OMOGOHI & ORS v. MUSA (2020)

OMOGOHI & ORS v. MUSA

(2020)LCN/15435(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, November 23, 2020

CA/A/245/2016

RATIO

EVIDENCE: EFFECT OF ANY MATERIAL CONTRADICTIONS IN THE EVIDENCE LED BY THE RESPONDENT IN A CASE

I have not seen any material contradictions in the evidence led by the Respondent and none had been shown to exist by the Appellants herein. It is now settled that for any contradiction to be material or fatal, it must be substantial as it is not every minor contradiction that can vitiate a case. Where a contradiction is trivial, not affecting the credibility of witnesses, it cannot be sufficient to vitiate a valid trial. The contradiction must be on material facts. I have no doubt in my mind that the so called contradictions alleged by the Appellants are trivial and cannot disparage the case of the Respondent herein. See generally JEREMIAH VS. STATE (2012) 14 NWLR (PT. 1320) 248; OGOALA VS. STATE (1991) 2 NWLR (PT. 175) 509; EZEUGO VS. STATE (2013) 9 NWLR (PT. 1360) 508. PER MOHAMMED BABA IDRIS, J.C.A.

RES JUDICATA: THE DOCTRINE OF ESTOPPEL PER REM JUDICATAM

The doctrine of estoppel per rem judicatum as that of res judicata is a rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceeding matters which had been adjudicated upon previously by a competent Court between him and his opponent. See ADIGUN VS. GOV. OF OSUN (1995) 3 SCNJ 1; ADIGUN VS. A.G. OYO STATE (NO.2) 2 NWLR (PT. 56) 197; ADIGUN VS. OYO STATE (1987) 1 NWLR (PT. 53) 678. PER MOHAMMED BABA IDRIS, J.C.A.

CUSTOMARY TENANCY: WHETHER THE PAYMENT OF RENT BY A TENANT TO A LANDLORD IS A CONDITION PRECEDENT TO THE CREATION OF A VALID TENANCY UNDER CUSTOMARY LAW

Whilst it is correct that the payment of tribute or rent by a tenant to a landlord is a clear condition of customary tenancy, however, it cannot be said to be a condition precedent to the creation of valid tenancy under customary law.

See BRAIDE VS. KALIO (1927) 7 NLR 34; ABIMBOLA VS. ABATAN (2001) 18 WRN 43; MAKINDE VS. AKINWALE (2000) 2 NWLR (PT. 645) 435. PER MOHAMMED BABA IDRIS, J.C.A.

TITLE TO LAND: FACTS TO BE PROVEN BY A PARTY RELYING ON TRADITIONAL HISTORY IN ESTABLISHING A CLAIM FOR DECLARATION OF TITLE TO LAND

It is settled law that a party seeking for a declaration of title to land who relies on traditional history as proof of his root of title must plead same sufficiently. That is to say, he must demonstrate in his pleading the original joinder of the land, how he founded the land, the particulars of the intervening owners through whom he claims. Where a party has given sufficient information in his pleadings as regards the origin or ownership of the land and the time of succession to himself, he has laid foundation for the success of his claims. PER MOHAMMED BABA IDRIS, J.C.A.

DECLARATION OF TITLE TO LAND: STANDARD OF PROOF

It is settled that the standard of proof in a claim for a declaration of title in land matters is not different from that which is required in civil cases generally. See Section 134 of the Evidence Act 2011. Land disputes are decided on the balance of probabilities. For a plaintiff to succeed, he must adduce credible, positive and convincing evidence in support of his claim. Once the plaintiff succeeds in tracing his title to a person whose title to ownership has been established, then the onus shifts upon the defendant to show that his own possession is of such a nature as to oust that of the original owner. See ODUNSI VS PEREIRA (NO. 2) (1972) 1 SC 52; OYELOLA VS. BANNEKAN (2003) 9 NRN 39; AGBONIFO VS. AIWEREOBA (1988) 1 NWLR (PT. 70) 325. PER MOHAMMED BABA IDRIS, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. BABA OMOGOHI 2. JIBRIL IGONOH (For Themselves And On Behalf Of Agida Adegbe Family Of Ofejikpi-Anyigba) 3. AMODU ZEKERI APPELANT(S)

And

SA’AD AHMODU MUSA (Suing For Himself And On Behalf Of Akwu Akpele Family Of Anyigba) RESPONDENT(S)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court holden at Idah delivered on the 17th of February, 2016. In his Amended Statement of Claim, the Respondent (Claimant at the lower Court) claimed against the Appellants (defendants at the lower Court) as follows:
a. A declaration that the 1st and 2nd Defendants have forfeited their customary tenancy which they hold of the Claimant as a result of their numerous acts of grave misconduct, to wit: disputing the title of the Claimant to the land (including alienation) which acts are inconsistent with the acclaimed rights of the Claimant;
b. A declaration that the title to the land the subject matter of this suit vests in the Claimant;
c. A declaration that the 3rd Defendant, not being a descendant of Akwu Akpele, has no right, either in equity or at law, to trespass unto and alienate any part of the land the subject mater of this suit;
d. A declaration that the subject — matter of this suit constitutes Akwu Akpele family land of Ofeko — Anyigba, same having been acquired by their progenitor, Akwu Akpele, as a virgin land;
e. A perpetual injunction restraining the 1st, 2nd and 3rd Defendants, their servants, agents or privies howsoever from further trespassing unto, laying any claim of ownership over, or alienating the land known as “Akwu Akpele Ancestral land” of Anyigba, which is more particularly described in the survey plan attached herewith;
f. Award of N2,000,000.00 (Two Million Naira) only as general damages against the Defendants jointly and severally for their illegal dealings on the Claimant’s land;
g. The cost of this action.

