NWAJAGU & ORS v. IGBOANUGO & ANOR (2020)

NWAJAGU & ORS v. IGBOANUGO & ANOR

(2020)LCN/14707(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Wednesday, November 04, 2020

CA/E/280/2006

RATIO

JURISDICTION: EFFECT OF AN EXERCISE OF JUDICIAL POWER WITHOUT JURISDICTION

JURISDICTION: COMPETENCE OF COURT

The competence of a Court to exercise judicial power was well elucidated by the Supreme Court per BAIRAMIAN, FJ thus:
Put briefly, a Court is competent when –
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication. See MADUKOLU & ORS V. NKEMDILIM (1962) LPELR-24023(SC) at 10. PER OYEWOLE, J.C.A.

JURISDICTION: WHAT PRESCRIBES JURISDICTION

It is trite that Courts do not exercise jurisdiction in a vacuum as their jurisdiction is usually prescribed by law, be it the Constitution or a Statute, that being so, a Court cannot exercise jurisdiction which it had not been constitutional or statutorily empowered to do. See ADETAYO VS. ADEMOLA (2010) 15 NWLR (PT 1215) 169 and AG ANAMBRA STATE & ORS V. AG FEDERATION & ORS (1993) LPELR-3157(SC). PER OYEWOLE, J.C.A.

EVIDENCE: PRIMARY RESPONSIBILITY OF THE TRIAL COURT

Evaluation of evidence and ascription of probative value thereto is the primary responsibility of the trial Court which had the opportunity of seeing and hearing the witnesses and also observing their demeanors. Where evaluation has been satisfactorily done, it is not the business of an appellate Court to interfere and substitute its own findings for those of the trial Court. See ETOWA ENANG & ORS VS. FIDELIS IKOR ADU (1981) 11-12 S.C. 25 and OBODO & ANOR VS. OGBA & ORS. (1987) 2 NWLR (PT.54) 1. Where the question of the evaluation does not involve the credibility of witnesses but relates to the improper evaluation or non-evaluation of the evidence tendered before the trial Court, an appellate Court is in as good a position as the trial Court to do an evaluation. See NARUMAL & SONS NIGERIA LIMITED VS. NIGER BENUE TRANSPORT COMPANY LIMITED (1989) 2 NWLR (PT.106) 730 at 742. Where however an inadequate evaluation of a trial Court results in a judgment which is perverse, then an appellate Court has a duty to re-evaluate the evidence on record and come to its own judgment.
See ATOLAGBE VS. SHORUN (1985) 1 NWLR (PT.2) 360 and ABISI & ORS VS. EKWEALOR & ANOR (1993) LPELR-44(SC). PER OYEWOLE, J.C.A.

LAND LAW: ONUS OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

In an action for declaration of title to land, onus of proof lies on the Plaintiff who must succeed on the strength of his own case and not the weakness of the defence except where such case of the defence supports his case. See KODILINYE VS. ODU (1934-35) 2 WACA 336 and ADEWUYI VS. ODUKWE (2005) LPELR-165(SC). PER OYEWOLE, J.C.A.

LAND LAW: WAYS OF PROVING TITLE TO LAND

It is now trite that to succeed in an action for declaration of title to land, a plaintiff needs to establish any of the five generally accepted methods of proving ownership of land in dispute. They are traditional evidence; production of document of title; acts of ownership, acts of long possession and proof of possession of the connected or adjoining land. See IDUNDUN VS OKUMAGBA (1976) 9-10 SC 224. PER OYEWOLE, J.C.A.

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

CYPRAIN NWAJAGU 2. MARCEL EZEUGO 3. VINCENT NWANKWO 4. JUDE ANI EDWIN (FOR THEMSELVES AND ON BEHALF OF AGUNGWU OGBOO VILLAGE, UGWUOBA) APPELANT(S)

And

SAMPSON IGBOANUGO 2. AARON EZEANYI (FOR THEMSELVES AND ON BEHALF OF EKWESIENE FAMILY, AGUNWU, UGWUOBA) RESPONDENT(S)

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State sitting in an appellate capacity, holden at Oji River, delivered on the 22nd day of December, 2004 by NEBO J.

