OSELOKE BENJAMIN IGBOKWE & ORS v. OSITA NGOKA IGBOKWE & ANOR (2016)

OSELOKE BENJAMIN IGBOKWE & ORS v. OSITA NGOKA IGBOKWE & ANOR

(2016)LCN/8508(CA)

In The Court of Appeal of Nigeria

On Thursday, the 21st day of April, 2016

CA/E/313/2006

RATIO

LAND LAW: TITLE TO LAND; DUTY OF A PARTY CLAIMING TITLE TO LAND TO PROVE THE BOUNDARIES OF THE LAND IN DISPUTE
The settled principles of law relating to burden of proof of title to land which hinges on proof of the boundaries of the land in dispute are that:
a.) In an action for declaration of title to land, the land to which the declaration is sought must be sufficiently identified to a defined area. The usual test is whether a surveyor can from the record produce an accurate plan. See Ogedengbe v. Balogun (2009) 9 NWLR (PT 1039) 380.
b) The Plaintiff ought to file a Survey Plan reflecting all the features of the land showing clearly the boundaries as well as the people who share common boundaries with the land and other land marks.
c) Where a Plaintiff fails to prove the boundaries of the land he is claiming, he has failed by that omission to prove his case and the proper order that the Court should make in such circumstances is usually an order of dismissal of the claim. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUDGMENT: ERROR IN JUDGMENT; WHETHER EVERY ERROR IN JUDGMENT WILL LEAD TO A REVERSAL OF THE JUDGMENT
It is not every omission or error that can lead to a reversal of an otherwise just judgment. It must be one that has led to a miscarriage of justice. The error in the final order is one that can be corrected, moreso so there is evidence on the record that the land in dispute recognised and identified as Awka Okwunu and found by the trial judge as identified in Exh ‘C’ as verged pink.
The error cannot thus lead to a reversal of the judgment. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS FINDINGS OF FACTS OF A TRIAL COURT
It is a well settled principle that the proper attitude of an appellate Court to findings of facts of a trial Court is that the Court should not interfere with the facts as found by the trial judge unless there is an obvious error in the appraisal of the evidence and the ascription of probative value thereto. See Egbaran V. Akpotor & Ors (1997) 7 NWLR Pt.514 Pg. 559, PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
ARBITRATION: BINDING EFFECT OF CUSTOMARY ARBITRATION
In Oparaji & Ors v. Ohanu & Ors (1999) 9 NWLR Pt 618 Pg.290, the Supreme Court held that where an arbitration under customary law is pronounced valid and binding, it would be repugnant to good sense and equity to allow the dissatisfied party to reject or resile from the decision to which he had previously submitted to. In Awosile v. Sotunbo (1992) NWLR Pt. 243 Pg.514, the Supreme Court held that where customary arbitration has been pleaded and proved, it is binding on the parties. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

1. OSELOKE BENJAMIN IGBOKWE
2. DANIEL IGBOKWE
3. JOSEPH IGBOKWE
4. EMMANUEL IKECHUKWU IGBOKWE Appellant(s)

AND

1. OSITA NGOKA IGBOKWE
2. BENSON NGOKA IGBOKWE
(For themselves and on behalf of Ngoka sub-family of Igbokwe family of Uruagu Nnewi except the 1st Defendant) Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal by the defendants now appellants against the judgment of the High Court of Anambra State presided over by Hon. Justice Peter N. C. Umeadi, dated the 2nd day of December 2005 giving judgment to the Plaintiffs/Respondents.

The Plaintiffs now respondents by a Writ of Summons dated the 11th day of June 1990 sued the Defendants now Appellants claiming the following reliefs:
i) A declaration that the Plaintiffs are the people exclusively entitled to the Customary Right of Occupancy in respect of a piece and parcel of land situate at Uruagu Nnewi and more particularly referred to and called AKWU OKWENU LAND. The annual value is N100.
ii) A declaration that any purported alienation of the said land or any part of it by the defendants to anybody whatsoever without the consent of the plaintiffs is null and void and without any effect whatsoever,
iii) N3,000 damages for trespass.
iv) Perpetual injunction restraining the defendants, each and everyone of them and collectively from further trespass on the said land.

Pleadings were

duly ordered, filed and exchanged. By a 22 paragraph amended statement of claim, the Respondents pleaded that the land in dispute denoted by Plan No. VLD/AS10/90 and verged pink, tendered as Exhibit C is part of a larger area of land which belongs exclusively to the Respondents’ sub-family by inheritance and over which the respondents and their ancestors have been in exclusive ownership and possession for a long time. The whole area of land including the disputed land is verged violet in Exhibit C. Both the portion of land in dispute and the larger area are called the same name, AKWU OKWENU LAND.

The Respondents claimed to be suing in a representative capacity but excluded the 1st Defendant. The Respondents and the original 1st Defendant, now deceased, were half-brothers, having the same father, Ngoka lgbokwe. 1st Defendant was sued together with the 2nd – 5th Defendants (now Appellants).
?
The Defendants i.e. 1st Defendant and Appellants in their Statement of Defence denied the claims of the Respondents. They admitted that both the land in dispute and the larger area are known as AKWU OKWENU LAND but joined issues with the Respondents on the

correctness of the boundary features shown on the survey plan. Appellant’s defence is that the land in dispute is the communal property, Aniora, of the entire Igbokwe family of Uruagu Nnewi and not the exclusive property of the Respondents, a sub-branch. That apart from the Ajofia land used communally as Aniora by the Igbokwe family, the said family also have other lands as Aniora, one of which is the Akwu Okwuenu land in which they have been exercising diverse acts of ownership and possession without let or hindrance from the respondents.

