SIMEON AMAEFUNA v. JONATHAN OKOLI (2014)

SIMEON AMAEFUNA v. JONATHAN OKOLI

(2014)LCN/7443(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of August, 2014

CA/E/179/2010

RATIO

APPEAL: FRESH ISSUES: WHETHER FRESH ISSUES CAN BE RAISED IN AN APPEAL WITHOUT LEAVE OF THE COURT AND THE CONSEQUENCE OF THE ABSENCE OF THE SAID LEAVE TO RAISE THE ISSUE AS A FRESH ISSUE IN THE APPEAL

It is trite law that an issue not raised, or not arising in the proceedings at the Trial Court, cannot be raised in an appeal against the judgment in that proceedings except with leave of the Court. SEC MOGAJI AND OTHERS VS CADBURY NIGERIA LTD AND OTHERS (1985) N.W.L.R. (PT 7), OSENI VS BAJULU AND OTHERS (2009) 18 N.W.L.R. (PT 1172) 164 S.C. AND KOYA VS UBA LTD (1997) 1 N.W.L.R. (PT 481) 251. The legal consequence of the absence of the said leave to raise the issue as a fresh issue in the appeal is that the ground of appeal raising such issue and arguments canvassed on the said ground are incompetent and must be struck out. See Nwachukwu vs the State (2007) 7 S.C. 1, U.T.B. Ltd and Ors vs Dolmetsch Pharmacy (Nigeria) Ltd (2007) 6 S.C. (pt 1) 1 and Ojiogu vs Ojiogu and Anor (2010) 9 N.W.L.R. (pt 1198) 15C. Some judicial authorities like Moses vs the State (2006) 11 N.W.L.R. (pt 992) 458 per Ogbuagu J.S.C. and U.T.B. Ltd and Ors vs Dolmetsch Pharmacy Nigeria Ltd (Supra) per Onnoghen J.S.C. hold that when the issue to be raised as a fresh issue is one of jurisdiction, leave of Court to raise it is not necessary. per. EMMANUEL AKOMAYE AGIM, J.C.A.

COURT: JURISDICTION; JURISDICTION OF THE HIGH COURT OF A STATE

It is settled by a long line of judicial authorities beyond per adventure that since by virtue of section 270 of the Constitution of the Federal Republic of Nigeria 1999, there is only one High Court of a State, its territorial jurisdiction covers the entire State, irrespective of the part of the State it is sitting to determine cases and that the division of the State into judicial divisions and the requirement that matters arising in the local government areas within a particular judicial division be commenced and determined in that judicial division is a procedural and administrative prescription for convenience and does not affect the state-wide territorial jurisdiction of the State High Court sitting in any part of the State. See UKPAI VS OKORO (1983) 2 S.C.N.L.R. 380, DELTA STATE UNIVERSITY ABRAKA VS DEMAKI (2005) ALL F.W.L.R. (PT 290) 1585 AT 1593 AND 1596 AND OGIGIE VS OBIYAN (1997) 10 N.W.L.R. (PT 524) 179. per. EMMANUEL AKOMAYE AGIM, J.C.A.

ACTION: COMMENCING AN ACTION; WHETHER A DEFENDANT CANNOT LATER BE HEARD TO COMPLAIN ABOUT AN IRREGULAR PROCEDURE IN COMMENCING AN ACTION HE TOOK STEPS TO PARTICIPATE IN THE PROCEEDINGS

In AMAECHI VS INEC (2008) 5 N.W.L.R. (PT 1080) 227, the Supreme Court held that “where an action was commenced by any irregular procedure and the Defendant took steps to participate in the proceedings, as in the instant case, he cannot later be heard to complain about the irregularity as a person will not be allowed to complain against an irregularity which he himself has accepted, waived or acquiesced to. In UWAEKWEGHINYA VS THE STATE (2005) 3 4 S.C. 24, the Supreme Court held that an objection which ought to have been taken at the trial by an accused represented by Counsel, if not taken at the trial, cannot be taken on appeal. I therefore hold that since the issue of non compliance with Order 2 Rule 1 was not raised at the trial proceedings in accordance with Order 5 Rule 2 (1) of the said Anambra State High Court (Civil Procedure) Rules 2006, it cannot be raised on appeal. per. EMMANUEL AKOMAYE AGIM, J.C.A.