This appeal had a chequered history at the lower Court. The suit was initially filed at the High Court of Justice, Anyigba, before it was transferred to High Court of Justice, Idah. This was after 4 (four) of claimant’s witnesses had testified and the matter had to commence de novo. Then in the course of the trial before the High Court at Idah, the judge was transferred after taking three witnesses, necessitating the commencement of the trial afresh.

The matter then proceeded to hearing and determination before the new learned trial judge, E. O. Haruna, J.

The Respondent (claimant in the Court below) called a total of 5 (five) witnesses, namely — Sa lad Ahmadu Musa, Alhaji Akubo, Simon lyeh Ugbogo and Alhaji Ademu Odawn. The Claimant/Respondent tendered in the main, 4 (four) exhibits “P1” and “P2″ representing the survey plan showing the 6 (six) component parts of his land and his letter of authority to sue on behalf of his family, respectively. Exhibits “P3” and “P4″ were all extracts of the earlier proceedings at the High Court of Justice, Anyigba, tendered at the instance of the Appellants through one of the Respondent’s witnesses, Exhibits “P5” and “P6″ were respectively the application letter of the Claimant/Respondent’s father to the Dekina Local Government Council and his father’s letter of appointment as the Gago of Ofeko-Anyigba.

The Appellants (defendants in the Court below) called a total of 4 (four) witnesses, namely — Sule Adama, Ahmadu Zekeri, Jibrin Igonoh and Baba Omogohi. They tendered the following exhibits:
– Exhibit “D1″ — Customary Arbitration before the Ogohi Anyigba;
– Exhibit “D2” — CTC of judgment of Upper Area Court, Anyigba;
– Exhibit “D3″— CTC of High Court judgment, Dekina, sitting on appeal in a case between Bala Agama and Jihrin Igonoh

It is to be noted that the survey plans of Oketebe and “Oko Olanyi” sought to be tendered on behalf of the Appellants were rejected and marked as Exhibits “A” and “AA1” respectively.

The Respondent’s case at the lower Court can be summarized as follows:
a. That the claimant is the grandson of one Akwu Akpele who first settled at Ofeko — Anyigba before acquiring the following “virgin” lands, lying and situate at Ofeko, stretching across Iyale Road on the North and going Eastward before terminating at — Emeje” its eastern boundary where the Ugbogo Aboko Family Efakwu Egume is his boundary neighbor. The farmlands encompassed in the foregoing as described by all the witnesses for the Claimant are Ogboko, Ofejema, Ogboguche, Oketebe, Oko Idu and Agwumela — all these farmlands have been graphically reflected on Exhibit “P1”. Exhibit “P1” shows that the entire land measures approximately 430.213 hectares.
b. That Akwu Akpele was one of the five Royal Princes who left the royal seat of the atta Igala to come to settle on virgin lands in Anyigba. All the Witnesses who testified for the Claimant/Respondent at the lower Court traced the unbroken chain of transition, possession and control of the entire parcels of land listed above from this first settler, Akwu Akpele, to the Claimant/Respondent’s father, Ahmadu Musa. That the 1st and 2nd Appellants first came to settle on the Respondent’s land through one Agida, their great grandfather, when Ekele Akpar grandson of Akwu Akpele, who happened to have the same mother with Agida Adegbe, died. This Agida Adegbe then visited the family of Ekele Akpa to commiserate with them on the death of his half brother. He then sought permission to stay with them and control part of Ekete Akpa’s land (inherited from his grandfather, Akwu Akpele) and to use the proceeds of the farm crops to feed and care generally for the little children left behind by his half-brother, Ekele Akpa, at the time of his death. This request was granted, and this was how the grandparents of the 1st and 2nd Appellants succeeded their forebears unto the land the subject – matter of this appeal as customary tenants.
c. The Respondent’s case at the trial is that all the successive tenants from Agida Adegbe to 1st Appellant’s father, Omogohi Agida and 2nd Appellant’s father, Odaudu Agida kept to the terms of the customary tenancy by not selling or alienating or parting with any part of the customary land held of the Claimant/Respondent. That the 1st and 2nd Appellants dishonoured all the terms of the customary tenancy by selling and alienating parcels of the land held under customary tenancy during their own time, and also challenging the title of the Claimant/Respondent and his family as absolute owners of the land.

The Appellants’ case at the lower Court is a total rejection and repudiation of the overlordship of the Claimant/Respondent and his family over the disputed parcels of land. Their attempt to tender 2 (two) site plans in respect of one of the 6 (six) parcels of land in dispute was rejected.
The parties filed and exchanged briefs which they adopted at the hearing of the appeal.

In the brief filed by the Appellants, these issues were formulated for the determination of the appeal:

1. Whether the Claimant/Respondent had proved his claims of title to entitle him to the declaration of title. (Grounds 1, 2 and 5)
2. Whether having regards to the exhibits and evidence before the Court, Claimant and his family are not caught by the Doctrine of Estoppel Per Res Judicata over the farmland called Oko Ofejemar (Ground 4).
3. Whether the Claimant’s claim that the Appellants/Defendant and their Progenitors are customary tenants of Akwu Akpala family was proved (Ground 3)

On the first issue, learned counsel for the Appellants argued that the Respondent was unable to establish successfully the identity of the area claimed from the Respondents since it was not the entire land that was in the possession of the Appellants as they posited. It was further argued that the Respondent failed in the story of foundation and possession of the land by Akwu Akpele family in view of the contradiction in the Respondent’s evidence and those of his witnesses, and that the contradictions went to the root of title of the Respondent and the exclusiveness of the title of Akwu Akpele over the farms in the six locations making it substantial enough to affect the case of the Respondent.

