PAUL EZECHUKWU v. IGNATIUS EZEONWU & ORS (2014)

PAUL EZECHUKWU v. IGNATIUS EZEONWU & ORS

(2014)LCN/7464(CA)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of January, 2014

CA/E/38/2011

RATIO

COURT: DUTY OF COURT: THE DUTY OF THE TRIAL COURT TO EVALUATE AND APPRAISE EVIDENCE AND ASCRIBE PROBATIVE VALUE ON THEM

In determining the issue I must not fail to remark in the first place that the law is settled on a host of judicial authorities from the Supreme Court and our Court that the evaluation and appraisal of evidence and ascription of probative value to proved facts are primarily and exclusively the duty and within the purview of a trial Court which had the opportunity of listening and watching the demeanour of witnesses. per. IGNATIUS IGWE AGUBE, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

An Appellate Court which is only seised with the cold printed Records of the lower Court without the benefit of watching and hearing the witnesses testify, should be wary in interfering or disturbing the findings of a trial Court arrived at after such appraisal and evaluation process.
However, an Appellate Court such as ours can only embark on reappraisal and evaluation of evidence where the trial Court failed in its duty so to do or in the process arrived at a perverse finding or wrong inferences have been drawn from proved facts or that wrong principles of law have been applied to such accepted facts. See Eba v. Ogodo 1 SCNLR 372; Ibodo v. Enarofia (1980) 5 S.C. 42; Adeye v. Adesanya (2001) 6 NWLR (Pt.708) 1 S.C.; Enang v. Adu (1981) 11 – 12 S.C. 25; Ojonu v. Ajao (1983) 2 SCNLR 156 and Fatoyinbo v. Williams (1956) SCNLR 274. per. IGNATIUS IGWE AGUBE, J.C.A.

PLEADINGS; PLEADINGS OF PARTIES; WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS
Parties are bound by their pleadings and a party must be consistent with the case he puts forward before a trial court. See Adeleke V. Iyanda (Supra) also reported in (201) 6 NSCQR 799 at 875 per Uwaifo, JSC; who held that parties are bound by their pleadings and any evidence which is at variance with the averments in the pleading goes to no issue and should be disregarded by the Court. Belgore JSC; (as he then was) in Bamgboye v. Olusega (1996) 4 SCNJ 166: succinctly stated the position of the law that when a suit is filed it be hopes each party not to change the nature of the action and evidence to support it so that the status quo must be maintained throughout unless the trial Court orders some things to be done to bring into light the real issues in controversy. per. IGNATIUS IGWE AGUBE, J.C.A.

MEANING OF WORDS; ATTORN; THE MEANING OF THE WORD “ATTORN”

EVIDENCE: PROVING TITLE TO LAND; WAYS OF PROVING TITLE TO LAND

See Idundun v. Okumagba (1976) 9 – 10 S.C. 277 (1976) NWLR 200 (1976) N.S.C.C. (Vol. 10) 4165 at 455 where Fatai-Williams; J.S.C. laid down five ways of establishing title to land to include:
1. By traditional evidence/history as has been pleaded and testified to by the Respondent and his witnesses.
2. By production of documents of title like the judgment of the Court in AA/13/1977 the Judgment of the Awka High Court.
3. Long possession as demonstrated in his un-contradicted evidence that his family of Ezeadu 1 had been in possession of the land and exercised numerous acts positive enough to warrant the conclusion by the Court below and even herein, that the land truly belongs to him the (Respondent).
4. The acts of defending actions and instituting same against trespassers and leasing out the land to tenants like Agba people of Ekwulobia and others
5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the Respondent is the owner. In this case, the Respondent has been proved to be the owner of the Akwueke land which he super imposed on Ani – Eke the purported land granted the Appellant by the Ekwulobia Community.
See further the authorities of Ekpo V. Ita 11 NR 68; Dacosta V. Ikomi (1968) ALL NLR 394; Piaro v. Tenalo (1976) 1 F.N.L.R 229 and Sections 131(1) and (2), 132(1), 134 and 136(1) of the Evidence Act, 2011 on the burden of proof. per. IGNATIUS IGWE AGUBE, J.C.A.

Before Their Lordships

ADZIRA GANA MSHELIAJustice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBEJustice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIMJustice of The Court of Appeal of Nigeria

Between

PAUL EZECHUKWUAppellant(s)

AND

1. IGNATIUS EZEONWU
2. NZE RAPHAEL C. EZEONWUMERE
3. CHRISTIAN C. EZEONWU (For themselves and on behalf of members of the Ezenwagbo Family)Respondent(s)

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the Anambra State High Court of Justice, Aguata Division, holden at Ekwulobia which Judgment was delivered by Honourable Justice A.O. Okuma on the 24th day of November, 2008 whereby we entered judgment against the Plaintiff and dismissed his Claim in its entirety. Dissatisfied with the Judgment of the lower Court the Plaintiffs/Appellants now have appealed to this Honourable Court by a Notice of Appeal with five Grounds as contained at pages 215 to 219 of the Record of Appeal filed by the Law firm of G. E. Ezeuko (SAN) & Co. per G.E. Ezeuko, Jnr., Esq. of Counsel. Briefs of Argument were exchanged in this Court in accordance with our Rules and for the Appellants Emeka Ahamefuna Esq. who settled his Brief distilled two Issues for determination couched as follows:-
“1. Whether or not proper evaluation was made when the learned trial Court shirked his duty and declined to determine whether the Appellant’s father made atonement as regards the land in dispute to the Respondents’ father, an important issue over which issue was joined at the trial Court.
“2. Whether or not proper evaluation was made when the learned trial Judge shirked his duty and declined to determine whether Ani-Eke Ekwulobia is situate on both sides of the Aguata – Awka Road, an important issue over which issue was joined at the trial Court
S.N. Chukwuma, Esq. the learned Counsel who settled the Brief of the Respondents adopted the Issues distilled by the learned Counsel for the Appellants verbatim and there is no need replicating those issues herein.
“1. Whether or not proper evaluation was made when the learned trial Court shirked his duty and declined to determine whether the Appellant’s father made atonement as regards the land in dispute to the Respondents father, an important issue over which issue was joined at the Trial Court.
“2. Whether or not proper evaluation was made when the Learned Trial Court shirked his duty and declined to determine whether Ani Eke Ekwulobia is situate on both sides of Aguata-Awka Roa4 which issues was joined at the Trial Court.”

Before going into the arguments of Counsel on the issues formulated, it is only appropriate at this juncture to have a resume of the brief facts of the case. It would be recalled that the Appellant by his Writ of Summons dated 28th of April, 1999 and filed on the 29th of April, 1999 as well as the particulars of Statement of Claim dated 8th July, 1999; sought for the following Relieves against the Respondents in paragraph 14 thereof:
“14. Whereof the plaintiff claims from the Defendant as follows:-
“(1) A declaration that the Plaintiff is entitled to the Statutory right of occupancy in respect of a piece or parcel of land situate at Ekwulobia known and called “ANI EKE EKWULOBIA” granted to the Plaintiff by Ekwulobia Community wherein the plaintiff erected a chain of stores since 1952 at the said Eke Ekwulobia Market.
“(2) A declaration that the Plaintiff is unaffected by any warrant of possession issued pursuant to judgment obtained in suit No. AA/13/77, not being a party to the said Suit nor servant or agent of the Defendants in the said suit.
“(3) An Order setting aside the Warrant of possession dated the 25th of September, 1991.
“(4) N50,000.00 for trespass.
“(5) Perpetual injunction restraining the Defendant, his servants and/or agents from harassing the Plaintiff with any Warrant of Possession, or in any way disturbing or interfering with the Plaintiff’s occupation and possession of his chain of stores at Eke Ekwulobia Market.”

Upon being served with the Appellant’s Statement of Claim, the Respondents as Defendants joined issues by filing their Statement of Defence. Each party had in the course of initiating the proceedings filed their Witnesses Statements on Oath and the List of Exhibits which the sought to rely upon which were also front-loaded. At the hearing of the case the Plaintiff (now Appellant) testified and called two witnesses (PW1-PW3) and tendered some documentary Exhibits. The Defendants/Respondents on the other hand also testified by themselves and called two other witnesses in support of their case.

The case of the Appellant who subsequently substituted his father as Plaintiff in the lower Court is that the land in dispute forms part of a vast of land called Ani Eke Ekwulobia reserved to be used as Ekwulobia Community Market called Eke Ekwuloba which was originally owned by the Ekwulobia Community. The Community granted the land in dispute to his father late Chief Paul Okoye Ezechukwu in 1952 for a job well done for the Ekwulobia Community while executing the contract awarded him by the Community to build the market within the area called Ani Eke Ekwulobia.

According to him, the grant by the Ekwulobia Community was not opposed or interfered with by any person and his father proceeded immediately to erect a chain of shops thereon and rented them out to tenants. He tendered and relied on Survey Plan of the land made by Licenced Surveyor C.P.C Nwosu reproduced from Plan No. G.A./80/59 which is numbered NLS/AN20/99 which admitted as Exhibit A on 7708.

Subsequent upon the construction of the stores or stares, members of the Respondent’s family under the leadership of Ezesele Ezeokeke informed the Appellant’s father that the part of land granted to him by the Ekwulobia Community belong the Respondent’s family, the community having encroached into their said family land. The Respondent’s family requested the Appellant’s father to appease/attorn the Respondents’ family as their tenant which the Appellant’s father did despite opposition from Ekwulobia Community. The Appellant’s father was said to have slaughtered a goat for Ezesele Ezeokeke who assumed the leadership of the Respondents’ family because the 1st Respondent’s father was on self exile in the course of slaughtering the goat amongst other customary rites during the attornment.

