JOHN NJOKU & ORS v. JONATHAN IRECHUKWU & ANOR (2013)

JOHN NJOKU & ORS v. JONATHAN IRECHUKWU & ANOR

(2013)LCN/5991(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of March, 2013

CA/PH/113/2009

RATIO

THE APPELLATE JURISDICTION OF THE COURT OF APPEAL: STATUTORY BACKING

The appellate jurisdiction of this Court is donated by Sections 240, 241, 242 and 243 of the Constitution of the Federal Republic of Nigeria, 1999. Specifically, it is enshrined in Section 245 (1) of the Constitution (supra) that:-
“An appeal shall lie from decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.”PER HARUNA SIMON TSAMMANI, J.C.A.

CUSTOMARY COURT OF APPEAL : THE JURISDICTION OF THE CUSTOMARY COURT OF APPEAL AS PROVIDED BY THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

ARBITRATION: TRADITIONAL ARBITRATION
It is now settled law that one of the several ways of settling disputes in our society is by reference of such dispute to either a family head, a chief or elders of the Community for settlement. Such settlement once accepted by the parties, it becomes binding on them. In other words, it is now settled law in our jurisprudence that, where parties submit themselves to arbitration of a traditional authority, they are bound by the decision reached at by such an authority, which exercises its powers under the customary law of the community. Such a decision may operate as estoppel to future litigation on the same matter between the same parties or their privies.PER HARUNA SIMON TSAMMANI, J.C.A.