PRACTICE AND PROCEDURE: CROSS-EXAMINATION; THE EFFECT OF FAILURE TO CROSS-EXAMINE A WITNESS UPON A PARTICULAR MATTER

As I had pointed out, the Respondent did not challenge or contradict this evidence during cross examination of the witnesses that gave the evidence. By not challenging this evidence during cross examination, the Respondent accepted it as correct and true. As held by the Supreme Court in Amadi v Nwosu (1992) 6 SCNJ 59 “it is a settled principle of law that where an adversary or a witness called by him testifies on a material fact in controversy in a case, the other party should, if he does not accept the witness’s testimony as true, cross-examine him on that fact, or at least show that the he does not accept the evidence as true, where , as in this case, he fails to do either, a court can take his silence as an acceptance that the party does not dispute the facts. After all, one of the main purposes of cross- examination is to test the veracity of a witness. See also supporting decisions of the Supreme Court in Cameroon Airlines V Otutuzu (2011) 4 NWLR 512 and in Gaji & Ors V Paye (2003) 5 SC 53 where it held per Edozie JSC that “It has been said that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness.” per. EMMANUEL AKOMAYE AGIM, J.C.A.

EVIDENCE: PROVING THE OWNERSHIP OF TITLE OR RIGHT OF OCCUPANCY; WAYS OF PROVING OWNERSHIP OF TITLE OR RIGHT OF OCCUPANCY

It is now settled law as a result of a long line of judicial decisions for several decades, following the locus classicus of IDUNDUN VS OKUMAGBA (Supra), that the ways of proving the ownership of allodial tite or the right of occupancy to land are- traditional history of ownership, production of documents of title, acts of ownership numerous and positive enough over a long time, long possession and enjoyment of the land and ownership of adjacent and connecting land. Evidence of any of the above, is capable of proving the ownership of allodial title or the right or the right of occupancy to land.

Where the claim of customary ownership of allodial title to or right of occupancy of customary land is, as is in this case, a history derived from ancestral occupation of the land, if the evidence of such history is inconclusive, then such ownership can be proven by proof of acts of long, unchallenged and exclusive occupation and use of the land and acts of ownership (such as farming thereon or leasing out portions or all of the land to other persons to farm thereon extending over a sufficient length of time or which are numerous and positive enough as to warrant the inference that the person is the true owner. See ONWUKA AND ORS VS EDIALA AND ANOR (1989) 1 S.C. (PT 11) 1, where the Supreme Court per Wali JSC held that where evidence of the traditional history “is found to be inconclusive, the proof of acts of occupation and use of the land over a considerably long period without challenge or disturbance from any other claimant” can be relied on to prove ownership. In ADEREMU VS ADEDIRE (Supra), cited by Learned Counsel for the Appellant’ the Supreme Court held that “in a claim as in the case at hand, where the evidence of traditional history given by the Plaintiffs in an attempt to establish their ownership of the land in dispute is inconclusive, a Court may yet determine ownership of the disputed land in their favor, if they succeed in establishing acts of ownership, numerous and positive enough to warrant the inference that their possession of the land is to the exclusion of the Defendants.” per. EMMANUEL AKOMAYE AGIM, J.C.A.

LAND LAW: DECLARATION OF TITLE TO LAND; WHETHER A PARTY SEEKING A DECLARATION OF TITLE TO LAND IS NOT BOUND TO PLEAD AND PROVE MORE THAN ONE ROOT OF TITLE TO SUCCEED BUT HE IS ENTITLED TO RELY ON MORE THAN ONE ROOT OF TITLE

It is correct that the Supreme Court in UKEAGBU VS NWOLOLO (Supra) held in one breath that “when an attempt to prove a root of title fails, acts of possession based on that root of title cannot sustain a claim for title” and in another breath held, relying on its decision in ALADE VS AWO (1975) 4 S.C. 215 AT 299 that “where evidence of traditional history is not satisfactory, the need then arises for a Plaintiff to prove numerous acts of ownership”. The Supreme Court also held in that case that “it is settled that each case must be determined by its peculiar facts. So be it in this instant case on appeal.” It is therefore clear that Ukaegbu’s case was decided based on its own peculiar facts. In that case the Trial Court considered the evidence of traditional history of title led by each of the parties to the case and found them conflicting. The decision of the Court in that case resulted from a comparison of the two conflicting versions of the traditional history to determine which was better or more credible. It was found in that case that both sides in their respective evidence were not referring to the same piece of land but different parcels of land. It is obvious that the decision was influenced by the fact that the evidence of each party related to a different piece of land. That is why the Supreme Court held therein that the principle in KOJO VS BONSIE (Supra) cannot apply as the evidence of each side was not in respect of the same parcel of land. Where the conflicting versions of the evidence of traditional history relate to the same parcel of land, the rule in KOJO VS BONSIE (Supra) will apply to determine which version is better and more credible.

