MUGHUTOPH & ORS v. IKOGHA & ORS (2022)

MUGHUTOPH & ORS v. IKOGHA & ORS

(2022)LCN/17146(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Tuesday, March 15, 2022

CA/PH/332/2017

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

1. CHIEF OYAGIRI MUGHUTOPH 2. CHIEF IGHOR ALALI 3. MR. MARK DAKA 4. MR. WARIBOKO AKPO 5. MR. IKIIBO OKURU 6. MR. ORUYE ULAKU (For Themselves And As Representing The Four Families Comprising Egunughan Village/ Community) APPELANT(S)

And

1. CHIEF GEOFFREY B. MANAGER IKOGHA 2. CHIEF OBEDIA IKANI 3. GLADSTONE AMAKIRI (For Themselves And As Representing The Egbo-Ama-Ogbogolo) 4. CHIEF MACLEAN EZEKIEL 5. MR. ISAAC GINA (For Themselves And As Representing Kala-Ogbogolo) 6. CHIEF FELIX AMABIBI 7. CHIEF WILFRED OYEAMOGHAN AMINI (For Themselves And As Representing The Opu-Ogbogolo) RESPONDENT(S)

RATIO

WHETHER OR NOT A PARTY CAN DEFEND A SUIT IN WHICH HE IS A PARTY IN A DIFFERENT CAPACITY FROM THAT WHICH HE IS SUED

The law allows a party to defend a suit in which he is a party in a different capacity from that in which he is sued. The Court, even where the title of the suit is not amended, is at liberty, going by evidence before it, to enter judgment in such a suit in appropriate capacities, which evidence disclose. The lower Court did not do anything wrong in the circumstances of suit no. AHC/44/1984, when it entered judgment, appropriately, noting the respondents’ capacity as representatives of the Ogbogolo community. It is settled that once pleadings and evidence show conclusively a representative capacity and the trial was conducted throughout in that capacity, a trial Court can justifiably give judgment against either parties in that capacity even where amendment had not been applied for and obtained to reflect such capacity. See Afolabi v Adekunle [1983] 2 SCNLR 141; Jack v Whyte [2001] 6 NWLR (Pt 709) 266; and Jinadu v Esurombi-Aro [2005] 14 NWLR (Pt 944) 142 at 205.

THE POSITION OF LAW IS THAT HE WHO ASSERTS MUST PROVE

The law is trite that he who asserts must prove. See Section 131 of the Evidence Act and the case of AMADI V. ORJI [2016] 9 NWLR (Part 1516) 154.
It is thus the duty of the Defendants to establish the customary tenancy.
In the case of DASHI V. SATLONG [2009] 1-2 SC (Part II) the Supreme Court held that “Customary Tenancy involves the transfer of an interest in land from the Customary Landlord or Overlord to the Customary Tenant to exclusive possession of the land and which interest subject to good behavior, he holds in perpetuity. Unless it is otherwise excluded the main features of a customary tenancy is the payment of tribute by the customary tenant to the Overlord. And the status of his exclusive possession is such that it is enforceable against the world at large including even the customary land lord or those claiming through him”.
Again in the case of DIM V. ENEMUO [2009] 10 NWLR (Part 1149) 353 the Supreme Court held further that a Claimant alleging Customary tenancy must plead and prove the incidences of Customary tenancy.
Throughout the length and breadth of the said Amended Statement of Claim in AHC/44/84 there is no pleading on the incidences of Customary tenancy. I have also looked at the further Amended Statement of Defence in AHC/25/83 and find no such pleading.
It is clear that the Defendants have not established customary tenancy.” (Bold font for emphasis). PER ADEGBEHINGBE, J.C.A.

THE POSITION OF LAW ON PLEADING AND PROOF OF CUSTOMARY TENANCY

The position of the law on pleading and proof of customary tenancy cannot be better put, as was done by the lower Court. The main incident of customary tenancy is that the customary tenant pays tribute to the overlord and he enjoys his holding in perpetuity subject to good behaviour. Although, payment of tribute is a recognized condition of customary tenancy, it is not always so and for all times. This is because, there are situations where tribute is not paid to the overlord and yet customary tenancy exists. For instance, where the tenant unequivocally recognises the position of the overlordship of the landlord, a customary tenancy exists whether tribute is paid or not. This is because, payment of tribute could be overlooked by the landlord because of kindness and charity. There are also instances where the landlord asks the tenant to stop payment of tribute because of very long association and the good behaviour of the tenant. See the cases of Kano v. Maikaji (2011) 17 NWLR (Pt. 1275) 139; Bassey v. Bassey (2009) 12 NWLR (Pt. 1156) 617 and Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60. However, these facts must be pleaded and proved with cogent and admissible evidence, to establish customary tenancy. In the case of Akinbade v. Babatunde (2018) 7 NWLR (Pt. 1618) 366 at 395-397, which presumably mirrors the circumstances of this appeal, the Supreme Court stated thus:
“In the instant case, the appellants had alleged that the respondents are their customary tenants for which the trial Court upheld. But the Court below looked at the evidence led at the trial Court but could not find any iota of evidence to support that assertion. There was no evidence of payment of tribute to the appellants as overlords, which is the main incident of customary tenancy. Indeed, customary tenancy involves the transfer of an interest in land from the customary landlord or overlord to the customary tenant and which interest entitles the customary tenant to exclusive possession of the land and which interest, subject to good behavior, he holds in perpetuity. See Damulak Dashi & Ors v. Stephen Satlong & Anor (2009) LPELR-929 (SC) (2009) 5 NWLR (Pt. 1134) 281. PER ADEGBEHINGBE, J.C.A.

WAYS OF PROVING TITLE OF OWNERSHIP TO LAND

The five ways by which title to land may be proved are as follows:
a. by traditional evidence;
b. by production of documents of title;
c. by acts of a person or persons claiming the land such as selling, leasing, renting out or farming on it;
d. by acts of long possession and enjoyment of the land; and
e. by proof of possession of connected or adjacent land.
See Piaro v. Tenalo [1976] 12 SC 31 and Idundun v. Okumagba [1976] 9-10 SC 277. PER ADEGBEHINGBE, J.C.A.

THE POSITION OF LAW WHERE EVIDENCE OF TRADITION IS RELIED ON IN PROOF OF DECLARATION OF TITLE TO LAND

Where evidence of tradition is relied on in proof of declaration of title to land, it is well settled that the plaintiff, to succeed, is bound to plead and establish facts such as:-
(i) Who founded the land;
(ii) How he founded the land and
(iii) The particulars of the intervening owners through whom he claims.
See Akinloye v. Eyiyiola [1968] NMLR 92; Piaro v. Tenalo & Anor [1976] 12 SC 31 at 41; Olujinle v. Adeagbo [1988] 2 NWLR (Pt. 75) 238; Adejumo v. Ayantegbe [1989] 3 NWLR (Pt. 110) 417; and Anyanwu v. Mbara [1992] 5 NWLR (Pt. 242) 386 at 399.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): This judgment concerns one of two appeals. The two appeals arose from two suits. The two suits were heard together and determined together. Justice E. N. Thompson signed the judgment, which emanated from the Isiokpo Judicial Division of the High Court of Rivers State. The judgment on appeal is dated 27/07/2016 and lies at pages 435-462 of the record of appeal transmitted in appeal number CA/PH/332/2017, though its content is same with those in appeal no. CA/PH/483/2016, which grew out of suit no. AHC/25/1984. Those are the numbers of the two appeals before us. The two appeals were heard together.