The Appellants had a dispute over a parcel of land with their kinsmen from the same Ugwuoba Village in Oji River Local Government Area of Enugu State which culminated in a litigation exercise characterized by a few hits and misses. The Respondents as Plaintiffs initially commenced their action at the High Court which was later transferred to the trial Customary Court wherein the Respondents sought the following reliefs:
(a) A declaration that the plaintiffs are entitled to the customary right of occupancy over that piece of land known and called Agu-Agidi situate at Agu Ngwu Village, Ugwuoba.
(b) An injunction restraining the defendants, agents and servants from further entry into the land known and called Agu-Agidi till this case is finally determined.

At trial both sides testified and called witnesses in support

of their respective cases. Thereafter, the trial Customary Court embarked on a visit to the locus in quo after which judgment was delivered in favour of the Respondents. Dissatisfied at this outcome, the Appellants filed an appeal which initially was placed before the Magistrate Court, Oji River before it was transferred to the Court below where it was heard. After taking arguments from counsel for the two sides, the Court below gave a considered judgment as aforesaid on the 22nd December, 2004, affirming the judgment of the trial Customary Court and dismissing the appeal of the Appellants. Still not happy with this outcome, the Appellants invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 24th January, 2005 containing two grounds. The said Notice of Appeal was subsequently amended by the Amended Notice of Appeal filed on the 15th December, 2016 this time containing fifteen grounds.

At the hearing of the appeal, Chief Ugolo, SAN adopted the Amended Appellants’ brief filed on the 9th October, 2017 but deemed properly filed and served on the 25th October, 2017 as well as the Appellants’ Reply brief filed on the

6th June, 2019 but deemed properly filed and served on the 14th September, 2020 as the arguments of the Appellants in furtherance of their appeal. For the Respondents, Mr. Nnajide adopted the Amended Respondents’ brief filed on the 20th May, 2019 but deemed properly filed and served on the 27th May, 2019 as the arguments of the Respondents in contesting the appeal.

The Appellants distilled a whopping 15 issues from their 15 grounds of appeal thus:
1. Whether the learned appellate judge was right when she confirmed and upheld the judgment of the Customary Court Orji River that declared that the plaintiffs/respondents were entitled to the Customary Right of Occupancy of that piece and parcel of land known as and called Agu Agidi land situate at Ugwuoba.
2. Whether the conclusion which the learned appellate judge reached while evaluating the evidence and exhibits tendered were supported by the evidence on record.
Or
Whether the learned appellate judge properly evaluated the evidence led in the trial before coming to the conclusions she reached dismissing the appeal.
3. Whether the judgment of the Court is against the weight of evidence.

Whether the respondents gave evidence of who founded the land in dispute and how it was founded.
5. Whether the learned appellate judge of the Orji River High Court was right when she resolved that the Customary Court Orji River was right to have tried the land suit when land is a federal cause which can only be manned by a trained lawyer.
6. Whether the learned appellate judge of the lower Court was right in holding that the statement of the lay judges of the Customary Court, Orji River to the effect that the appellants as defendants in the said Customary Court failed to prove their case, relate to the style of writing of judgment by the lay judges of the Customary Court.
7. Whether the learned appellate judge of the lower Court was right when she failed to hold that the lay judges of the Customary Court shifted the burden of proof on the appellants, to prove their case.
8. Whether the learned appellate judge was right to hold that the appellants have no identity of their own separate from Agungwu.
9. Whether the learned appellate judge was right when she held that the appellants took the identity of the Agungwu

people who gave them land until they started calling themselves Agungwu Ogboo to acquire separate identity.
10. Whether Exhibit A strengthened the appellants’ case who were defendants in the trial Court.
11. Whether the learned appellate judge was right in holding that the trial Customary Court properly appraised the facts and came to proper conclusions that she needed not to interfere with its findings.
12. Whether the learned appellate judge was right in not accepting that the judgment of the trial Customary Court was against the weight of evidence.
13. Whether the learned appellate judge was right in not resolving the issue of identity of parties in the earlier suits No: O/39/55 and O/54/56 and the present suit on appeal and leaving it hanging which led her to hold that the parties are not the same.
14. Whether the learned appellate judge was right in holding that the plea of res judicata failed.
15. Whether the learned appellate judge was right in holding that the land in dispute in Suit No: O/39/55 did not fall within the area of land in dispute in the suit now on appeal.