The position is more clearly brought out by the decision of the Supreme Court in EZUKWU VS UKACHUKWU (Supra), wherein it held that “a party seeking a declaration of title to land is not bound to plead and prove more than one root of title to succeed but he is entitled to rely on more than one root of title. However, where as in this case, he relies on traditional history, and in addition acts of ownership and long possession predicated on the traditional history as pleaded, he is not entitled to a declaration of title based on the evidence of acts of ownership and long possession where the evidence of traditional history is unavailing. See Balogun v. Akanji (1988) 1 NWLR (pt. 70) 30 a at 232; Eronini v. Iheuko (1989) 2 NWLR (pt. 101) 46 at 61.
However, “such evidence of acts of ownership and long possession becomes relevant where the traditional histories given by both sides though plausible’ are in conflict. In such a situation, it will not be open to the court to simply to prefer one side to the other. To determine which of the histories is more probable the courts have called in aid the principle enunciated in the celebrated case of Kojo II v. Bonsie (1957) 1 WLR 1223 which is to the effect that the preference of one history to the other as being more probable would depend on recent acts of ownership and possession shown by the parties that the court would need to consider to make up its mind. See Ohiaeri v. Akabueze (1992) 2 NWLR (pt. 221) 1 at 19; Ekpo v. Ita (1932-34) 11 NLR 68; Mogaji v. Cadbury (Nig) Ltd. (1985) 2 NWLR (pt. 7) 393.”
As in Ukaegbu’s case, the Supreme Court in Ezuchukwu’s case compared the conflicting versions of the evidence of traditional history of ownership, long possession and acts of ownership of the land of each party in arriving at a decision as to which is preferable.

All the cases in which the Courts have held that the Plaintiff’s evidence of traditional history of root of title was inconclusive, incomplete or unavailing or insufficient to establish a root of title, involve a comparison of the Plaintiff’s version of the evidence of traditional history of root of title with the Defendant’s version of such traditional history and a determination of which of the two conflicting versions is more plausible or preferable. So the contrary evidence forms the veritable basis for the decision that the other evidence is not equivalent to proof. per. EMMANUEL AKOMAYE AGIM, J.C.A.

LAND LAW: TITLE TO LAND; MODES OF ACQUISITION OF TITLE

In any case, the Supreme Court in AJIBOYE VS ISHOLA (2006) 13 N.W.L.R. (pt 998) 628 per Onnoghen J.S.C., held that “it must be noted that the above five methods of ownership of land deal with the means by which title to land can be proved in the Court of law. The said methods have nothing to do with the mode of acquisition of title and which may be by;
a. First settlement on the land and deforestation of virgin land
b. Conquest during tribal wars
c. Gift
d. Customary grant
e. Sale
f. Inheritance etc” per. EMMANUEL AKOMAYE AGIM, J.C.A.

EVIDENCE: EVIDENCE OF WITNESSES; WHETHER NOT ALL EVIDENCE OF THE WITNESSES OF BOTH PARTIES THAT CAN BE CONSIDERED ON THE BASIS OF THE DEMEANOR AND BEARING OF WITNESSES AND THE DUTY OF THE COURT WHERE THERE IS CONFLICT OR CONTRADICTION IN THE EVIDENCE OF TRADITIONAL HISTORY OFFERED BY THE COMPETING PARTIES BEFORE THE COURT

Let me straight away state that it is not all the evidence of the witnesses of both parties that can be considered on the basis of the demeanor and bearing of witnesses. The credibility of the evidence of the witnesses on the traditional history of the root of title of each party to the suit land and the traditional history of the long occupation and acts of possession of the land cannot be determined solely on the basis of the demeanor of witnesses. As the Supreme Court held in THANNI AND ANOR VS SAIBU AND ORS (1977) 2 S.C. (REPRINT) 46, “on settled principle, it is improper to determine traditional history solely on the demeanor of witnesses.” In OGUN VS AKINYELU AND ORS (2005) 20 N.S.C.Q.R. 302, the Supreme Court stated that “It is also settled law that the demeanour of witnesses is not a proper guide in deciding the truth of traditional history. But where there is conflict or contradiction in the evidence of traditional history offered by the competing parties before the court, the court had the duty to decide among the competing parties whose evidence is more cogent or plausible or probable.” See Jegede V. Gbajumo (1974) 10 SC 182. In Thanni V. Saibu (1977) 2 SC 89 it was held that the best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing witness is more probable. In Ikpang V. Edoho (1978) 6/7 SC 221. The Supreme Court per Aniagolu, JSC at 249 put it thus:”.. is that witness may well be truthfully telling the court, in traditional evidence, what his ancestors told him. His ancestors may in fact have told him the story and the witness may well be reproducing accurately what they told him. But the story they told him may well be untrue …. It is therefore for the trial court to determine: (a) Did the ancestors tell him the story? (b) Is the story true?” Thus the court is bound to first to decide which of the stories is more plausible or probable by reference to all surrounding facts and the circumstances and if both are equally plausible and probable then by reference to recent acts of ownership as established by evidence.”
See also ODUNUKWUE VS OFOMATA AND ANOR (2010) 18 N.W.L.R (PT 1225) 404, OKOCHI AND ORS VS ABIMKWOI AND ORS VS ADEGBOSU AND ORS (2003) 4 S.C. (PT 1) 107, INOLO VS UKA (2002) 14 N.W.L.R. (PT 796) 195, PIARO VS TENALO AND ANOR (1976) 12 S.C. (REPRINT) 19 AND ALI AND ANOR VS ALESINLOYE AND ORS (2000) L.P.E.L.R.427 (S.C.). The law here has been so restated by the Supreme Court for several decades in a long line of cases that it is now settled and trite legal principle.