Background Facts
Since there is no complaint about inaccuracy of what was stated by the lower Court at pages 436-441 of the record of appeal, I will rely on the background facts narrated by the lower Court, as follows:
“The Claimants in the consolidated instituted Suit No AHC/25/83 on 25th April, 1983 with the following reliefs:
“i. N20,000 being special and general damages for trespass.
ii. Perpetual injunction to restrain the Defendants, their agents from committing further acts of trespass in the said land.”
The Claimants filed their Statement of Claim which was amended. The last amendment was the Further Amended Statement of Claim filed on the 27th February 2008 which had the following reliefs:
“i. A declaration that the Claimants are entitled to the customary right of occupancy in respect of the land in dispute situate at Ogbogolo Community and verged pink in plan No. BOE/R2/84-LD.
ii. N5,000,000.00 (Five Million Naira) general damages.
iii. Order of perpetual injunction restraining the Defendants, their privies, agents (sic) from continuing further acts of trespass on the land in dispute and in whatever manner tampering with the land in dispute.”
The Defendants filed a defence which was also amended. The last amendment was the Further Amended Statement of Defence filed on the 15th August 2013. The Defendants also filed a cross action on 9th April 1984 in Suit No. AHC/44/84. The Defendants as Claimants in the cross action claimed the following reliefs:
“a. A declaration that the Claimants are by Abua Customary Law entitled to the right of Occupancy over the piece or parcel of land known and called Edum-Ogboko land situate at Egunughan village along the bank of Orashi river, covered by survey plan No. ICO/RV/2013/002LD dated the 15/6/2013 by Nze (Surveyor) Ifeanyi Okoye, licensed surveyor and is filed with this amended statement of claim.
b. A claim for forfeiture of the customary tenancy held by the Defendants over the said land.
c. A Perpetual Injunction restraining the Defendants, their servants, privies and agents from further acts of trespass upon the said land.”
The Claimants as Defendants in AHC/44/84 filed a Statement of Defence, the last of which is the further Amended State of Defence filed on the 30th May, 2008. This consolidated suit was thus fought on the following pleadings:
(i) Further Amended Statement of Claim in AHC/25/83 dated the 22nd day of February, 2008 and filed on the 27th February 2008.
(ii) Further Amended Statement of Defence in AHC/25/83 dated the 14th day of August 2013 and filed on 15th August 2013.
(iii) Amended Statement of Claim in AHC/44/84 dated 14th August 2013 and filed on the 15th August 2013.
(iv) Amended Statement of Defence in AHC/44/84 dated 26th May 2008 and filed on the 30th May 2008.
The case suffered a series of adjournments and de novos. Trial before me began on the 23rd October 2008. The Claimants called 5 witnesses namely (i) Dr. Epegu Marabai David, (ii) Ayipia Mark, (iii) Badume Omasikwem Ejekwu (iv) Friday Ernest and (v) Geoffrey Benjamin Manager Ikogha as CW 1-CW 5 respectively.
On their part, the Defendants called 4 witnesses namely: (i) Peter Ekparam (ii) David Oleh (iii) Sunday Akio and (iv) Nze Ifeanyi Christopher Okoye as DW 1-DW 4 respectively.
The case of the Claimants briefly put is that the Claimants’ Ogbogolo community owns the Edum-Ogboko land of which the land in dispute is part of. The said Ogbogolo community according to the Claimants is comprised of Egboama-Ogbogolo, Kala-Ogbogolo, and Opu-Ogbogolo.
According to them, the Edum-Ogboko land which as stated includes the land in dispute was inherited from their great ancestor Ogbogolo who was the first settler on the land with his children and cleared it as a virgin forest. Ogbogolo and his children lived at Opu-Ogbogolo while using the other parts of Edum-Ogboko for farming purposes.
According to the Claimants, Ogbogolo in his lifetime had two sons and a daughter namely: Amakwo, Eganibo and Akpekpe. Amakwo begat Kurukuru and Okwazi, Eganibo begat Egbo, and Akpekpe who was not given out in marriage by her father begat Elebiko, Oyo Gbilofori and Ogi.
On the death of Ogbogolo the Claimants say Amakoro and his descendants remained at Opu-Ogbogolo, Akpekpe moved to Kala-Ogbogolo, while Eganibo moved to the northern part of Edum-Ogboko land called Oduler Ori but on the death of Eganibo his son Egbo moved south wards to Egboama.
The Claimants say they have been exercising acts of ownership on the entire land by farming, fishing and letting out to tenants. The Claimants further state that in 1964 Shell Petroleum Development Company Limited entered part of the Edumogboko land and paid compensations, commissions and rents to the Claimants.
It is their case further that they have fought several legal battles over the Edumogboko land. Finally the Claimants say that in January 1983 the Defendants forcefully entered the land in dispute destroying economic crops, felling economic trees and contaminating the ponds and lakes hence the filing of the suit No. AHC/25/83.
The case of the Defendants again briefly put is that Egunughan their ancestor founded the Edum-Ogboko land, cleared the said virgin forest and established farm, fish ponds, raffia palm plantations on the said land in dispute. It is their case also that Egunughan cleared a large portion of land at the Eastern side of the Orashi River opposite the land in dispute where he established his dwelling place.
According to the Defendants on the death of Egunughan the lands passed to his descendant Aburen from Aburen to Ottor, from Ottor to Onye Emughan who was succeeded by Ekwe and then Nwubi. Still according to the Defendants Oku inherited the land from Nwubi, on Oku’s death he was succeeded by Akio who himself was succeeded by Mughutoph who in turn was succeeded by original Defendant and then Akio the current 1st Defendant.
The Defendants also claim that during the time of Nwubi, two immigrants from Kasi-Karma in Ogbia, – Egbo and his sister Apkpekpe came to Egunughan to see a native doctor because of the ill health of Akpekpe. Nwubi then gave them a part of Egboama to settle. When Akpekpe became well she befriended a member of Egunughan community who was living in a fishing hut nearby. Akpekpe they claim moved in with the man named Ekpekele and later on she brought her relations to the place with the approval of Nwubi. So the defendants say the two settlements became known as Ottor-Egbo and Ottor-Kpekpe which are now known as Egboama and Kala-Ogbogolo.
It is the case of the Defendants further that Kurukuru also migrated from Ogbia and was given a settlement by the Uwema of Obrary at Opu-Ogbogolo.
The Defendants finally state that they have been farming, fishing and doing several acts of ownership until the Claimants began disturbing them culminating in the filing of Suit No. AHC/25/83 and the Defendants then filed their cross action in AHC/44/84. At the close of trial Counsel filed written addresses in accordance with the rules.”

Judgment of the lower Court
At pages 461-462 of the record of appeal, the lower Court concluded its judgment, thus:
“I find that the Defendants have trespassed on the land in dispute. There is no reason to consider issue two.
In the circumstances of these cases I find that the Claimants in AHC/25/83 have established their case and the Claimants in AHC/44/84 have failed in their case.
Accordingly, I enter Judgment for the Claimants in AHC/25/83 and make the following Orders:
i. It is hereby declared that the Claimants are entitled to the Customary right of Occupancy in respect of the land in dispute situate at Ogbogolo Community and verged pink in survey Plan No. BOE/R2/84-LD.
ii. N500,000.00 damages is hereby awarded to the Claimants for the trespass committed by the Defendants.
iii. The Defendants are personally restrained by themselves, their privies and agents from further acts of trespass on the land in dispute and in whatever manner.
iv. N200,000.00 costs to the Claimants.
Having found that the case in AHC/44/84 is lacking in merit it is hereby dismissed in its entirety.
N100,000.00 costs to the Defendants.”