Accordingly, the 1st Respondent’s father was presumed dead by his family and Ekwulobia Community because he was on that self exile for 20 years. By this attornment according to the Appellant, the Respondents relinquished their right over the parcel of land in perpetuity under custom. He claimed that in 1966 shortly before the Civil War, the Respondent’s father returned from exile to Ekwulobia and saw the stalls built on the disputed land by the Appellant’s father but acquiesced perhaps because he was informed about the attornment. However, Ezenwagbo, the Respondent’s father later approached the Appellant’s father and informed him that though he had ratified the transaction done in his absence, but as the substantive head/Okpala of Ezendu Family, he too deserved to be feasted so that he could also be partaker of what the family members had enjoined in his absence and the Appellant’s father feasted the Respondent’s father in the presence of the Respondent’s family and Community witnesses most of whom are now deceased.

At the hearing, the Appellant relied on evidence on Oath in both Suit Numbers O/138/66 Between Mathias Ezeokafor V. Paul Ubah & 2 Ors. and AA/13/77 Ezeonwu Ezenwagbo V. Mathias Ezeokafor & Anor. where according to him, the Respondent’s father testified against interest and that of his family members with regard to the land in dispute. He also relied on demand notices and receipts showing relevant payments made by his (Appellant’s) father to Aguata Local Government in respect of the ownership and proprietary rights over the shops.

The Appellant on the bone of contention necessitating the Suit and subsequently this Appeal, told the Court that in 1999 the Respondent, his father and other members of their family willfully trespassed upon the land now in dispute and pasted on the walls of the stalls eviction notices with threats to, vi-et armies, evict the Appellant’s tenants on the land and take possession thereof sequel to warrant of possession the Respondents claimed to have obtained from the judgment in suit No. AA/13/77 between Ezeonwu Ezenwagbo V. Mathias Ezeokafor & Anor – a Suit which the Appellant was not a party. As said earlier, he testified as PW1 and tendered Exhibit A (Plan No. NLS/AN/206/99; Exhibit B (the Judgment of Anambra State High Court in Suit No. AA/13/77 between Ezeonwu Ezenwagbo V. Mathias Ezeokafor delivered on 30/9/86 by Hon. Justice E. Ozubu and Exhibits C and C1 (Aguata Local Government Receipt No. 019393 dated 29/12/87 and Aguata Local Government letter dated 17/12/87 with Reference Number AG/8/2/114 to Mr. Paul Ezechukwu. He also called two other witnesses PW2 (Ernest Okeke) and PW3 (Benjamin Okonkwo) as his witnesses and then closed his case.

The case of the Respondents then Defendants in the High Court as represented by the present Respondent Raymond Ezenwagbo is that the land in dispute is part of Akwueke land situate at Umuebi Village Ekwulobia which land is verged green in their Survey Plan No. FALS/AN/DL28/99 tendered and admitted as Exhibit D. He traced the genealogy of the land to the original owner and ancestor Ezeadu I who had six children namely:- Ezeokeke, Ezeabo, Ezesele, Obele, Ezeadu II, Ngbo and Okoye. Ezeokeke the 1st son of Ezeadu I inherited his Obu and lands attached to it including Akwueke and he begat two sons namely Ezenwagbo and Ezesele II and Ezenwagbo as the first son inherited Obu Ezeadu I including Akweke land and begat in his life time Ezeonwumere who also inherited Obu I; Ezeadu I and Akweke land on the death of his father. Ezeonwumere was the original Defendant in this suit and the father of the present Respondent who inherited Ezeonwumere Ezenwagbo’s Obu “Ezeadu I and Akwueke land on his death in 1992, he further stated.

According to him, the inheritance of Obu Ezeadu I and Akweke land is governed by rules of primogeniture and only the first sons of the lineage are entitled to it. He testified that his father Ezeonwumere Ezenwagbo was away from Ekwulobia for many years during which Ezesele Ezeokeke was the caretaker of Akwueke land and successfully defended the interest of Eze-Onwumere Ezenwagbo in Akwueke land in Suit No. O/80/58 Gabriel Nwabuike & 5 Ors. V. Ezenwankwo Ezeokafor & Ors. Instituted at the Onitsha High Court by Ekwulobia Community against families that have lands near the Eke Market claiming those lands as community land of Ekwulobia Community. He relied on the survey Plan No. NLS/AN/206/99 filed by the Plaintiff/Appellant (Exhibit A) herein, to show the area claimed by Ekwulobia Community in Suit No. O/80/1958 and upon which the Onitsha High Court gave Judgment in 5/7/61 and dismissed the claim of Ekwulobia Community that Akwueke now in dispute, is communal land.

It is the further case of the Respondents that in order to finance the defence of the Suit No. O/80/1958, Ezesele Ezeokeke granted portions of Akwueke land to tenants like Emmanuel Okoli, Daniel Onyenwe, Onyeke Ezeaka Agba and Ezeagulu Communities and never granted any portion of Akwueke land to Paul Ezechukwu the father of the Appellant now in this Appeal but that the said Appellant’s father entered the land forcibly under the guise that he was given same by the Ekwulobia Community, to build a bungalow containing some stores. The Respondent denied that Paul Ezechukwu approached Ezesele Ezeokeke for any grant and could not have slaughtered a goat on the land for Ezesele Ezeokeke who was a mere caretaker to the Respondent’s father Ezeonwumere Ezenwagbo.

He further claimed that upon his father’s return in 1966 from his sojourn, he took out an action against Mathias Ezeokafor in Suit No. 8/170/66 claiming ownership of Akwueke Land. Mathias Ezeokafor had earlier in Suit No. O/137/66 (Mathias Ezeokafor Vs. Paul Ubah & Ors.), sued Agba Community which was granted part of Akwueke land by the Ezesele Ezeokeke and ratified by Ezeonwumere Ezenwagbo at the Onitsha High Court for trespass and during the case, Paul Ezechukwu – the Appellant’s father – pleaded with the Respondent’s father to accept him as one of his tenants that would attone tenant for him and assist him in future defence of any challenge to his (Respondent’s father’s) title over Akwueke land and the Respondent’s father accepted and stated that Paul Ezechukwu was his tenant.

The Respondent further testified that subsequently, Mathias Ezeokafor lost the suit No./138/66 and started making fresh challenge to the title of the Respondent’s father coursing the said Respondent’s father to initiate Suit No. AA/13/77 Ezeonwu Ezenwagbo V. Mathias Ezeokafor claiming the Akwueke land and filed survey Plan No. MEC/115/77 along with his Statement of Claim in the Suit while Mathias filed No. ECA/123/88 in his Statement of Claim with both plans showing the Appellant’s bungalow within Akwueke land.

Mathias Ezeokafor showed the house of the Appellant’s father Paul Ezechukwu as that of his Ezeokafor’s tenant on the disputed land and during the trial of the suit, the Appellant’s father reneged on his promise to help the Respondent’s father to defend his right to Akwueke land. The Appellant’s father rather claimed that he got the land from Ekwulobia Community and kept mute to the allegation of Mathias Ezeokafor. Subsequently, the Respondent’s father won the suit in September 1986 and in 1987 the Respondent’s father wrote the Appellant’s father Paul Ezechukwu to come and regularize his position or vacate the land in dispute an invitation which the Appellant’s father ignored thereby necessitating the Respondent’s father to obtain a Warrant Of Possession to take possession of Akwueke land in obedience to the Judgment in AA/13/77 and the Appellant instituted this Suit Culminating in this Appeal.
The Respondent as has earlier been stated called two witnesses who testified as DW1 and DW2 while he testified as DW3. He tendered Exhibit 5 his Survey Plan and subsequently closed his case. Upon adoption of the Written Addresses of learned Counsel for each of the parties the learned trial Judge rendered the judgment which is now the subject of this Appeal.
We shall now turn to the Arguments of learned Counsel for each of the parties on the issues formulated. Fortunately, the issues formulated by each of the learned counsel are the same.
ISSUE NUMBER 1 (ONE):
“WHETHER OR NOT PROPER EVALUATION WAS MADE WHEN THE LEARNED TRIAL COURT SHIRKED HIS DUTY AND DECLINED TO DETERMINE WHETHER THE APPELLANT’S FATHER MADE ATONEMENT AS REGARDS THE LAND IN DISPUTE TO THE RESPONDENT’S FATHER, AN IMPORTANT ISSUE OVER WHICH ISSUE WAS JOINED AT THE TRIAL COURT?
ARGUMENT OF LEARNED COUNSEL FOR THE APPELLANT
On this issue, it was the contention of the learned Counsel for the Appellant that the learned trial Judge declined to determine whether or not Appellant’s father made attonment as regards the land in dispute to the Respondent’s father, thereby failing to evaluate a very important aspect of the evidence led at the trial. He further contended that the issue of attonment raised by the Appellant upon which issue was joined by the Respondent, if determined would have altered the outcome of the trial by the trial Judge. For the above submission he referred us to the Appellant’s averments in paragraphs 5 – 8 of his Statement of Claim and paragraphs 5, 6 and 7 of the Respondent’s Statement of Claim submitting that the above excerpts from the Statement of Claim and Defence of the parties remained the state of the pleadings up to the judgment now under appeal. Referring as to pages 32 to 34 of the Records (the Statement On Oath of the Appellant), which evidence on the attonment was corroborated by those of his witnesses Chief Ernest Okeke aged 85 at page 40 to 42 and Elder Ben Okonkwo aged 75 at page 44 to 46 to the effect that the Appellant’s father made attornment to both the Respondent’s father and his family on the land and these pieces of evidence were neither contradicted nor discredited under Cross-examination.
In his view, from the foregoing, there is no running away from the fact that the issue of attornment was pivotal to the case of the Appellant for if that fact was proved, the land would have vested on him permanently. Still on this point the learned Counsel for the Appellant drew our attention to the sole issue for determination at page 124 of the Records and citing the case of Mogaji & Ors. v. Odofin & Ors. (1978) 4 S.C. 91 at pages 92 – 97 which Statement of law has always been approved of by the Nigerian Courts on evaluation of evidence by a trial Court, he observed that not only did the Court below fail to evaluate the evidence on this issue but it specifically stated that he refused to be drawn into to issue of attornment on the land. Page 210 of the Records refers.
Re-emphasizing on the position of the Supreme Court, he maintained that what the Court said at page 210 of the Records cannot be said to be evaluation of the fact of attornment by the Appellant’s father in favour of Respondent’s father in accordance with the standard set by that decision on the correct guideline on evaluation of evidence by trial Courts, per Fatai Williams, J.S.C. (as he then was). Applying the dictum of the learned Law Lord in the case above cited, he insisted that the learned trial Judge shirked his responsibility on the proper evaluation of the evidence on attornment by the Appellant to the father of Respondent and the resultant effect that the Appellant’s right had been trampled upon.
On the reasons advanced by the trial Court for not evaluating the evidence on attornment at page 210 of the Records which was that the Appellant did not claim attornment to be a source of his root of title to the land in dispute and that no relief was sought on attornment by the Appellant in the alternative in the Statement of Claim; these reasons were in the view of the learned Counsel to the Appellant no reasons for not evaluating the evidence of the witnesses in this case for evidence must be evaluated and extracted. In this respect, he once more called in aid Mogaji v. Odofin (Supra) at page 94 per Fatai-Williams (JSC) and the cases of Ezeoke v. Nwagbo (1988) NWLR (Pt. 72) at 116; Akeredolu v. Akinremi (1989) 3 NWLR (Pt. 108) at 164; to finally submit that learned trial Judge did not at all put the key evidence on attornment as led before him on the imaginary scale of justice and found it wanting which is unfair and materially affected/weakened the case of the Appellant and thereby occasioned a miscarriage of justice. We were therefore urged to resolve the issue in favour of the Appellant.

ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER 1 (ONE) AND 2 (TWO)
Responding to the argument of the learned Counsel to the Appellant, S.N. Chukwuma Esq of Counsel for the Respondent referred us to the averments of the Respondents in paragraphs 2, 4, 8, 10 and 14 (1) of their statement of Defence where they pleaded their root of title and noted that the Appellant averred in his Statement of Claim that his root of title was by grant by Ekwulobia Community and not from the Respondent but merely attorned tenant to the Defendant’s family because they claimed the land granted him by Ekwulobia Community fell within the Defendant’s family land.

Citing the case of Adeyemi Lawson & Anor v. Chief Ayodele Ajibulu & 2 Ors. (1997) 6 SCNJ 1 at 13 and Aromire v. Awoyemi (1972) 2 S.C. 1 at 11; on the need for a party claiming Declaration of title to satisfy the Court by evidence and not by admissions in the pleadings of the opponent and that the Plaintiff’s title must first be determined before that of the Defendant more so when Benedict Otamma v. Kingdom Youdubagha (2006) 1 S.C.N.J 94 at 110, had decided that parties are bound by their pleadings; the learned Counsel submitted that the learned trial Judge reviewed the evidence before him and painstakingly evaluated same before finding as he did in his Judgment at pages 210 – 211 of the Records.

The learned Counsel to the Respondents from the above holding of the learned trial Judge, submitted further that the learned trial Judge found that attornment by the Plaintiff’s father to the Defendant’s father on his family was not necessary to be placed on the imaginary scale when he had already found that the Plaintiff/Appellant failed to prove the title of his alleged grantor Ekwulobia community to the land in dispute. Placing reliance on Frederick Oluloye Bamgboye V. Olusoga, (1996) 4 SCNJ 154 at 165, he contended that the learned trial Judge was not bound to consider any other root of title in this case, except that relied upon by the Appellant and that Mogaji v. Odofin & Ors. (1978) 4 S.C. 91; does not enjoin trial courts to weigh extraneous issues on the imaginary scale. He maintained that having found that the Appellant failed to prove his title through Ekwulobia Community no further consideration is required to be given to his case but to dismiss same. We were therefore urged to answer the question posed by Issue Number One in the affirmative.

RESOLUTION OF ISSUE NUMBER ONE (1).
I have carefully considered the submissions of learned Counsel on this vexed issue of evaluation of evidence on whether the Appellant or his father attorned the Respondent and his family on the land now in dispute where the Appellant’s father built his chain of shops or market stalls. In determining the issue I must not fail to remark in the first place that the law is settled on a host of judicial authorities from the Supreme Court and our Court that the evaluation and appraisal of evidence and ascription of probative value to proved facts are primarily and exclusively the duty and within the purview of a trial Court which had the opportunity of listening and watching the demeanour of witnesses.

Fortunately or unfortunately, the learned Counsel for the Appellant is not calling on us to re-evaluate the evidence of the witnesses on this issue of attorned tenant but he has asked us to send the case back to the High Court before another Judge of Anambra State on the authority of Mogaji v. Odofin (supra) after allowing the appeal and setting aside the judgment of the trial Court in that the learned trial Judge did not meet with the standard laid down in the above cited case on evaluation of evidence.

Now, the Million Naira question which we must answer is whether the learned trial Judge shirked or abdicated his responsibility of appraisal and evaluation of the evidence adduced by the parties particularly by the Appellant on attorned tenant and if he failed so to do, whether this has occasioned a miscarriage of justice as the judgment of the Court below would have been different? To answer this question we are bound to resort to the pleadings of the parties and the evidence adduced in proof or in defence thereof as well as the position taken by the learned trial Judge in his Judgment on the question of attorned tenant.
It would be recalled that the learned Counsel for the Appellant relied on paragraphs 5, 6 and 8 of his Statement of Claim wherein he averred as follows:
“5. At the time the Plaintiff built his stores there was no pending Suit in Court or any pending dispute over the land.
“6. Later however, members of the defendant’s family informed the Plaintiff that the land granted to him was part of the Defendants’ family land. The Plaintiff approached the members of the defendants’ family under the leadership of Ezesele Ezeokeke (or Eze for short) and attorned tenant to them. A goat was slaughtered as well as other customary rites to which both parties are subject, this meant that the Defendants’ family had forever relinquished any type of interest they might have had over the land.
“8. The Defendants’ father came back to Ekwulobia from his self-exile in 1966 shortly before the Nigerian Civil War. He saw the stores/buildings of the Plaintiff Standing on the land in dispute and did nothing to disturb the Plaintiffs’ quiet possession and enjoyment of the land on which the stores/buildings was erected but rather acquiesced, recognized and admitted same as having been authorized by him. The said Defendant’s father had earlier on his return from his self imposed exile approached the Plaintiff and informed him that while he had ratified the transaction between him and members of his family in his absence, that he should be feasted again as the head of the family and this was done.”
The learned counsel however forgot to include paragraphs 2, 4, 10 and 14 of his Statement of Claim which aver as follows: On the Appellant’s root of title to the land in dispute inter alia:
“2. The land in dispute in this action is situate at Ekwulobia and is part of the land known as and called “ANI EKE EKWULOBIA MARKET”. The ANI EKE EKWULOBIA is particularly verged green in the Survey Plan No. NLS/AN/206/99 filed with this Statement of Claim. The land actually in dispute between the parties is verged pink on the above mentioned Survey Plan, white the area of trespass by the Defendant is verged violet therein. The Plaintiff pleads and will rely on all the boundaries, and features of the said piece of land in dispute.
“4. The said Plaintiff performed the work creditably to the satisfaction of all concerned. In appreciation of the Plaintiff’s good work in the market, the members of the Ekwulobia Community made a free hold allocation to the said Plaintiff of a piece of land within the area acquired by the Community as ANI EKE EKWULOBIA. The said Plaintiff constructed stalls on the land allocated to him which is now in dispute in 1952. This was without the disturbance or interference by any member of Ekwulobia Community including the Defendant and/or his father.”
“10. The Plaintiff is neither the tenant of the Defendant from the on set nor did the said Plaintiff derive title from the Defendant as individual but only attorned tenant to the Defendant’s Family based on the Defendant’s Family claim that part of the Akwu-Eke land was included in the grant made to the Plaintiff by Ekwulobia Community.”
Finally in paragraph 14 of the Statement of Claim the Appellant averred thus:-
“14. WHEREOF the Plaintiff claims from the Defendant as follows:
(1). A declaration that the Plaintiff is entitled to the Statutory Right of Occupancy in respect to a piece or parcel of land situate at Ekwulobia known and called “ANI EKE EKWULOBIA” granted to the Plaintiff by Ekwulobia Community wherein the plaintiff erected a chain of stores since 1952 at the said Eke Ekwulobia Market”
Now, the learned Counsel for the Respondent has rightly in my view, cited the Supreme Court case of Chief Adeyemi Lawson & Anor v. Chief Ayodele Ajibulu & 2 Ors. (1997) 6 S.C.N.J. 1 at 13. In that case the learned Law Lord Ogundare, J.S.C. who read the lead judgment Apex Court ruminated over and restated the time honoured principles of law as espoused in a plethora of cases beginning from Kodilinye V. Mbanefo Odu (1935) 2 WACA 336; Atuanya V. Onyejekwe & Anor. (1975) 3 S.C. 161 at 186; Elias V. Omobare (1982) 5 S.C. 25 and Onibudo V. Akibu (1982) 7 S.C. 60 at 84 – 85, where it was variously laid down that the onus of proof in an action for declaration of title lies on the Plaintiff. He posited that except in few cases such as where the Defendant claims exclusive ownership of family land, the onus never shifts. In other to succeed, the Plaintiff must succeed on the strength of his own case and not on the weakness of the defence although the weakness of the Defendant’s case may sometimes strengthen the Plaintiff’s case. The Plaintiff must prove his title by clear, emphatic, satisfactory and cogent evidence, he cannot rely on the mistake of the Defendant to succeed.
Aniagolu J.S.C. in the Onibodu v. Akibu case (1982) 7 S.C. 60 at 84 – 85 which was quoted with approval by His Lordship in Adeyemi Lawson V. Ayodele Ajibulu (Supra); still on this question of onus of proof reasoned thus:-
“In spite of this obviously unacceptable ‘mistake’ of the Defendants, the burden of proof was upon the Plaintiffs to prove their title clearly, emphatically and satisfactorily. It may not be an unattainable height requiring mathematical exactitude, but certainly a plaintiff has not yet set himself on the journey of discharging the onus by presenting to court inconsistent and contradictory story based upon inconclusive evidence of family lineage. The rigours of proof may somewhat have been ameliorated by the opinion of the Privy Council in Stool of Abinabina V. Chief Kojo Enyimadu (1963) A.C. 207 yet, the fact remains, that in order to get the Court to declare title in a Plaintiff, the proof of ownership must be by facts which are cogently satisfactory.”In this vein, the position of the law is as enunciated by the Supreme Court in Bello V. Eweka (1981) 1 S.C. 101; that “a party claiming to be entitled to a declaration of title has to satisfy the Court by evidence and not by admission in the pleadings of the other party of his entitlement to the title claimed. It is equally the law that the plaintiff’s title must first be decided upon before the defendants.” See Aromire V. Awoyemi (1972) 9/10 S.C. 1 at 11.