In a situation such as in this case where part or most of the evidence of witnesses consist of traditional history, the Trial Court ought to have separated the evidence of traditional history from the other evidence of witnesses and stated clearly, the aspect of the evidence of witnesses whose creditability it was determining on the basis of the demeanor of the witnesses. The Trial Court did not do so here and determined the credibility of the evidence of witnesses based on the demeanor and bearing of the witness. The decision is clearly wrong to the extent that it relates to the evidence of traditional history led by each side. per. EMMANUEL AKOMAYE AGIM, J.C.A.

COURT: EVALUATION OF THE EVIDENCE OF THE WITNESSES; THE CONSEQUENCE OF FINDINGS OR DECISION ON THE CREDIBILITY OF ANY WITNESS WITHOUT AN EVALUATION OF THE EVIDENCE OF WITNESS, HOW A JUDGE IN A CIVIL CASE COMES TO A DECISIONS AS TO WHICH EVIDENCE HE BELIEVES OR ACCEPTS AND THE PRIMARY DUTY OF THE TRIAL COURT TO ASSESS THE CREDIBILITY OF WITNESSES SINCE IT HAS THE EXCLUSIVE ADVANTAGE OF HAVING SEEN AND HEARD WITNESSES TESTIFY AND THEREBY OBSERVED THEIR DEMEANOR, CANDOR AND REACTIONS TO QUESTIONS

There can be no proper assessment of the credibility of witnesses without an evaluation of the evidence of the witnesses. Any conclusion, finding or decision on the credibility of any witness without an evaluation of the evidence of the witness will be baseless and perverse. As held by the Supreme Court in MAGAJI ODOFIN AND ORS (1978) 1 L.R.N. 212, before a Judge in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he must put the totality of the testimony adduced by both parties on an imaginary scale. He should weigh one side against the other and then decide on the preponderance of credible evidence which weighs more.

The grading of the credibility of witnesses as high or low, first presupposes that their evidence is not completely bereft of credibility and that the Trial Court regards a certain portion as credible. So the credibility of evidence is high where much or most of it is found credible by the Trial Court. Its credibility is low where only a small portion of the evidence is found credible or believable. So where a trial Court engages in such a grading of the credibility of witnesses, it becomes incumbent on it to show how and why it arrived at such a grading. It can only do so by the evaluation of the said evidence and stating expressly which portion is believed and which is not believed. To simply grade generally the credibility of the whole evidence (oral or documentary) of witnesses as high or low without more, is perverse and not a fair adjudication. Such a blanket treatment of the credibility of the evidence of witnesses can result in disbelieving evidence which raises no issue of credibility in that it agrees with the evidence of the adverse party on the existence of a fact. As the Supreme Court held in MODUPE VS THE STATE (1988) 9 S.C. 1, belief or disbelief becomes an issue when and only when there are two conflicting versions of an essential fact.

A Trial Court’s reliance solely on the bearing and demeanor of witnesses for its perception of them as not credible does not relieve it of the judicial responsibility to show in its judgment, how its perception supports or is supported by the trend of evidence on the relevant fact. It is not proper adjudication to simply perceive the witness as not credible on the basis of their demeanor without more and then dismiss the Plaintiff’s claim.
Perception and bearing of the demeanor of witnesses by the Trial Court that watched and heard him testify is subjective and in some situations, forms in the mind of the Trial Judge. What influenced and resulted in that perception is not explained. Subjective as the Trial Judge’s perception of the credibility of a witness on the basis of his demeanor may be, the resulting disbelief or disbelief of the witnesses should not go against the other relevant evidence on the relevant issue. As the Supreme Court held in ONONUJU VS A.G. ANAMBRA STATE (2009) 10 N.W.L.R. (PT 1148) 182, “where the belief of the lower Court is inconsistent with the relevant facts in evidence of the witness showing that his testimony cannot be true, as in the instant case, such a belief in the evidence will carry no weight.” See also BOZIN VS THE STATE (1985) 2 N.W.L.R. (Pt 8) 465.