Notices of Appeal and Issues for Determination
In the words, quoted above, the lower Court entered judgment for the respondents in this appeal and against the appellants. Aggrieved, the appellants filed their notice of appeal. Arising from suit no. AHC/44/1984 is appeal number CA/PH/332/2017 (this appeal), which was filed on 27/09/2016 and whose notice of appeal is at pages 485-505 of the record of appeal, containing a rather unwieldy 28 grounds of appeal.

Appellants’ brief of argument was filed on 12/10/2018, but deemed properly filed and served on 17/03/2020, settled by Ochuko V. Saduwa Esq. The issues submitted for determination of the appeal by learned appellant’s counsel are:
“1) From the facts of the consolidated matters particularly Suit No: AHC/44/1984, now subject of this appeal, was the learned trial Judge right in law when he held that the Respondents have capacity to maintain and defend the action in the capacity they did at the Court below in the absence of any community called Ogbogolo and when there is no evidence of common interest as opposed to the three villages of Egboama, Kala-Ogbogolo and Opu Ogbogolo being distinct and separate? [Grounds 6, 8 and 13 of the Notice of Appeal].
2) Did the learned trial Judge give the right interpretation as regards the documents tendered by the Respondents and also the capacities in which the previous suits tendered by Respondents were instituted vice-visa the capacity in which the present suit by Respondents was defended? Further, whether the said suits have any bearing with the present suits including their legal effect on Appellants who were not parties to same? [Grounds 16, 19 and 20 of the Notice of Appeal].
3) Was the learned trial Judge right in refusing to make a pronouncement and/or decision with respect to the traditional histories of the parties before resorting to the rule in Kojo v Bonsie [1957] 1 WLR 1223 by which a trial Judge can give resort to acts of possession in determining a claim for declaration of title to land? [Grounds 2, 3].
4) From the totality of the evidence led by the parties with respect to their traditional root of title, who between Respondents and Appellants proved by their pleadings and evidence led in support better root of title? [Grounds 1, 11 of the Notice of Appeal].
5) Did the learned trial Judge properly evaluate the evidence of the parties on the imaginary scale of justice before coming to the conclusion that the Respondents proved their root of title having regard to the following areas viz, the survey plans of the parties, the pronouncement of the learned trial Judge on Emesu Community being the owners of the disputed land, the Appellants’ proof of incidences of customary tenancy amongst others in the course of resolving the dispute? [Grounds 4, 5, 7, 9, 10, 12 14, 15, 17, 18, 21, 22, 23, 24, 25, 26 and 27].

The respondents’ brief of argument, which was filed on 06/07/2020, but deemed properly filed and served on 28/06/2021, was settled by Chris O. Enweozor Esq. Learned counsel distilled the following issues for the determination of the appeal:
1. Whether in the light of the pleadings, evidence adduced and exhibits tendered in this case, whether the respondents’ case in suit no. AHC/25/83 was properly constituted as a representative action on behalf of Ogbogolo community and whether suit no. AHC/44/84 was properly defended by the respondents in that same capacity. (Ground 13).
2. Whether the respondents proved their communal ownership of Edumogboko land which includes the land in dispute as against the contention of the appellant that the three Ogbogolo villages are distinct and do not have common interest on the land in dispute (Grounds 6 and 8).
3. Whether on the facts and evidence led in this case, the learned trial Judge was right in holding that the respondents as claimants in the consolidated suits proved their case and consequently dismissed the cross action of the appellants in AHC/44/84.
4. Whether the learned trial Judge properly evaluated the evidence of the parties in coming to the conclusions and decisions reached in the judgment. (Grounds 4, 5, 10, 12, 25, 26 and 27).

Appellants’ Argument of the Appeal
With respect to the first and second issues, which were argued together, appellants’ counsel submitted that the respondents, who were claimants before the lower Court, failed to prove the representative capacity in which they brought their suit and failed to establish that the Ogbogolo community is in existence. He accused the respondents of lacking commonality of interest. As between the respondents, who he claimed actually represent three separate villages, instead of the one unit of community, which the respondents claimed to be representing in their suit. He submitted that the suit before the lower Court was not properly constituted. Learned counsel complained that the respondents failed to prove that the land in dispute is communal land, which is a topic the lower Court failed to comment in respect of. Learned counsel later complained that the lower Court held that the land in dispute is communal land. He is of the opinion that the lower Court did not evaluate evidence on the issues highlighted. He pointed out that the traditional history of root of title presented by the appellants was solid and that it was Nwubi who gave land to Egbo (and his sister Akpekpe), who founded Egboama, as there is nobody known as Ogbogoro. He is of the view that the respondents did not prove their title, as they are customary tenants to the appellants, who pleaded incidences of customary tenancy.

On the third, fourth and fifth issues, which were argued together, learned counsel submitted that the lower Court was wrong to have, without evaluating evidence and placing evidence on the imaginary scale, proceeded to adopting the rule in Kojo II v. Bonsie, which is applicable where traditional history conflict. He insisted that the appellants led uncontradicted evidence, as their progenitor Egunughan, was the first person to first settle on the land in dispute and was succeeded thereon by his descendants. The possession of the appellants was not controverted by the respondents. He is of the view that the lower Court ignored credible evidence before it and its judgment is perverse.

Respondents’ Argument of the Appeal
On the part of the respondents, respondents’ counsel submitted that the judgment of the lower Court is not perverse. He submitted that the witnesses of the appellants (DW 1 and DW 3) testified in support of the case of the respondents and that the respondents failed to prove their claim to title. The Court was advised that the representative capacity of the respondents was established and that it is not in the place of the respondents to complain. The three villages constituting the Ogbogolo community are within the land in dispute, which the appellants do not own.

He submitted that the traditional evidence led by the respondents was consistent and unchallenged, as Ogbogolo was the first to settle on the land and succeeded thereon by his descendants. It was pointed out that the evidence of CW 5, a descendant of Ogbogolo was unshaken at the trial. While appellants gave conflicting traditional evidence, learned counsel submitted that the lower Court adopted the correct approach when it embarked on the approach set in the case of Kojo II v. Bonsie, to resolve the dispute between the parties.

He pointed out that since the appellants alleged customary tenancy, it was their duty to prove it, which they failed to do. He insisted that Egunughan was not the original owner of the land in dispute.

Appellants’ Reply Brief of Argument
The appellants’ reply brief did not raise or respond to any issue which was not captured in the main brief. It was an exercise in edification of what had already been argued.

Determination of the Appeal
In the case of Husseni v. Mohammed (2015) 3 NWLR (Pt. 1445) 100 at 124-125, the Supreme Court instructed that an issue for determination in an appeal is a question of law or fact or both arising from the ground of appeal, which when resolved one way or the other will affect the result of the appeal. An appeal is decided upon the issue formulated for determination from the grounds of appeal. When an issue is formulated, the grounds of appeal on which the issue is based is extinguished and replaced by the issue.
Also, in the case of PDP v. Umeh (2017) 12 NWLR (Pt. 1579) 272 at 294, the Supreme Court stated that an issue for determination is raised from grounds of appeal and is usually a proposition of law or of fact in dispute between the parties which is necessary for determination, and the determination of which would affect the result of the appeal.