On the second issue, learned counsel argued that the case of the Respondent was caught by the doctrine of estoppel as it concerned Agwunela land, and that the trial Court failed to appreciate the issue of the traditional arbitration as having concluded the issue of ownership of the portion of land called Oko Ofejema between the Respondent and the Appellants, particularly the 2nd Appellant.

On the third issue, learned counsel argued that no evidence of tenancy existed between the Appellants’ progenitors and the Respondent’s ancestors, and that the trial Court was in error to have held that customary tenancy had been proved to exist between the parties.

The Court was urged to uphold the appeal and dismiss the claim of the Respondent at the lower Court. These authorities were relied upon:
1. IDUNDUN VS. OKUMAGBA (1976) 9-10 SC 227
2. IHEKWOABA VS. OYEDEJI (2014) ALL FWLR PT. 718
3. ANYAFULU VS. MEKA (2014) ALL FWLR (PT. 731) 1510
4. UNIPETROL NIG. PLC VS. ADIREJE W/A LTD (2004) ALL FWLR (PT. 231) 1238
5. OHIAERI VS. AKABEZE (1992) 2 NWLR (PT. 22) 1.
6. DADA VS. FALEYE (2007) ALL FWLR (PT. 349) 1134

7. AKANBI VS. SALAWU (2003) FWLR (PT. 178) 1066
8. ELEGUSHI VS OSENI (2005) ALL FWLR (PT. 282) 1837
9. YAKUBU VS. JAUROYEL (2014) ALL FWLR (PT. 734) PG. 1.
10. OWHONDA VS. EKPECHI (2003) FWLR (PT. 181) 1565
11. OGUMUHIWA VS. OGUKOYA (2009) ALL FWLR (PT. 454) 1526.
12. ILONA VS. IDAKWO (2003) FWLR (PT. 171) 1715
13. EKPEMUPOLO VS. EDREMODA (2009) ALL FWLR (PT. 473) 1220
14. OKWARAONONI VS. MBADUGHA (2014) ALL FWLR (PT. 728) PG. 914
15. ISHE VS. ANSA (2001) FWLR (PT. 80) 1529

The Respondent formulated these issues for the determination of this appeal:
1. Whether the Lower Court was right when it held that the Defendant/Appellants are Customary tenants of the Claimant/Respondent and his family. (This issue is distilled from Ground 2 of the Appellants’ Additional Grounds of Appeal)
2. Whether the Lower Court was right in holding that Exhibits “D1″ (the Customary Arbitration before the Ogohi Anyigba), ‘D2 & D3″ (which are all based on Exhibit “D1″) cannot operate as estoppel Per Rem Judicatam against the Respondent/Claimant. (This issue is distilled from Ground 3 of the Appellants’ Additional Grounds of Appeal).
3. Whether the Lower Court was right when it held that the Claimant/Respondent had led credible evidence to establish his root of title and the identity of the land in dispute to entitle him to succeed based on the preponderance of evidence/balance of probabilities. (This issue is distilled from the Appellants’ Original Ground 1, Additional Grounds 1 & 4 of the Appellants’ Grounds of Appeal)

On the first issue for determination, learned counsel for the Respondent argued that by paragraph 4 of the Respondent’s statement of claim and paragraphs 22 — 28 of the deposition on oath of the Respondent the genealogy of the Appellants to the Respondent’s progenitor, and how he became a customary tenant to the Respondent and his family had been pleaded and proved.

On the second issue, it was argued that the so called customary arbitration represented by Exhibit D1 upon which Exhibits D2 and D3 were based did not qualify as a judgment to merit the status of attracting the appellation of estoppel per rem judicatum.

On the third issue, learned counsel for the Respondent argued that the root of title and the identity of the land, the subject matter of this appeal was proved. That the Respondent established that his great grandfather founded the disputed land which was at the time uninhabited and that he was the first settler. That the Respondent traced the genealogy and how the land descended to his own father.

Learned counsel argued that there were no material contradictions in the case of the Respondent that could lead to overturning the judgment of the trial Court.
The Court was urged to dismiss the appeal. Reliance was placed in the following authorities:
1. OGUNBIYI VS. ABDULKADIR ISHOLA (1996) 5 SCNJ
2. AGBETOBA & ANOR VS. LAGOS STATE EXCO & ORS (1991) 61
3. OGBE VS. ASADE (2009) 12 S.C. (PT. 3111) 37
4. AKINLAGUN & ORS VS. OSHOBOJA & ANOR, LAND LAW APPEAL CASES (LLAC) 91
5. UFOMBA VS. AHUCHAOGU (2003) 4 SCNJ 231 AT 256 LINES 5-10
6. OKEREKE VS. NWANKWO (2003) 4 SCNJ 2011 AT 221-222
7. ILONA VS. IDAKWO & ANOR (LLAC) 194 AT 198
8. JEREMIAH VS. STATE (2012) 14 NWLR (PT. 1320) 248
9. OGOALA VS. STATE (1991) 2 NWLR (PT. 175) 509
10. SAMBA PETROLEUM CO. LTD VS. FCMB (2014) 3 NWLR (PT. 1394) 346<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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11. EZEUGO VS. STATE (2013 9 NWLR (PT. 1360) 508
12. ALHAJI MUSA SANUSI OLAIYA VS. MR. BONIFACE OKEKE IN UNREPORTED SUIT NO. CA/IL/52/2010
13. CLAY IND. (NIG) LTD VS. AINA (1997) 8 NWLR (PT. 516) 208 AT 223, IGUH, JSC
14. OGBUANYINYA VS OBI OKUDO (NO. 2) (1990) 4 NWLR (PT.146) 551 AT 567.
15. ANIE VS. UZORKA (1993) 8 NWLR (PT.309) 1 AT 17