The Trial Court is in no doubt, the best position to assess the credibility of witnesses since it has the exclusive advantage of having seen and heard witnesses testify and thereby observed their demeanor, candor and reactions to questions. This opportunity is not available to the Appellate Court that only has the recorded evidence to consider. Therefore, the Appellate Court has no power to interfere with the findings of the Trial Court on the credibility of witnesses except where the belief is contrary to the trend of accepted evidence or is perverse. In AGBONIFO VS AIWEREOBA AND ANOR (1988) N.W.L.R. (PT 70) 325, the same Court held that “…Where the issue is that of credibility of witnesses the appellate court has a very limited, if any, scope to interfere: It can only do so when the trial Court decided to believe a witness quite contrary to the trend of accepted evidence or where oral testimony is contrary to the contents of a written document .” See also NWANKPU AND ANOR VS EWULU AND ORS (1995) 7 N.W.L.R. (PT 407) 269 and WILLIAMS VINE vs. STATE (1992) 10 S.C.N.J. 74. per. EMMANUEL AKOMAYE AGIM, J.C.A.

JUSTICES

AMIRU SANUSI (OFR) Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

SIMEON AMAEFUNA Appellant(s)

AND

JONATHAN OKOLI Respondent(s)

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On 17/6/2004 the Appellant herein as Plaintiff, commenced Suit No: AG/64/2004 in the High Court of Anambra State by filing a claim and causing a writ of summons to be issued against the Respondent herein as Defendant. The Plaintiff claimed for-
1. Declaration that the plaintiff is entitled to the grant of customary right of occupancy over the piece or parcel of land known as and called “Ana Ofe Udo” situate at Eti village in Nanka Town in the Orumba North Local Government Area of Anambra State of Nigeria within the jurisdiction of this Court, which said land will be more properly described, delineated and shown in a survey plan to be filed later in these proceedings and whose annual value is N5,000 (Five thousand Naira only).
2. N10,000,000.00 (Ten million Naira) for trespass in that in the month of February 2003, the said defendant unlawfully invaded the said piece of land and cut down several heads of palm fruits and also uprooted several cassava plants planted therein by the plaintiff without the authority or permission of the plaintiff;
3. Interlocutory Order stopping the said defendant from using members of the Nigeria police to threaten the plaintiff, or in any way trying to force him or his workers out of the said land until this suit is determined;
4. Perpetual Injunction restraining the defendant or his agents, or members of the police Force acting under his directions or influence from further trespassing into the said land;
5. And For Such Order or other Orders which this Honourable Court may deem proper to make in the overall interest of justice.

Both parties filed and exchanged pleadings as follows; statement of claim, amended statement of defence and counterclaim and reply to the amended statement of defence. The Defendant counter claimed for:
(a) A declaration that the defendant is entitled to the customary right of occupancy over the piece or parcel of land known as and called “Ana Oji Okpo” situate at Amaezike village in Aguata Anaocha Local Government Area in Anambra State of Nigeria within jurisdiction of this Honourable Court. The said land in dispute particularly described, delineated and indicated in survey plan No/MG/AN84/2004 prepared by licensed Surveyor Chief Odumodu and filed with this statement of defense. The annual value of the said land is N10, 000.00.
(b) N5,000,000.00 (Five million naira) general damages for trespass in that since the year 1997 plaintiff has consistently trespassed into the land reaping economic trees, notwithstanding reports to the police and several court judgments in defendant’s favour.
(c) INTERLOCUTORY INJUNCTION restraining the said plaintiff from using the might if members of the Nigeria Police force to frighten and threaten the defendant into denouncing his rightful inheritance. The injunction should restrain not only the plaintiff but also his agents privies, servants, assigns or whatsoever called from frightening the defendant and trespassing on the defendant’s “Ana Oji Okpo”.
(d) PERPETUAL INJUNCTION restraining thee plaintiff or his agents, privies, assigns, servants or members of the police force acting under his instructions from further trespass into the said land.
(e) And for such further order/orders as the Honourable court may deem fit to make in the circumstance.

The Plaintiff in support of his case, elicited evidence through five witnesses namely P.W.1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 respectively. The Defendant in support of his statement of defence and counter claim testified as D.W. 1 and called no other witness.