Going by the pleadings, evidence led at the trial and the judgment of the lower Court, it is my view that the parties in this appeal, unfortunately, failed to appreciate the implications of the pleadings laid before the lower Court and the judgment of the lower Court. As it will be shown hereafter, the issues raised by both parties and quoted above, are somewhat distant, regrettably, from the issues arising from the judgment of the lower Court and grounds of appeal filed by the appellants. The first issue from the appellants will be considered because it complains about the constitution of the suit before the lower Court, which may impact on the competence of the suit or jurisdiction of the lower Court. Apart from the first issue in the appellant’s list, it is only the fifth issue raised by the appellants, which comes a little close to being a real issue for determination. Therefore, I have rephrased the fifth issue for clarity and precision to read, thus:

This appeal will be, effectively and completely determined based on the two issues identified by this Court, as follows:
1. From the facts of the consolidated matters, was the action of the Respondents properly constituted in the absence of any community called Ogbogolo and when there is no evidence of common interest as opposed to the three villages of Egboama, Kala-Ogbogolo and Opu Ogbogolo being distinct and separate? [Grounds 6, 8 and 13 of the Notice of Appeal].
2. Whether the appellants proved that the respondents are tenants to the appellants on the land in dispute. [Grounds 4, 5, 7, 9, 10, 12 14, 15, 17, 18, 21, 22, 23, 24, 25, 26, 27 and 28].

Hearing of the Appeal
This appeal was argued on 20/01/2022. A. Akpomuje (SAN) (with O. V. Saduwa Esq.) appeared for the appellants in the two consolidated appeals. Learned counsel reminded the Court that the appeals were consolidated, by order of Court, on 07/02/2018. He adopted the appellants’ brief of argument filed on 12/10/2018, which was deemed properly filed and served on 17/03/2020 and the reply brief of argument, filed on 09/07/2021, as argument of this appeal. He urged the Court to allow the appeal.

Chris O. Ekweozor Esq. (with A. I. Odo Esq.) appeared for the respondents in the two consolidated appeals. He adopted respondents’ brief of argument filed on 06/07/2020, but deemed properly filed and served on 28/06/2021, as argument of opposition to this appeal. He urged the Court to dismiss the appeal.

Resolution of the First Issue
The first issue asks:
From the facts of the consolidated matters particularly Suit No: AHC/44/1984, now subject of this appeal, was the learned trial Judge right in law when he held that the respondents have capacity to maintain and defend the action in the capacity they did at the Court below in the absence of any community called Ogbogolo and when there is no evidence of common interest as opposed to the three villages of Egboama, Kala-Ogbogolo and Opu Ogbogolo being distinct and separate? [Grounds 6, 8 and 13 of the Notice of Appeal].
The appellants argued this appeal, especially the first issue, oblivious of the fact that the suit which birthed this appeal (AHC/44/1984) was initiated by them and is distinct from suit no. AHC/25/1983, which the respondents filed and with which we are not directly concerned.

Thus, while it is a fact that the appellants filed their suit, describing the respondents as representing three diverse villages, the respondents defended the suit as representatives of the single unit of Ogbogolo community, which they claimed their three villages form components of. The lower Court, based on the manner the respondents defended the suit gave judgment to them in the capacity in which they defended the suit. Unwittingly, the appellants’ counsel provided answer to his complaint in paragraph 3.1.8 of the appellants’ brief, where learned counsel for the appellants confessed thus:
“3.1.8 The Respondents also had the opportunity to defend the action of the Appellants [Suit No: AHC/44/84] subject to of this appeal in the capacities in which each of the villages were sued yet they did not also address the issue but defended the case in the capacity of Ogbogolo Community which is not the capacity in which they were sued.”

The law allows a party to defend a suit in which he is a party in a different capacity from that in which he is sued. The Court, even where the title of the suit is not amended, is at liberty, going by evidence before it, to enter judgment in such a suit in appropriate capacities, which evidence disclose. The lower Court did not do anything wrong in the circumstances of suit no. AHC/44/1984, when it entered judgment, appropriately, noting the respondents’ capacity as representatives of the Ogbogolo community. It is settled that once pleadings and evidence show conclusively a representative capacity and the trial was conducted throughout in that capacity, a trial Court can justifiably give judgment against either parties in that capacity even where amendment had not been applied for and obtained to reflect such capacity. See Afolabi v Adekunle [1983] 2 SCNLR 141; Jack v Whyte [2001] 6 NWLR (Pt 709) 266; and Jinadu v Esurombi-Aro [2005] 14 NWLR (Pt 944) 142 at 205.

On this point of representative capacity, the Court in the case of Mba Nta & Ors. v. Ede Nweke Anigbo & Anor. (1972) 5 S.C.156 at 174-175 (Coker, JSC., delivering the judgment) said:
“This clearly means that at all times the matter rests with the Court with respect to the ambit of the order which it proposes to make. It is absolutely impossible to sue every man, woman and child of a large community and where it is intended to institute legal proceedings against them, it is impossible to do otherwise than to name some of them as defendants to the action. If those named care to do so, they may ask for a representation order. If they do not, the Court is entitled to give judgment according to the evidence and nature of the case. If there are parties aggrieved as being caught within the case when they were not by name made parties thereto, they have a right of appeal under our constitution; and we think it is right to argue that it is not open to a defendant named on a writ to complain as is being done in this case that other persons apart from himself have been included in the scope of the judgment”.

The time and resources of the appellants would have been better utilized, regarding their appeal against the judgment in AHC/44/1984, if they dwelt more on how their appeal could succeed instead of the capacity in which the respondents defended the suit. The capacity of a defendant defending a suit, where he is accused of trespass, may not be germane because a trespasser does not have any claim to any other capacity, once he is determined to be a trespasser.

Further to the above, the appellants are not members of the Ogbogolo community or family and cannot know more about the respondents’ origin or affinity than the members of the named family or community, none of whom is complaining. The case of Alikor v. Ogwo (2019) 15 NWLR (Pt. 1695) 331 directs that it is only a member of the group, family or community who can dispute, intervene, or challenge the proper representation or the capacity of a party to a suit. It will be futile for appellants, who are not one of those the respondents represent, to challenge their authority, for or because, if the respondents lose, the successful appellants, cannot share in the loss and can never affect the appellants adversely. In the instant case, the respondents had common interest to defend the common threat from the appellants pertaining to their claim to their ancestral and communal land. Consequently, their action defending the appellants’ suit in a representative capacity was competent. The lower Court was correct to so hold.