There is no doubt that the Appellant in this pleaded in the enumerated paragraphs of his Statement of Claim and that the Respondent pleaded in paragraphs 5, 6, 7 and 8 of his State of Defence in respect of Attorned tenant inter alia:-
“5. The Defendant denies paragraph 5 of the Statement of Claim and in answer thereto state that Ekwulobia Community had previously claimed that the land on the left side of the road from Aguata to Awka is communal land and part of Eke market Ekwulobia until Ekwulobia Community brought an action in Suit No. O/80/58 – Gabriel Nnabuike & 5 Ors. Vs. Ezenwankwo Ezeokafor & Ors. claiming the portion of land leased to the United African Company as shown in Plan No. NLS/AN/206/99 filed with the Statement of Claim in this Suit
“6. The Onitsha High Court in its judgment delivered on 15th of July, 1961 by J. Reynolds, Piusne, Judge dismissed the claim of the Ekwulobia Community that the said land is communal property of Ekwulobia.
“7. The Defendant denies paragraphs 6, 7, 8, 9 and 10 of the Statement of Claim, and will put the Plaintiff to the strictest proof of it.”

Again the learned Counsel for the Appellant forgot to mention paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 of the Statement of Defence where the Respondents joined issues with the Appellant on the question of attorned tenant and went on to trace the origin of the land (root of his title until it eventually devolved on him).

In sum the Respondent pleaded in paragraph 8 in response to paragraphs 6-10 0f the Appellant’s Statement of Claim that: “Akwueke land does not belong to Ezeadu I Family but is part of Obu Ezeadu I but devolves on any descendant of Ezeadu I entitled to occupy Obu Ezeadu I at any given time.”
In paragraph 9 he averred that:
“Ezeadu I ancestor of the Defendant was the original owner of Akwueke land and had six sons in their order of seniority as follows:- (1) Ezeokeke (2) Ezeabo (3) Ezesele (4) Obele Ezeadu alias Ezeadu II (5) Mgbo and (6) Okoye.”
He continued as follows:
“10. Ezeokeke as first son of Ezeadu 1 inherited his Obu and all land attached to it including Akwueke Land.
“11. Ezeokeke, the first son of Ezeadu had two sons namely
Ezenwagbo and Ezesele II. Ezenwagbo was the first son of Ezeokeke.
“12. Ezenwagbo inherited Obu Ezeadu and in turn had one son, named Ezeonwumere, who also inherited the said Obu on the death of Ezenwagbo. Akwaeke land has presently devolves on the on the death of Ezeonwumere Ezenwagbo.
“13. Mathias and Pius Ezeokafor are descendants of Obele Ezeadu (alias Ezeadu II) the fourth son of Ezeadu I and are not entitled to Akwueke land. The said Mathias and Pius Ezeokafor granted the land in dispute to the Plaintiff without the knowledge, consent or authority of the Defendant or his late father, Ezeonwumere Ezenwagbo.
“14. Ezeonwu Ezenwagbo, father of the Defendant sued Mathias and Pius Ezeokafor at the Awka High Court in Suit No. AA/13/77 – EZEONWU EZENWAGBO (SUING for himself and on behalf of Ezeonwu family of Ekwulobia) AND MATHIAS EZEOKAFOR & ANOR and claimed as follows:-
“declaration that according to native law and custom of Ekwulobia town, the Plaintiff as the present head (Okpala) of Ezeadu I family is entitled to the continued ownership possession and enjoyment of “Akwueke land which is part of OBU EZEADU 1 Land, which is situate at Ekwulobia within the Court’s jurisdiction. Damages for trespass committed by Defendants on the said Akwueke land limited to N100.00.
Perpetual injunction to restrain the Defendants their servants, workmen and or Agents from further acts of trespass on the said Akwueke land.”
“16. The said suit No. AA/13/77 was a notorious fad in Ekwulobia and lasted for nine years before it was determined on the 30th of September, 1986 by Honourable Justice E. Ozobu entering judgment in favour of Ezeonwu Ezenwagbo against Mathias and Pius Ezeokafor jointly and severally as follows:-
(a) I declare that in accordance with the Native Law and Custom the Plaintiff as the present head of Ezeadu I family is entitled to the continued ownership possession and enjoyment of “AKWUEKE” Land in dispute. It is part of Obu Ezeadu 1.
(b) I restrain the Defendants their servants and others who claim from them from entering or interfering with the said AKWUEKE Land.
(c) On damages the Defendants will pay cost of N300.00 to the Plaintiff.”
“17. Paul Ezechukwu, the Plaintiff in this suit, was aware of the said Suit against the alleged landlords to whom he attorned tenant and did not apply to be joined but was abiding the outcome of the said Suit.

On the claim by the Appellant that Ezesele Ezeokeke gave out the land to him in perpetuity after slaughtering a goat and performing other Customary rites to vest the land in him, the Respondent pleaded in Paragraph 18 that: “The Plaintiff was written to come and attorn tenant to the Defendants father and a Writ of possession was issued from the Awka High Court on 25th of September 1991 to recover possession of Akwueke land of the Defendant when he neglected to do so.”

Again, in paragraph 19 of the Statement of Defence, still on the grant to the Appellant of the land in dispute by Ezesele; the Respondents pleaded traverse that: “Ezesele did not have the capacity to grant the land in dispute which was part of Ana Obu Ezeadu 1 to the Plaintiff and to cause a goat to be slaughtered as averred in the Statement of Claim as it was the exclusive prerogative of the person entitled to occupy Obu Ezeadu 1, Ezesele Ezeokeke as caretaker of Ezeonwu Ezenwagbo never granted any land to the Plaintiff during his absence.
“20. Ezeonwu Ezenwagbo has a family of one male (Defendant) before he left for Sokoto as a migrant labourcr and was never presumed dead by the family. On the death of Ezeonwu Ezenwagbo in 1992 the Defendant became the person entitled to occupy Obu Ezeadu 1 and to inherit Akwueke Land according to Ekwulobia Native Law and Custom.
“21. The land in dispute was granted to the Plaintiff by one Mathias Ezeokafor who contested ownership of Akwueke Land in which the land in dispute is situate, with Ezeonwu Ezenwagbo father of the Defendant in suit Number AA/13/77 Ezeonwu Ezenwagbo V. Mathias Ezeokafor & Anor Mathias Ezeokafor gave evidence in suit No. O/138/66 Mathias Ezeokafor V. Paul Ubah & 2 Ors. and Suit No. AA/13/77 EZEONWU EZENWAGBO VS. MATHIAS EZEOKAFOR & ANOR. and stated unequivocally that the plaintiff was his tenant. The Plaintiff was aware of these pieces of evidence by his said landlord, but did not refute and/or deny them. The evidence of Mathias Ezeokafor in suit Nos. O/138/66 and AA/13/77 will be relied upon at the trial.
“22. Ezeonwu Ezenwagbo, father of the Defendant returned to Ekwulobia from Sokoto in 1966 and discovered that Mathias Ezeokafor a member of the extended family of Ezeadu 1 family was laying claim to the Akwueke land within which the land in dispute in this case is situate and in fact had taken out a Suit No. O/138/66 Mathias’s Ezeokafor Vs. Paul Uhah & 2 Ors. against Ezeonwu Ezenwagbo’s tenants. Ezeonwu Ezenwagho had to commence an action in suit No. O/170/66 against the said Mathias Ezeokafor for title over the Akwueke land.
“23. The Plaintiff who was granted the land in dispute by Mathias Ezeokafor approached Ezeonwu Ezenwagbo and indicated his preparedness to support the aid Ezeonwu Ezenwagbo in the dispute over Akwueke land and promised to regularize his position with him as real owner of the land in dispute. The Plaintiff then pleaded to be accommodated.”

In paragraph 24 the Respondents pleaded that while the suit Mathias initiated against the Respondent was going or, the Appellant inveigled the Respondent to answer under cross-examination that he (Respondent showed the Appellant) where he build. This was in consideration of the representation by the Appellant to support Ezeonwu Ezenwagbo to contest over Akwueke Land. In paragraphs 26-28 and 30; the Respondents pleaded further that after Mathias Ezeokafor’s suit was dismissed, he (Respondent), then took the said Mathias to Court when he was still laying claim to the land but at the trial, the Appellant reneged on his promise to support the Respondent’s father and to regularize his position as attorned tenant. The Respondent’s father was subsequently declared the owner of Akwueke Land including the land in dispute and the subject of this Appeal.