Trial commenced on 11/1/2001, and three witnesses testified on both sides. With leave of Court, parties filed written addresses which they adopted in Court. In a reserved judgment, the learned trial Judge granted the claims of the Respondents.
?
Dissatisfied, the Appellants appealed against the judgment on 27/2/2006. With leave of the Court, the Appellants filed amended Notice and Grounds of Appeal containing 13 grounds. Pursuant to order of Court made on the 30th of September 2014, substituting Edmund Ngoka Igbokwe (the hitherto named 1st Respondent) with Osita Ngoka Igbokwe, Appellants filed a further amended brief

of argument.

In the further amended Appellants’ brief settled by Prof. Ilochi A. Okafor SAN filed on 8/10/14, Learned Appellants’ senior counsel submitted seven issues for determination as follows:
1) Was the learned trial judge right in law and on the state of the pleadings to have granted declaratory reliefs jointly in favour of the respondents and the 1st defendant when no such relief before the Court? (Grounds 1 and 2) Was the learned trial judge right to have decreed title when the respondents did not prove the exact boundary and features of the disputed land.
3) Was the learned trial judge right on the contradictory evidence of the Respondents witnesses to have awarded then title to AKWU OKWENU LAND in the fact of Exhibit ‘D’
4) Whether the respondents proved exclusive ownership or possession of the land in dispute to found trespass especially in the absence of a specific finding of liability for trespass.
5) Was the learned trial judge right to hold that Exhibit ‘C’ the survey plan was correct in view of the fact that it was unchallenged/
6) Was the learned trial judge right when he held that the appellants were bound by

the 1950 verdict of the larger family meeting of both parties because the appellants did not promptly object to the said verdict.
7) Was there a breach of the Appellants right to fair hearing when the Court failed to consider and evaluate the evidence of PW3 in the proceedings? (Ground 12).

In the amended Respondents’ brief settled by M.V.C. Ozioko Esq. filed on 23/10/14 the following issues were also submitted for determination as follows:
i) Whether the Court below was right in including the 1st defendant as part of the beneficiaries of the declaration of Statutory Right of Occupancy granted in favour of the Plaintiffs/Respondents over the land in dispute in the above proceedings. (Relative to Grounds 2, 3, 4 and 9 of the Grounds of Appeal).
ii) Whether the identity of the land in dispute was sufficiently established by the Plaintiffs/Respondents to justify the judgment of the Court below in their favour over same. (Relative to Grounds 2, 3, 4 and 9 of the Grounds of Appeal).
iii) Whether upon the preponderance of evidence adduced the Court below was right in entering judgment for the Plaintiffs/Respondents over title to the

land in dispute in the instant proceedings (relative to Grounds 5, 7, 12 and 13 of the Grounds of Appeal).
iv) Whether the Court below was right in holding the Appellants liable for trespass and awarding damages therefore against them in the instant proceedings. (Relative to Grounds 6 and 8 of the Grounds of Appeal)
v) Whether the Court below was right in holding that the Appellants were bound by the verdict of the 1950 customary arbitration undertaken between the parties in connection with the dispute between the parties in the instant proceedings. (Relative to Ground 10 of the Grounds of Appeal).

I have read all available record, exhibit and processes in this appeal. I believe the following issues distilled by me would adequately determine the merits of the complaints manifested in the amended notice of appeal.
1. Whether the learned trial judge was right to grant declaratory reliefs in favour of the 1st Defendant.
2. Whether the Respondents proved the boundary of the land in dispute to be entitled to a declaration of title to it.
3. Whether the trial Court was right in holding that the Appellants were bound by the verdict of

the 1950 customary arbitration.
4. Whether on the preponderance of evidence, the Respondents were entitled to title to the land in dispute.

ISSUE ONE
Whether the Learned trial judge was right to grant the declaratory reliefs in favour of the 1st defendant.

Learned Appellants’ counsel argued that the learned trial judge gratuitously included the 1st Defendant at trial with the Respondents as persons exclusively entitled to a Statutory right of occupancy in respect of AKWU OKWENU LAND. The 1st Defendant and the Respondents did not pray for this nor for a prayer nullifying any purported sale or alienation of the Akwu Okwenu land or part thereof by the Appellants to anybody without the consent of the Respondents and the 1st Defendant.
?
Counsel also complained that the learned trial judge went ahead to award damages for trespass against all the Defendants at trial and an order of perpetual injunction restraining the Defendants individually and collectively from further acts of trespass on Akwu Okwenu Land. The trial judge had earlier held that the land in dispute was in the custody of the late original 1st Defendant, Izeji Ngoka lgbokwe, and by