Apart from the above, in the case of Elf Petroleum Nig. Ltd. v. Umah (2018) 10 NWLR (Pt. 1628) 428 at 452-453, the Supreme Court stated that the authority of a person to take part in a suit can be challenged by way of preliminary objection, on notice and not by way of defence. The only way the capacity of a party can be successfully challenged is by way of preliminary objection. That position was reiterated in the case of S. P. D. C. v. Amadi (2010) 13 NWLR (Pt. 1210) 82 at 127, to the effect that the challenge to the authority of a person to bring an action in a representative capacity is usually by way of preliminary objection. It is known from the record of appeal, that the appellants did not file any preliminary objection before the lower Court to challenge the capacity in which the respondents defended their suit in that Court. Thus, the appellants’ approach to raising objection to the capacity of the respondents to defend the suit is inappropriate, in the circumstances of this appeal and the challenge has to be and is hereby discountenanced.
In the case of N. A. C. B. Ltd. v. Adeagbo (2004) 14 NWLR (Pt. 894) 551, the Court warned that it is not enough to simply challenge or oppose the right to sue in a representative capacity. It must be backed with evidence or proof. The opposer must present substantial proof of his ground of opposition which will deprive the plaintiff of suing in a representative capacity. In the instant case, no such proof was established by the appellants. Rather, the respondents presented judgments and proceedings (exhibits C8, C9, C10, C11, C12 and C13) of Courts, which proved that the respondents have been engaged in litigations as Ogbogolo community over the years, in respect of portions of the Edumogboko land.

The appellant, while acknowledging the existence of the judgments of competent Courts of law, cheekily, asserted that the judgments were stage-managed without proof or evidence establishing such assertion. It was not good enough that the appellant’s counsel joined his clients to attempt to rubbish the decisions of Courts in the manner suggested, without evidence or any attempt to prove what was asserted. The lower Court was correct when it held that the community is in existence and was a unit of community.

Before rounding off on the first issue, it is important to highlight the fact that despite the posturing of the appellants, their witness, DW 1, disagreed with the appellant about the existence of the three Ogbogolo villages, which make up the Ogbogolo community. On 24/05/2012, when he was cross-examined, DW 1 answered specific questions, as follows, at page 405 of the record of appeal:
“Q: All the towns that make up Emunughan Clan are located on one side of the Orashi River
A: Yes
Q: All their towns and villages are on one side of the Orashi River
A: Yes
Q: Do you know the 3 Ogbogolo villages Opu-Ogbogolo, Kala Ogbogolo
A: Yes
Q: These 3 Ogbogolo village are located on another side of Orashi River different from where Emunughan Clan is located
A: Yes but Obranyi gave them the land
Q: Do you know one Chief Nathan Ebi Osundu
A: I know him
Q: Where is he today
A: He is dead
Q: He was the traditional ruler of Ogbogolo Community
A: Yes” (Bold font for emphasis).

DW 3, appellants’ witness, testified at page 422 of the record of appeal, regarding the existence of Ogbogolo community, thus:
“Q: Do you know the following Ogbogolo villages
(i) Egboama-Ogbogolo
(ii) Kala-Ogbogolo and;
(iii) Opu-Ogbogolo
A: I know them
Q: Do you know Chief Nathan Ebi Osundu the Traditional Ruler of Ogbogolo
A: Yes. He is late
Q: These 3 Ogbogolo villages are on the Edumuogboko land but outside the land in dispute.
A: Yes but we put them on the land. They are our tenants.” (Bold font for emphasis).

Above is the evidence of two witnesses called by the appellants, who testified that they know the Ogbogolo community and knew their deceased traditional ruler. DW 1 and DW 2 gave evidence of the location of the three villages, which make up the Ogbogolo community. Despite the evidence of the appellant’s witnesses, the appellants, in avoidable display of intellectual wickedness, are before this Court, seeking to persuade us to hold contrary to the testimony of their witnesses. Tobi J. S. C. on the value of self-induced – but case negating – evidence explained in the case of Odi v. Iyala [2004] 8 NWLR (Pt 875) 283 at 310 that:
“I cannot see better evidence against a party than one from a witness called by him, who gives evidence contrary to the case of that party. This is because, the party is calling the witness to testify in favour of his case as pleaded in the pleadings. If the party knows that the witness will not give evidence in his favour, he will never call him, as in the present case, as relates to the evidence of PW 3 and PW 4. The Evidence Act anticipated this type of situation and made provision in the Act for a party to treat his own witness as hostile in relevant cases. I had earlier made the point. In my view, the appellants had all the opportunity to take advantage of the provisions of the Evidence Act, they cannot repair the damage done at the trial in this Court. This Court has not the mechanical tools to effect any repairs.”
As it was in the case quoted above, so it is in the appeal before us. The lower Court was correct when it held that Ogbogolo community exists. The respondents properly and responsibly defended appellants’ suit as representatives of their Ogbogolo community.

In the case of Nandom Miri Dashe & Ors. v. Nanyak Sallah Jatau & Ors. [2016] LPELR–40180(CA), this Court (relying on Black’s Law Dictionary, 9th Edition, at page 127) defined the word “community” as:
a. A neighbourhood, vicinity, or locality.
b. A society or group of people with similar rights or interests.
c. Joint ownership, possession, or participation.

In paragraph 2 of the amended statement of claim in suit no. AHC/44/1984 (at page 80 of the record of appeal) which the appellants themselves filed, they pleaded, thus:
“2. … All the three sets of Defendants are sued jointly and severally, for themselves and as representing the three Ogbogolo village settlements.”

In sum, it is my view that the first issue should be, and it is, hereby, resolved against the appellants.

Resolution of the Second Issue
There is need to explain how the second issue is pertinent and central to the determination of this appeal, because parties in this appeal missed out on the implications of the pleading of the appellant on onus of proof and pertinence of some findings of the lower Court in its judgment. In paragraphs 3, 8, 10, 11 and 16 of the amended statement of claim which appellants filed (pages 80-86 of the record of appeal) appellants pleaded and claimed thus:
“3. The land which is the subject-matter of this action, hereafter called the land in dispute is known and called EDUM-OGBOKO FARMLAND situate and lying on the opposite bank of the Orashi River while the village community live on the opposite bank at Egunughan village in Abua/Odual District of Ahoada Local Government Area, within the jurisdiction of this Honourable Court.
The said land in dispute is bounded as follows:
a) On the North, by the Ozochi people
b) On the East by the Orashi river
c) On the West by the land of Ukpiri village of Oba-glo-Emirikpoke-Odual and land of Egunuga people of Odual
d) On the south by the Emesu people
…
8. The settlements known as Egbo-Ama and Kala-Ogbogoro granted by the Claimants ancestors are within the land in dispute while the portion of land granted to Kurukuru by the Uwema of Obrany lies at the Southern portion outside the land in dispute and there has been no territorial link between the three settlements neither were the portions of land lying between the said settlements granted to the settlers in each or all the three settlements. Between the two Ogbogolo settlements on the land in dispute and the Kurukuru settlement on the Obrany portion of land, there is a large expanse of land owned, possessed and used by the Emesu village community who also live on one bank of the Orashi river and do extensive farming on their land situate at the Western bank of the Orashi river.
…
10. The Defendants had up till recent observed strictly the terms of the grant made to them by the Uwemas or paramount Chiefs of Egunughan and Obrany and had never cultivated the said land nor fished in the lakes, ponds and creeks outside the areas granted to them.
11. The Claimants are not aware of any litigation between the Defendants and third parties and that the Defendants have no right whatsoever to litigate or lay claim over any portion of the said land in dispute without consulting with or obtaining the permission of the Claimants who are their overlords and any such clandestine litigation cannot be binding on the Claimants. The Defendants were aware that knowledge of litigations between them and third parties by the Claimants would completely puncture their claims.
…
16. The Claimants therefore claim from the Defendants jointly and severally as follows:
…
b) A CLAIM for forfeiture of the customary tenancy held by the Defendants over the said land.”
(Bold font for emphasis).