RESOLUTION OF ISSUES
Having perused the briefs filed by the parties herein, I will for the purpose of resolving this appeal adopt the issues formulated by the Appellants herein, and the issues again are:
1. Whether the Claimant/Respondent had proved his claims of title to entitle him to the declaration of title. (Grounds 1, 2 and 5)
2. Whether having regards to the exhibits and evidence before the Court, Claimant and his family are not caught by the Doctrine of Estoppel Per Res Judicata over the farmland called Oto Ofejema. (Ground 4)
3. Whether the Claimant’s claim that Appellants/Defendant’s and their Progenitors are customary tenants of Akwu Akpele family was proved. (Ground 3)

ISSUES ONE AND THREE
It is settled that the standard of proof in a claim for a declaration of title in land matters is not different from that which is required in civil cases generally. See Section 134 of the Evidence Act 2011. Land disputes are decided on the balance of probabilities. For a plaintiff to succeed, he must adduce credible, positive and convincing evidence in support of his claim. Once the plaintiff succeeds in tracing his title to a person whose title to ownership has been established, then the onus shifts upon the defendant to show that his own possession is of such a nature as to oust that of the original owner. See ODUNSI VS PEREIRA (NO. 2) (1972) 1 SC 52; OYELOLA VS. BANNEKAN (2003) 9 NRN 39; AGBONIFO VS. AIWEREOBA (1988) 1 NWLR (PT. 70) 325.

I have read the record of appeal and it is clear that the defendant herein established his entitlement to the land in dispute through traditional history. The Respondent had established that his great grandfather, Aduga founded the disputed land which was at the time not inhabited, and that he was the first settler thereon. The Respondent traced his genealogy and how the land descended from Aduga, his great grandfather in an unbroken descent to his father, Amodu Musa. This is in accordance with paragraphs 4 – 18 of the Respondent’s 1st deposition contained in pages 209 — 213 of the record of appeal.

The lower Court correctly found at pages 552 — 554 of the record of appeal as follows:
“From the evidence of the Claimant (PW1) in paragraphs 4 to 11 of his sworn deposition of 25th April, 2012, he narrated how the land devolved to him (i.e. the claimant) from Akwu Akpele, the 1st settler. From his evidence, he is the son of Ahmodu, who is son of Musa, Musa is son of Ekele Akpa who is son of Onuakpa. Onuakpa is son of Aduga and Aduga is son of Akwu Akpele of Ofeko — Anyigba.
Further, that Akwu Akpele begot only Aduga and Aduga begot five (5) children namely:- Onakpa, Odokpe Ojajagu, Ocholi, Akoji and Amma, That his father told him that one Agwu a hunter was the 1st settler of Anyigba and he lived in Iji-Anyigba, Later, some Royal Princes from Idah namely: Onoja Gbagwula, Ocher Akwu Akpele, Akogwu Akpele and Itodo Ote came into Anyigba and settled at Eti-Aja Anyigba, Agwudu-Oko Anyigba, Ofeko Anyigba, Obeya Anyigba and Omedo Anyigba respectively and these areas disvirgined by them as first settlers were exclusive to each of them. That Akwu Akpele first settled at Ogboko before he moved to Agwumela from where he came to finally settle at Ofeko-Anyigba, That when Akwu Akpele finally settled at Ofeko-Anyigba, he and his son, Aduga and other dependants continued to use Ogboko, Ofejama, Ogbouche, Oketebe, Oko-ldu and Agwumela as their farm lands. He said his father Ahmadu Musa, Yunusa Yusuf, Drisuh Igonoh and Bala Jibrin who are grandchildren of Akwu-Akpele authorized him to institute this suit in a representative capacity against the defendants to reclaim their land from them which they have started alienating to people and exercising diverse acts of ownership over same, including selling out the land…
That Aduga, son of Akwu Akpele inherited the Akwu Akpele family land of Anyigba upon the death of his father and that the land include Ogboko, Ofejema, Ogboguche, Oketebe, Oko-ldu and Agwumela farm lands,
The claimant went further to demonstrate how the land devolved on the grandchildren of Onakpa which includes Amodu Musa the father of the claimant in paras 13 — 18 of his sworn deposition, It is the evidence of the claimant that his father has economic trees on all their farmlands and his father, grandfather and great-grandfather have farmed there before he the claimant inherited them. See para 34 of claimant’s first deposition.
See also para 13 A to F (i) of claimant’s additional deposition on oath dated 25th April, 2012 where he highlighted the various descendants of Akwu Akpele who farmed on the various portions of the disputed land.
The claimant’s evidence highlighted above on the descent of ownership of the land from their great grandfather Akwu-Akpele was strongly corroborated by his witnesses. The claimant testified as PW1 while Yahaya Abu testified as PW2. Paras 4, 5, 6 and 7 of the evidence of PW2 the evidence of PW3 and PW6 respectively corroborated the claimant’s evidence. PW5 Alhaji Adamu Odawn told the Court in cross-examination that the five brothers had their individual lands where they farmed in Anyigba and lived in different places with different names. That Akogwu Akpele never settled at Ofeko-Anyigba but Akwu Akpele settled there.”