Following this declaration of title in his favour, the Respondent’s father then wrote a letter dated 15th July 1987 through his Solicitor J.N.I. Ezekwe Esq. to the Appellant to come and regularize his position as tenant or vacate the land in dispute. Finally, in paragraph 30, he pleaded in answer to paragraphs 11, 12, and 13 of the Appellant’s Statement of Claim that his (Respondent’s) father Ezeonwu Ezenwagbo never consented to the illegal occupation of Akwueke land by the Appellant since the 30th of September, 1986, when judgment was delivered in suit No. AA/13/77 and that Mathias and Pius had since left the land but the Appellant their tenant is still holding out on same.

So far with the pleadings on the issue attorned tenant but suffice it to say that in his evidence in paragraphs 24 – 26 of his Statement on Oath, the Appellant repeated his pleadings that his father was never a tenant to the Respondent’s father from the on-set and that his said father did not derive title to the land from the Respondent’s family. His said father, according to him, merely attorned tenancy to the defendant’s family based on the Respondents’ family Claim that part of the land granted to his (Appellant’s father) by the Ekwulobia Community had encroached on the communal/family land.

According to him, his father was a community leader and a peace maker and was not prepared to be involved in any tussle or rift associated with land ownership granted him by the Community. It was on the foregoing basis that his father acceded to attorn tenancy to the defendant’s family. He maintained that after fixing the Respondent’s father upon his return from exile, the Appellant’s father was said to continue to enjoy peaceful and quiet possession of the land as owner without any let or hindrance from any person.

He claimed in his Evidence in Chief that, even when the Aguata Local Government took over the running of the Ani Eke Ekwulobia Market, his father was paying yearly property rates to the Local Government and was recognized by the Local Government and the entire community as the undisputed owner of the land in dispute and to the awareness of the Respondents who acknowledged his said father’s claim. See page 35 of the Records.
Under cross-examination at pages 148 – 151:-
“Q. In Paragraph 8 of your Statement of Claim you relied on the evidence of Ezeonwu Ezenwagbo in Suit No. O/38/66 and Suit No AA/13/77 as an admission against interest?
A. I do not know.
Q. Did you see a copy of the Survey Plan used in Suit No. AA/13/1977 i.e. Exhibit B?
A. – Yes
Q. The present area in dispute in this case is situate within the area in dispute in Suit No. M/13/1977 i.e. Exhibit B?
A. I do not know.
Q. Suit No. O/138/66 Mathias Ezeokafor Vs. Paul Ubah & 2 Ors. related to an area of land which was within the land in dispute in Suit No. AA/13/1977.
A. No.
Q. Do you know where Agba Village has their resting place within Akwueke land?
A. Agba Village resting place is located in Ani-Eke.
Q. That resting place is the subject of dispute in Suit No. O/138/66?
A. I do not know.
Q. Do you know that Ezeonwu Ezenwagbo gave evidence that he granted this Agba resting place to Agba Village in Suit No. O/138/66.
A. I do not know.
Q. Did you know that Ezeonwu Ezenwagbo gave evidence that he granted the present land in dispute to your father that is Paul Ezechukwu?
A. I do not know.
Q. Put. In your Statement of Claim and Written Deposition you were relying on the evidence of Ezeonwu Ezenwagbo that he granted the present land in dispute to your father as an admission against interest?
A. It is not clear.
Q. Ezeonwu Ezenwagbo when he got judgment in AA/13/77 obtained a warrant of possession to take over the present area in dispute? Page 149 of the Records:
A. I am aware he was granted to take over Akwu Eke where he claimed but not Ani Eke.
Q. In your Exhibit A you showed the area you called Ani verged green?
A. Yes.
Q. Is that the area of land you are referring to this Court as Ani Eke difference from Akwueke?
A. This area verged green is Ani Eke.
Q. Where is Akwueke?
A. Akwueke is written Ani Eke.
Q. This area you now showed this Court verged green is based on an earlier plan made by Surveyor G.A. Obianwo in Plan No. AG/180/159 as stated in Exhibit A?
A. I do not know about that.
Qa. Can you read the Survey Plan Exhibit A?
A. I am not seeing clearly.
Q. The Area shown green in Exhibit A as contained in plan No. AG/180/59 made by Surveyor Obianwo was used in Suit No O/80/1958 Gabriel Nwabueche & 5 Ors Vs. Ezenwankwo Ezeokufor & Ors?
A. I do not know.
Q. You told this court that this land in dispute was granted to your father by Ekwulobia Community?
A. Yes.
Q. Ekwulobia Community as you claimed in your Statement of Claim owns the area verged green?
A. No.
Q. Who owns Ani Eke land?
A. I do not know.
Q. Do you know that in Suit No. O/86/1958 (Ekwulobia Community) sued the Defendant claiming ownership of Ani Eke land as shown in Exhibit A?
A. No.
Q. Do you know that the Court dismissed the case of Ekwulobia Community that Ani Eke is not owned by Ekwulobia Community?
A. I do not know
At page 150 of the Records the question and answer session continued as follows:
Q. Do you know that this area in dispute in this case is within the Ani Eke land which the Ekwulobia Community said is their own and lost in Suit No. O/80/1958?
A. I do not know
Q. Do you know that Ani Eke normally belongs to Okpala of Ezeadu family?
A. I do not know. But the area given to the Ekwulobia Community to build market stalls called Eke Market belongs to whom you mentioned i.e. Ezeadu but I know that the Ekwulobia Community gave the portion in dispute to my father.
When asked again whether he would be surprised that Ezeonwu Eze Nwagbo gave evidence in Suit No. O/138/66 that he was the one who gave the land to Agba Village. He answered as usual that he did not know. Asked again whether his father knew when the suit between Ezeonwu Ezenwagbo was going or, he replied that he would not know whether his father did. On the question whether he was aware that Ezeonwu Ezenwagbo took possession of all the area of the land he got judgment in AA/13/1977 excepting the portion now in dispute, he answered that he was not aware.
At Page 151, when further asked whether he was aware that the present suit was stalling Ezeonwu Ezenwagbo from taking possession of the whole area, he answered in the negative. On further Cross-examination whether in the present suit one of the reliefs he is claiming is for the Court to set aside the warrant of possession, he answered in the affirmative. Asked why he wants the warrant of possession to be set aside while he told the Court below that he did not know that the present Suit is related to the land Ezeonwu got judgment in Suit No. AA/13/1977 Exhibit B; he replied that the Defendant had judgment for Akwueke so he cannot go to Ani Eke.
Upon a follow up question –
Q. were you aware that the defendant in AA/13/1977 i.e. Exhibit B claimed that they gave the land in dispute here to your father and showed it in the plan?
A. No, it is a claim not a fact.
Q. Put, all along your father knew and you knew that the present land in dispute is within the area won by Ezeonwu Ezenwagbo in Suit No. AA/13/1977 i.e. Exhibit B?
A. It is not true.
Q. In your Statement of Claim and depositions you claimed that you killed goat for Ezeadu family?
A. Yes, we did when the original Eze-Essele came to my father that he encroached on his land. After all, my father asked him what he should do since the community has given him the piece of land that he encroached. Eze-Essele demanded that he should attorn and my father did by performing the customary rites that included the killing of the goat.
Q. It is the same land in dispute that you alleged that your father slaughtered a goat?
A. Yes.
Q. At that point in time your father realized that Ekwulobia Community had no title though he alleged the Community gave him the land?
A. I do not know about that.
The evidence of Chief Ernest Okeke aged 85 on the attornment that by the Appellant’s father is at pages 40 – 42 of the Records and is not different from what the PW1 Paul Ezechukwu had told the Court that as at the time the Ekwulobia Community purportedly gave the Appellant’s father the land now in dispute, the Respondent’s father was on self exile for about twenty years and was presumed dead and accordingly Eze Esele Ezeokeke was the eldest man in the Respondents’ family and had acted as the Head/Okpala of Ezeadu family and in the stead of the Respondent’s father. It was not until 1966 during the Civil War that the Respondent’s father be surface in Ekwulobia.
He recalled that before the return of the Appellant’s father, members of his family under the headship of Eze Esele Ezeokeke alleged that part of the land granted the Appellant’s father by the Ekwulobia Community had encroached into the Respondent’s family land and that the Appellant’s father would have to attorn tenant to the famiy if he must continue to have quiet and peaceful possession of the land. Paul Okoye Ezechukwu, the Appellant’s father being a peaceful man within the community went ahead and attorned tenant to the Respondent’s family based on their claim despite opposition from the community of Ekwulobia.

The said Appellant’s father slaughtered a goat for the Respondent’s family and performed other customary/traditional rites usually required of an attorned tenant under Ekwulobia native Law and Custom and thereafter the Respondent’s family relinquished in perpetuity their claim and interest, over the part of the land granted the Appellants father by the community. The witness also testified that he was aware that when the Respondent’s father returned from the self exile and found the Appellant’s father in occupation of the land in dispute he asked to be feasted even though he had ratified the transaction earlier entered into between the Appellant’s father and Respondent’s family. This was in his capacity as the substantive Okpala of Ezeadu or Ezeudu family and so that the transaction could be further sealed. In paragraph 13 Page 42 of his Statement on Oath he averred that he also witnessed when the Appellant’s father feasted the Respondent’s father in the presence of Ekwulobia Community members as witnesses.
Under Cross-examination however in spite of his testimony on Oath that the Respondent’s father was presumed dead, he denied ever deposing to such fact. On being questioned further, he admitted that the Appellant told him that Ezeonwu Ezenwagbo wanted to take possession of the stalls Paul Ezechukwu built adding that, that was why he came to testify. He however denied ever being told by the Appellant that it was after Ezeonwu Ezenwagbo obtained judgment over the area of land that he Ezenwagbo want to take possession of the area containing the stalls When finally questioned as to when the feasting of the Respondent’s father took place, he replied that it was between 1953 or 1954 in spite of the fact that all parties were ad idem that the Respondent’s father returned from his supposed self exile in 1966. And that the transaction between Ezesele Ezeokeke and Appellants father took place in the absence on the Respondents father who was then in exile.