While it should not be missed, from all quoted above, that the appellants clearly admitted that the Ogbogolo community exists in the pleading above, where they mentioned “Ogbogolo settlements”, the point at which appellant described the defendants as their customary tenants, appellants acquired a statutorily prescribed duty to prove what was asserted. That is apart from the fact that the appellants had, thereby, admitted or conceded that the respondents were in possession of the land in dispute, with attendant implications. The statutory duty is derived from the Evidence Act, 2011 which in its Section 143 provides:
“143. When the question is whether any person is owner of anything of which he is shown to be at possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”
In George Onobruchere & Anor. v. Esegine & Anor. [1986] 1 NWLR (Pt. 19) 799 at page 806, the Court per Oputa, JSC restated the principles guiding the Court in deciding the party that bears the onus or burden of proof in a civil case. The Court said:
“An onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the plaintiff’s claim is admitted, that will be the end of the story. Similarly, if a particular averment of the plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party. Therefore to discover where the onus lies in any given case, the Court has to look critically at the pleadings. Where for instance the plaintiff pleads possession of the land in dispute as his root of title and the defendant admits that possession but adds that the land was given to the plaintiff on pledge, then the onus shifts onto the defendant to prove that the plaintiff is not the owner of the land his possession of which had been admitted. Once the defendant admits the plaintiff’s possession of the land in dispute in his statement of defence, then and there, the plaintiff has on the pleadings discharged the onus of proof cast on him and Section 145 of the Evidence Act, Cap. 62 of 1950 will impose a burden on the defendant to prove the negative – namely that the plaintiff is not the owner. See Lawrence Onyekaonwu & Ors. v. Ekwubiri (1966) 1 All NLR 32 at 35.”
To displace a party in possession of land, the rival claimant must show that the party in possession is in possession with his consent as his tenant as the law presumes the person in possession as the owner. See Laguro & Ors. v. Toku & Ors. [1986] 4 NWLR (Pt. 33) 90; Jinadu v. Esurombi-Aro [2005] 14 NWLR (Pt 944) 142 at 201. It is that statutorily prescribed presumption of ownership, in favour of the respondents, which is rebuttable, that the pleadings of the appellant, quoted above, aroused. The presumption is rebuttable because, it is accepted that mere possession of land by a customary tenant, however long, cannot mature to confer statutory rights. See Dagaci of Dere v. Dagaci of Ebwa [2006] 7 NWLR (Pt. 979) 382 at 452. To rebut the presumption, in the case of Okpaloka & Ors. v. Umeh & Ors. [1976] LPELR-2514(SC), concerning an absolute owner of land, the Court stated that:
“Where an absolute owner of land brought an action for trespass against a person alleged to be in possession, all that the owner had to prove was his title and an intention to regain possession.”
However, we have to pay attention to the risk involved in pleading that an adversary in litigation is a customary tenant, which is better explained in the case of Udeze v. Chidebe [1990] 1 NWLR (Pt. 125) 141 at 160-161, where the Court stated that:
“It is significant to note that a customary tenant is in possession of his holding during good behaviour, and until it is forfeited for misbehaviour. Once it is the case that such a person is a customary tenant, and, therefore, in possession, then like in any other person in possession of land, there is a presumption of ownership in his favour. Although, that presumption is rebuttable, by due proof of a tenancy the onus is on his adversary to rebut it, if he can. Where, the customary tenancy is not proved, such a pleading may turn out to be dangerous admission of possession in the opposite party, upon which the trial Court may base a presumption of ownership, unless, of course, it is rebutted.”

Deriving from the above, it will be noticed that it is a weak argument to contend that the lower Court did not evaluate evidence of traditional history led by the respondents, as the law had presumed ownership in their favour, which the appellants had a duty to displace.

Before a party may validly prove existence of customary tenancy, where pleadings constitute the basis of evidence, it would be expected in law, that incidents of customary tenancy should be pleaded before evidence would be led thereon. An examination of the pleadings of the appellant in this appeal shows clearly or confirms that the appellants failed to mention anything about payment of customary tributes or whether it has been excluded by the parties. With the appellants not pleading material facts on incidences of customary tenancy or material facts regarding that core condition of customary tenancy, there was no way appellants could have validly led evidence in respect of the existence of customary tenancy, which became fatal to the case of the appellants. Implicitly, there could not have been valid proof of customary tenancy and there was indeed no proof of customary tenancy between the parties before the lower Court. The point being made here was not lost on the lower Court, which competently stated, at pages 456-457 of the record of appeal, as follows:
“The major act apart from the fact that they claim to be farming and fishing on Edumogboko land is that they put the Claimant (i. e. the Defendants in AHC/44/84) on the portions of Edumogboko land where they live and farm.
The question to ask is what is the nature of this grant?
The answer is in paragraph 16(b) of the Amended Statement of Claim in AHC/44/84 wherein the Claimants therein sought a relief amongst others for:
“(b) A claim for forfeiture of the Customary tenancy held by the Defendants over the said land.”
It is clear that the Defendants are saying the Claimants are their customary tenants. The Claimants have denied this.
The law is trite that he who asserts must prove. See Section 131 of the Evidence Act and the case of AMADI V. ORJI [2016] 9 NWLR (Part 1516) 154.
It is thus the duty of the Defendants to establish the customary tenancy.
In the case of DASHI V. SATLONG [2009] 1-2 SC (Part II) the Supreme Court held that “Customary Tenancy involves the transfer of an interest in land from the Customary Landlord or Overlord to the Customary Tenant to exclusive possession of the land and which interest subject to good behavior, he holds in perpetuity. Unless it is otherwise excluded the main features of a customary tenancy is the payment of tribute by the customary tenant to the Overlord. And the status of his exclusive possession is such that it is enforceable against the world at large including even the customary land lord or those claiming through him”.
Again in the case of DIM V. ENEMUO [2009] 10 NWLR (Part 1149) 353 the Supreme Court held further that a Claimant alleging Customary tenancy must plead and prove the incidences of Customary tenancy.
Throughout the length and breadth of the said Amended Statement of Claim in AHC/44/84 there is no pleading on the incidences of Customary tenancy. I have also looked at the further Amended Statement of Defence in AHC/25/83 and find no such pleading.
It is clear that the Defendants have not established customary tenancy.” (Bold font for emphasis).