The Respondents on the other hand

formulated five issues for determination without tying them to the grounds of appeal thus:
a. Whether the learned appellant judge was right when she held that the plaintiffs proved their case in the Customary Court and were entitled to judgment or whether the learned judge sitting on appeal was right in upholding the judgment of the Customary Court Oji River and dismissing the appeal.
b. Whether the probative value ascribed to be evidence on record by the learned appellate judge was right and supported by evidence.
c. Whether there exists any ground for the Court of Appeal to disturb the concurrent findings of fact of the two lower Courts.
d. Whether the learned appellate judge was right when she refused to hold that the trial Court did not have the jurisdiction to entertain the suit.
e. Whether the judgment of the appellate Court was against the weight of evidence on record.

As earlier noted, the issues of the Respondents were not tied to the grounds of appeal and on close examination disclose paucity of elegance. I am therefore left with the issues of the Appellants which shall be taken with due consideration to affinity of the

respective subject-matters especially as they consist mainly of challenges to evaluation of evidence with apparently overlapping and repetitive arguments which shall be juxtaposed with the respective arguments of the Respondents.

The learned Senior Counsel for the Appellants submitted that in seeking to establish ownership of the land in dispute, the Respondents relied on traditional evidence which imposed a duty on them to establish how the said Agu Agidi land was founded, who found and exercised original acts of ownership thereon and the history of devolution of the said land to the present Claimants. He submitted that the Respondents failed to lead evidence in this regard thereby fatally affecting their ownership claims. He further contended that the Respondents never exercised acts of ownership and possession over the land in dispute and referred to OKOLIE VS ONYEJULUWA (2002) 10 NWLR (PT. 676) 450 and PIARO VS TENALO (1976) 12 SC Page 31 at 41.

Chief Ugolo, SAN, further challenged the re-evaluation of the evidence of traditional history adduced by the Respondents, on the grounds that it was not supported by the evidence on record. He contended

that aspects of the said traditional evidence were debunked by Exhibit A which the Court below however failed to consider unlike the account of the Appellants which accorded with the said Exhibit A. He argued that Exhibit A debunks the oral history of the Respondents and submitted that documentary evidence helps to determine the veracity of oral testimonies. He referred to DAWODU VS MAJOLAGBE (2001) 3 NWLR (PT 703) 234 and AIKI VS IDOWU (2006) NWLR (PT 984) 47 at 65.

It was argued that the Court below failed to consider various pieces of evidence favourable to the Appellants which accorded with their ownership claims. In this regard, learned Senior Counsel referred to the land given to the Federal Ministry of Agriculture and Shell BP in respect of which compensation was paid to the Appellants thereby negating any possibility of their being tenants. He also referred to Exhibit A which debunked the account of the Respondents of war between the Appellants and the Upata people who were actually tenants of the Appellants.

The Appellants also challenged the findings of the Court below that Exhibit D had nothing to do with the land in dispute and the plea

of res judicata was not made out.

It was submitted that the Court below was wrong to have affirmed the jurisdiction of the trial Customary Court to try the land suit which culminated in this appeal based on the location of the said land. It was argued that land was on the exclusive legislative list and that pursuant to Section 286(1)(c) and (2) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, (hereinafter referred to as the Constitution), issues relating to land could only be tried by a Court manned by legal practitioners.

It was contended for the Appellants that the trial Customary Court wrongly placed the burden of proof on the Appellants who had no claims before them and that it was not a mere case of style of writing as held by the Court below.

It was also contended for the Appellants that the issue of absence of separate identity of the Appellants was raised suo motu by the Court below and determined without the input of parties. It was further argued that the findings made by the Court below on the identity of the Appellants did not take cognisance of other pieces of evidence which support the ownership claims of the Appellants.