extension, in the custody of the 1st Defendant. In other words, that the 1st Defendant was also in possession of the disputed land as head of the Respondent’s sub family. Senior counsel argued that it was wrong for an order in damages for trespass and an order of perpetual injunction to have been decreed against him. Senior counsel cited the following cases:
Stowe v. Stowe (2001) 5 NWLR (Pt.706) 394 at 404: Ekpenyong v. Nyong II (1975) 2 SC 71; See also Ogunjemila v. Ajibade (2010) 11 NWLR (Pt 1206) 559 at 588; Dagaci of Dere v. Dagaci of Ebwa (2001) 7 NWLR (Pt.712) 355; Dumez v. Nwakhoba (2008) 18 NWLR (Pt 1119) 361.
?
In reply to this point, learned counsel for the Respondents argued that the case of the Respondents at the trial Court was that the land in dispute belonged exclusively to the said Ngoka sub family of Igbokwe family as opposed to the case of the Appellant that it belonged to the entire Igbokwe family. The reliefs claimed by the Respondents in Paragraph 22(i)-(iv) of the Amended Statement of Claim was for and on behalf of the said Ngoka sub-family of Igbokwe family including the main relief of declaration of title to the land in dispute

in favour of the said sub-family as represented by the named plaintiffs on record. The argument of the Respondents is that in consequence, the actual plaintiffs in the suit in whose favour and for whose benefit the declaration of title was made is the said Ngoka sub-family of Igbokwe family and not merely the named Plaintiffs on record.

Counsel further argued that the original 1st Defendant on record is a member of the said Ngoka sub-family of Igbokwe family and indeed was in his life time the eldest son and head of the family of Ezeukwu Ngoka Igbokwe the father of the Respondents. He was sued as a defendant alongside the other defendants by his brothers who were Plaintiffs, now the Respondents for his compromising role in the dealings with the land in dispute complained of by the Respondents especially as is borne out by Exhibit D the so-called settlement Agreement.
?
Counsel then submitted that the 1st defendant being a member and head of the said Ngoka sub-family of the Respondents was a natural beneficiary of the declaration of the title to the land in dispute in favour of the said Ngoka sub-family. This is in spite of his said compromising role

and status as a defendant in the suit. His nominal position as a defendant did not affect his equally vested right and entitlement as a member and head of the said sub-family to the declaration made in favour of the sub family.

Respondent’s counsel insisted that the trial Court did not award any relief to the 1st Defendant as an individual contrary to the contention of counsel for the Appellants. Counsel argued that the trial Court found that the land in dispute was in the custody of the Respondents albeit through the head of family the original 1st Defendant who had been substituted by his son the incumbent 1st Respondent. Learned Respondents’ counsel argued that the 1st Defendant was rightly condemned in damages for acts done prior to the judgment of the trial Court because of the denial of the exclusive ownership rights of the Respondents’ sub-family in favour of the larger Igbokwe family by the original 1st Defendant and the collusion with other Appellants to alienate portions of the land in dispute.
?
Respondents’ counsel also submitted that the order of perpetual injunction was made to restrain any further acts by the 1st defendant either alone or

in conjunction with the rest of the defendants now Appellants which is adverse to the interest of the Respondents family or their collective ownership and possession of the land in dispute as decreed by the judgment of the trial Court.

RESOLUTION
The learned trial judge held as follows at page 234-235 of the Record.
“I hold that all the area verged pink in Exhibit ‘C’ remain the unshared land of Ezeukwu Ngoka Igbokwe in the custody of 1st defendant Chief Izeji Ngoka Igbokwe at the time this suit was instituted and now in the custody of the substituted 1st defendant, Chief Emmanuel Ebubeze Ngoka lgbokwe to be held in trust for the direct descendants of Ezeukwu Ngoka Igbokwe and to be shared according to Nnewi Native law and custom, I hold that the land in dispute was effectively held by Ezeukwu Ngoka Igbokwe until his demise.”

Pursuant to that finding the learned trial judge made the following declaration at Page 235-236 of the Record.
a) It is hereby declared that the plaintiffs including the 1st defendant are the people exclusively entitled to the Statutory Right of Occupancy in respect of Akwu Okwenu land.
b) It is the further

declared that any purported sale or alienation of the said land or any part of it by the defendants to anybody whomsoever without the consent of the plaintiffs is null void and without any effect whatsoever,
c) It is ordered that an order of perpetual injunction is hereby made restraining the defendants each and every one of them, and collectively from further trespass on the said land.
d) I award damages for trespass of N3,000.00 to the plaintiffs,
e) I award costs of N10,000.00 to the plaintiffs.

There is no doubt that parties are ad idem on the fact that the 1st son and the head of the family is in control of family land. The trial Court was at pains to explain that the 1st Defendant’s interest in the land as family head could not have been exclusive to him as an individual but as a representative of his sub-family and the larger family. By what I can glean from page 234 of the Record, the trial Court did not find that the possession of the land in dispute by 1st Defendant was inherently adverse to the rights of the Respondents, being their extended family head and sub family head. The learned trial judge agreed with the Respondents that

the 1st Defendant engaged in activities in collusion with the larger family to deprive the Respondents exclusive possession and rights to the land in dispute which then amounted technically to acts of trespass in so far as they are adverse to the interests of the Respondents sub-family notwithstanding his membership of the said sub family.