Learned Counsel for both parties filed written addresses. Following the adoption and conclusion of address on 10/9/2009, the Trial Court on 29/3/2010 delivered judgment in the suit dismissing the Plaintiffs claim and granting the Defendant’s counter claim. The Trial Court concluded its judgment by stating that “for avoidance of doubt, I make the following orders:
1. The claim for a declaration of entitlement to a customary right of occupancy over the piece or parcel of land called “Ana Ofe Udo” edged red in Survey Plan No. FS/AN.032/2004 and said to be situated at Etti village’ Nanka town in Orumba North Local government Area of Anambra State of Nigeria made by the plaintiff (Simeon Amaefuna) is hereby dismissed for lack of merit.
2. The plaintiff’s claims for damages for trespass and perpetual injunction are also hereby dismissed for lack of merit.
3. The plaintiffs claim for interlocutory injunction is hereby struck out for incompetence.
4. A declaration that the defendant (Jonathan Okoli) is the Person entitled to the customary right of occupancy to the piece or parcel of land known as and called Ana Oji Okpo situate at Amaezike village in Agulu Town in Anaocha Local Government Area of Anambra State of Nigeria, more particularly described, delineated and edged or verged GREEN in Survey Plan No. MG/AN.84/2004 (which is Exhibit Dl in this proceeding) dated 29/12/2004 and drawn by G.C. Odumodu (Surveyor).
5. N100, 000.00 (One hundred thousand Naira) damages against the plaintiff for trespassing on the defendant’s land just mentioned.
6. An Order of perpetual Injunction restraining the plaintiff by himself, his agents, privies, assigns, servants, workers or otherwise howsoever from entering the defendant’s Ana Oji Okpo land aforementioned or committing further acts of trespass thereon.
7. The defendant’s claim for interlocutory injunction is hereby struck out for incompetence.
8. The plaintiff shall pay costs to the defendant assessed and fixed at N100,000.00 (One hundred thousand Naira).

Dissatisfied with this judgment, the Plaintiff on 7/5/2010 commenced this Appeal No: CA/E/179/2010 by filing a notice of appeal containing four grounds which was later amended with leave of this Court. The amended notice and grounds of appeal filed on 1/7/2011 contain six grounds of appeal.

Both parties in this appeal have filed, exchanged and adopted their respective briefs of arguments as follows; the Appellant’s brief of argument and the Respondent’s brief of argument respectively.

The Appellant’s brief of argument raised the following issues for determination:-
1. Was the trial court right when it held that it will be a futile exercise to consider the issue of acts of ownership and possession when the root of title is not established? (Ground 5).
2. Whether the learned trial judge was right in entering judgment for the defendant on his counter-claim as he did in disregard of the provisions of Order 2 Rules 1 and 5 of the Anambra State High Court (Civil Procedures rules) 2006. (Ground 2 and 3).
3. Whether the trial court was correct when it refused/failed to consider and evaluate all the evidence tendered before it by the appellant.
(Ground 4 and 6).

The Respondent’s brief of argument raised the following issues for determination: –
1. Does the court have the jurisdiction to entertain the entire case not only the counter-claim?
2. Did the trial Judge properly evaluate the evidence before him?

The Appellant did not raise any issue for determination from ground 1 of this appeal which complained that “the Learned trial judge at the court below misdirected himself in law when he proceeded to deliver the judgment in this suit on Monday, 29th day of March, 2010, when he lacked the jurisdiction to so do”. The implication of this failure to do so is that he had abandoned that ground and no longer relied on it for this appeal. It is settled law that a ground of appeal from which an appellant raised no issue for determination must be deemed as abandoned and struck out. The Supreme Court in Ngilari Vs Mothercat Ltd (1999) 12 S.C. (Pt 11) 1, held that “it is now settled that where a ground of appeal is not covered by the issues for determination set out in the Appellant’s brief of argument, that ground of appeal must be deemed to have been abandoned and should be struck out.”

There is no doubt that the Respondent’s issue No 1 relates to ground 1 of this appeal. This cannot revive the said ground already abandoned by the Appellant as a ground of appeal. It was no longer a ground of appeal at the time the Respondent filed his brief, as the Appellant in his brief of argument had already abandoned it by not raising any issue from it and not canvassing any argument on it. The appeal is that of the Appellant and the Respondent filed no cross-appeal or notice that the judgment be affirmed or varied on other grounds. It is for the Appellant to decide which grounds of his appeal he wants to argue or abandon. If he chooses to abandon a ground of his appeal, the Respondent cannot insist that the appeal must be determined on that ground, without a cross-appeal or notice to affirm or vary the judgment on that ground. Where an Appellant has by his brief of argument abandoned a ground of his appeal, the fact that the Respondent raised and argued an issue on that ground cannot revive the abandoned ground. Such issue and argument in the Respondent’s brief on the basis of the abandoned ground, becomes groundless and should be disregarded.