CUSTOMARY ARBITRATION: WHEN THE AWARD CAN OPERATE AS ESTOPPEL

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

1. JOHN NJOKU
2. JOYCE NJOKU
3. GEORGE NJOKU Appellant(s)

AND

1. JONATHAN IRECHUKWU
2. ASHIEGBU IRECHUKWU
(For themselves and on behalf of Umuirechukwu family of Umuduru Ofor, Omoku Atta, Ikeduru L.G.A.) Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal of Imo State delivered on the 5th day of June, 2008. By the said judgment the Customary Court of Appeal, dismissed the appeal brought before it by the Appellants against the judgment of the Customary Court, Eziama, Ikeduru Local Government Area of Imo State.
The Appellants herein were the Defendants at the trial Customary Court, while the Respondents herein were the Plaintiffs. The Respondents had started the resolution of the dispute between them and the Appellants when they commenced an action by writ of summons at the High Court in Suit No. HOW/172/86 and which suit was transferred to the Iho Division of the High Court, before it was struck out for want of jurisdiction. The Respondents therefore commenced the action afresh at the Customary Court, Eziama in Ikeduru Local Government Area, whereat they claimed the following reliefs:
1. Declaration that the Plaintiffs are entitled to the customary right of occupancy over the piece and parcel of land Known as and called “Ala Uhu Irechukwu” which situate (sic) at Umuoku Amano Atta in Ikeduru Local Government Area.
2. Perpetual Injunction restraining the defendants by their servants, agents or parties from further entry into the said land.
At the trial Customary Court, both parties claimed title to the land by inheritance through a common ancestor called Duruofor. The Respondents as plaintiffs at the trial Customary Court claimed to have inherited the land in dispute from their father Irechukwu. They contended that it was Duruofor who deforested the land, and upon his demise, he was succeeded by his son Ugwunwoke who in turn was succeeded by Oduagwu. That Oduagwu had two sons, Irechukwu and Maduforo. Irechukwu then begot Asiegbu, Raymond, Jonathan and Friday, but Raymond and Friday died leaving Asiegbu and Jonathan who are the Respondents in this case. It is their case that they farmed on the land and even pledged same to one Metu before the Appellants began to lay claim to the land.
The Appellants as Defendants at the trial Customary Court also claimed to have inherited the land from the same Duruofor as the Respondents. It is their case that it was their great ancestor Duruofor who deforested the land, and was succeeded by Duruanyanwu who was in turn succeeded by Emewom. That Emewom had Njoku as his first son. Njoku then begot Emejiko, who is the father of Irechukwu, the father of the Respondents. The Appellants therefore traced the root of their title to the land in dispute through the same original founder of the land in dispute as the Respondents.
At the trial, the Respondents called 4 witnesses and tendered two exhibits marked as Exhibits ‘A’ and ‘B’ respectively. The Appellants also called 4 witnesses and tendered two exhibits marked as exhibits ‘C’ and ‘D’ respectively. The trial Customary Court also embarked on a visit to the locus in quo. Thus, in a considered judgment delivered on the 23rd day of June, 2006, the trial Court found for the Plaintiffs/Respondents. The Appellants as Defendants were not satisfied with the decision of the trial Customary Court, and accordingly appealed to the Customary Court of Appeal. The Appellants were again aggrieved by the judgment of the Customary Court of Appeal and have now appealed to this Court, vide Notice of Appeal dated the 2nd day of September, 2008 and filed the 08/09/2008.
The Notice of Appeal consists of three (3) Grounds of Appeal as follows:-
GROUND ONE – ERROR IN LAW
The Lower Court erred in law when it held that the native arbitration of the Traditional Ruler of the parties as per exhibit ‘D’ tendered at the trial did not contain any arbitral award in accordance with the native laws and customs of the parties and therefore did not constitute an estoppel.
PARTICULARS:
1. Both parties agreed that they submitted themselves to the customary arbitration before their Traditional Ruler H.R.H Eze Humphrey Okereke in 1983.
2. The Customary arbitration took place fourteen years after this suit was instituted by the Respondents.
3. Both parties tendered exhibits ‘A’ and ‘D’ being arbitral decisions by the Traditional Ruler. Exhibit ‘D’ was admitted by the Traditional Ruler as the decision reached by him and other arbitrators.
4. The Respondents did not reject the arbitral decision in 1983 after its publication.
5. Exhibit ‘D’ constitutes an estoppel.
GROUND TWO: ERROR IN LAW:
The Lower Court erred in law by holding that the Respondents proved ownership of the land in dispute in accordance with the native law and custom of the parties.
PARTICULARS:
1. Respondents gave conflicting traditional history evidence of their ownership of the land in dispute.
2. The Respondents’ evidence of ownership was riddled with missing gaps and linkages.
3. Respondents relied heavily on prescription or long usage of the land.
4. There is no prescription known under customary land tenure.
5. Respondents did not show that their occupation of the land was adverse to the Appellants title as owners of the land.
6. Respondents’ evidence of customary pledge and redemption of the land in dispute was very deficient and lacked any validity as to give or warrant any title in the Respondents.
7. Appellants’ evidence of ownership vide their traditional history was not seriously challenged or debunked.
8. The Lower Court was wrong to hold that Respondents proved acts of long possession. Acts of possession or long possession cannot stand where another proves a better title or where a party advancing such claim does not have any iota of title or failed to prove ownership.
9. Acts of possession is predicated on valid title or ownership and a party cannot talk of acts of possession without first proving ownership.
GROUND THREE – ERROR IN LAW:
The Lower Court erred in law when it held that Respondents proved ownership by acts of long possession to wit; that they reside therein when such title is not recognized or have no basis under the native law and custom of the parties.
PARTICULARS:
1. The PW1 in his evidence said that the place they live is close to the land in dispute.
2. PW1 also said that the land they live on and land in dispute are different portions of land
3. PW1 admitted that “Ala-Isi-Obi” and the land in dispute are the same.
4. PW1 admitted that on Ala-Isi-Obi there was a juju shrine but no longer there.
5. The juju shrine was owned by Appellants’ fathers.
6. Title to land under the native law and custom of the parties cannot be found upon residence on a portion of the land in dispute.
7. The Lower Court was totally wrong to say that since both parties are of the same kindred of Duruofor, the land belongs to Respondents.
As required by the Rules of this Court, the parties filed and exchanged Briefs of Arguments. The Appellants’ Brief of Argument is dated the 26/10/09 and filed the same day. It was deemed as duly filed and served on the 18/3/2010. Therein, the Appellants formulated two issues for determination as follows:-
1. Did the Respondents prove their entitlement of the customary right of occupancy of the land in dispute. (Grounds 2 and 3).
2. Whether the arbitration by the Traditional Ruler of Atta as shown in exhibit “D” constitutes estoppel. (Ground 1).
The Respondents’ Brief of Arguments is dated the 09/4/2010 and filed the 15/04/2010. Two issues were also nominated for determination by the Respondents as follows:
(a) Whether the Respondents proved their entitlement to the customary right of occupancy of the land in dispute.
(b) Whether the arbitration of the Traditional Ruler of Atta as in exhibit “D” constitutes estoppel.
It would be seen therefore that, the issues formulated by the parties are substantially similar in con. In that respect, I shall adopt the issues nominated by the Appellants in the determination of this appeal. I shall however begin with issue No. 2.
It is pertinent to point out here that, the Respondents raised and argued a preliminary objection to the hearing of this appeal. The objection was raised and argued at pages 6-8 of the Respondents’ Brief of Arguments. I propose to determine same before I delve into the main appeal, if need be.
By the Preliminary objection, the Respondents contend that this Court lacks jurisdiction to entertain this appeal. That from the Grounds of appeal and the issues distilled there from, none of the three grounds and the issues arising from them raised an issue of customary law. He then cited the cases of OKAFOR v. AKANONU (2000) FWLR (Pt. 15) p.257 AT 259; TUKUR v. GOVT. OF GONGOLA STATE (1989) 4 NWLR (Pt.117) p.377 and Section 266(1) of the 1999 Constitution, to submit that a Customary Court of Appeal of a state is created to entertain appeals in civil proceedings involving questions of customary law. That Section 266 (1) of the 1999 Constitution is restrictively qualified by Section 243 (1) of the Constitution in the sense that right of appeal to the Court of Appeal is limited to an appeal as of right in Court proceedings involving questions of customary law and such matters as may be prescribed by the National Assembly. It was accordingly submitted that, there were no proceedings with respect to any question of customary law arising from the decision of the Imo state Customary Court of Appeal upon which this court is being called upon to adjudicate. That this court therefore lacks the jurisdiction to entertain this appeal.
Learned Counsel for the Respondents further cited the case of PAM v. GWOM (2000) FWLR (Pt.1) p.1 at 4 on the definition of customary law per OGWUEGBU, JSC and to also submit that, the determinant factor on whether a decision is in respect of customary law, when the controversy involves a determination of what the relevant customary law is and the application of the customary law as ascertained, to the question in controversy. That, where the decision of the court turns purely on facts, or on a question of procedure, such decision is not with respect to a question of customary law, not withstanding that the applicable law is customary law. That the objection is on jurisdiction which can be raised at any time, even on appeal for the first time. We were then urged to uphold the objection and to strike out the appeal for lack of jurisdiction.
In response, the Appellants filed an Appellants’ Reply Brief of Argument dated the 26/4/2010 and filed the 27/04/2010. Therein, learned counsel for the Appellants contended that the three grounds of appeal relate to questions of customary law. That ground one dwells on incidents of native arbitration, while issues 2 and 3 are on incidents of customary ownership of land. That any ground of appeal which encapsulates incidents of traditional inheritance of land or customary grant or acts of possession over land will be competent under Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria. The cases of OHIAERI v. AKABEZE (1992) 2 NWLR (Pt. 221) p.1; AKPAN v. OTONG (1996) 10 NWLR (Pt. 476) p. 108 at 122 and GOLOK v. D IYALPAWAN (1990) 3 NWLR (Pt. 139) p. 411 at 419-420, 421 and 424 were cited in support. Learned Counsel then submitted that, a proper adjudication of the claims and issues arising therein entail ascertainment of the customary ownership of the land. That the Respondents have not shown how the grounds of appeal and the issues raised therefrom are bereft of questions of customary law. We were therefore urged to discountenance the objection as totally misconceived and to dismiss same.
To determine this objection, it would be proper to first consider the arguments of the Respondent vis-a-vis the appellate jurisdiction of this court.
The appellate jurisdiction of this Court is donated by Sections 240, 241, 242 and 243 of the Constitution of the Federal Republic of Nigeria, 1999. Specifically, it is enshrined in Section 245 (1) of the Constitution (supra) that:-
“An appeal shall lie from decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.”
My understanding of this provision is that, where the proceedings before a Customary Court of Appeal of a State is with respect to any “question of customary law,” an appeal would lie as of right from the Customary Court to this Court. Thus in determining the issue, what the Court should look at is the nature of the proceeding before the Customary Court of Appeal. In other words, it is the nature of the proceeding before the Customary Court of Appeal that is the determining or pivotal factor to be considered. Accordingly, where the questions determined by the Customary Court of Appeal are with respect to any question of customary law, an appeal would lie as of right to this Court. Now, it is therefore clear that Section 245 of the 1999 Constitution regulates the exercise of right of appeal to the Court of Appeal from the decisions of Customary Courts of Appeal. The appellate jurisdiction of the Court of Appeal granted by Section 240 of the Constitution extends to exercise of powers to hear appeals from Customary Courts of Appeal.
That power shall be exercisable as of right where the appeal involves question of customary law.