As shown above, the first declaration made was to grant the Respondent declaration of title to the land and to include the 1st Defendant as a beneficiary of that order. The other orders were to exclude the Appellants from the land perpetually and to prevent them from alienating the land etc. In my humble view, the complaint under this issue is misconceived. The statement of claim filed on 13/12/1990 page 10 of the record and the amended Statement of Claim filed on 22/7/2004 at Page 67 of the Record contained the prayers against all the Defendants including the 1st Defendant in view of the nature of the Respondents’ claims.

The Respondents had always asked for all the reliefs granted by the High Court. It is therefore not at all correct that the Respondents were given reliefs they did not ask for.

?In any

event, this complaint is about the orders made against the 1st Defendant. The 1st Defendant is not a party to this appeal and has filed no appeal against the judgment of the trial Court. I agree with learned Respondents’ counsel that even if the inclusion of the 1st Defendant were wrong (which I do not agree it was) that order on its own has not engendered any miscarriage of justice.

The said orders/reliefs remain potent and valid against the other defendants (the Appellants). The said other defendants (Appellants) cannot derive any benefit from the said inclusion of the 1st defendant even if it amounts to a defect in the judgment of the trial Court.

This issue is resolved against the Appellants.

ISSUE TWO
Whether the Respondents proved the boundary of the land in dispute to be entitled to a declaration of title to it.

Learned Senior Counsel for the Appellants argued that the declaration of title to Akwu Okwenu Land decreed by the trial Court in its judgment was not tied and did not attach to any definite, clear, precise and exact area of land. That Exhibit ‘C’ was filed and tendered in the proceedings is non-sequitur. Senior counsel

insisted that there is ambiguity as to whether the declaration relates to the area of land in Exhibit C verged pink or whether it relates to the area verged violet and this resulting equivocation implies that the area of land to which the declaration is attached has not been proved with clarity. Counsel argued further that based on the pleadings and evidence of the Respondents’ witness, PW1 and PW2, Akwu Okwenu is a common name used to refer to the different portions of land in Exhibit ‘C’. It was then imperative that a great deal of care ought to have been taken to pin point the exact area the declaration of title was meant to attach. Counsel insisted that there is a doubt as to which area of land the declaration relates, and since doubts have no place and ought not to exist in relation to an award of title to land, the title must be tied to a definite area. Counsel argued failure of the Respondent to prove the precise area of land is fatal to the case of the Respondents and that the Respondents’ case must be dismissed.
?
Counsel submitted that the failure of the, learned trial judge to precisely state in the order the particular portion on Exh ‘C’ to

which the declaration of title will attach makes the order ineffective and defective.

Learned senior counsel cited Epi v. Aigbedion (1972) 10 SC 53, Ezukwu v. Ukachukwu (2004) 7 NWLR Pt.902 Pg, 227, Ogedengbe v. Balogun (2009)9 NWLR Pt.1039 Pg.380; Elakhame v. Osemobor (1991) 6 NWLR Pt 196 Pg.170 at 179, Agienoji v, COP Edo State (2007) 4 NWLR Pt.1023 pg.23.
?
Learned counsel for the Respondents argued that it is not correct, as contended, that the parties were in disagreement as to the identity of the land in dispute. On the contrary, the parties were from the pleadings and the evidence adduced, completely ad idem as to the identity of the land in dispute moreso as both sides respectively asserted ownership of the land in question from one root of title i.e. a common ancestor called Okolonkwo, the great-grand-father of the Respondents and grand-father of all the defendants; down to his son Igbokwe Okolonkwo the grand-father of the Respondents and father of the Appellants. Counsel referred us to paragraphs 8-15 of the Amended Statement of Claim as well as paragraph 6-15 of the Statement of Defence. Counsel also referred us to the evidence of PW1, PW2,

DW1 and DW2 at the trial. The only point of divergence in the traditional histories of both parties is that whilst the Respondents asserted that the land in dispute was inherited by and belonged exclusively to their Ngoka sub-family of the larger Igbokwe family, the Appellants’ case was that the land was inherited by and belonged to the entire larger Igbokwe family (including the Respondents) as their communal land i.e. Ana Ora”.

RESOLUTION
The learned trial judge held as follows on page 225 of the record:
“Exhibit ‘C’ is for the survey plan of the land in dispute tendercd by the PW3 for the plaintiffs and admitted in evidence on 18/2/2003. The entire Akwu Okwenu land said to belong to Ngoka Igbokwe is verged violet. The part of Akwu Okwenu land now in dispute is verged pink, The survey plan in Exhibit C is uncontradicted and unchallenged in terms of its size and boundaries, I accept the correctness of Exhibit C to that extent Beginning from the top of the Survey Plan the following land holding in the larger Akwu Okwenu land are not part of the land in dispute namely, Anaobi land of Orji Ngoka Igbokwe; Obi Ngoka Igbokwe, Anaobi of Godwin and

Robinson Ngoka Igbokwe, Anaobi of Chukwukanene and Godwin Ngoka Igbokwe and Anaobi of Edmund Ngoka Igbokwe, Besides the above land holdings the plaintiffs further show on Exhibit C encompassed by the land in dispute holdings which are not in dispute as follows, Land of Emmanuel Nwaogwagwu, land of Maduanwuna Ikegwuoru, Land of Emmanuel Epunam, land of James Okonkwo and land of Peter Osakwe verged in green, Save for these, all the other remainder of Akwu Okwenu land is in dispute.”