The position of the law on pleading and proof of customary tenancy cannot be better put, as was done by the lower Court. The main incident of customary tenancy is that the customary tenant pays tribute to the overlord and he enjoys his holding in perpetuity subject to good behaviour. Although, payment of tribute is a recognized condition of customary tenancy, it is not always so and for all times. This is because, there are situations where tribute is not paid to the overlord and yet customary tenancy exists. For instance, where the tenant unequivocally recognises the position of the overlordship of the landlord, a customary tenancy exists whether tribute is paid or not. This is because, payment of tribute could be overlooked by the landlord because of kindness and charity. There are also instances where the landlord asks the tenant to stop payment of tribute because of very long association and the good behaviour of the tenant. See the cases of Kano v. Maikaji (2011) 17 NWLR (Pt. 1275) 139; Bassey v. Bassey (2009) 12 NWLR (Pt. 1156) 617 and Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60. However, these facts must be pleaded and proved with cogent and admissible evidence, to establish customary tenancy. In the case of Akinbade v. Babatunde (2018) 7 NWLR (Pt. 1618) 366 at 395-397, which presumably mirrors the circumstances of this appeal, the Supreme Court stated thus:
“In the instant case, the appellants had alleged that the respondents are their customary tenants for which the trial Court upheld. But the Court below looked at the evidence led at the trial Court but could not find any iota of evidence to support that assertion. There was no evidence of payment of tribute to the appellants as overlords, which is the main incident of customary tenancy. Indeed, customary tenancy involves the transfer of an interest in land from the customary landlord or overlord to the customary tenant and which interest entitles the customary tenant to exclusive possession of the land and which interest, subject to good behavior, he holds in perpetuity. See Damulak Dashi & Ors v. Stephen Satlong & Anor (2009) LPELR-929 (SC) (2009) 5 NWLR (Pt. 1134) 281.
In view of the fact that the case of the plaintiffs, now appellants was anchored on customary tenancy, the learned trial Judge ought to have relied on evidence led before him in that respect. When he entered judgment for the appellants herein, it was done without evidence. Put differently, the judgment was not supported by evidence before it. No wonder the Court below stated on page 386 of the record that:-
“Despite this clear lack of proof of the customary tenancy, the learned trial Judge, relying entirely on the evidence of traditional history of the parties’ linkage with Akinbade, adjudged the defendants to be customary tenants of the plaintiffs.”
The Court of Appeal concluded on pages 387-388 as follows:-
“On the whole, it is my conclusion that in the absence of proof of the alleged customary tenancy, which is the foundation of the plaintiffs/respondents’ claim, the presumption of ownership which inures in favour of the defendants/ appellants remains unrebutted. The result is that the plaintiffs/respondents’ claim fails and is liable to be dismissed. I hold that the counter-claim succeeds.”
I agree. The evidence led by the appellants at the trial Court was not enough to upstage the holding of the respondents over 159 years on the land.”

In the portion of the lower Court’s judgment, quoted above, that Court correctly found, as a fact, that the appellants neither pleaded incidences of customary tenancy nor proved customary tenancy, both in suit no. AHC/25/1983 and AHC/44/1984, which made the case in the two suits unsustainable, having failed to prove their claim of a relationship of customary tenancy between the appellants and the respondents in the two suits, especially in suit no. AHC/44/1984.

While the appellant specifically raised ground 21 in the notice of appeal, against the issue of lack of pleading, the appellants failed to raise any ground of appeal on the lower Court’s specific finding of fact, on lack of proof of customary tenancy, which implies that the appellants conceded that the finding of the lower Court is valid and accepted. As an appellate Court, the finding of the lower Court to the effect that the appellants did not prove the customary tenancy remains inviolate and unshaken in this appeal. Thus, the statutorily prescribed presumption of ownership in favour of the respondents remains intact and the lower Court was right to hold that the appellants did not prove their case. The law will take its course even where the respondents did not lift a finger at the trial, based on the state of pleadings, failure of the appellants to prove customary tenancy and statutory presumptions to be deduced, mandatorily, by the lower Court.

At this point, this judgment may be concluded, and the appeal of the appellants dismissed because it, obviously, does not have any merit. However, the complaint made by the appellants that the lower Court should not have considered acts of ownership and possession where traditional history of evidence fails needs to be responded to.

The five ways by which title to land may be proved are as follows:
a. by traditional evidence;
b. by production of documents of title;
c. by acts of a person or persons claiming the land such as selling, leasing, renting out or farming on it;
d. by acts of long possession and enjoyment of the land; and
e. by proof of possession of connected or adjacent land.
See Piaro v. Tenalo [1976] 12 SC 31 and Idundun v. Okumagba [1976] 9-10 SC 277.

Where evidence of tradition is relied on in proof of declaration of title to land, it is well settled that the plaintiff, to succeed, is bound to plead and establish facts such as:-
(i) Who founded the land;
(ii) How he founded the land and
(iii) The particulars of the intervening owners through whom he claims.
See Akinloye v. Eyiyiola [1968] NMLR 92; Piaro v. Tenalo & Anor [1976] 12 SC 31 at 41; Olujinle v. Adeagbo [1988] 2 NWLR (Pt. 75) 238; Adejumo v. Ayantegbe [1989] 3 NWLR (Pt. 110) 417; and Anyanwu v. Mbara [1992] 5 NWLR (Pt. 242) 386 at 399.

Where acquisition of title by settlement is pleaded, that perhaps is all that the plaintiff will be required to prove to succeed, with the traditional history as to who first settled on the land providing fitting background to the evidence of length of time, acts of ownership had been taking place on the land. It is right, of course, to use recent facts as a test of the probability of traditional history, but recent facts must be of such quality and character as would lead to the probability of traditional history. See Aseimo v. Abraham [2001] 16 NWLR (Pt. 738) 20 at 32-33.

The lengthy passage quoted above shows that the lower Court actually compared the evidence led before it, before arriving at the finding that the respective cases of the parties conflict. The appellants’ counsel has not provided any evidence or argued that the lower Court was wrong when it held that there is conflict in the respective traditional histories given by the parties. Rather, the wrongful complaint, from the appellants, is that there should have been evaluation of evidence. In fact, in paragraph 3.2.1 of the appellants’ brief of argument, appellants’ counsel confessed and stated as follows:
“At the Court below, the parties placed reliance on their traditional histories in proof of their root of title to the land in dispute. While Appellants pleaded and proved vide oral evidence, that their ancestor, Egunughan was the first person to disvirgin the land in dispute and other land surrounding it including Egboama and Kala-Ogbogolo in Edumogbokoo land which were granted to the Respondents’ ancestor, Egbo, the Respondents on the other hand claimed that it was their ancestor, Ogbogolo who first disvirgined the land in dispute including the entire Edumogboko land which he founded. Parties also relied on their respective survey plans in support of their oral traditions, [Exhibits C1, C14, D1].
3.2.2 At the trial, the Appellants, in line with their pleadings, led uncontroverted evidence to prove their root of title predicated on their traditional history. In sharp contrast, the Respondents led evidence that is in total conflict and at variance with their pleadings and their survey plans, Exhibits C1, C14 regarding their claim of Ogbogolo being their ancestor who deforested the entire Edumogboko land including the land in dispute.”

There can be no better acknowledgement of conflicting positions of the parties in their traditional history than the above statements. Depending on style of writing the judgment, evaluation of evidence may not be necessary because the Court is not allowed to act on such conflicting traditional histories.

Often times, there is conflict as to the traditional history which had been handed down by word of mouth from the progenitors of parties to a case. In this regard, it must be recognized that, in the course of transmission from generation to generation, mistakes often occur without any dishonest motives whatsoever. 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, misdemeanour is of little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is the more probable. The decision in Kojo II v Bonsie [1957] 1 WLR 1223 formulated a principle meant to show a Court how to arrive at a just decision when a Court is faced with conflicting traditional evidence. The lower Court in this appeal took a valid course, after it observed from the evidence and records before it that there was conflict between the rival traditional histories presented by parties, and adopted the solution provided in the case of Kojo II v. Bonsie (supra).