Furthermore, by Section 282 (1) of the Constitution, a Customary Court of Appeal of a state shall exercise appellate jurisdiction in civil proceedings involving questions of customary law. The appellate jurisdiction of the Customary Court of Appeal is therefore limited to hearing appeals involving questions of customary law. In other words, only appeals involving questions of customary law could be entertained by the Customary Court of Appeal of Imo State by virtue of Section 282 (1) of the 1999 Constitution as (Amended). See NWAIGWE v. OKERE (2008) 13 NWLR (Pt.1105) p.445. In the instant case, the court below is the Customary Court of Appeal of Imo State, and it heard the appeal from the decision of a Customary Court of Imo State. It is worthy of note that there was no dispute before the Customary Court of Appeal that the issues before it involved questions of customary law. As the record of Appeal would show that issue never arose before the court below. It would therefore not be farfetched to conclude that the parties had agreed that the issue before the court below involved or were with respect to questions of customary law. That being so, an appeal would lie from a decision therein to this court as of right.
Apart from the above stated conclusion, a sober perusal of the grounds of appeal would show that, the issues therein involve questions of land ownership or title to land under the customary law of the people of Umuduruofor in Umoku Atta of Ikeduru Local Government. It also involves questions on customary arbitration. There is therefore no gain repeating or reiterating that the issue in this appeal is with respect to questions of customary law. I am therefore of the view and accordingly hold that the objection has no merit. It is hereby dismissed. I now proceed on issue No.2.
The issue No. 2 nominated by the Appellant is whether the arbitration by the traditional ruler of Atta shown in exhibit “D” constitutes estoppel. On this issue, Learned Counsel for the Appellants contended that, the PW1 stated in his evidence-in-chief that the traditional ruler of Atta Community, the late Eze Humphrey Okereke arbitrated into the matter and decided in their favour. That exhibit “B” which is the record of proceedings of the High Court wherein the late Eze Okereke testified and tendered his written decision on the arbitration as exhibit “A”. That by exhibit “B”, the Respondents were given an opportunity to produce the objects for oath taking over ownership of the land in dispute and for the son of the 2nd Appellant to take the oath. The Appellants stated that the said son of the 2nd Appellant appeared for the oath taking but the Respondents failed to appear with the objects, so the late Eze decided that the land belongs to the Appellants. That the Respondents also tendered Exhibit “D” which is the same document as Exhibit “A”. It is also the Appellants’ case that the trial Customary Court identified the issue of arbitration in its evaluation of evidence, but failed to resolve the conflict that arose between Exhibits “A” and “D”. That where there are two conflicting versions of the essential facts of a case, the trial Court must make specific findings on the issues in controversy, and that where the trial Court fails to indicate which version it accepted as true, the appellate Court should allow an appeal against the decision and may order a retrial. The case of AGBONIFO v. AIWEREOBA (1988) 1 NWLR (Pt.70) p.325 at 348 was cited in support.
Learned Counsel for the Appellants further contended that by the decision of the native arbitration as in Exhibit “D” and evidence of Eze Humphrey Okereke as P.W.3 in Exhibit “B”, the conclusion is that Respondents are caught by the doctrine of estoppel per rem judicata. That the parties voluntarily submitted to arbitration, the decision thereon was published and parties given the written decision, and therefore, the Respondents cannot be heard to claim or assert the contrary of the decision which was against them. He relied on the case of NJOKU v. EKEOCHA (1972) 2 ECSLR p.199. It is also contended that the parties voluntarily submitted to the arbitration and are therefore deemed to have agreed to be bound by the decision. That the arbitration was in accordance with the custom of the parties. That a decision was reached, published and the parties accepted the decision. Learned Counsel then submitted that, having accepted the decision, none of the parties can resile from it. The cases of AGU v. IKEWIBE (1991) 3 NWLR (Pt. 180) P. 385; OHIAERI v. AKABEZE (1992) 2 NWLR (Pt. 221) p. 1 at 23-24 and FATOYINBO v. WILLIAMS (1956) SCNLR 274 were cited to submit that, the Respondents are bound by the result of the native arbitration and thus estopped from re-litigating the matter. That both the trial Customary Court and the Court below failed to draw the relevant legal result and thereby erred in law.
On this issue, it is the contention of Learned Counsel for the Respondents that, for a plea of issue estoppel to be validly raised, the following ingredients must be satisfied, that is:
(a) The parties must be the same in the previous and present action.
(b) The same question that was decided in the previous action must arise in the present action in respect of the same subject matter, and
(c) The decision must be final decision of a competent court.
The cases of FADIORA v GBADEBO (1978) 3 S.C. p. 291 and EBBA v. OGODO (2000) FWLR (Pt. 27) p. 2094 at 2098 were cited in support. It was then submitted by Learned Respondents’ Counsel that, from the decided cases, it cannot be said that the decision of a Traditional Ruler as contained in Exhibit “D” meets the requirements, as the decision of a Traditional Ruler is not a final decision of a competent court. That in any case, no court would have accepted Exhibit “D” and reject exhibit “A” tendered by the parties due to the apparent conflicts and discrepancies on the said documents. That if the documents (Exhibits “A” and “D”) are considered, it would be seen that the court below found both documents unreliable, in that, Exhibit “D” which the Eze accepted authoring contains no arbitral award, while exhibit “A” which the Eze rejected has an award. For those reasons, Learned Counsel urged us to hold that none of Exhibits “A” or “B” can sustain a plea of estoppel and to resolve this issue in favor of the Respondents.
It is now settled law that one of the several ways of settling disputes in our society is by reference of such dispute to either a family head, a chief or elders of the Community for settlement. Such settlement once accepted by the parties, it becomes binding on them. In other words, it is now settled law in our jurisprudence that, where parties submit themselves to arbitration of a traditional authority, they are bound by the decision reached at by such an authority, which exercises its powers under the customary law of the community. Such a decision may operate as estoppel to future litigation on the same matter between the same parties or their privies.

However before the result or decision of such customary arbitrator can operate as estoppel certain conditions precedent must be satisfied. These are:
(a) That there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons.
(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding.
(c) That the said arbitration was in accordance with the custom of the parties or of their trade or business.
(d) That the arbitrators reached a decision and published their award; and
(e) That the decision or award was accepted at the time it was made.
See EGESIMBA v. ONUZURUIKE (2002) 15 NWLR (Pt.791) p. 466; ACHOR v. ADEJOH (2010) 6 NWLR (Pt. 1191) p. 537; OKOYE v. OBIASO (2010) 8 NWLR (Pt. 1195) p.145; AGALA v. OKUSIN (2010) 10 NWLR (pt.1202) p.412 and MKPA v. MKPA (2010) 4 NWLR (Pt. 1214) p.612.
In the instant case, the trial Customary Court did not make any finding on the issue of arbitration contended by the parties. Two versions of the said arbitration by the late Eze Humphrey Okereke were tendered by the parties. While the Appellants tendered Exhibit “D” as their own version of the customary arbitration, the Respondents version is Exhibit “A”. The court below considered the issue at pages 157-160 of the record of appeal. It therefore found at pages 158 line 17-159 line 3 as follows:
“One is tempted to ask what was the arbitral decision of Eze Okereke? From the Records, it seems to be that the Plaintiffs/Respondents should produce juju for the Appellants to swear which they did not produce. I am of the view that Exhibits A & D tendered by both parties and the oral testimony of the late Eze Okereke discredited his evidence and the documents in question while the late Traditional Ruler appeared to disown the document Exhibit A which he gave to the illiterate Plaintiff/Respondent in 1983. His oral evidence conflicts with the contents of Exhibit D relied upon by the Appellants as constituting estoppel PER REM JUDICATAN (sic).”
It would be seen therefore that the court below found both Exhibits “A” and “D” relied on as proof of res judicata, unreliable. The Learned Judges of the court below therefore held that:
“Exhibits A & D bear the same dates but with different conclusions. Exhibit D which the Eze owned contains no arbitral award while Exhibit A contains one. I find that Exhibit D relied upon by the Appellants contains no award which will create estoppel. It was safe for the lower court not to place any reliance on the Exhibit A and D and evidence of the Traditional ruler because of the obvious conflicts in them and to rely on other proven issues to reach its decision. I don’t find any merit on this issue and it therefore fails.”
Indeed, a very careful reading of the record will show that the above finding of the court below cannot be faulted. It was amply supported by the evidence. The result is that there was no arbitral decision that meets all the requirements of a valid customary arbitration. Neither of Exhibits A or D met that requirement as to raise same to the standard of estoppel. In any case, the evidence on the record show that the Respondents did not produce the materials needed to enable the Appellant swear to the oath. Rather, they decided to approach the High Court of Imo State for the ventilation of their grievance. It would in my view, be safe to conclude that the Respondents did not accept decision at the time it was made. In other words, the Respondents decided not to proceed with the arbitration process. In that respect, I agree with the court below that exhibits “A” & “D” did not meet the requirement of a binding customary arbitration which could operate as estoppel against the Respondents. This issue is therefore resolved against the Appellants.