The settled principles of law relating to burden of proof of title to land which hinges on proof of the boundaries of the land in dispute are that:
a.) In an action for declaration of title to land, the land to which the declaration is sought must be sufficiently identified to a defined area. The usual test is whether a surveyor can from the record produce an accurate plan. See Ogedengbe v. Balogun (2009) 9 NWLR (PT 1039) 380.
?b) The Plaintiff ought to file a Survey Plan reflecting all the features of the land showing clearly the boundaries as well as the people who share common boundaries with the land and other land marks.
c) Where a Plaintiff fails to prove the

boundaries of the land he is claiming, he has failed by that omission to prove his case and the proper order that the Court should make in such circumstances is usually an order of dismissal of the claim.

I have read the pleadings particularly Paragraphs 4 & 5 of the amended statement of claim and Paragraphs 3 & 4 of the Statement of Defence. I have read also the evidence of the principal parties in this dispute. It is clear to me that both parties were perfectly ad idem that the land in dispute is commonly known as and called Akwu Okwenu land, which said land forms part and parcel of a larger area also known as AKWU OKWENU land. So even on the basis of the pleadings alone, it had become established that the land in dispute was known as and called AKWU OKWENU land. The fact that the particular AKWU OKWENU land in dispute forms part and parcel of a larger area also known as AKWU OKWENU as pleaded by the Respondents was expressly admitted by the Appellants and as such there was no doubt whatsoever in the minds of the parties as to the portion AKWU OKWENU land that was being contested by them.

?The evidence of P.W.3 the surveyor who prepared Exh

C relied on by the learned trial judge is instructive in this regard.

A survey plan No. VID/AS/10/90 was tendered by P.W.3 as Exhibit C showing the features of the said land, both the area in dispute and the area not in dispute. In the said Exhibit C the exact AKWU OKWENU land that was in dispute was verged “Pink” and identified in Reference No. 5 therein while the larger AKWU OKWENU land was verged “violet” and identified in Reference No. 1 therein. This fact was duly pleaded in paragraphs 4 and 5 of the Amended Statement of Claim and testified to by PW 3 at the trial.

I agree with learned Respondents counsel that the full import of a judgment cannot be understood from the reliefs alone but from reading the judgment as a whole. Thus the full import of a relief granted by a Court in a given case is better and more clearly understood and defined by reference to the claim or the subject matter before the Court as well as the evidence and materials adduced to establish same.
?
Even if the failure to mention the survey plan in the relief of declaration of title granted amounted to an error, it does not in any way occasion any substantial wrong or

miscarriage of justice against the Appellants or affect the validity or merits of the judgment. This is moreso as the Appellants were fully cognizant of the identity of the land contested between the parties. In ILONA vs IDAKWO (2003) FWLR (PT. 171) 1715 at 1737-1778, the Supreme Court held that the question of identity of the land in dispute will not arise and cannot be raised on appeal where the land in dispute was known to both parties or the identity of the land was not in issue at the trial Court.
I am certain from the records that the identity of the land in dispute was well known to the parties. Notwithstanding the fact that the learned trial judge did not state specifically the portion attached, the omission of the learned trial judge to attach the orders to a specific portion of Exh ‘C’ given the circumstances of this case has not in my humble view led to a miscarriage of justice since all parties knew the specific portion of land in controversy as verged pink in Exh ‘C’.
Diamond Bank v. Partnership Investment (2009) 18 NWLR Pt.1172 Pg. 67; Compaguie Grenerale de Geophysique Nig Ltd v. Idorenyin (2015) LPELR ? 24685 (SC) LASTMA v.

Esezobo (2015) LPELR 25003 (CA) Onyenwe & Anor v. Anaejionu (2014) LPELR-22495 (CA); Olonade v. Sowemimo (2014) LPELR – 22914 (SC)

It is not every omission or error that can lead to a reversal of an otherwise just judgment. It must be one that has led to a miscarriage of justice. The error in the final order is one that can be corrected, moreso so there is evidence on the record that the land in dispute recognised and identified as Awka Okwunu and found by the trial judge as identified in Exh ‘C’ as verged pink.
The error cannot thus lead to a reversal of the judgment.

This issue is resolved against the Appellant.

ISSUE THREE
Whether the trial Court was right in holding that the Appellants were bound by the verdict of the 1950 Customary Arbitration.