Finally, learned Senior Counsel reiterated his earlier contentions in respect of Exhibit A and the issue of res judicata and urged the Court to find for the Appellants.

Contrariwise, the Respondents argued that sufficient evidence was led in support of the traditional history supporting their ownership claims which evidence was evaluated and found credible by the two lower Courts and that their concurrent findings should not be disturbed by this Court. Learned counsel further submitted that the Respondents as Plaintiffs duly established their case on preponderance of evidence as the evidence led by the Appellants was devoid of substance. He referred to AWOYALE VS OGUNBIYI (1986) 2 NWLR (PT. 24) 626, WOLUCHEM VS GUDI (1981) 5 SC 291, OKULATE VS AWOSANYA (2000) 1 SC 107, ONWUJUBA VS OBIENU (1992) 3 LRCN 816 at 825, OBANOR VS CO-OPERATIVE BANK (1995) 4 SCNJ 33 at 40 and KAIYOAJA VS EGUNLA (1974) 12 SC 55.

Learned counsel submitted that the evaluations and concurrent findings of the two lower Courts were unassailable and should not be disturbed as there was no exceptional circumstance justifying such interference. He referred to BLAKK VS IBOROMA (2005) 132 LRCN 2619.

He pointed out that the plea of res judicata was rightly rejected as Exhibit H, which was used in the two suits relating to Exhibits F and G, was in respect of a different parcel of land which was not in contention between the parties. He also stated that the issue of a separate identity for the Appellants emanated from the evidence adduced at trial.

On the non-qualification of the trial Customary Court Judges, learned counsel contended for the Respondents that the Appellants’ arguments were based on speculations as there was no evidence of the qualification of the said Judges before the Court. Learned counsel further argued that Section 286(2) of the Constitution accords with the jurisdiction conferred on the trial Customary Court pursuant to Section 41 of the Land Use Act and that as such the trial Customary Court had the requisite jurisdiction. He referred to J.M. AINA AND COMPANY LTD VS COMMISSIONER FOR LANDS AND HOUSING OYO STATE (1983) 4 NCLR 571, NKWOCHA VS GOVERNOR, ANAMBRA STATE (1984) 1 SCNLR 634 and LAGOS STATE DEVELOPMENT AND PROPERTY CORPORATION VS FOREIGN FINANCING CORPORATION (1987) 3 NWLR (PT 50) 413.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Mr. Nnajide argued that the Respondents led evidence of the founding of the land and traced the devolution down to the 1st Respondent. That the Respondents equally adduced evidence of recent acts of possession which validated their oral history in contrast to the evidence adduced by the Appellants whose only acts of possession on the disputed land constituted the trespass in the present suit. He referred to KOJO II VS BONSIE (1957) 1 WLR 1223 and OJE VS BABALOLA (1991) 3 LRCN 928 at 947.

Learned counsel further submitted for the Respondents that the evaluations of the two lower Courts accorded with the state of the evidence on record in all material aspects and that the issue of identity of the parties arose from the adduced evidence thereby foreclosing the necessity of inviting parties to address the Court below on it.

Mr. Nnajide challenged the contention of the Appellants that Exhibit A was tendered to contest the oral history of the Respondents that a war was fought between the Appellants and the people of Upata as according to learned counsel, the issue was not contested at the trial and no question was asked in relation thereto under

cross-examination. He argued that the said Exhibit A was tendered at trial to show that the Appellants won a war against the people of Upata and could only be evaluated for that purpose which the trial Court found irrelevant to the suit at hand.

The Learned counsel then enumerated the various concurrent findings of the two lower Courts and urged this Court to find for the Respondents.

In the Reply argument of the Appellants, learned Senior Counsel reiterated various aspects of his earlier arguments.