On issue No.1, Learned Counsel for the Appellants submitted that, it is trite law that in an action for declaration of title to land the onus of proof lies on the Plaintiff to show by credible evidence how he became entitled to the declaration sought. He then cited the case of KODILINYE v. ODU (1935) 2 W.A.C.A. p. 336 to further submit that where he fails to do that, his claim will be dismissed as the weakness of the defence will not avail him. That the Respondents’ case is that they got the land in dispute by inheritance through their forefathers from whom it devolved on them. He then referred to the testimony of the 1st Plaintiff/Respondent who testified as the P.W.1 at page 51 lines 10-16 of the records to further contend that, that testimony is the evidence of traditional history in support of the Respondents’ claim to the ownership of the land in dispute. The cases of PIARO v. TENALO & ORS (1976) 12 S.C. p.31; FASORO v. BEYIOKU & ORS (1988) 2 NWLR (Pt. 76) p. 263 at 271 and ARE v. IPAYE (1990) 2 NWLR (Pt. 132) p. 298 at 301 were cited to submit that, in law, where the title to land is derived from or by way of a grant or inheritance, the evidence must show who founded the land and the person or persons on whom title to the land has devolved since its founding.
It was further contended by Learned Counsel for the Appellants that, the PW1 asserted that their claim to the land is through Ugwunwoke but it turned out that Duruofor was the founder of the land. That the conflict in the testimony of the PW1 on the issue of original owner of the land and Duruofor deforesting the land was not cleared by evidence and therefore remained hanging. It was also contended that the PW1 mentioned one Nnorom who got the land from Ugwunwoke and then Irechukwu got the land from Nnorom, but no evidence was given as to the relationship between Ugwunwoke and Nnorom. That there is a serious gap as to how the land in possession of Ugwunwoke went to Nnorom a stranger and not Oduagwu his son and then to the grandchildren of Ugwunwoke. That no evidence was led as to what happened to Maduforo and his descendants especially when DW2 asserted positively that the estate of their father Duruagwu was not shared between Maduforo and Irechukwu. He therefore relied on the cases of ONWUGBUFOR V. OKOYE (1996) 1 NWLR (PT. 424) P.252; MOGAJI V. CADBURY NIG. LTD. (1985) 1 NWLR (Pt.7) p.393; ODOFIN v. AYOOLA (1984) 11 S.C. P.72 at 120-122: DA COSTA v. IKOMI (1968) 1 All NLR p.394 at 398 and KALIO v WOLUCHEM (1985) 1 NWLR (Pt. 4) p.610, to submit that having failed to link Nnorom to Ugwunwoke and then to Irechukwu, that gap remained unestablished.
Learned Counsel for the Appellant went on to submit that, when attempt to prove root of title fails, acts of possession on that root of title cannot sustain a claim for title. He cited the case of AYOOLA v. ODOFIN (1984) 11 S.C. p.72; NDUKWE v. ACHA (1985) 5 S.C. p. 28 at 38-39 and DABO v. ABDULLAHI (2005) ALL FWLR (Pt. 255) p.1039, to submit that the lower court was wrong to hold at page 161 lines 1-5 of the records that the Respondents led evidence of the origin and devolution of the land to them. That the fact that the parties are of common ancestor does not discharge the Respondents from tracing their root of title to the land. That the Respondents having not predicated their claim on long possession, having failed to prove their title by traditional history, their claim of long possession cannot come to their aid. The case of AJIKANLE v. YUSUF (2009) ALL FWLR (Pt. 475) p. 1712 AT 1747-1748 was cited in support. Learned Counsel further referred to pages 54-58 of the records to submit that Exhibit “B” which is the record of proceedings of the High Court reinforces the fact that the Respondents do not know the traditional history of the land in dispute. That the traditional history given by the 1st Respondent in Exhibit B is radically different from and inconsistent to his evidence at the trial Customary Court.
The Appellants’ Learned Counsel also contended that the Respondents called the land in Exhibit “B” as Ala Umu Irechukwu” while at the trial Customary Court, they called it “Ala Uhu Irechukwu.” That, that shows that the Respondents are not the owners of the land in dispute. Furthermore, that the evidence of the Respondents is that the land belongs to two brothers; Irechukwu and Maduforo, and that as there is no evidence that the land was shared between the two brothers, no declaration of customary right of occupancy can be granted to them when the Maduforo group are not parties to this suit. That the Respondents therefore lacked the locus standi to claim the estate of their common descend.
On the issue of pledge, it is the contention of Learned Counsel for the Appellants that, a careful look at and consideration of the evidence of the Respondents therein would show that no pledge took place involving the land. That at page 10 lines 7-9 of the records, the PW1 had stated that he had pledged the land to one Metu, while he stated at page 64 lines 24-25, that they had pledged the land to more than three persons. He also referred to the testimony of PW4 at page 74 lines 16-20 of the records to contend that it contradicts the testimony of PW3 at page 67 lines 18-21 on when the pledge took place and when it was redeemed.
Learned Appellants’ Counsel went on to submit that, the traditional history put up by the Respondents had crumbled, but the lower court moved by sympathy delved into acts of long possession. That it was traditional evidence that the Respondents relied on and not on acts of possession. It was therefore submitted that, where a party’s root of title is pleaded, that root of title has to be established first and any consequential acts following there from can then qualify as acts of ownership. That where title has not been proved, it will be unnecessary to consider acts of possession.
It is the further contention of Learned Counsel for the Appellants that, the Respondents did not prove the identity of the land in dispute. He cited the cases of TITILOYE v. OLUPO (1991) 7 NWLR (Pt.205) p.519 at 536; BARUWA v. OGUNSOLA (1938) 4 WACA p. 159 and OLUWA v. ENIOLA (1967) NMLR p.339, to submit that, it is an essential requirement that in an action for declaration of title to land, the area of land in dispute has to be established. Reference was made to the testimony of the PW1 at page 5 lines 21-23 where the boundary neighbours were mentioned, and the testimony of the PW4 who was called as a boundary neighbour, at pages 17 and 18 of the records. It was then submitted that, PW1 did not mention the PW4 as his boundary neighbour. That the description of the land by PW4 is radically different from that given by the PW1 and that none of those mentioned as boundary neighbours were called to testify in prove of the identity of the land in dispute. Furthermore, that no dispute plan was tendered. The cases of IYAJI v. EYIGEBE (1987) 3 NWLR (Pt.61) P.523 at 529 UKAEGBU v. NWOLOLO (2009) ALL FWLR (Pt. 446) p.1852 at 1883-1884; MADAM SALAMI v. OKE (1987) 4 NWLR (Pt.63) p.1 at 17; SALU v. EGELBON (1994) 6 SCNJ (Pt.11) p. 223; EZE OKEKE & SONS v. UGA & SONS (1962) 1 ALL NLR (Pt. 3) p.482 at 84 and ELIAS v. OMOBARE (1982) 1 ALL NLR p.70 at 86 were cited in support. It was then submitted that the lower court was in error when it held that issues were not joined on the identity of the land in dispute, and thus erroneously held that, the land in dispute was ascertainable, admitted and acknowledge by the Defendants/Appellants.