For the above reasons I hereby strike out ground 1 of this appeal and would disregard the Respondent’s issue No: 1 as it relates to the said ground 1 of this appeal and the arguments made by the Respondent in respect thereof.

I have also noticed that in the proceedings at the Trial Court, the Appellant did not raise the issue that the Respondent’s counter claim should not have been entertained and determined by the Trial Court in Aguata Judicial Division. It is being raised for the first time in this appeal in grounds 2 and 3 of the amended notice and grounds of this appeal. Nothing in the records of this appeal shows that the Appellant obtained leave of this Court to raise this issue as a fresh issue in this appeal. It is trite law that an issue not raised, or not arising in the proceedings at the Trial Court, cannot be raised in an appeal against the judgment in that proceedings except with leave of the Court. SEC MOGAJI AND OTHERS VS CADBURY NIGERIA LTD AND OTHERS (1985) N.W.L.R. (PT 7), OSENI VS BAJULU AND OTHERS (2009) 18 N.W.L.R. (PT 1172) 164 S.C. AND KOYA VS UBA LTD (1997) 1 N.W.L.R. (PT 481) 251.

The legal consequence of the absence of the said leave to raise the issue as a fresh issue in the appeal is that the ground of appeal raising such issue and arguments canvassed on the said ground are incompetent and must be struck out. See Nwachukwu vs the State (2007) 7 S.C. 1, U.T.B. Ltd and Ors vs Dolmetsch Pharmacy (Nigeria) Ltd (2007) 6 S.C. (pt 1) 1 and Ojiogu vs Ojiogu and Anor (2010) 9 N.W.L.R. (pt 1198) 15C.
Some judicial authorities like Moses vs the State (2006) 11 N.W.L.R. (pt 992) 458 per Ogbuagu J.S.C. and U.T.B. Ltd and Ors vs Dolmetsch Pharmacy Nigeria Ltd (Supra) per Onnoghen J.S.C. hold that when the issue to be raised as a fresh issue is one of jurisdiction, leave of Court to raise it is not necessary.

In our present case, the complaints in grounds 2 and 3 of this appeal and which is raised and argued as issue No: 2 in the Appellant’s brief of arguments is that the counter claim should not have been entertained and determined by the Trial Court in Aguata Judicial Division and that since it claims that the land to which it relates is in Agulu Anaocha Local Government Area, the proper judicial division where it can be heard and determined is not Aguata Judicial Division and that the Trial Court acted contrary to Order 2 Rule 1 of the Anambra State High Court (Civil Procedure) Rules 2006, by hearing and determining the counter claim in Aguata Judicial Division. It is obvious that this issue is one of law. However, the point of law here is not one of jurisdiction but one of procedure. The question, in which judicial division of the High Court of a State a case should be commenced and determined is one of venue not of jurisdiction. It is settled by a long line of judicial authorities beyond per adventure that since by virtue of section 270 of the Constitution of the Federal Republic of Nigeria 1999, there is only one High Court of a State, its territorial jurisdiction covers the entire State, irrespective of the part of the State it is sitting to determine cases and that the division of the State into judicial divisions and the requirement that matters arising in the local government areas within a particular judicial division be commenced and determined in that judicial division is a procedural and administrative prescription for convenience and does not affect the state-wide territorial jurisdiction of the State High Court sitting in any part of the State. See UKPAI VS OKORO (1983) 2 S.C.N.L.R. 380, DELTA STATE UNIVERSITY ABRAKA VS DEMAKI (2005) ALL F.W.L.R. (PT 290) 1585 AT 1593 AND 1596 AND OGIGIE VS OBIYAN (1997) 10 N.W.L.R. (PT 524) 179.

The venue of the institution and determination of suits in the State is regulated by Order 2 of the High Court of Anambra (Civil Procedure) Rules 2006. Order 2 Rule 1 therein, provides that suits relating to land shall be commenced and determined in the judicial division in which the land is situated. Although Order 2 Rule 5 (1) and (2) provides that suits filed and tried in a wrong judicial division contrary to Order 2, shall be considered as incompetent, it is clear from Order 5 Rule 1 (2) of the said Rules that the Rules do not intend that non compliance with Order 2 Rules 1 – 4 therein would affect the state-wide territorial jurisdiction of the Anambra State High Court. It provides that: “Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to timer place, manner or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give any direction as he thinks fit to regularize such steps.”
It is clear from this provision, that the Trial Court can condone the non compliance and treat it as an irregularity that has not nullified the relevant step taken in the Proceedings.