Elder Ben Okonkwo aged 75 who had been a tenant to the Appellant’s father since the building of the stalls in 1952 also deposed in Paragraphs 8, 9, 10, 11 and 12 of his Statement on Oath at pages 44 to 45 of the Records that shortly after the Appellant’s father had erected the stalls Ezesele Ezeokeke and members of the Ezeudu family informed the Appellant’s father that the community land given to him in appreciation for the good work he did during the construction of the community market in 1952, encroached into the Ezeudu family land and that the Appellant’s father must attorn tenant to them if he was to keep enjoying the land without interference. He confirmed that the Appellant’s father performed all the customary rites to make him attorned tenant of the Respondent’s family and also in addition the Appellant’s father slaughtered a goat and feasted the Respondent’s family in spite of opposition from the Ekwulobia Community to the attornment of tenancy to the Respondent’s family but the Appellant’s father insisted that he would rather make peace than engage the Respondent’s family in any rift over the portion of land freely granted to him.

According to him, by their custom, if any person performs the customary rites in respect of another’s land the owner of that land relinquishes has right or interest in perpetuity over such land. He also confirmed that when the Respondent’s father returned from exile, he also ratified the transaction but requested also to be feasted as well as head of the family he could also enjoy what members of the family had enjoyed in the past.
At page 165 in spite of his deposition earlier as well as those of the PW1 and PW2 that the Appellant’s father got the disputed land from the Ekwulobia community and that from the on set he (the Appellant’s father) never derived his title from either the Respondent’s father or his family, the following dialogue ensued between the witness and the learned Counsel for the Respondent under Cross-examination.
“Q. You said in your deposition (Paragraph 9) that Paul Ezechukwu went and slaughtered a goat for the defendant’s family and Ekwulobia Community was vehemently opposed to it, so Paul Ezechukwu got the land from the Defendant’s family?
“A. Yes Paul Ezechukwu got the land from Ezeonwu Ezenwagbo family.
“Q. Put: In 1991 when Ezeonwu Ezenwagbo pasted Warrant of Possession you knew that the land on which your stall is situate does not belong to Ekwulobia Community?
“A. Yes it is true.” He added that Paul Ezechukwu went to Ezenwagbo and performed the customary rites due because Paul felt that dispute was not fitting of the two of them but later when Ezenwagbo’s son returned he insisted that the rite should be performed again and Paul did that.
When asked again whether he knew that the Appellant’s father was claiming the portion of the disputed land on the ground that Ekwulobia Community gave it to him he answered in the affirmative.
The learned trial Judge had carried out a discreet and dispassionate evaluation of the evidence led by the parties from Page 196 to 201, 202 – 204 and at 210 (Page 16 of the Judgment) held in respect of the issue of attornment of tenancy by the Appellant’s father to the Respondent’s father, inter alia.
On the attornment said to have been made by the Plaintiffs’ father, Paul Ezechukwu, to the Defendant’s family, which the defendants’ denied, and both parties canvassed variously for and against the attornment and its ratification. This Court refuses to be dragged into it and, doing that is of the view that it is not claimed to be the source or the root of the Plaintiff’s title to the land in dispute and no relief is sought to be granted in the alternative based on it by the Plaintiff in his Statement of Claim. This is borne out of the fact that the Plaintiff in Paragraph 14(1) of his Statement of Claim merely asked for an order thus:
“14(1) A declaration that the Plaintiff is entitled to the Statutory right of occupancy in respect of a piece or parcel of land situate at Ekwulobia known and called Eke Ekwulobia granted by the Ekwulobia Community wherein the Plaintiff erected a claim of stores since 1952 at the said Eke Ekwulobia Market” (under lined mine for emphasis).”
The learned Counsel has accused the learned trial Judge of shirking his responsibility of evaluating the evidence which act has occasioned a miscarriage of justice; but I hasten to add that even if the Judge failed to evaluate the evidence (which is not the case herein), this Court can step into the shoes of the learned trial Judge and do the needful. See Gabriel Iwuoha & Anor V. NIPOST Ltd. (2003) NWLR (Pt 822) 308 per Tobi, JSC., Overseas Construction Co. Nig. Ltd. V. Creek Enterprises (Nig). (1985) 3 NWLR (Pt 13) 407; Adeye V. Adesanya (2001) 6 NWLR (Pt. 708) 1, Olatunde V. Abidogu (2001) 18 NWLR (Pt. 746) 712; Adesanya V. Iyanda (2001) 2 NWLR (Pt. 729) 1; Udo V. CRSNC (2001) 14 NWLR (Pt 732) 116; and Enilolobo V. Adegbesan (2001) 2 NWLR (Pt 698) 611.
I have had the opportunity of reevaluating the evidence of the witnesses on the vexed issue of the attornment of tenant by the Appellant’s father and as has rightly been held by the learned trial Judge, the Appellant predicated his claim for declaration of title on the grant of the land by the Ekwulobia Community.
Even though he had claimed that he did attornment by slaughtering a goat thereby depriving the Respondent’s family of the land in perpetuity, he had pleaded that from the on set he did not derived title either from the Respondent’s family (Ezeadu 1) or the Appellant’s father Ezeonwu Ezenwagbo. The Appellant cannot in a chameleonic fashion approbate and reprobate on the root of his title to, in one breath, claim through the Respondent’s family from which root no relief was sought and yet retain his claim in paragraph 14(1) that the land for which he seeks Statutory Right of occupancy is that granted him by the Ekwulobia Community.
Parties are bound by their pleadings and a party must be consistent with the case he puts forward before a trial court. See Adeleke V. Iyanda (Supra) also reported in (201) 6 NSCQR 799 at 875 per Uwaifo, JSC; who held that parties are bound by their pleadings and any evidence which is at variance with the averments in the pleading goes to no issue and should be disregarded by the Court. Belgore JSC; (as he then was) in Bamgboye v. Olusega (1996) 4 SCNJ 166: succinctly stated the position of the law that when a suit is filed it be hopes each party not to change the nature of the action and evidence to support it so that the status quo must be maintained throughout unless the trial Court orders some things to be done to bring into light the real issues in controversy.From the excerpts of the judgment of the learned trial Judge as reproduced above (Page 210 of the Records), it is clear that the learned trial Judge place no premium on the claimed attornment by the Appellant’s father since no relief in the alternative from the claim in paragraph 14(1) of the Appellant’s Statement of Claim was sought on his having attorned his tenancy to the Respondent’s father or family. Even if this is true, the fact that the Appellant himself has reneged in that attornment and now is not only claiming title through grant by the Ekwulobia Community but is seeking declaration of title to that piece of land, tantamount to challenging the over lordship of his land lord and under Customary Law which ought to be the bases of his claim, the Respondent is entitled to bring an action in forfeiture against the Appellant if at all.

I have looked at the meaning of the word “Attorn” from Black Law Dictionary 7th Edition by Bryan Garner et al, at page 124 and it is defined thus “Vb. I. o agree to be the tenant of a new landlord. To transfer (money, goods etc) to another.” I hold the view that with the definition of this word if the Appellant’s father had submitted himself to the Respondent’s family and indeed the Respondent’s father as their tenant all incidents of customary tenancy ought to have bound him. I reiterate that all the incidents of customary traditional rite as described by the Appellants and his witnesses, relate to customary tenancy by their own showing and admission that they are attorned tenants of the Respondent’s father or his Ezeadu’s one family they have admitted that the Ekwulobia Community from whom they purportedly derived their title had nothing to give them as the ownership devolves exclusively on who in any given title in Suit No AA/13/77 by the High Court of Anambra State as well as Warrant of Possession in respect of said disputed land.
Coming home to evaluation of evidence, the learned Counsel to the Appellant has quoted in extenso the dicta of Fatai-Williams, JSC (as then was) in Mogaji & Ors. V. Odofin & Ors. (1978) 4 S.C. 94 – 97. There is no doubt that the learned Law Lord (now of blessed memory), had held at page 91 of the Report above cited that:-
“In short before a Judge before whom evidence is adduced by parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary Scale: he will put the evidence adduced by the plaintiff in one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier, not by the number of witnesses called by each party, but by the quality or probative value of the testimony of those witnesses.”
On the quality and nature of evidence that ought to and when weighed would tilt the balance or preponderate the imaginary scale of justice, his Lordship further explained inter alia –
“Therefore in determining which is heavier, the Judge will naturally have regard to the following:-
(a) Whether the evidence is admissible,
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive and
(e) Whether it is more probable than that given by the other party.
Finally after invoking the Law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he accepted.”Going by the above parameters, I am of the candid view that the evidence adduced by the Appellant and his witnesses on this vexed of attornment of tenancy, apart from going to no issue since no relief was based on it, were to say the least not only full ignorance of the facts of the case particularly on the part of the PW1 and self contradictory but were at variance with his pleadings. I reiterate that whereas the Appellant pleaded in paragraph 4 of the Statement of Claim that the land was a freehold grant from the Ekwulobia Community the PW1 turned somersault to claim that the land was granted him by the Respondent’s family by the process of attornment. See the evidence of the PW12 and PW3 in particular who admitted that the knew the land the subject matter of the dispute now on Appeal not to belong to Ekwulobia in 1991 when the Respondent’s father Ezeonwu Ezenwagbo pasted warrant of possession on the stalls situated on the land.
Yet in paragraph 10, of the Statement of Claim the Appellant had pleaded that he was neither the tenant of the Respondent from the onset nor did he derive title from him as an individual but only atoned tenant to Respondent’s family based on Respondent’s Claim that part of the Akwu-Eke land was included in the grant made to him (the Appellant). I am also of the view that the evidence of attornment is not relevant to the Relief sought in paragraph 14(1) of the Appellant’s Statement of Claim, and the trial Court rightly ignored it. The evidence of the witnesses was also not probable and conclusive on his (Appellant’s) Claim for Declaration of title to the land in dispute.
Learned Counsel to the Appellant has also in the course of his argument at page 7 Paragraph 1.07 of the Appellant’s Brief of Argument relied still on the dictum of Fatai-Williams JSC, in Mogaji V. Odofin (Supra) at Page 94 that a trial Court in deciding sometimes evidence which is more weighty in the imaginary scale, it seeks the aid of admissions made by one party to add more to the weight of the evidence adduced by the other and that, that is why the totality of the evidence must be considered and the conflicting evidence weighed by the trial Judge before arriving at his conclusion.
Going by the above dictum and the cases of Ezeoke & Ors V. Nwagbo & Anor (1988) NWLR (Pt. 72) at 16 and Akeredolu V. Akinrimi (1989) 3 NWLR (Pt 108) 164, which were decided on sound principles and their peculiar facts and circumstances, it is rather the Appellant and his witnesses who made admissions that supported the defence proffered by the Respondents. In any case, it is now trite Law that declarations are not made upon admissions of the opponent.
The onus was on the Appellant to prove his case on the balance of probabilities based on credible evidence. Where his evidence in proof of his case where was not credible enough and in fact was at variance with his pleadings, the learned trial Judge was right to have dismissed his claim. See Bello v. Eweka (supra), Aromire V. Awoyemi (supra). See also Benedict Atanma V. Kingdom Youdubagha (2006) 1 SCNJ 94 at 110, ably cited by the learned Counsel for the Respondents, and I agree with him that the Appellant having relied on his root of title through grant by the Ekwulobia Community he could only prove that title through Ekwulobia Community and not by attornment to the Respondents’ family. I also accept the view expressed by the learned Counsel to the Respondent that the learned trial Judge was not bound to consider any root of title particularly where no Relief was sought on the attorned tenant which in any case the Appellant by his pleading and evidence have not proved. I am of this view that the Appellant who by his ipsi dicit and those of his witnesses claimed that he was an attorned tenant to Respondent turned round to claim the property to be his through grant by the Ekwulobia Community which we shall consider anon whether that community had any right to grant him land at Ani Eke or Akwu Eke.
In the light of the fore-going, I am minded to answer the question posed by Issue Number 1 in the affirmative and hold that assuming that the Learned trial Judge abdicated his responsibility (which I had earlier held is not the case) from my re-evaluation of the totality of the evidence of the witnesses, there was no miscarriage of justice as the claim of the Appellant was not based on attornment. This issue is therefore resolved in favour of the Respondent and against the Appellant.