Learned Counsel for the Respondents contended that the questions raised by the Appellants arose out of misconception of the traditional history or evidence given by the Respondents as depicted by the evidence of the 1st Respondent who testified as the PW1. That from the account of the 1st Respondent, it was Duruofor who deforested the land, which was inherited and shared by Ugwunwoke and Duruanyanwu, the two sons of Duruofor. That Ugwunwoke was inherited by Oduagwu who begot Irechukwu and Maduforo. Irechukwu then begot Ashiegbu (2nd Respondent), Raymond (deceased), Jonathan (1st Respondent) and Friday (deceased). That the mention of Nnorom has no bearing to the traditional history since both parties in this case have a common ancestor and that if there is any unexplained gap, such could be due to loss of memory on the part of a very old indigent farmer and therefore does not affect the root of title to the land. The cases of ALADE v. AWO (1975) 4 S.C p. 215 and OLUJEBU of IJEBU v OSO (1978) 5 S.C. p. 143 was cited to submit that, in a situation where there is a conflict in the traditional history of the parties, demeanor of witnesses is little guide to the truth of the matter, as in the course of transmission from generation to generation of the traditional history, mistakes may occur without any dishonest motive, and that in such a case, traditional history is to be tested by recent acts or facts established with a view to determining which of the conflicting versions is more probable.
Learned Counsel for the Respondents further contended that the Respondents gave and proved the names of the founder of the land as well as those after him without gaps, though it was no longer necessary bearing in mind the concurrent findings of facts by the two lower courts that both parties have common ancestral lineage or origin from a man called Duruofor. That, that aside, the Respondents proved their case on the strength of their case, supported by the Appellants’ case, by more than one of the methods of proving title to land. That even if the evidence of traditional history given by the Respondents was not sufficient (which they do not concede), there was abundant evidence of acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the Respondents who exercised such acts are the true owners of the land in dispute. That even the 2nd Appellant admitted that the Respondents were living on the land before she got married into the Njoku family.
On the identity of the land in dispute, it was contended by Learned Counsel for the Respondents that, there is nothing on record to show that the parties and even their witnesses did not know the land in dispute and its boundaries. That it is now settled law that, where a land in dispute is well known to the parties, the area of the land claimed can no longer be said to be uncertain. The cases of AKINTERINWA v. OLADUNJOYE (2000) FWLR (Pt. 10) p. 1690 at 1699 and OSHO v. ARE (1998) 8 NWLR (pt. 493) p.17 were cited in support. Furthermore, that it is also settled law that where both parties know the land in dispute and have accepted it as the land in dispute, the Respondent was under no duty to lead evidence about the identity of the land, as in such a circumstance, issues are not joined on the identity of the land. The case of OYETUNJU v. AKANMI (1986) 5 NWLR (pt. 42) p.1461 was relied on.
Learned Counsel for the Respondents further submitted that, apart from describing the land in dispute with certainty, the Respondents and their witnesses asserted that they knew the land in dispute. That the 2nd Appellant who testified as the D.W.3 and the 3rd Appellant who testified as the D.W.4, both stated that they knew the land in dispute. Relying on the case of OGBODI v. EYIFUNMI (2000) FWLR (Pt.8) p. 1271 at 1281, Learned Counsel submitted that the identity of the land was therefore taken as established having been admitted and acknowledged by the appellants. We were accordingly urged to resolve this issue against the Appellants.
Now, I propose to begin the resolution of this issue (issue two) by considering the issue of identity of the land in dispute. It is the law that, whoever desires the Court to give judgment as to any legal right or liability on the existence of facts which he asserts shall prove that those facts exist. The burden of proof therefore rests on the person who asserts the existence of particular facts. Proof in this sense is the process by which the existence or non- existence of facts is established to the satisfaction of the Court. That onus is therefore on the person who would fail if no evidence were adduced or produced on the issue. In court cases such as this, the onus of proof is discharged on a balance of probabilities or preponderance of evidence. See Sections 130, 131, and 132 of the Evidence Act, 2011. See also KOKOROOWO v. OGUNFAMBI (1993) 8 NWLR (Pt. 313) p.627; JALICO LTD v. OWONIBOYS (1995) 5 SCNJ p. 256, MAUNE v. ABDUL (2001) 4 NWLR (Pt. 718) p.95 and AGWASIM v. EJIVUMERWERHAYE (2001) 9 NWLR (Pt. 718) p.395.
In the instant case, the Respondents as Plaintiffs at the trial Customary Court claimed for a declaration of title to that land situate at Umuoku Amano Atta in Ikeduru Local Government Area of Imo State. The law is that in a claim for declaration of title to land, a Plaintiff has the burden of proving that he is entitled to the declaration sought, upon his own cogent and credible evidence. To succeed, he has to rely on the strength of his own case and not on the weakness of the defendant’s case, though the Plaintiff may take advantage of evidence produced by the defence which supports his own case. In arriving at a decision one way or the other, a court should remember that, a declaratory relief is an equitable relief or remedy in which the court exercises its discretionary jurisdiction whether to grant or not to grant. As stated above to succeed, a Plaintiff must rely on the strength of his own case and not on the weakness of the defence, except where the weakness of the defendant’s case tends to strengthen his case. See KANO v. MAIKAJI (2001) 17 NWLR (Pt. 1275) p.139 at 181-182; MOMOH v. UMORU (2011) 15 NWLR (Pt.1270) p.217 at 275 and JIYA v. AWUMI (2011) 4 NWLR (Pt. 1238) p.467 at 489.