An issue of jurisdiction was raised and argued as issue five. This must be my take-off point as jurisdiction is a threshold issue which relates to the competence of the Court to adjudicate and exercise judicial power. Any exercise of judicial power without the requisite jurisdiction is void as the outcome is incapable of conferring any legal benefit. See MEKWUNYE VS. EMIRATES AIRLINES (2019) LPELR-46553(SC). The competence of a Court to exercise judicial power was well elucidated by the Supreme Court per BAIRAMIAN, FJ thus:
Put briefly, a Court is competent when –
(1) it is properly constituted as regards numbers and qualifications of the

members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication. See MADUKOLU & ORS V. NKEMDILIM (1962) LPELR-24023(SC) at 10.

The challenge to the jurisdiction of the trial Customary Court was anchored on the provisions of Section 286(1) (c) and (2) of the Constitution. The provisions thereof are hereby set out thus:
286. (1) Subject to the provisions of this Constitution-
(c) the jurisdiction conferred on a Court of a State pursuant to the provisions of this section shall be exercised in conformity with the practice and procedure for the time being prescribed in relation to its jurisdiction over civil or criminal causes other than Federal causes.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(2) Nothing in the provisions of this section shall be construed, except in so far as other provisions have been made by the operation of Sections 299 and 301 of this Constitution, as conferring jurisdiction as respects Federal causes or Federal offences upon a Court presided over by a person who is not or has not been qualified to practice as a legal practitioner in Nigeria.
In his response to this, Mr. Nnajide drew our attention to Section 41 of the Land Use Act (supra) which provides thus:
41. An area court or customary court or other court of equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in respect of a customary right of occupancy granted by a Local Government under this Act; and for the purposes of this ‘paragraph’ proceedings includes proceedings for a declaration of title to a customary right of occupancy and all laws including rules of Court regulating practice and procedure of such Courts shall have effect with such modifications as would enable effect to be given to this section.
It is trite that Courts do not exercise jurisdiction in a vacuum as their jurisdiction is usually prescribed by law,

be it the Constitution or a Statute, that being so, a Court cannot exercise jurisdiction which it had not been constitutional or statutorily empowered to do. See ADETAYO VS. ADEMOLA (2010) 15 NWLR (PT 1215) 169 and AG ANAMBRA STATE & ORS V. AG FEDERATION & ORS (1993) LPELR-3157(SC). With due respect to learned Senior Counsel, that the Land Use Act is a federal enactment, would not in essence elevate every land dispute to a federal cause. See ADETAYO VS ADEMOLA (supra). If anything, Section 41 of the said Land Use Act, expressly gave jurisdiction in respect of disputes over declaration of customary rights of occupancy to area Courts or customary Courts or other Courts of equivalent jurisdiction in a State. As was rightly held by the Court below, the suit of the Respondents was for declaration of title in respect of land subject of a customary right of occupancy. The jurisdiction of the trial Customary Court was therefore assured not just by statute but also by the claim submitted to it by the Respondents as Plaintiffs. See ADETAYO VS ADEMOLA (supra), ADEYEMI VS. OPEYORI (1976) 9 – 10 S.C. 31, TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117)

517 and ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD VS. GARBA (2002) 14 NWLR (PT.788) 538 at 563. I find no merit in the contentions of the Appellants on this issue and I accordingly resolve the said issue in favour of the Respondents.

The remaining issues being matters of evaluation of evidence shall be taken together.

Before the Court below, the Appellants faulted the evidence of oral history of the Respondents upon which the trial Customary Court gave judgment declaring the Respondents owners of the land in dispute. The Court below then embarked on a fresh evaluation of the evidence on record and made the following finding on pages 171-172 of the record of appeal:
After going through the totality of evidence presented by the plaintiffs, I find that I must disagree with the learned counsel for the appellants that the plaintiffs did not give evidence of who founded the land in dispute or how it was founded. Their evidence of traditional history of ownership was very comprehensive….

This finding has again been challenged before this Court. Upon the complaint of the Appellants that the trial Customary Court failed to properly evaluate the

entire evidence at trial especially the evidence adduced by the Appellants faulting the oral history of the Respondents and validating the Appellants’ entitlement to the said land in dispute, the Court below embarked on a fresh evaluation which is equally being challenged by the Appellants.