ISSUE NUMBER 2 (TWO) WHETHER OR NOT PROPER EVALUATION WAS MADE WHEN THE LEARNED TRIAL JUDGE SHIRKED HIS DUTY AND DECLINED TO DETERMINE WHETHER ANI-EKE EKWULOBIA IS SITUATE ON BOTH SIDES OF AGUATA-AWKA ROAD, AN IMPORTANT ISSUE OVER WHICH ISSUE WAS JOINED AT THE TRIAL.
ARGUMENT OF LEARNED COUNSEL TO THE APPELLANT ON ISSUE NUMBER 2 (TWO)

Here the learned Counsel regurgitated the Judgment of the leaned trial Judge at Page 217 of the Records on what he termed the critical location of the land in dispute and his holdings also at pages 211 and 212 of the Records and submitted that in spite of the holdings, the learned trial Judge grossly misconceived the issues as to joined by the parties as to the proper location of Ani-Eke wherein the land in dispute is situated, which according to him inexorably led to grave miscarriage of justice.

He referred us to paragraphs 2 of the Appellant’s Statement of Claim and the response there to by the Respondents in Paragraphs 3 and 32 of their Statement of Defence and pointed out that both Survey Plans pleaded by the parties were tendered and admitted in evidence as it is trite that all the features in the said Plans including the area in dispute speak for themselves. Section 132 of the Evidence Act refers. References were again made to pages 36 and 37 of the Records where the Appellant testified in respect of Paragraphs 3 and 32 of the Appellant’s Statement of Defence and his evidence corroborated by that of the PW3 Elder Ben Okonkwo whose credibility was not shaken under Cross-examination.

On the dispute Plans of the Parties Exhibits A and D for the Appellant and Respondent respectively, it was submitted that both Exhibits place the disputed land inside Anieke and respectively verged green whereas in Exhibit 5 the Respondent did not mention Akwueke land but that Exhibits (Plans) point to the extent of Amike land and the location of the dispute land. It was therefore argued that from the foregoing the argument by the Respondents that the land in dispute is within Akwu-Eke and not Ani-Eke falls to the ground as a contradiction to Exhibit D.
On the purpose of a Survey Plan, the learned Counsel for the Appellant referred us to the case of Akpan & Ors v. Otong & Ors. (1996) 10 NWLR (Pt 476) at 127; submitting that in the instant case the parties disputed rigorously whether the disputed land is situated at Akwueke or Anieke but that Respondent tendered Exhibit D which according to the learned Counsel corroborated the position of the Appellant that the land is in Anieke. In view of the foregoing the learned Counsel to the Appellant contended that the position of the learned trial Judge in pages 211 and 212 of the Record is unfounded but overlooked the point that parties had joined issues on the identity of the land, the name and location thereof by tendering their respective plans which ought to speak for themselves but the Court fell into error by not evaluating them.
It was his further submission that a situation where a defendant’s plan contradicts his oral evidence at the trial and that it supports the case of the Plaintiff’s plan was addressed in Otong’s case (Supra) at pages 127 and 128 of the Report per Onu, JSC paras. H – B. Citing and relying again on the authority of Mogaji & Ors. V. Odofin & Ors (Supra) he insisted that the learned trial Judge erred by not properly valuating the evidence of parties on their Plans and extracting weights from them and therefore abdicated his function with grave consequences for the Appellant.
Placing reliance again on Buraimoh v. Bamgbose (1989) 3 NWLR (Pt 10-9) 366 per Nnaemeka Agu, JSC on the onus on the Plaintiff and his relying on the strength of his case rather than the weakness of the Defendant’s which sometimes supports the Plaintiff’s case which the court below failed to note; he reiterated that the finding of the Court on nomenclature of the land is not of any moment does not apply to this case. We were finally urged to resolve Issue Number 2 in the Appellants favour and send back the case for retrial before another Judge of Anambra State High Court after allowing the Appeal and setting aside the Judgment of the trial Judge.
ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER 2 (TWO).
In response to the above arguments of the learned Counsel to the Appellant, learned Counsel to the Respondents noted that the Appellant in Paragraph 2 of his Statement of Claim described the disputed land as verged pink in his Survey Plan tendered as Exhibit A in claiming that the disputed land is situated in Ani Eke Ekwulobia and was granted to him by Ekwulobia Community. The Respondent, he noted, in his Statement of Defence Paragraph 32 thereof averred that he caused the land in dispute in Exhibit 4 to be super imposed on Akwueke land won by the Defendant’s father in Suit No. AA/13/77 and was shown in Plan No. MC/1115/77 and verged blue in the Respondent’s Plan tendered as Exhibit D. He argued that the land in dispute is verged red in Exhibits ‘A’ and ‘D’ and refer to the same land although called Ani-Eke by the Appellant and Akwu-Eke by the Respondent respectively
On the identity and location of the land in dispute which the learned Counsel for the Appellant said was seriously contested, the learned Counsel for the Respondent argued that these are not in issue as both parties filed their Survey Plans (Exhibit A and D) which both show that the land in dispute is located on the left side of Orlu/Awka Road facing Awka. He maintained that the Respondent caused their Akwu Eke land obtained in Suit No. AA/13/77 to be super imposed on the Appellant’s Survey Plan Exhibit ‘A’ to show that the exact location of the area in dispute fell within Akwueke land of the Respondent and the Appellant did not challenge the features shown on Exhibit D at the trial which was admitted with the super imposed area without any abjection from Appellant.

Citing and relying on the Supreme Court case of J.A. Makanjuola & Anor v. Chief Oyelakin Balogun (1989) 5 S.C.N.J. 42 at 50; on the position of the law on the nomenclature of the land by the parties, he asserted that the Appellant in Paragraph 10 of his Statement of Claim admitted that Akwueke land belongs to the Respondent who got Judgment in AA/13/77 and further admitted under cross-examination as PW1 that Akwueke was within Anieke (Pages 6 and 149 of the Records refer). Learned Counsel maintained that the fact that “Ani-Eke” Land is on both sides of Orlu/Awka Road facing Awka is of no consequence, as the issue is whether the land in dispute is within “Akwueke” land on the left side of Orlu/Awka Road facing Awka a fact of which the Appellant and all his witnesses testified to.

The learned Counsel contended that apart from admitting that “Akwueke” land was within “Ani Eke”, he did not show the location of “Akwueke” of the Respondent in his Survey Plan or describe the boundary in evidence. On the quotation of the learned trial Judge at page 8 of the learned Counsel for the Appellant’s Brief he noted that the learned Counsel for the Appellant forgot part of the passage which is very important at the said Page 211 of the Records.