What is required of a Plaintiff in an action for declaration of title to land is to establish his claim by preponderance of evidence or balance of probabilities. The Plaintiff is expected to produce sufficient and satisfactory evidence in support of his claim. The test to be applied is whether the plaintiff has been able to adduce sufficient evidence which satisfies the court hearing the case, that he has a better title than the defendant. That burden or standard of proof to be discharged in a claim for declaration of title to land is different from that which is required in civil cases generally. In action for declaration of title, the burden rests throughout on the Plaintiff and never shifts to the defendant, even while the defendant has made an admission in the case. In other words, the onus lies throughout on the Plaintiff to satisfy the court on the evidence adduced by him that he is entitled to the declaration sought. See EYO V ONUOHA (201)SIC 11 NWLR (Pt. 1257) p.1, EYA v. OLOPADE (20911)SIC 11 NWLR (Pt. 1259) p.505 at 525; IROAGBARA v UFOMADU (2009) 11 NWLR (Pt. 1153) p. 587 at 603; UKAEGBU v. NWOLOLO (2009) 3 NWLR (Pt. 1127) p. 194 at 231-232 and AYANWALE v ODUSAMI (2011) 18 NWLR (Pt. 1278) p. 328 at 341.

A party who seeks for a declaration of title to land may plead and lead evidence to establish his title to the land he claims by any of the following ways:
(a) by traditional historical evidence;
(b) by production of documents of title duly authenticated and executed;
(c) by acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner;
(d) by acts of long possession and enjoyment; and
(e) by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land could in addition be the owner of the land in dispute.
A party may plead and lead evidence in proof of his title to land in dispute through one or more of such modes of establishing title to land. However, a party claiming title to land need to plead and prove only one of the five ways of proving title mentioned above. In other words, proof of only one mode is enough to entitle a Plaintiff to the declaration of title. See AKOSILE v. ADEYEYE (2011) 17 NWLR (Pt. 1276) p. 263 at 280; AYANWALE v ODUSAMI (2011) 18 NWLR (Pt. 1278) p. 328; MOMOH v UMORU (2011) 15 NWLR (Pt. 1270) p.217; OLALEYE v. TRUSTEES OF E.C.W.A (2011) 2 NWLR (Pt. 1230) p.1; NWOKIDU v OKANU (2010) 3 NWLR (Pt. 1181) p. 362; DAKOLO v. REWANE-DAKOLO (2011) 16 NWLR (Pt. 1272) p. 22 AND ORLU v. GOGO – ABILE (2010) 8 NWLR (Pt. 1196) p.307.
It is necessary to point out at this junction that the trial of this case began at the Customary Court. The case was therefore not heard on pleadings. It is the testimony of the parties, and especially that of the plaintiff that will determine the mode of title relied on in this case. A careful consideration will show that the plaintiffs/Respondents relied mainly on traditional evidence. This is evident from the testimony of the 1st Respondent at page 5 of the record of appeal wherein he testified as the P.W.1. Where a Plaintiff predicates his claim for a declaration of title on traditional history, it would not be sufficient for him to merely plead or barely assert, as in the instant case where pleadings are not made, that he and his predecessors in title had owned and possessed the land in dispute from time immemorial. The question of original ownership of land to be determined through traditional historical evidence is therefore one of hard historical facts. Accordingly, necessary facts and materials to sustain the title based thereon must be clearly averred and proved. In other words, claim of title to land based on traditional history cannot be established or proved by bare assertions or sweeping statements of the claimant. See OLOKUNLADE v. SAMUEL (2011) 17 NWLR (Pt. 1276) p. 290. Thus, for a traditional history or evidence to sustain a claim for declaration of title to land, the Plaintiff must plead (where required) and adduce evidence which conclusively proves or establishes the following:
(a) the person who founded the land in dispute and exercised original acts of ownership therein;
(b) how the person came to found the land; and
(c) the particulars of the persons through whom the land devolved to the Plaintiff since it was first found.
See ALADE v AWO (1975) 4 S.C. p.215; LAWAL v OLUFOWOBI (1996) S.C.N.J. p.376 at 384; ALI v. SALIHU (2011) 1 NWLR (Pt. 1228) p.227; UKAEGBU v. NWOLOLO (supra) and NWOKOROBIA v. NWORGU (2009) 10 NWLR (Pt.1250) p. 553.
Before I proceed, I find it necessary to say that in a claim for declaration of title to land coupled with a claim for an injunction, the first duty of a claimant is to lead evidence to establish the identity of the land to which the claims relate. In other words, the first duty of a Plaintiff who seeks or claims a declaration of title to land is to establish before the Court by clear evidence the area to which the claim relates. The onus on a party to prove the identity of the land in dispute by oral evidence, as in this case, is discharged, if any surveyor armed with or acting on such description can produce a plan of the land in issue. The acid test of such oral description of the land is therefore, whether a surveyor taking the record can produce a plan showing with sufficient accuracy the land to which title has been given by the court based upon such oral description. See AKOSILE v ADEYEYE (2011) (Pt. 1276) p. 263 at 288; MOMOH v. UMORU (2011) 15 NWLR (Pt. 1270) p.217 at 279; UKAEGBU v NWOLOLO (supra) at 194 and JIYA v. AWUMI (2011) 4 NWLR (Pt. 1238) p.467. See also NWOKIDU v. OKANU (2010) 3 NWLR (Pt. 1181) p.362. Where the Plaintiff fails to prove the identity of the land or fails to satisfactorily describe the dimension and locality of the land in dispute, his claim may be dismissed.