When the evidence of a witness supports the case of the opponent against whom he purports to give evidence, that opponent is entitled to take advantage of the evidence to strengthen his case. That will be an admission against the interest of the party that called the witness and the admission is relevant and admissible evidence. See Onisaodu v. Elewuju [2006] 13 NWLR (Pt. 998) 517 at 529-530.

The fact that the appellants failed to prove title to the land in dispute is clear from the evidence of DW 3, under cross-examination, at page 420 of the record of appeal. The evidence to be recalled here is against the background of the fact that the appellants claimed that the land in dispute was founded by their progenitor, known as Egunughan. However, when DW 3 testified, he answered questions with answers pointedly asserting that the land in dispute was founded by one Emesu, whose people later abandoned the same, thus:
“Q: You know the parcel of land the Emesu people are claiming against your community and the Claimants’ Community
A: Yes
Q: In that case you and your people are saying that the land originally belonged to Emesu people but they abandoned it for your people
A: That is true
Q: This land you said Emesu people abandoned for you was founded by Emesu the ancestor of Emesu people
A: I do not know
Q: It is correct to say that your ancestor did not found any land belonging to Emesu
A: Yes
Q: Do you know the following towns
(i) Obranyi
(ii) Emesu
(iii) Egulughan
(iv) Owerewere
(v) Okobo and;
(vi) Aminibokor.
A: I know them
Q: These towns are intimately related because of the Abua blood flowing in their veins
A: Yes and we have boundary with them
Q: These towns put together are under one umbrella known as Emughan Clan
A: Yes
Q: All these Abua Town in Emughan Clan are all located on one side of the Orashi River
A: Yes

Emesu is mentioned in the appellants’ pleading, quoted above, but not as the founder of the land in dispute.

In the evidence of DW 3, quoted above, he named a few Abua towns, which are connected to the appellant’s Egunughan community, which implies that one of them, known as Obranyi, is different from the appellants’ community. Thus, while the appellants claim to have given the land to the respondents, as their customary landlords, DW 1 testified under cross-examination, as quoted above, and it bears repetition, that it was the Obranyi community which gave land to the respondents. At page 405 of the record of appeal, under cross-examination, DW 1 stated:
Q: These 3 Ogbogolo village are located on another side of Orashi River different from where Emunughan Clan is located
A: Yes but Obranyi gave them the land

It is a principle long established and followed in series of decided cases that where a plaintiff’s ancestor was the original founder of the land in dispute, the presumption will be that the plaintiff as his successor-in-title will continue to be the owner of the land in dispute, until the contrary is proved. See George Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799 at 807; Runsewe v. Odutola (1996) 4 NWLR (Pt. 441) 143; and Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177 at 206. The respondents proved that Ogbogolo established the land in dispute at the trial before the lower Court.

At pages 457-461 of the record of appeal, in its judgment, the lower Court admirably and dutiful made findings on the presence of oil installations on the land in dispute at the instance of the respondents; the absence of a juju shrine on the land in dispute, contrary to the claim of the appellants, as evidence that there is no merit in the case of the appellants. In the face of these grave contradictions in the case of the appellants, the lower Court was simply correct to have held that the appellants did not prove their acts of ownership or their case, as it said at page 461 of the record of appeal. On the contrary, the lower Court justly found, based on the state of pleadings and evidence before it, (especially, in my view, with the solid and uncontroverted evidence of CW 1 – Dr. Epegu Marabai David, from Enelogu community; and, CW 2 Ayipia Mark, from Ozochi community, both of whom are boundary neighbours to the land in dispute), that the respondents proved their case and were deserving of judgment in both suit nos. AHC/25/1983 in which it granted respondents’ prayers and AHC/44/1984, in which it dismissed the claim of the appellants. The evidence of CW 5 was also not controverted and solid in all its ramifications, in proving the founding and ownership of the land in dispute.

The point must also be made that the appellants’ counsel was improperly referring to the expunged exhibit C14, an amended survey plan, in this appeal. An expunged document at the trial by the lower Court cannot form part of documents to be considered on appeal, except there is a specific ground of appeal and specific prayer seeking the reversal of the order of expunction and the re-introduction of such document into the consideration of the appeal. Those factors are lacking in this appeal. In any event, exhibit CW 14 should not have been allowed into evidence because the respondents to whom it was ascribed, but who did not tender the document or rely on it, had made the Court aware that they were no longer going to rely on the survey plan, having amended it to produce exhibit C1, which fact was confirmed by their Surveyor, CW 3 – Badume Omasikwem Ejekwu – at the trial of the suit on appeal. The common boundary between the land of the appellants and the respondents is the Orashi river.

In addition to the above, learned counsel for the appellants engaged himself in quoting from evidence given by one Stanley Orukari in cases in a previous judgment of Court in suit no. PHC/11/70, which was not tendered at the trial. That should have been avoided by learned counsel for the appellants, no matter the desperation. When a case has to be tried on the basis of previous judgments tendered and agreed to by both parties, it is not open to the trial Judge to go behind the judgment and quote evidence led in the case to support his own view of what he thought the case itself decided. It is only the substance of the decisions in previous decisions which are to be considered, not the evidence therein. Another Court of trial has no right to treat previous judgments as if they are pieces of evidence, adduced by the litigants before it, upon which it could proceed to make its own deductions. See Okpa Orewere & Ors. v. Rev. Moses Abiegbe & Ors. (1973) 9 & 10 S.C.1; and Akporue & Anor. v. Okei & Ors. (1973) 12 S.C. 137. See also Aghenhen v. Waghoreghor (1974) 1 S.C. 1.

Also, the appellants’ counsel sought to rely on an affidavit deposed to by one Stanley K. Orukari, who was not called to testify at the trial and whose application for joinder as a party was refused by the lower Court. The affidavit of the named person was irrelevant to the proceedings and should not have been introduced. That was gross misapplication of privilege. Once the application for joinder was refused and dismissed by the lower Court, processes in that proceeding may only be useful at the level of appeal and not for determination of other issues in the trial of the suit in which the deponent of the affidavit was not called as a witness, for the purpose of cross-examination and was not a party to the suit. Taking liberty too far, the appellants’ counsel extensively dwelt on judgment in suit no. PHC/11/70, which was not tendered at the trial in the lower Court. It was a continuous mixture and insertion of impurities into the argument of the appeal by appellants’ counsel, which was clearly an abuse of the process of this appellate Court.

The judgment of the lower Court is not perverse. The case of the appellants was properly and appropriately dismissed because it lacked merit. The second issue is resolved against the appellants. In sum, it is my view and holding that there was proper carriage and there was no miscarriage of justice in the judgment of the lower Court. This appeal is dismissed for lacking merit. The judgment of the lower Court in suit no. AHC/44/1984 is affirmed.

Appellants shall pay cost to the respondents in the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira).

TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading in draft, the lead judgment of my learned brother, OLABODE ABIMBOLA ADEGBEHINGBE, JCA. I agree with the conclusion reached therein. I dismiss the appeal for lacking in merit and affirmed the judgment of the lower Court.

PAUL OBI ELECHI, J.C.A.: I had the advantage of reading before now, the draft copy of the judgment prepared and rendered by my learned brother Olabode Abimbola Adegbehingbe, JCA.

His Lordship had adequately considered the issues canvassed by learned counsel for the parties before arriving to his conclusion that the appeal is lacking in merit and dismissed consequently.

I also dismiss the appeal as I do not have anything more to add.