The trial Court painstakingly considered the defence put forward by the Appellants and correctly found as follows:
“In denying the claim and in line with paras 7, 8 and 18 of their statement of defence, DW3 Jibrin Igono said the lands both at Ofeko and the entire farm lands in issue do not belong to the claimant’s family. That Oketebe, Ofejema, Oko-Olanyi, Agbeguche and Ogboko belong to Agida, he said the land decended on them through their grandparents, Agida. In his additional statement on Oath, he said their family showed the whole land of Akogwu Akpele family to a surveyor who made two survey plans of the lands consisting of Oko Elanyi and Ofejema.
By para 7 of the sworn deposition of DW4 Baba Omogohi, he said both Akwu Akpele and Akogwu Akpele by their settlement and farming, occupied different sides of Ofeko Anyigba with Akwu occupying the left hand side while Akogwu occupying the right hand side and they expanded both ways according to their settlement, He said both of them farmed and were succeeded by their progeny…. Further that Ofejema, Agboguche and Oketebe were the places his progenitors lived and farmed. He said Ekele Akpa never farmed at the portions mentioned by the claimants at Ogboko, Ofejerna, Agboguche, Oko-Olanyi. Under cross-examination, DW4 denied making para (7) seven of his sworn deposition, leaving the Court at a loss on what to believe.
DW1 Sule Adama said they have farm at Oketebe which shares boundary with Ugbogo family of Egume on the East and on the West with 1st defendant. He said his grandfather Tokula also used the land and allocated same to some people etc. DW2 Alhaji Zekeri (3rd defendant) said he was born and brought up on Ofeko land and they farm on the lands in dispute from the time the claimant mentioned in his statement of claim and the place they farm were given to his father many years ago by the defendant’s family, That his father’s mother is a descendant of Agida, the son of Akogwu Akpele and so he is a female descendant of Agida, When cross-examined, he admitted his father is from Okaba in Ankpa and that the land in dispute is Ofejema which belong to Adegbe, that Akogwu the 1st owned the land. He said he is not related to the claimant.
The evidence of the claimant and his witnesses as demonstrated to the Court are corroborative of the other on the descent of ownership. The claimant and his witnesses gave an unbroken link of traditional history of the land in dispute from the time of acquisition by the Original settler up to the father of the claimant. I am in total agreement with the submission that the claimant has met with the requirement set out in Ewo and 3 Ors v. Anl and 17 Ors (supra). The Onus placed on the defendants to prove otherwise, during their evidence before the Court has not been met. The defendants held tightly to the defence that they inherited the farmlands … and have been farming on various parts of the land through the years. The defendants were unable to discredit the claimant’s evidence of traditional history as to the root of title and successive decent of such titles demonstrated by the claimants.”