It should be noted however, that the need to prove the identity of the land will arise in every case where the defendant joins issues with the Plaintiff on the question of the identity of the land in dispute. In that respect, the identity of the land would be in issue if, and only if, the defendant in his pleadings or in his oral evidence disputes either the area of the land or its location. See NWOKIDU v. OKANU (supra); AYUYA v. YONRIN (2011) 10 NWLR (Pt. 1254) p. 135; KANO v. MAI KAJI (2011) 7 NWLR (Pt. 1275) p. 139 AND OLOKUNLADE v. ADEMILAYO (2011) 15 NWLR (Pt.1269) p.72.
In the instant case, the Respondents who were claimants at the trial Customary Court stated in their claim that the land is called “Ala Uhu Irechukwu” and that it is situate at Umuoku Atta in Ikeduru Local Government Area. It should be noted that they stated at paragraphs 1 and 2 of their particulars of claim that the Plaintiffs and Defendants are natives and reside at Umuduruofor, Umuoku Atta in Ikeduru Local Government Area. It therefore means that the land in dispute is situate where both parties to the Suit reside. At the trial, the Respondents stated by the testimony of the 1st Respondent that the Appellants are their kinsmen. They went on to name their boundary neighbours to the land in dispute. It was also stated by the Respondents that they had disputed on the land before the Eze of Atta and at the Imo State High Court before this Suit was instituted. See page 6 of the record of appeal.
I have noticed that at page 7 of the record Learned Counsel sought to contradict the 1st Respondent with respect to the name of the land, given at the Imo State High Court and in the trial Court. Exhibit “B” was therefore admitted for the purposes of contradicting the witness on his evidence in respect of the name of the land in dispute. I am of the view that once the identity of the land has been established, the name it is referred to by the parties is of no moment. Furthermore once the parties are ad idem as to the identity of the land in dispute, the fact that the Plaintiff gives it different names or that the Defendant knows the land by a different name is of no relevance. In any case, Learned Counsel for the Appellants did not show to the court what effect the names given to the land has on the nature of the title or identity of the land in dispute. Thus, at the trial, the trial Customary Court found as follows at page 42 lines 18-20 of the record;
“Though the parties give (sic) different names to the land, the subject matter of this suit is clearly identified and not in doubt.”
On appeal to the court below, the court after reviewing the evidence on record held as follows:
It is clear from the records that right from the time of plea and the evidence of witnesses of both sides none claimed lack of knowledge of the land in dispute. PW4 testified as a boundary neighbour. It is the law that in land cases where the area in dispute is known to the parties, the areas claimed or the land in dispute cannot be described as uncertain. Vide Akinterinwa v. Oladunjoye (2000) FWLR (pt.10) page 1690 at 1694 (2) Ogho v. are (1998) 8 NWLR pages 493. Secondly issues were not joined on the identity of the land since parties know the exact land. Vide Ifer v Ikyanyon (200) and the case Oyetunju v. Akanmi (1986) 5 NWLR (Pt.42) p.1461.”
The above findings are concurrent findings of two lower courts. It is now settled law that an appellate court will not disturb or interfere with the findings of two courts below it, unless it can be shown that there has been a manifest error which has led to a miscarriage of justice, or a violation of some principle of law or procedure. Such errors may include, substantial error on the face of the records, or that the decision is not supported by the evidence or that the decision is reached at on application of wrong principles of law or procedure, or in respect of findings of fact which are perverse, unreasonable or unsound. See SHOBOJA v AMIDA (2009) 18 NWLR (pt. 1172) p. 188; AMADI v NWOSU (1992) NWLR (Pt.241) p.273; OGOALA v. STATE (1991) 2 NWLR (Pt. 175) p.509; ABIDOYE v. ALAWODE (2001) 6 NWLR (pt.709) p.463 and BIARIKO v. EDEH-OGUILE (2001) 12 NWLR (Pt.726) p. 235. Thus, where there is sufficient evidence on the record supporting such concurrent findings, this court will not disturb same.
I have carefully read the record of appeal in this case. I find that the findings of the two lower courts are amply supported by the evidence on the record. The Appellants and their witnesses who testified at the trial Customary Court did not raise any issue as to the identity of the land in dispute. Indeed, all the defence witnesses stated that they knew the identity of the land in dispute. The trial Customary Court found and the Court below rightly found, in my view, that the location and boundaries of the land had been acknowledged or admitted by the Appellants. Furthermore, I find from the record that the trial Customary Court embarked on a visit to the locus in quo. See pages 32 and 42 of the record. There is nothing on the record to show that there was any disagreement as to the identity of the land in dispute during the visit to the locus-in-quo. I therefore find and hold that, as the parties were present during the visit to the locus-in-quo, and as the record does not show that the certainty or identity of the land was disputed, no other proof of the identity of the land in dispute is required. There was also no need for confirmation of the boundaries of the land in dispute after the visit to the locus-in-quo. The identity of the land in dispute was therefore not in contest, and accordingly not in doubt, and therefore not in issue at the trial court. Thus arguing the issue of identity of the land in his brief of argument without credible evidence which challenged same, goes to no issue, because, submissions of counsel no matter how attractive or alluring can never be a substitute for legal evidence.
Now on the substantive issue. I had earlier stated what is required to be proved by a party who predicates his claim of declaration of title to land on traditional history. The Respondents had based their claim to the land in dispute by way of inheritance. The requirements of proof through inheritance had earlier on been stated. The evidence on record also show that the parties to this case both trace their title to one common ancestor called Duruofor. As stated earlier, the burden was on the Respondents who were claimants at the trial Customary Court to prove their case by cogent and concrete evidence. The appellants who did not counter-claim did not have to prove anything, but they also adduced evidence by way of traditional history to show that the Respondents were not entitled to the claim.
In the instant case, the Respondents who as Plaintiffs at the trial Customary Court, had the burden of proof traced their title to one Duruofor. The 1st Respondent as PW1 stated at page 5 lines 8-15 as follows:
“The original owner of this land is Ugwunwoke. Ugwunwoke shared the property of Duruofor with Duruanyanwu. Duruofor deforested this land. Ugwunwoke got this land. Ugwunwoke begot Oduagwu and Oduagwu begot Irechukwu and Maduforo Irechukwu begot Asiegbu, Raymond, Jonathan and Friday. Raymond and Friday are late. Nnorom got this land from Ugwunwoke from Nnorom the land got to Irechukwu, from Irechukwu to my brothers and I.”
Learned Counsel for the Appellants made an issue out of the introduction of Nnorom into the narration of devolution of the land to the Respondents which the Respondents made no effort to explain. It is his view that the introduction of Nnorom broke the chain of devolution and thereby creating a gap in the narration of how the land devolved to the Respondents. It is the contention of the Respondents that the mention of Nnorom has no bearing to the traditional history given by the 1st Respondent and that the gap could be due to loss of memory on the part of the 1st Respondent who was a very old man, which does not affect the root of title to the land.
After reading the judgment of the trial customary court as contained in pages 33-45 of the record of appeal, I am unable to see where the trial Customary Court tried to resolve the issue. Though the Appellants raised the issue in their brief of argument in the appeal they filed in the court below, no effort was made by the court below to resolve the issue. I think this court has the power to do what the two Courts below failed to do. It should be noted that, both parties are agreed that they have the same ancestral origin from Duruofor. That is one of the findings of fact made by the trial court, that is why both parties share a common name; Umuduruofor. It was also found by the trial Customary Court that both parties share a common heritage and a common inheritance. That being so, the fact of the Respondents’ root of title being traceable to Duruofor was no longer in contention. In that regard, I am of the view that the introduction of the name of Nnorom by the Respondents should not operate to defeat the root of title of the Respondents. That is moreso, when the name of Nnorom came in after the 1st Respondent who was an old man at that time had traced the root of title from Duruofor to themselves. In any case, the two lower Courts believed the testimony of the Respondents in respect of their root of title. I agree with the Respondents that the introduction of the name of Nnorom is no substantial reason to disregard the findings of the two lower Courts.
Learned Counsel for the Appellants also relied heavily on Exhibit B (record of proceedings of the Imo State High Court, Iho) wherein the 1st Respondent had earlier testified. He based his argument thereon to submit that the testimony of the 1st Respondent therein on the traditional history of their title to the land contradicts that before the trial Customary Court. It should be noted that, the statement of a witness given in a previous judicial proceeding is only relevant for the purpose of cross-examining that witness pursuant to Section 232 of the Evidence Act, 2011. Apart from that, evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is admissible for purpose of proving in a subsequent judicial proceeding, or in a later stage of the same proceedings, the truth of the facts which it states when the witness cannot be called for any of the reasons specified in Section 39 of the Evidence Act, 2011, or is kept out of the way by the adverse party. The circumstances stipulated under Section 39 of the Evidence Act, 2011 are:
(a) Where the Person is dead;
(b) He cannot be found;
(c) He has became incapable of giving evidence; or
(d) His attendance cannot be procured without an amount of delay or expense, which under the circumstances of the case appears to the court unreasonable.
Thus Sections 39 and 46 of the Evidence Act, 2011 are provided to enable a party and the trial court make use of evidence of previous proceedings as if same were testimony given on oath before it. Such evidence is only relevant and admissible before the Court if the maker of such statement is either dead, cannot testify or is incapable of testifying for one reason or the other; such as old age, ill-health etc; or cannot be produced without an amount of delay or expense which in the circumstances of the case, the court considers to be unreasonable. Thus, where the witness is available and in the witness box, as in the instant case, the previous statement is useful only for the purpose of contradicting him while still in the witness box. The usefulness of such statement is therefore to check the witness from giving a double version of the same fact in a trial court. See ARIKU v AJIWOGBO (1962) ALL NLR p.623
In the instant case, none of the circumstances prescribed under Sections 39 and 46 of the Evidence Act 2011 apply in the case of the 1st Respondent who testified as the P.W1 at the trial Customary Court. If any, his statements in Exhibit B, could only be used for the purpose of contradicting him. A careful reading of the questions put to the 1st Respondent during cross-examination would show that the questions put to him did not tend to contradict the 1st Respondent on the evidence given by him on the root of title to the land in dispute. In any case, it would be seen at page 7 para 2 of the record of appeal that, Exhibit B was admitted in evidence for the purpose of contradicting him on his evidence in respect of the name of the land in dispute. In other words, it was not admitted for the purpose of contradicting his testimony before the trial court on the traditional history of their claim to title to the land in dispute.
It is the law that a document admitted for a particular purpose should not be used for any other purpose. Thus the Supreme Court held per KALGO; JSC in the case of ISHOLA v. U.B.N LTD (2005) 6 NWLR (P.922) p. 422 at 439 as follows:
“The Court can only use a document properly admitted before it for the purpose for which it was admitted. It is not open to the Court to use the document other than for the purpose not intended by the parties as pleaded, unless the attention of the court is drawn by any of the parties before it to do so. And even in such a case, the Court must invite all the parties before it to address it on the point before making a decision on it.”
See also NGWU v. NNAJI (1991) 5 NWLR (Pt. 189) p.18 and NTEOGWUILE v. OTUO (2001) 16 NWLR (Pt 738) p. 58. In the instant case Exhibit B was admitted solely to contradict the 1st Respondent (P.W.1) on the question of the name of the land in issue. In any case, the trial Customary Court accepted the traditional history of the Respondents’ title to the land in dispute. The court below affirmed the position of the trial Customary Court and saw no reason to disturb the appraisal of the evidence given in the Court below it.
It is true that the Appellants put up a claim to the land in dispute inconsistent with that of the Respondents. They also relied on traditional history.
The law is that where parties to a dispute over title to land rely on traditional histories to prove their cases, the proper course to follow is to test the traditional history of both parties by reference to the facts in recent years as established by other evidence before the Court, so as to resolve which of the two competing histories is more probable.