NWLR (PT.106) 730 at 742. Where however an inadequate evaluation of a trial Court results in a judgment which is perverse, then an appellate Court has a duty to re-evaluate the evidence on record and come to its own judgment.
See ATOLAGBE VS. SHORUN (1985) 1 NWLR (PT.2) 360 and ABISI & ORS VS. EKWEALOR & ANOR (1993) LPELR-44(SC). The above premises shall serve as guide in considering the judgments of the lower Courts.

The Respondents as Plaintiffs at trial, relied on traditional history. Onus of establishing such would only be discharged on credible evidence being adduced relating to the founding of the land in dispute, the person who founded the land and exercised original acts of possession, and how title devolved since its founding in an unbroken chain up to the Respondents as Plaintiffs. See KALIO & ANOR VS. WOLUCHEM & ANOR (1985) LPELR-1651(SC), AKINLOYE & ANOR VS. BELLO EYIYOLA & ORS (1968) NMLR 92, ADEJUMO VS. AYANTEGBE (1989) 3 NWLR (PT. 110) 417, OLUJINLE VS. ADEAGBO (1988) 2 NWLR (PT.75) 238, PIARO VS.TENALO & ORS (1976) 12 S.C. 31 at 41 and ANYANWU VS.MBARA & ANOR(1992) LPELR-516(SC).

At trial, the 1st Respondent as 1st Plaintiff testified and his evidence could be found on pages 16-19 of the record of appeal. He traced how the entire village including the land in dispute was founded by Noshi his progenitor and narrated how it was occupied by his forbears which he traced till it got to the present Respondents. He further narrated how a portion thereof was granted to the forebears of the Appellants who were dislocated and were paying

tributes or royalties to his progenitors until recently when payment stopped and part of the land in dispute was trespassed upon. He identified an old ‘agba’ tree and other trees forming boundary between the parties. During the visit to locus in quo, the trial Customary Court found that the said trees were recently cut which was not denied by the Appellants who explained that the trees were cut because their people believed they were inhabited by evil spirits. The contention of the Appellants that boundary between them was a certain Offia stream was punctured by the presence of a cassava farm land belonging to one of the Respondents on the other side of the said stream, ownership and possession of which was without challenge from the Appellants.

The Appellants on the other hand equally traced their root of title to the said land based on oral history which admitted that they had a common ancestry with the Respondents. They identified a certain Offia stream as the boundary between them and tendered Exhibit A as the judgment of the District Officer which affirmed their entitlement to another piece of land different from the land in dispute while

Exhibits B and C as deeds of customary rights between them and another Village. Exhibits D, E and J were in respect of land granted to Shell showing that Appellants were paid compensation while Exhibits F, G, H, K, and L relate to litigations conducted for payment of compensation. Exhibit M was a letter from the Igwe of Ugwuoba on the compensation issue while Exhibit N was the survey plan.

Validity of evidence of oral history cannot be determined by mere evaluation of demeanor of witnesses but by relating the narrated versions with recent acts of possession to see which of them is more probable. See KOJO II VS BONSIE & ANOR (1957) 1 WLR 1223 at 1227, MORENIKEJI VS ADEGBOSIN (2003) 8 NWLR (PT. 823) 612, ADENLE VS OYEGBADE (1967) NMLR 136, AKINBADE & ANOR VS. BABATUNDE & ORS (2017) LPELR-43463(SC), AGEDEGUDU VS. AJENIFUJA & ORS (1963) LPELR-25411(SC), OYEDELE & ANOR VS JIMOH (2012) LPELR-8536(CA) and NWISIGWU & ORS VS. NWANIKILI (2014) LPELR-23272(CA).