And at pages 558 — 561 of the record of appeal, the learned trial judge correctly held as follows:
“DW1 in his sworn deposition did not say how the defendants came into the land, he nevertheless stated how they have been using Oketebe land for a long time. That his grandfather Tokula Omagbaji used the land and allocated same to some persons who now farm on the land. That the Oketebe farm land had always been farmed by Baba Omogohi who also gave land to Damale who has farm there. He said their land is between Baba Omogohi’s land and Ugbogo family of Egume and further that Oketebe is owned by various people. That claimants and his family do not own farm at Oketebe.
When cross-examined, he said he had heard of Agida the son of Akogwu Akpele, he has never heard that Agida and Ekele Akpa have the same mother; he has not heard that Agida came to Ofeko to take care of the young children of Ekele Akpa.
3rd defendant (DW2) by para 5 of his sworn deposition said his father’s mother is a descendant of Agida, the grandson of Akogwu Akpele and so he is a female descendant of Agida etc.
DW2 Jibrin Igono (2nd defendant) stated among other things that the land descended on them through their grandparents thus: Agida-Odaudu-Igono Jibrin and himself and they farmed on the land spanning over 400 years. That his father never lived at Ofejikpi but the descendant of Akogwu Akpele are scattered all around Anyigba, Oganeaji, Opada, Ofejikpi, Obeya Kekele, etc, That all the farmlands at Ofeko, Oketebe, Ofejema, Oko-Elanyi, Agboguche and Ogboko belong to Agida family. The two survey plans he referred to in his additional statement which he said covers the whole land of Akogwu Akpele (i.e. in respect of Oko Ofejema and Oko Elanyi) were rejected in evidence and marked exhibit ‘A’ and “AA” rejected.
When cross examined, he said he has never heard of the name Onuakpa. He said he has heard of Ekele Akpa in Sabo-gari where his people stay. That Akwu Akpele had only female children and has no male children, that he has never heard of Aduga the only son of Akwu Akpele and never heard that Aduga had five (5) children namely: Onuakpa, Odokpe, Ojajogwø Ocholi, Akoji and Amma. He said he never heard that Onuakpa, one of these five (5) is father of Ekele Akpa.
He denied the suggestion that after Ekele Akpa died, his cousin Agida came to Ofeko to take care of his little children. Further, that he knows Omojo Udachi the only daughter of Akwu Akpele and was not one of the children of Ekele Akpa and never heard that Omojo Udachi prevailed on Agida to stay behind at Ofeko and take care of the children of Ekele Akpa left behind. He said Agida was born and bred at Ofeko and no woman gave him land. That the six farmlands belong to Agida and not to Aduga.
Further that he comes from the same Akogwu Akpele family with Bala Agama and does not know Idris Igono from Akogwu Akpele family. That it is true Bala Agama filed a suit against him before the Ogohi Anyiba and the council sat and determined the case in his favour and gave him the land. He said Bala Agama was not happy with the decision at the arbitration and sued him before the Upper Area Court where he again won. That he also won at the High Court. He said he comes from the same Akogwu Akpele family with the Ogohi Anyigba etc
DW4 Baba Omogohi (1st defendant) told the Court among other things, that Akwu Akpele and Akogwu Akpele occupied different sides of Ofeko Anyigba with Akwu on the left and Akogwu on the right, that both farmed and were succeeded by their progeny. That the ancestors/progenitors never entered into any understanding with Akwu Akpele not to put the land to permanent use as the land originally belong to them. He said Ofejema Agboguche and Oketebe are the places his progenitor lived and farmed.
In paragraph (9) nine of his sworn deposition, he said he succeeded his father Omogohi in rulership, settlement and farming on this land and he is the present Madaki having been Madaki since 1976 after Idi, Odaudu and father Omogohi are all descendants of Agida Lineage. He said Agida was never appointed to mourn and commiserate with Ekele Akpa family at Ofeko but succeeded his own father on the land where he lived and farmed and was succeeded by his own children and great grandchildren etc.
When cross-examined he said he does not know Omojo Udachi sister to Ekele Akpa: that he has heard the names Omojo Udachi and Ekele Akpa but does not know them and never heard that Agida and Ekele Akpa have same mother. That Agida was born in Ofeko, where he begot his father and did not come from anywhere, He said he was not told that Omojo Udachi married his grandmother Abilo for Agida as a compensation for agreeing to come to Ofeko to take care of the little children left behind upon the death of Ekele Akpa, that he was also not told that the second compensation to Agida for coming to take care of his half brother’s children was that he should farm on Akwu Akpele’s farm and feed the children.
He said he had lands at Oketebe, Ofejema, Okpoguche, Oko-Elanyi and Ogboko out of the disputed land, he confirmed para 16 of his sworn deposition etc. He denied making para 7 of his sworn deposition. That he does not know Idi and Idi is not the 1st Madaki but Odaudu and that para 9 of his sworn deposition is not correct etc
Flowing from the above narration, particularly the claimant’s evidence when compared with the defence, he has led evidence uncontradicted on the genealogy of the defendants (1st and 2nd) and how their progenitors became customary tenants. Apart from merely denying the very obvious fact of customary tenancy, the defendants failed to lead evidence to debunk or contradict the claimant’s evidence of how Agida came into the land.
The defence evidence is mostly hinged on the fact of possession and how their grand and great grandfather farmed on the land spanning over 300 to 400 years. The claimant is not disputing the fact that defendants have farms and in possession of various portions of the disputed land. Possession/farming on various parts of the disputed farmlands by the defendants is not in issue. What the claimant is asserting and has established is that the defendants are customary tenants. Indeed, “a claim for declaration of title, the onus is on the claimant to establish his claim on a preponderance of evidence …. there is to burden on the defendant who has not counter claimed to establish his title.” See Anyafulu V. Meka (2014) All FWLR (Pt. 1510) at 1530 G- H.
Considering the evidence of the claimant on this issue of customary tenancy, it cannot be gainsayed that he has clearly established this fact of customary tenancy. The inconsistencies in the defence evidence to my mind further exposed the baselessness of their denial.”

In an action for declaration of title to land, the land to which the declaration relates must be ascertained with certainty before the Court would make a declaration. See ELIAS VS. OMO-BARE (1982) 5 S. C. 25; AWODI & ANOR VS AJAGBE (2014) LPELR-24219 (SC).

It is clear from the record that the Respondent led credible evidence and gave detailed description of the land and the component parts. In this regard, the trial judge correctly found as follows:-
“The evidence of the claimant in paras 2, 8, 9 and 11 of his sworn deposition of 25-04-2012 described the extent of the land in dispute mentioning the component parts of the land and describing their boundary neighbours to the North, South, East and West, in line with para 6 of the claimant’s statement of claim. The claimant’s evidence on the description of the land was amply corroborated by his witnesses. See particularly para 5 to 13 of the deposition of PW2, Paras 5 — 7 of the deposition of PW3, paras 4 to 8 of the deposition of PW4, paras 6, 8 and 12 of the deposition of PW5 who is from the defendant’s family and paras 5 to 13 of the 1st deposition on Oath of PW6 Idris Igono, all sufficiently described and identified the land in issue. See also exhibit P1, the perimeter survey of the land which ex facie measures 430.213 hectares. Exhibit P1 was not discredited in anyway. From the evidence of the claimant and his witnesses, these lands in issue are all in one place as reflected in exhibit P1. By paras (6) six of the statement of claim, the component parts of this farm lands include Ogboko, Ofejema, Ogboguche, Oketebe, Oko-Idu and Agumela.
Though the defence in paras 15 and 16 of their joint statement of defence raised the issue of identity of land, no evidence was led to impeach the description of the land as given by the Claimant. The attempt by the defendants to tender in evidence a rival evidence (sketch maps) in respect of only a segment of the land in dispute failed as same were rejected and marked “A” and “AA” rejected.
DW3 in paragraph 5 of his sworn deposition of 21/6/2012 said he knows the land in dispute. When cross-examined, he said he knows the extent of land the claimant is claiming, DW2 in paragraph 4 of his sworn deposition, said he knows Ofeko land and the farmlands referred to.
The identity of the land subject mater of this suit is therefore not in doubt as same has been sufficiently described with certainly and no reasonable person will be misled. Parties are also not misled and are at idem as to the names the lands are called.”