Learned senior counsel for the Appellants argued that although the respondents as Plaintiffs pleaded facts relative to the arbitration by the Umudikefun family meeting of 1950 presided over by Chief Ezeogidi, the Obi of Uruagu, they did not prove the presence of all the elements of customary arbitration.
?
Senior counsel argued that the preponderance of evidence at the trial is that

the appellants rejected the verdict of the customary arbitral panel. Senior counsel referred us to paragraphs 12 & 13 of the Statement of Defence which is in tandem with the evidence of DW1 & DW2 to the effect that because the Igbokwe extended family had many male children, demand was made to the family head for more land to be shared in 1948 but the family head at the time Ngoka Igbokwe ? the father of the Respondents refused. The matter was taken for arbitration to the Umudikefuna family meeting of the parties which was presided over by the Obi of Uruagu, Chief Ezeogidi. The arbitral panel told Ngoka Igbokwe to give Ajofia to the male children as Aniora. The Ajofia was rejected because it was small in size and inadequate for the male extended family so the Appellants demanded for Akwu Okwenu which is larger in size as Aniora to be included. DW2 had testified that it was the rejection of Ajofia land by the Appellants that gave rise to the suit filed in 1971 by the Appellants, against Ngoka Igbokwe who insisted on their right to farm on Akwu Okwenu land. Counsel argued that the Appellants had promptly rejected the arbitral decision in 1950

contrary to the finding of the trial judge. Senior counsel submitted that Egesimba v. Onuzurike (2002) 15 NWLR Pt.791 Pg. 466 at 505-506 relied on by the learned trial judge is not relevant in the circumstances of this case.

Learned counsel for the Respondents argued that as rightly found by the trial Court, the Appellants were bound by the said decision of the Customary Arbitration. Evidence on record indicate that the decision of the Customary Arbitration was reached in 1950. Although the Appellants claimed that they rejected the said verdict, there was no evidence adduced as to when the rejection was made. Again there was no evidence showing any positive act on the part of the Appellants signifying such rejection until 1963 when the Appellants purportedly went back to Ezeukwu Ngoka Igbokwe (the father of the Respondents) to demand that the land in dispute be declared as Ana ora as the Ajofia land granted to them by virtue of the arbitration was not enough.

RESOLUTION
To better understand this issue, we must refer to the reasoning of the learned trial judge on this point on page 227-229 of the record
“DW1 in his evidence in Chief states

that the sons of Igbokwe Ngoka’s brothers being unappy that their brother Ngoka would not give them residential land wrote a letter to him and when he still ignored the letter took the matter to Umudikeafuna family meeting which asked Ngoka to release Ajofia land to his bothers as Anaora. DW1 and DW2 are divergent as to who took the matter to llmudikeafuna. That is by the way. The salient point again is that Umudikeafuna, ruled that Ajofia be given as Anaora to the sons of Igbokwe, who are defendants in this suit Nothing was said or heard about the residential land so much harped on by the DW1. Anyway, going back to Exhibit ‘H’ it is now seen that it highlighted this decision of Umudikeafuna to give Ajofra land as Anaora to the defendants. It is also in evidence of Dw1 from cross examination on 17/11/2004 that among Umudikeafuna are elders who are conversant with Nnewi custom and tradition. The 2nd ? 5th defendants voluntarily submitted to arbitration of their dispute with their brother Ezeukwu Ngoka Igbokwe which later issued a verdict that Ajaofia be made Anaora, According to Exhibit H. That was the state of affairs until 1963 when according to Ezeukwu

Ngoka Igbokwe upon hearing that Christ Missionary Society authorities was approaching him from Okwenu land for building their Girls Secondary School some of the defendants issued a public notice. I had mentioned the desirability of having the notice issued by the defendants before the Court, That notwithstanding I think that from 1950 to 1963 is a long time and I hold that the defendants were as at 1963 bound by the verdict of the arbitration of Umudikeafuna family meeting, At the time the parties voluntarily submitted their disputes, they indicated a willingness to be bound by the decision, the decision was in accordance with the custom of the parties, and the arbitrator reached a decision and published the award. See Ezesimba v. Onwuzurike (2002) 15 NWLR (Pt.701) PAGE 466 AT 505 – 500 per Ayoola JSC. But the defendants resiled from that arbitration, PW1 in his evidence in chief on 17/6/2001 showed that in 1963 the sons of Igbokwe came back to demand Akwu Okwenu land as Anaora from Ezeukwu Ngoka Igbokwe, Exhibit ‘H’ said so too, PW2 said the same thing on 6/6/2002, DW1 on 11/12/2003 stated in his evidence in chief that sons of Igbokwe rejected the verdict of

Ajaofia land as Anaora. He did not say when. Interestingly DW1 also stated that this Ajofia land was sold to one of their own, one Ejiamatu Igbokwe by all the sons of Igbokwe including the original 1st defendant, Izeji Ngoka Igbokwe, DW2 in his evidence in chief on 27/1/2001 did not also say when the defendants rejected the verdict of Ajofia as Aaora. I take it that the defendants resiled from the verdict of Umudikeafuna arbitration made about 1950 that the Ajaofia should be Anaora only in 1963.”

It is a well settled principle that the proper attitude of an appellate Court to findings of facts of a trial Court is that the Court should not interfere with the facts as found by the trial judge unless there is an obvious error in the appraisal of the evidence and the ascription of probative value thereto. See Egbaran V. Akpotor & Ors (1997) 7 NWLR Pt.514 Pg. 559,

?I, most humbly cannot find anything wrong or perverse in the above finding of the trial Court. In Oparaji & Ors v. Ohanu & Ors (1999) 9 NWLR Pt 618 Pg.290, the Supreme Court held that where an arbitration under customary law is pronounced valid and binding, it would be repugnant to

good sense and equity to allow the dissatisfied party to reject or resile from the decision to which he had previously submitted to. In Awosile v. Sotunbo (1992) NWLR Pt. 243 Pg.514, the Supreme Court held that where customary arbitration has been pleaded and proved, it is binding on the parties. In this case, the Respondents in paragraphs 11 & 12 of the amended statement of claim filed on 22/7/04 pleaded the customary arbitration of 1950 and they led oral evidence on it. I cannot find fault with the finding of the trial judge that the Appellants sold the land given to them in 1950 as Aniora and thereafter started agitating for the land in dispute thus resiling from the determination of the arbitrators in 1950. I can find no merit in this complaint. This issue is resolved against the Appellants.