Accordingly, he submitted finally that the learned trial Judge was right in his findings as quoted in extenso by the learned Counsel for the Appellant and properly evaluated the evidence before him before making the findings. We were therefore on the above premises urged to hold that the Appeal lacks merit, dismiss the Appeal and affirm the decision of the lower Court after resolving Issue Number 2 in the affirmative.
RESOLUTION OF ISSUES:
I have carefully considered the submissions of earned Counsel for the respective parties on this Issue. There is no doubt that in paragraph 2 of the Appellant’s Statement of Claim he described the land as “ANI-EKE EKWULOBIA” which is particularly delineated and verged Green in the Survey Plan No. NLS/206/99 filed with his Statement of Claim and the Respondent on the other hand described his land as Akwueke land situate at Ekwulobia having denied paragraph 2 of the Appellant’s claim and pleaded that he had coursed the land in dispute as described in the Appellant’s Plan No. NLS/AN/206/99 to be super imposed on Akwueke land won by the Respondent’s father in Suit No. AA/13/77 as shown in Respondent’s Plan No MEC/1115/77 and is verged Blue in Plan No. FALS/AN/DL28/99 produced by F. Okey Oniekam, Registered Surveyor and dated 8th November, 1999. The said Plan was tendered and admitted without objection.
It is also correct as the learned Counsel to the Appellant has submitted that the Appellant testified that it is not true that the land in dispute forms part of Akwueke land but part of the communal land of Ekwulobia known as Anieke Ekwulobia and that it is just a mere portion of Anieke that was granted the father of the Appellant by the Community for the said father to build his stalls.
However, it seems to me that all the fuss about the identity of the land by the Appellant nay his counsel are mere gimmicks because the Appellant knew that the land he is now claiming is that which Ezesele Ezeokeke purportedly gave him when it was discovered that the land purportedly allocated to him by the Ekwulobia Community was the family land of the Respondent’s father and their Appellant’s father had attorned tenancy to the Ezeadu 1 family of Ekwulobia through the said Ezesele Ezeokeke who was then caretaker and Diokpa of the family.
This was confirmed by the testimony of the PW3 under Cross-examination at page 165 of the Records when he was asked
“Q. You said in your deposition (Paragraph 9) that Paul Ezechukwu went and slaughtered a goat for the defendant’s family and Ekwulobia Community was vehemently opposed to it, so Paul Ezechukwu got the land from the defendant’s family?
“A. Yes Paul Ezechukwu got the land from Ezeonwu Ezenwagbo family.
“Q. Put: In 1991 when Ezeonwu Ezenwagbo pasted the Warrant of possession you knew that the land on which your stall is situate does not belong to Ekwulobia Community
“A. Yes it is true”

With this admission, it is clear that the identity of the land whether it is on the left hand side of Orlu/Awka Road facing Awka or on the left or both sides, is not in doubt. The bone of contention is where the Appellant built his chain of stores and not the entire Ani-Eke which the Ekwulobia Community appropriated for their market.

The authorities are legion and supportive of the position taken by the learned trial Judge that it would be absurd and constitute an exercise in futility for the Court below to proceed on a fruitless voyage of discovering on whether Anieke Ekwulobia land or Akwueke land extends across Awka Aguata or Orlu/Awka Roads, when it was not part of the issues joined by the parties in their pleadings and their Survey Plan. The Court was right to have restricted itself to the area verged red by the parties in their Survey Plans. He had rightly also posited that issues not having been joined on the extent of the land in dispute and the evidence on whether Anieke extends across the road, went to no issue) is unassailable and the authority of Thompson v. Arowolo (2003) 4 SC (Pt 11) 108 at Page 131 to 132 per Ejiwunmi, J.S.C. of blessed memory, is very instructive.

Infact as was rightly noted by the learned counsel to the Respondent, contrary to the contention of the learned Counsel to the Appellant that the learned trial Judge did not evaluate the evidence on the location of the disputed land whether in Akwueke or Ani Eke: the learned trial Judge had found out that:-
“Interestingly both Survey Plans placed the land in dispute on the same side of the road from Awka to Aguata. In the (light) case of the above, the Court finds the nomenclature which both parties carted the land in dispute is of no moment. See Frederick Oluyote Bamgboye v. Abeke Olusoga (1996) 4 SCNJ 154.”

The learned Counsel for the Appellant has cited Akpan & Ors. v. Otong (Supra) where the Supreme Court stated the purpose of a Survey Plans in land matters and there is no doubt that it is to ascertain the land in dispute with definitive certainty since a declaration cannot be granted on an ascertainable and amorphous piece of land. Whereas, in this case, the Appellant filed a Survey Plan without the dimensions of the land claimed and his boundary neighbours, his claim was rightly refused because it was he whose witnesses gave conflicting evidence with the Survey Plan he filed; such that the dictum of Onu, JSC cited at page 12 of his Brief of argument is rather against the Appellant.

See the cases of Gbadamosi Vs. Dairo (2007) 3 NWLR (Pt 1021) 282 S.C.; Arabe V. Asanlu (1980) 5 – 7 S.C. 78. Lordefe V. Osemnwenkhae (1997) 10 NWLR (Pt.525) 358, Idehen V. Osemwenkhae (1997) 10 NWLR (Pt 525) 358 S.C. and Dada v. Dosunmu (2006) 18 NWLR (Pt.1010) 134 S.C.

Taken all and all, assuming parties do not know the precise area to which the declaration the Appellant sought was related, the onus was on the Appellant to prove the precise area to which his claim related which onus he failed to discharge. But in this case the portion of land claimed by the Appellant had been adjudged in favour of the Respondent and it was in the course of the execution of warrant of possession when he (Appellant) refused to regularize his position as a tenant to the real owner of that land, that has warranted his (Appellant) bringing this action. See Osho v. Ape (1998) 8 NWLR (Pt 562) 492 at 496, Dada v. Dosunmi (2006) 18 NWLR (Pt 1110) (Supra); Ogun v. Akinyelu (2004) 13 NWLR (Pt 905)3962 S.C. and Otamma v. Youdubagha (2006) 2 NWLR (Pt 964) 337 S.C.
The Awka Division of the High Court of Anambra State in Suit Number AA/13/77 had long declared title in favour of the Respondent and declared the Ekwulobia Community who had earlier sued the representative of the Respondent and gave evidence in favour of the Appellant’s father as their Respondent’s tenant in Suit No O/138/66; has not been the owners of the land they purportedly allocated to the Appellant’s father. Thus, the Ekwulobia Community from whom Appellant’s father an indeed the Appellant claimed to have derived their title having been divested of the ownership of the land; one wonders whether the Appellant is not fighting a futile battle instead of allowing common sense to prevail and settle this matter amicably with the Respondent.
On the whole, I hold on this issue that the case of the Respondent did not support that of the Plaintiff (now Appellant) as purported by the learned Counsel for the and the authority of Buraimoh v. Bamgbose (supra) does not apply as Appellant’s Claim in the High Court was baseless, frivolous, and unsupported by the evidence he adduced and elicited from the Respondent. Rather, it was clear from the Judgments tendered by the Respondent that he had title to the land in dispute having pleaded the origin of that land and traced its pedigree to all the successive generations on whom the land devolved until he inherited same in his life time. See Idundun v. Okumagba (1976) 9 – 10 S.C. 277 (1976) NWLR 200 (1976) N.S.C.C. (Vol. 10) 4165 at 455 where Fatai-Williams; J.S.C. laid down five ways of establishing title to land to include:
1. By traditional evidence/history as has been pleaded and testified to by the Respondent and his witnesses.
2. By production of documents of title like the judgment of the Court in AA/13/1977 the Judgment of the Awka High Court.
3. Long possession as demonstrated in his un-contradicted evidence that his family of Ezeadu 1 had been in possession of the land and exercised numerous acts positive enough to warrant the conclusion by the Court below and even herein, that the land truly belongs to him the (Respondent).
4. The acts of defending actions and instituting same against trespassers and leasing out the land to tenants like Agba people of Ekwulobia and others
5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the Respondent is the owner. In this case, the Respondent has been proved to be the owner of the Akwueke land which he super imposed on Ani – Eke the purported land granted the Appellant by the Ekwulobia Community.
See further the authorities of Ekpo V. Ita 11 NR 68; Dacosta V. Ikomi (1968) ALL NLR 394; Piaro v. Tenalo (1976) 1 F.N.L.R 229 and Sections 131(1) and (2), 132(1), 134 and 136(1) of the Evidence Act, 2011 on the burden of proof.

On the part of the Appellants who purported to have been granted land by the Ekwulobia Community he did not plead and lead credible evidence first on how or mode of founding the land; the names of those ancestors who founded the land and exercised each original acts of possession thereof; and the names of persons through whom title to the land devolved before it got to him now of living memory. See Idundun V. Okumagba (Supra) Onwugbufor V. Okoye (1996) S.C.N.J. 1 at 20 and Dioha V. Ohia (2005) ALL FWLR (Pt.291) 713 paras A – C. In other words, his root of title was not established. Rather he oscillated between attorned tenant of the Respondent’s family and the Ekwulobia Community who purportedly granted him the land which has now been adjudged the exclusive property of the Respondent.
Viewed from all ramifications, this issue shall be resolved against the Appellant. The learned trial Judge did not fail in/or abdicate his duty of evaluating the totality of the evidence and his findings were neither perverse nor not borne out of the evidence led by the parties and assuming they were, I have undertaken the revaluation of the evidence on record which were not based on credibility of witnesses but from inferences that ought to be drawn from proved facts and I hold that the learned trial Judge did an impeccable job and there is no need to accede to the prayer of learned counsel which I consider a mere subterfuge to further frustrate the judgment of the High Court delivered since 1977 and was to be executed since 1999.
Accordingly, I dismiss the Appellant’s Appeal for lacking in merit and affirm the Judgment of Honourable Justice A.O. Okuma of the Aguata Judicial Division of the High Court of Justice of Anambra State holden at Ekwulobia which judgment was delivered on the 24th November, 2008 dismissing the Appellant’s Suit in its entirety.
I award N30,000.00 costs in favour of the Respondents

ADZIRA GANA MSHELIA, J.C.A.: I have had the advantage of reading in advance the lead judgment of my learned brother Agube, JCA. Which has just been delivered. I am in complete agreement with the judgment and for the same reasons stated therein, which I hereby adopt as mine, I also dismiss the appeal. I abide by the consequential orders made in the lead judgment inclusive of costs.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE JCA. I completely agree with the sound reasoning and conclusions therein. I also hold that the appeal lacks merit. It is accordingly dismissed. The appellant shall pay cost of N30,000.00 to the respondents.

Appearances

G.E. Ezeuko Esq. with A.C. Ezeodili (Mrs.)For Appellant

AND

S.N. Chukwuma Esq.For Respondent