Where land is admitted to have belonged to a plaintiff originally, it is for a defendant to prove by what right he claims to have become the owner in place of the plaintiff. See ADENLE VS. OYEGBADE (1967) NMLR 136; Okoye vs. Nwankwo (2014) 15 NWLR (PT. 1429) 93. The Appellants in this case did not lead any evidence to impeach Exhibit P1 or the clear and unambiguous description of the land in dispute as given by the Respondent at the trial.

The Respondent by paragraph 4 of the statement of claim pleaded the genealogy of the Appellants to their progenitor and how the Appellants became the customary tenants to the Respondent and his family. See page 7 of the record of appeal. See also paragraphs 22-28 of the Respondent’s 1st deposition on Oath at pages 21-22 of the record of appeal.

See BRAIDE VS. KALIO (1927) 7 NLR 34; ABIMBOLA VS. ABATAN (2001) 18 WRN 43; MAKINDE VS. AKINWALE (2000) 2 NWLR (PT. 645) 435.

After reviewing the evidence led by the parties on the issue of customary tenancy, the lower Court correctly held as follows:-
“Juxtaposing the claimant’s evidence with that of the defendants, the claimant’s evidence is more credible and believable. The claimant’s evidence show that the defendants (1st and 2nd) are on the land at the instance of the claimants from the genealogy of the defendants given by the claimant and his witnesses. The claimant’s evidence on this issue as earlier highlighted was not shaken under cross-examination. See para 22 — 28 of the claimant’s first deposition as corroborated by PW2, PW3 and PW6. From the evidence of these witnesses, Agida is not the owner of the land, the land was given to him as a customary tenant. The very vital evidence of the claimant that Adegbe, father of Agida was not buried at Ofeko but at Ofejikpi was not debunked. It is glaring from the evidence before the Court that the 1st and 2nd defendants are customary tenants of the claimant.
There is evidence of forbearance as Agida was permitted to farm on Akwu Akpele land so as to take care of the children of Ekele Akpa left behind. I agree with the submission that this is the forbearance granting the defendants customary tenancy.”

On the issue of the Appellant’s family enjoying the chieftaincy position over the Respondents’ family at Ofeko, the trial Court correctly found as follows:-
“The defendants have failed to prove their assertion that by Igala native land and custom, only descendants of Agida, the grandson of Akogwu Akpele have been Madaki of Ofeko which has become their exclusive right.
DW4 in para nine (9) of his sworn deposition said he is the present Madaki since 1976 after Idi, Odaudu and his father, all descendants of Agida lineage. Under cross-examination, DW3 said he never heard that Idi Amana Eji son of Akoji, son of Aduga was the first Madaki of Ofeko.
Curiously, DW4 as against his earlier evidence said he does not know Idi and that Idi was not Madaki Ofeko but Odaudu. He said para nine (9) of his sworn deposition is not correct. The above piece of evidence is not only inconsistent but self defeating and did not go to establish that only the descendants of Agida have always been Madaki of Ofeko and I so hold I am left with the evidence of the claimants, (see para 14 (fourteen) of the further additional statement on Oath of the claimant where he stated that the 1st Madaki of Ofeko is Idi grandson of Akwu Akpele. There is also evidence that when Ofeko was given two Madaki slots (Ofeko 1 and Ofeko 2, Damudi became Madaki Ofeko 2, a descendant of Akwu Akpele. It is also not disputed that the father of the claimant is the present Gogo of Ofeko. See exhibit P5 …
Flowing from the above discourse, in resolving the two issues considered above in favour of the claimant against the defendants, I hold that the claimant has not only led credible evidence to establish his root of title but also that the defendants are customary tenants of the claimants family.”

Were there contradictions in the case of the Respondent as to prevent him from getting judgment in his favour? I have not seen any material contradictions in the evidence led by the Respondent and none had been shown to exist by the Appellants herein. It is now settled that for any contradiction to be material or fatal, it must be substantial as it is not every minor contradiction that can vitiate a case. Where a contradiction is trivial, not affecting the credibility of witnesses, it cannot be sufficient to vitiate a valid trial. The contradiction must be on material facts. I have no doubt in my mind that the so called contradictions alleged by the Appellants are trivial and cannot disparage the case of the Respondent herein. See generally JEREMIAH VS. STATE (2012) 14 NWLR (PT. 1320) 248; OGOALA VS. STATE (1991) 2 NWLR (PT. 175) 509; EZEUGO VS. STATE (2013) 9 NWLR (PT. 1360) 508.
In the circumstances, issues one and three are resolved in favour of the Respondent against the Appellants.

ISSUE 2
The doctrine of estoppel per rem judicatum as that of res judicata is a rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceeding matters which had been adjudicated upon previously by a competent Court between him and his opponent. See ADIGUN VS. GOV. OF OSUN (1995) 3 SCNJ 1; ADIGUN VS. A.G. OYO STATE (NO.2) 2 NWLR (PT. 56) 197; ADIGUN VS. OYO STATE (1987) 1 NWLR (PT. 53) 678.