Whether on the preponderance of evidence, the respondents were entitled to the land in dispute.
Learned Senior counsel for the Appellants in paragraphs 1.14 to 1.20 made references to the pleadings of the parties and the testimonies of the witnesses on both sides at the trial relative to the issue of ownership and possession of the land in dispute.

Specific reference was made to conflicting evidence of PW1 and PW2 regarding the said question of ownership and possession of the land in dispute.

Learned counsel for the appellants further argued that the alleged material contradictions in the evidence of PW1 and PW2 on the issue of title to land are fundamental against the claim of exclusive ownership pursued by the Respondents.

It is the further contention of the appellants’ counsel that the evidence of the 1st defendant (as DW2) amounted to admission against the interest of his sub-family of the plaintiffs. Also that the trial Court did not evaluate or consider the impact of DW2’s evidence on the overall claim of exclusive set up by the plaintiffs. It is also the contention of the appellants’ in paragraphs 1.21 to 1.22 that the Court below was wrong in its verdict concerning Exhibit D, that the Exhibit was contrived.
?
Learned counsel for the respondent argued that the contentions of the Appellant are devoid of merit. Counsel argued that the parties were ad idem at the Court below that in accordance with the custom of Nnewi, all the unshared land of Igbokwe devolved on Ngoka Igbokwe as

Diokpala who was in control of same after Igbokwe’s death. Accordingly, the land in dispute after Igbokwe’s death, was under possession and control of Ngoka Igbokwe. Apart from the consensus in the pleadings epitomised by paragraphs 7 and B of the amended statement of claim and paragraphs 10 and 11 of the statement of defence (p.68 and 15 of the records). PW1 and PW2 were emphatic on this point in their respective testimonies on 11/1/2003, 11/6/2001, 20/6/2001, 6/6/2002 and 28/11/2002 (p.116, 119, 126, 127, 139, 148 of the record). DW1, DW2 and DW3 also confirmed this fact in their respective testimonies on 11/12/2003, 6/10/2004, 27/1/2005, 17/2/2005 and 17/5/2005 (p.157, 171, 185, 188, 191 and 200 of the records). Indeed DW2 under cross examination on 3/3/2005 stated that by Nnewi native law and custom, apart from “Ani Ora” whatever remains of the undivided plots of the deceased belongs to the Diokpala.
?
Learned Respondents’ Counsel insisted that as borne out by evidence adduced, the Umu Igbokwe family of the Appellants not only accepted “Ajofia Land” as “Ana Ora” but later went on to sell same. See PW1’s evidence on 11/6/2001, PW2’s evidence on 6/6/2002,

DW1’s evidence in chief on 11/6/2003 and under cross examination on 17/11/2004 and DW2’s evidence on 27/1/2005 and under cross examination on 3/3/2005. Indeed counsel argued, by DW1’s aforesaid evidence, Umu Igbokwe had other “Ano Ora” portions of land outside “Aja Ofia” land by 1948 which was situate at a place called Umumejiaku.
?
The other issue in contention is the significance of Exhibit D to the case of the parties in relation to the position of the parties concerning Exhibit D, the respondents had in paragraphs 16 and 17 of the Amended Statement of Claim clearly debunked Exhibit D and stated their position concerning same i.e that it was purportedly made without their knowledge and consent and they took steps to communicate their rejection of same to the original 1st defendant and the appellants in writing. The appellants on the other hand in response averred in paragraph 17 of the statement of defence that the respondents were aware of and took part in the making of Exhibit D. It is pursuant to this testimony of DW1 that the said Exhibit D was tendered and admitted in evidence. It is noteworthy that the parties are agreed that it was the same Akwu

Okwenu land that was the subject-matter of the dispute in Suit No:0/11/71. This is vividly captured by the evidence of DW1 under cross examination on 17/11/2004 at page 158 and 163 of the record.

RESOLUTION
I must perforce have recourse to the reasoning of the Learned trial judge on this issue at page 230-231 of the record, his Lordship held as follows;
“the defendants herein state that the suit 0/112/71 was withdrawn and the plaintiffs claim suit O/112/71 was struck out and tendered Exhibit H, The defendants state that there was a settlement reached before the suit O/112/71 was withdrawn to which they tendered Exhibit ‘D’. Exhibit ‘D’ is the other important document in this suit. The paragraph 1 therein recites that both plaintiffs and defendants have agreed to settle their land dispute in suit 0/112/71 out of Court. The plaintiffs put in Exhibit B which is a protest letter from Orji Igbokwe the original 1st plaintiff addressed to his uncles David, Daniel, Godfrey, Ogukwu and Gabriel all Igbokwes warning them about dealing with their brother Izeji Ngoka Igbokwe over the land with his and other brothers involvement. The defendants deny the