The primary duty of the Court where both parties rely on traditional history is to determine the preferred version having regards to the evidence presented in proof of same, the court being faced with the oath of the parties against each other.
This principle as laid down in KODJO II V BONSIE (1957) 1 WLR p. 1223 is usually invoked where the trial court is in dilemma or difficulty as to which of the parties’ traditional history to accept. In such a case, a court confronted by such difficulty must advert to and consider other evidence of acts of recent possession available on the evidence before it so as to resolve the conflict. But it is only where there is conflict in traditional history that the approach recommended in KODJO II v. BONSIE (supra) will apply. See MOMOH v. UMORU (2011) 15 NWLR (Pt. 1270) p.217; EYO v. ONUOHA (supra) at pp. 46-47; WACHUKWU v. OWUNWANNE (2011) 14 NWLR (pt. 1266) p.1; DAKOLO v. REWANE DAKOLO (supra) and ONWUBUARIRI v. IGBOASOIYI (2011) 3 NWLR (pt.1234) p.357.
Though it is not clearly stated in the judgment of the trial Customary Court, I think that is the method the trial court applied in resolving the conflicting traditional histories of the parties to this case. The trial Court had held at page 42 lines 12 – 18 of the record as follows:
“The plaintiffs traced their inheritance of the land in dispute from Duruofor to Ugwunwoke to Oduagwu to Irechukwu to Asiegbu.
The Defendant equally claims that Duruofor deforested the land, and he was the original owner. He called the land in dispute Ala-Lai-Obi-Emejiko while the Plaintiff call the land Ala-Uhu-Irechukwu.”
The trial Court also found at page 43 paras. 3 and 5 of the record of appeal that the Plaintiffs have been living on the land in dispute for many years. The Court also found from the testimony of the P.W.3 and DW4 that the Respondents’ father died and was buried on the land in dispute, and that the DW4 (1st Appellant) when asked stated that he would not be surprised to hear that the Plaintiffs are living on the land in dispute. That the 2nd Appellant admitted that the Respondents had been living on the land in dispute on their present location before she got married into the family of Njoku. The trial Court then found at page 44 of the records as follows:
“4. The Honourable Court accepted as its findings that where plaintiffs are currently living is part of their own inheritance from their father to their grandfather traceable to common ancestor Duruofor.
5. It is evident that the Plaintiff have been occupying present residence since time of their father Irechukwu, built permanent structure or houses thereon and buried their deceased relations there.”
The Court below in its findings at page 163 of the record agreed with the findings of the trial customary court, and made further findings of events in recent times which made it more probable that the Respondents had established title to the land in dispute. Here again, those findings are concurrent findings of two lower Courts. The Appellants were unable to show that those findings were erroneous or perverse. Indeed they are supported by the evidence on record. I do not see any reason why those findings should be disturbed. I therefore hold that, apart from tracing by ample evidence their root of title to Duruofor, the common ancestor of the Appellants and the Respondents, the facts as established by evidence from the parties show that the version of the traditional history given by the Respondents is more probable.
Indeed, it was established by the testimony of the PW1 that Irechukwu the father of the Respondents pledged the land to one Metu the father of the P.W.2. The PW2 confirmed in his testimony that Raymond the deceased brother of the Respondents redeemed that pledge from Eziukwu Metu the elder brother of the PW2. The PW4 one Raymond Njoku is from the kindred of the Appellants. He denied that his grandfather held the land in trust for the Appellants when they were away in Ghana but stated under cross-examination that the Respondents were harvesting the crops on the land, farming and cutting Iroko trees on the land. The DW2 who claimed to have the same grandfather with the Respondents, but said he did not know Ugwunwoke who the evidence show is the grandfather of the Respondents. 2nd Appellant who testified as the DW3 stated that the Respondents had been living on the land in dispute before her marriage into the Njoku family. The 1st Respondent who testified as the DW4 stated that nobody now lives on the land which he called Ala-Isi-Obi, but that his father built a house on the said land before he left for Ghana. He however admitted that none of his brothers lives on the land. He did not say that he lives on the land either, but admitted that the Respondents have been living on the part of the land he called Uhu-Njoku since the time of his forefathers. The trial Customary Court observed at the last paragraph of page 41 that, during the visit to the locus in quo, it was observed that it was the Respondents who were living on the land with modern concrete houses which is indication of long existence on the land. That the grave of Raymond Irechukwu, the Respondents’ brother was seen on the land. All those facts enumerated above support the findings of the trial Customary Court which the Court below affirmed. Accordingly, I resolve issue one (1) also against the Appellants.
Having resolved the two issues formulated for determination against the Appellants, this appeal therefore has no merit. It fails and is accordingly dismissed. The judgment of the Customary Court of Appeal of Imo State delivered on the 5th day of June, 2008 in Appeal No CCA/OW/A/42/2006 is hereby affirmed.
I award fifty thousand Naira (N50,000.00) cost against the Appellants in favour of the Respondents.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

TIJJANI ABUBAKAR, J.C.A.: My learned brother, H. S. Tsammani, JCA, gave me the privilege of reading before now, the judgment just delivered by him.
I agree with his reasoning and conclusion. I have nothing else to add. I also abide by the consequential orders made therein.

Appearances

C.K. Uba; Esq. (holds the brief of E.F. Njemanze; Esq.)For Appellant

AND

W.C. Osuigwe (Mrs.)For Respondent