Central to the Appellants’ challenge to the oral history of the Respondents is Exhibit A which according to the learned Senior Counsel, was tendered to puncture the

narration of the Respondents that the Appellants were at some point displaced by war with the people of Upata. The position now canvassed before us is not supported by the record of the trial Customary Court as contained on page 30 (lines 2-25) of the record of appeal thus:
At the end of 1911, the people of the defendants went to Igbo Ogboo the warrant chief to request for royalties and he refused to pay claiming that his father has bought some portions of the land. Agungwu Ogboo, the defendants were not happy and resolved to take back their land from Upata and Egbeagu. In 1912, the Upata sued Agungwu Oboo the now defendant to a native Court of Awka. The Agungwu Ogboo also as a cross-action and sued back Upata and was decided by District officer Mr. Macgregor. It was the father of the 1st plaintiff that testified as the warrant chief of Ugwuoba and said that the land belongs to the defendants. Agungwu Oboo. On 24th May, 1912 judgment was given by Mr. Macgregor and Upata people was asked to pack out from the land or in the alternative continue to pay royalties as before. Upata people decided to quit instead of paying royalties. On the part of Egbeagu

people, opinion was divided and some quitted like Upata and others. The judgment of the District Officer was received marked as Exhibit ‘A’ even though it does not relate to the disputed land and also another two documents of deed of customary right between the defendants and Egbeagu village was received and marked Exhibit ‘B’ and ‘C’ respectively.

It is therefore beyond contention that Exhibit A was not tendered by the Appellants to puncture the oral history of the Respondents. Notwithstanding, the Court below examined the arguments of the Appellants that the said document be so construed and did so as contained in the record of appeal, (lines 17-35 of page 180 and lines 1-3 of page 181) thus:
Exhibit A is a judgment of the Native Court of Awka delivered in 1912. The action was a consolidated suit between Upata people and Agungwu people over an area of land known as Okpunouno. Judgment was in favour of Agungwu. The learned counsel urged the Court to interpret this exhibit to mean that the only war between Upata and the Defendants is as shown in Exhibit A. He asked the Court to disbelieve the story of the

plaintiff about the killing of an Achi man, and the subsequent war. It is difficult to see how these interpretations could be made from the exhibit. It is already in evidence that the stretch of land called Okpunouno was part of Agbudu land left to some relations of the defendants after a Court case with them. It was also admitted by the defendant under cross-examination that they had land case with Agbudu which they lost. It is also the defendant’s evidence that it was their brothers, the children of Inyanta that were leaving on that land before the Urhobo war. The case was in 1912 long after the defendants settled on the said land.

An examination of the said Exhibit A supports the observations and findings of the Court below. Nothing in the said judgment suggests a challenge to the oral history of the Respondents otherwise the Court would descend to the realm of speculations. It is trite that Courts do not act on speculations. See IKENTA BEST (NIG) LTD VS. AG RIVERS STATE (2008) LPELR-1476(SC) at 51, EZEREBO VS. EHINDERO (2009) 10 NWLR (PT 1148) 166 and AWOLOLA VS. GOVERNOR OF EKITI STATE & ORS (2018) LPELR-46346(SC). Exhibit A on the face

aggregates to Agungwu people as a unit and the ascription thereof to the Appellants’ specifically is not discernible therefrom. I endorse the more detailed evaluation of the Court below and I see no justifiable basis to depart therefrom.

The Appellants further argued that various exhibits tendered by them and favourable to their case were not considered by the trial Customary Court. This argument did not find favour with the Court below of which reference was made to various portions of the judgment of the trial Customary Court where the said documents were duly evaluated before resolution was made in favour of the Respondents. The findings of the trial Customary Court were affirmed in this regard by the Court below. The Court will rarely interfere with concurrent findings of fact by two lower Courts unless there is substantial error apparent from the records or where the Appellant establishes a special circumstance to warrant such reversal. See SULE & ORS VS. ORISAJIMI (2019) LPELR-47039(SC), ENANG & ORS VS. ADU (1981) LPELR-1139(SC), IGE VS. OLUNLOYO (1984) 1 SCNLR 158, EHOLOR VS. OSAYANDE (1992) 6 NWLR (PT. 249) 524 at 548,

IKENTA BEST (NIG.) LTD. VS. ATTORNEY-GENERAL RIVERS STATE (2008) 6 NWLR (PT. 1084) and FIDELITY BANK VS. THE M.T. TABORA & ORS (2018) LPELR-44504(SC). I see no such special circumstance or substantial error in this case as to warrant any interference with the findings of the lower Courts.