Relating the principle to the case in hand, the learned trial judge after a careful analysis of the exhibits and evidence led at the trial correctly in my view held as follows:-
“On whether the defendants can rely on the customary arbitration before the Ogohi to raise the equitable defence of estoppel per rem judicatum:
I have considered the evidence on this issue and the submissions proffered in the written addresses:
It was not established that both the parties and the subject matter in exhibits D1, E2 and D3 are the same with the suit at hand. The parties in arbitration are Bala Agama and Jibrin Igonor. Jibrin Igonor is D3 (ie 2nd defendant in the current suit) Bala Agama is not related to the claimant as DW3 under cross-examination admitted that he comes from the same Akogwu Akpele family as Bala Agama. He also admitted he does not know Idris Igonor from Akogwu Akpele family. The defendants failed to demonstrate vide their evidence that Idris Igonor who testified before the arbitration is same as Idris Igonor PW6 before this Court. PW6 denied ever appearing before the customary Arbitration to testify in favour of Bala Agama against Jibrin Igonor over land situate at Ofejema.

He said he does not also know that Bala Agama sued Jibrin Igonor at the Upper Area Court over Oko Ofejema which is part of his family.
There is also nothing before the Court to show that the subject matter in exhibits D1, D2 and D3 are same with the subject matter in contention before this Court. The suit in exhibits D2 and D3 and the arbitration award are not in respect of the entire Ofejema farmland but a farm land situate in Ofejema. There is also no evidence that DW3 fought the matter in exhibits D1, D2 and D3 in a representative capacity and the land awarded to his Akogwu Akpele family.
I mince no words in holding that the exhibits D1, D2 and D3 cannot operate as an estoppel per rem judicatam against the claimant at best, DW3 who is a customary tenant only defended his right of possession as a customary tenant against Bala Agama and can so defend his right of possession even against the world at large.
See Damulak Dashi & Ors and Ors V. Stephen Satlong and Anor (2009) LPELR 929 SC. I resolve this issue in favour of the claimants against the defendants.”
The above finding cannot be faulted. In the circumstances, the issue is resolved in favour of the Respondent against the Appellants.

Finally, having resolved all the issues against the Appellants, I hold that the appeal lacks merit and it is dismissed. Cost assessed at N250,000 is awarded in favour of the Respondent against the Appellants.

STEPHEN JONAH ADAH, J.C.A.: I was availed a draft copy of the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.

In this appeal, the Respondent was the Claimant at the trial Court. He claimed against the Appellants who were the Defendants before the trial Court. His reliefs are well captured in the lead judgment of my learned brother in the lead judgment. I totally rely on those reliefs and the facts which were well rendered by my learned brother. Issues were joined at the trial Court and at the end, judgment was entered for the claimant against the Defendants/who are Respondents in this appeal.

Aggrieved by that decision, the Appellant filed an appeal to this Court. From the record before us, the trial Court thoroughly evaluated the evidence placed before it, before coming to the conclusion that the Respondent in this appeal won the case.

It is customary in our law that cases are won on the lane of evidence brought before the Court. When evidence is adduced, the onus would be placed upon the trial Court to evaluate the evidence and achieve results in the interest of justice. The custom relied upon in the instant case as is the case with all customary law has to be proved in the first instance by calling witnesses acquainted with the native law and custom. In the case of Oyewunmi & Anor v. Ogunesan (1990) LPELR – 2880 (SC), the Supreme Court per Uwais, JSC, (as he then was) held as follows:

“The locus classicus case for the ascertainment of customary law and subsequently of judicial notice is the judicial Committee of the Privy Council decision of Kobina Angu v. Allah P.C ‘74-’28, 43. There, the formula for the ascertainment of native law and custom was stated to be as follows – “As is the case with all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs, by frequent proof in the Courts, have become so notorious that the Courts will take judicial notice of them.” According to Angu v. Allah, the two tests are in the alternative. They are; (a) Calling witnesses acquainted with the custom in the Courts. (b) when by frequent proof in the Courts the particular custom becomes notorious. In respect of (a) proof of the customary law will depend on the witnesses called. But in (b) by frequent proof in other cases the Court will take judicial notice of the custom as having been established where it arises for proof in the case before it, and no more proof will be required. This rule which originated from the English common law governing the proof of local customs now enjoys a statutory backing. For quite some time after the formulation, our Courts construed them in Amissah v. Krabah 2 WACA, 30, and in Buraimo v. Bamgboye (1940) 15 NLR 139. In Larinde v. Afiko (1940) 6 WACA 108, where the trial judge relied on one decision of Odu of Ikeja v. Akitoye of Ikeja, tried in 1982, in which the Awori custom forbidding a stranger to the community who had received a grant of land from collecting palm fruits (this right being reserved to natives), to take judicial notice of that custom, the West African Court of Appeal reversed the decision, on the ground that “The decision of one case in 1982 cannot be said to be frequent proof in the Courts enabling the Courts to take judicial notice of the particular Awori custom. It therefore had to be proved and it was not. The decision of Yusufu Kugbuyi v. Odunjo (1926) 7 NLR 51, could have been the earliest case on the application of the rule but for the view of the West African Court of Appeal in Larinde v. Afiko (supra) that it was wrongly decided. The decision was accepted as res judicata as between the parties, but not for establishing the custom forbidding strangers collecting palm fruits on land granted to them and preserving that privilege for indigenes.

In the instant case, the trial Court in an indepth manner, evaluated the evidence placed before it and made definite findings.
I am therefore, in agreement with my learned brother in the lead judgment that this appeal lacks merit. I too, do dismiss this appeal and I abide with the Order as to costs.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I was privileged to have read in advance the lead judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.

I agree with the reasoning and conclusion reached therein. I therefore also dismiss the appeal.
I make no order as to costs.

Appearances:

W. A. Aliwo, Esq., with him, H. Aliyu, Esq. and B. I. Adijoh, Esq. For Appellant(s)

A. S. Akpata, Esq., with him, S. O. Akpala Esq. For Respondent(s)