an Appellate Court will be slow to interfere with such findings. See Statoil (Nig) Ltd. V. Inducon (Nig) Ltd. (Supra).
Issue two is resolved against the Appellant.

Issue Three
On Exhibit ‘B’ & ‘C’ the finding of the trial Judge we are asked to hold is perverse. However, nothing to the contrary was brought to our attention as to hold the finding perverse in relation to Exhibit ‘B’ & ‘C’. The learned trial Judge at page 304 of the record of appeal stated correctly thus – “The facts that Exhibit ‘B’ and ‘C’ post date the said suit of 1981 both parties had admitted there was such arbitration without pleading the specific dates which is of no moment since both parties admitted the verdict was in writing have founded the specific date. Moreover, in the absence of any evidence adduced by the Defendant that the said Exhibits were fraudulently obtained, I have no basis to hold the said Exhibit irrelevant that they were made for the purpose of this suit as argued by the Defendant’s Counsel”.

I agree with the finding of the trial Judge above and this issue must equally be resolved against the Appellant as they could not produce any evidence to the contrary.

Regarding the reply brief, I find there is nothing worthy of consideration therein that has not been argued in the briefs of both Counsels. Accordingly, it is hereby discountenanced.

On the whole, all the three issues having been resolved against the Appellants this appeal fails and is hereby dismissed. The judgment of the lower Court in Suit No: HU/179/2006 is hereby affirmed. A cost of N100,000.00 (One Hundred Thousand Naira only) is awarded for the Respondent against the Appellant.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had a preview of the judgment delivered by my learned brother, Ibrahim W. Jauro, JCA. The resolution of the three issues for determination against the Appellant is agreeable to me. Therefore I too dismiss the appeal for want of merit.

ADEMOLA SAMUEL BOLA, J.C.A.: I had the privilege to have read the draft copy of the judgment delivered by my learned brother, IBRAHIM WAKILI JAURO, JCA. I am in agreement with his reasoning and conclusion. I adopt them as mine.

I hold that the appeal is bereft of merit. It fails and is accordingly dismissed.