existence of Exhibit B. I see that in suit 0/112/71 Ngoka Igbokwe was sued in his name only. I have said that when Izeji was substituted for his father he was clearly so done for himself and on behalf of his brotherc of the same father I hold that by virtue of Exhibit A Izeji Igbokwe as defendant in suit 0/112/77 continued at all times to be a party thereto in a representative capacity, fn a ruling which I made on 22/1/2004 leading to the accepting Exhibit D in evidence I took the same stand not withstanding that the defendants did not indicate that they were sued in representative capacity, I have perused Exhibit D and I agree with Learned Counsel for plaintiffs that reference to the defendant therein was arrived as if his brothers did not exist I do not think that ought to be allowed to stand. There is also a trend throughout Exhibit D that all grants made are personal to the defendant therein. There is again the paradox, in all of Exhibit D the land in dispute or even the greater Akwu Okwenu land was not situated. There was no mention of who owned what before the sharing commenced. It is after giving all the lands around the Obi Igbokwe to defendant and

giving him seven of 14 (fourteen) plots of Agbo Edo layout, the remainder of Akwu Okwenu land is to be communal land of Umu Igbokwe from which the defendant is also to partake of. There is no mention of his brothers, the plaintiff in this suit. There is also the fact that Exhibit D set out to settle the land dispute in suit 0/112/71 but the positions of the plaintiffs and defendants vis-a-vis the suit and the land were not set out Exhibit D did not contain a survey plan. At paragraph 2 there is a space for a plan number which remained unfilled. The numerous lands mentioned in Exhibit D in effect could not be ascertained and verified. I hold that for the above reasons Exhibit D is not a document made to settle suit 0/112/71 out of Court. It gives much room to take Exhibit D seriously that there were attempts for the plaintiffs to enter into an agreement with the defendant without the consent and agreement of his other brothers in suit 0/112/71.”
?
The Learned trial judge then ultimately held that Exhibit D was contrived and that it had diminished value as it was not made for the judgment of the Court. I also cannot find any reason to hold that the

conclusions of the learned trial judge is perverse in his findings of fact. His Lordship held that at page 233-234 of the record as follows:
“in conclusion I am of the opinion that the Exhibit C accepted as the true position of the land dispute that all other evidence as boundaries, neighours and features are peripheral, Exhibit C is in good detail. The plaintiffs claim that defendants sold portions of the land in dispute and in 1988, 1989 and 1990 destroyed cassava and yam crops of the 1st plaintiff on the land. The defendants deny this. I find that from Exhibit C the greater Akwu Onwenu land verged violet beame the share of Ezeukwu Ngoka Igbokwe from the father, Igbokwe Okoronkwo. It is very probable that Ezeukwu Ngoka Igbokwe held the entire Akwu Okwenu land to himself exclusively. This is borne out of the fact that in 1950 at the behest of Umudikeafuna family meeting he was able to produce Ajofia as communal land Anaora for all sons of Igbokwe. The issue of Anaora would only come up by Nnewi Native Law and Custom after all remaining sons have been settled with residential land, Anaobi. Again there is evidence of DW1 on 17/11/2004 in cross examination

that apart from Akwu Okwenu land and by extension Ajofia land there were other lands belonging to sons of Igbokwe under the control of Ezeukwu Ngoka Igbokwe. There is also the corroborated evidence that apart from the direct sons of Ngoka Igbokwe none of the other sons of Igbokwe live anywhere in Exhibit ‘C’.”

From the evidence on record, it is clear that the grandfather of the Respondents as Diokpala was entitled to the exclusive possession of the land in dispute as against the extended family. Therefore the Respondents who were his direct descendants were also entitled to exclusive possession of the land in dispute. I see no reason to disagree with the learned trial judge’s findings of fact in this regard.

In the circumstances, this appeal lacks merit and is liable to be dismissed. The judgment of the Hon. Justice Peter N.C Umeadi in Suit No: HN/62/90 delivered on 2/12/05 is hereby affirmed.
N100,000 costs against the appellants for the Respondents.
Appeal Dismissed.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the benefit of reading while in draft, the lead judgment of my learned brother, Hon.

Justice Helen Moronkeji Ogunwumiju, JCA. just delivered. My noble Lord has admirably and meticulously considered and commendably resolved the issues thrown up for determination in this appeal. With utmost respect, I adopt his lucid reasoning and conclusion as mine. Indeed and in my agreement therewith, I am equally of the firm viewpoint that the appeal is devoid of any vestige of merit and should be dismissed. I thereby abide by the consequential orders made therein, inclusive of the one on costs.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, HON. JUSTICE HELEN MORONKEJI OGUNWUMIJU, JCA. I agree with the reasons therein advanced to arrive at the conclusion that the appeal has no merit and should be dismissed. I abide by the consequential orders made therein.

Appearances:

C. I. Okafor with him V. C. OgbodoFor Appellant(s)

M. V. C. Ozioko with him A. C. Egbere and
L. C. OnahFor Respondent(s)

Appearances

C. I. Okafor with him V. C. OgbodoFor Appellant

AND

M. V. C. Ozioko with him A. C. Egbere and
L. C. OnahFor Respondent