Appellants contested the failure of the two lower Courts to uphold their plea of res judicata as regards Exhibits F and G, the judgments in suits O/54/56 and O/39/55 respectively. I cannot see any justifiable basis for the contentions of the Appellants. Their arguments in respect thereof were considered by the Court below before it was appropriately held that parties and subject-matters in the two suits were not identical. For a plea of res judicata to be sustained, the position of the law is that all the following pre-conditions must apply, to wit; the parties or their privies must be the same in the two proceedings, the claim or issues in dispute in the two suits must be identical, the res or subject matter of litigation must be the same, the decision being relied upon for the plea of res judicata must be valid, subsisting and final and the Court that gave the earlier or

previous decision is a Court of competent jurisdiction. See OGBOLOSINGHA & ANOR VS. BAYELSA STATE IEC & ORS (2015) LPELR-24353(SC).

I also fail to see the validity of the contention that the Court below raised the issue of the identity of the Appellants and resolved it suo motu. It certainly breaches the rights of parties to fair hearing for a Judge to raise an issue suo motu and resolve same without the input of the parties. It would lead to a reversal of the decision reached in the event of miscarriage of justice. See DICKSON OGUNSEINDE VIRYA FARMS LTD VS. SOCIETE GENERALE BANK LTD & ORS (2018) LPELR- 43710(SC) and ANYA V. ANYA & ORS (2020) LPELR-49386(SC). A Judge cannot however be said to have raised an issue suo motu if the issue formed part of the case before the Court or arose from an evaluation of the evidence already adduced by the parties. See IKENTA BEST (NIG.) LTD. VS. ATTORNEY-GENERAL RIVERS STATE (supra) and UNION BANK OF NIGERIA V. AWMAR PROPERTIES LTD (2018) LPELR-44376(SC).
The evidence adduced on record by the Appellants indicated that at an earlier part of their existence they were of the same identity with the

Respondents as Agungwu until they decided for a separate identity as Agungwo Ogboo. The issue of the separate identity of the Appellants was therefore part of the evidence before the Court which was considered in the course of the evaluation exercise. It did not constitute an issue raised and determined suo motu in the circumstances.

An overall consideration of the evidence adduced by the parties at trial discloses that contrary to the contentions of the Appellants, the trial Customary Court did not misplace the burden of proof as evidence of oral history adduced by the Respondents was justifiably found credible by the trial Customary Court and the Court below and it was corroborated by recent acts of possession found in the course of the visit of the said Court to the locus in quo by the trial Customary Court.

In totality, I equally resolve all the remaining issues against the Appellants and in favour of the Respondents.
I therefore find no merit in this appeal and I therefore dismiss it accordingly.
The judgment of the Court below is hereby affirmed.
Cost of N100,000.00 is awarded against the Appellants and in favour of the Respondents.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the benefit of reading the draft of the leading judgment just delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. His Lordship has admirably and exhaustively dealt with all the issues submitted to us for determination in this appeal. Indeed, I agree with his reasoning and conclusions reached therein. Thus, I also find the appeal lacking in merit and it is accordingly dismissed by me. I also affirm the decision of the High Court, Enugu State, holden at Oji River delivered on the 22nd day Of December, 2004 by NEBO J. I endorse the order made in the lead judgment with regard to costs.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA just delivered. I am in agreement with the decision and the reasoning behind the decision.

My learned brother in the lead judgment covered the field, as he treated in detail all issues fundamental to the determination of the appeal before arriving at the conclusion that the appeal lacks merit.

For the above reasons and

of course the detailed ones adumbrated in the lead judgment, I too hold that the appeal lacks merit. Same is equally dismissed. I abide by the Order as to cost made in the lead judgment.

Appearances:

Chief O. Ugolo, SAN for the Appellants, with him O. C. Ugolo Esq. For Appellant(s)

Mr. E. Nnajide for the Respondents.
For Respondent(s)