There is no doubt that there is a conflict between the provisions of Order 2 Rule 5 (2) of the 2006 Rules which stipulates that “a suit tried in the wrong judicial division shall be considered incompetent’, and Order 5 Rule 1 (2) of the same 2006 Rules which provides that the failure to comply with the provisions of the said Rules as to place shall be treated as an irregularity and may not nullify such steps taken in the proceedings. Order 5 Rule 1 (2) goes on to state that a Judge may give any direction as he thinks fit in order to regularize such steps. The question that arises at this juncture is which of these provisions should be applied or how can this conflict be resolved. Three interpretative criteria can be applied here in order to resolve this conflict. Since Order 2 Rule 5 (2) of the said Rules provides specifically for the legal consequence of non compliance with Order 2 Rules 1, 2, 3, 4 and 5 (1) of the Rules, while Order 5 Rule 1 (2) of said Rules provides generally for the legal consequence for non compliance with the entire 2006 Rules, one of the criteria that can apply here is the legal doctrine that a special provision in a statute overrides a general provision that conflicts with it in the same statute. The second principle that can apply here is the principle that later provisions in a statute express the final and settled legislative intent of the legislature and as such, override earlier provisions in the same statute on the same subject matter. The third criterion that can apply here is that when one of the provisions saves the proceedings or preserves the jurisdiction of the Court to entertain it, and the other provision invalidates the proceedings or ousts the jurisdiction of the Court or prevents the Court from exercising its jurisdiction to entertain or determine the proceedings, the Court should in the interest of substantial justice apply the provision that saves the proceedings or preserves the jurisdiction of the Court. In a situation such as this one, where the provisions of the law are exposed to more than one interpretative criteria, the Court has a discretion to apply the interpretative criterion or criteria which it feels would enable substantial justice to be done in the case before it.

Considering the peculiar circumstances of this case, where the proceedings are being challenged in this appeal for non compliance with Order 2 Rule 1, after the full trial and final determination of the case at the Trial Court, to apply the first criterion stated above would result in declaring the trial incompetent and ushering in a retrial with attendant further monetary expenses, delays, waste of time to both sides and rendering access to justice meaningless. There is nothing to show that if the Trial is not treated as incompetent, any party herein would suffer from a miscarriage of justice. Rather, it is obvious both sides would incur more monetary expense and further waste of time in a protracted pursuit of justice. Since Order 5 Rule 1 (2) saves the proceedings and preserves the jurisdiction of the Court to entertain and determine the suit, and there is nothing to show that any party would suffer a miscarriage of justice if the proceedings are saved and the Trial Court’s exercise of jurisdiction is validated, I will apply the third criteria stated above in the interest of substantial justice.

Order 5 Rule 2 (1) of the said Rules places a duty on the party challenging a step or process in the course of proceedings for non compliance with the 2006 Rules to apply to set aside the said step or process for irregularity, within a reasonable time after becoming aware of the non compliance and before the said party has taken any step after becoming aware of the irregularity. By virtue of this provision in Order 5 Rule 2 (1), a party loses the right to complain about non compliance with any provision of the 2006 Rules once he has taken any step in proceedings after becoming aware of the non compliance. He is deemed to have waived the right.

The said Rule apart from providing for the presumption of the waiver of the right to object, also operates as a rule of limitation in that it expressly limits the time within which such a complaint can be made. It states that the application to set aside the irregular process is to be made before the party complaining takes any fresh step in the proceedings, upon becoming aware of the irregularity. The application cannot be brought thereafter. It is glaring from the records of this appeal, that the Appellant after the filing of the Respondent’s statement of defence and counter claim took further steps in the proceedings. He led evidence in proof of his case through several witnesses and filed a final address in reply to that of the Respondent. He did not apply to set aside the counter claim before he took these steps. In his final address after the conclusion of evidence, he did not even urge the Trial Court to set aside the trial of the counter claim for being irregular and incompetent for non compliance with Order 2 Rule 1 of the 2006 Rules. He thereby consented to the procedure and proceedings.

For all of the above reasons, I hold that grounds 2 and 3 of this appeal, issue No: 2 in the Appellant’s brief and the arguments thereon are incompetent and are not valid for consideration in this appeal. In the light of the above holdings, it becomes clear that issue No: 1 of the Respondent’s brief of argument and the arguments thereunder are rendered redundant.

As it is, only grounds 4, 5 and 6 of this appeal and issues Nos 1 and 5 in the Appellant’s brief of argument are valid for consideration in this appeal.

Considering the judgment of the Trial Court, grounds 4, 5 and 6 of this appeal, issues No: 1 and 3 of the Appellant’s brief and issue No: 2 of the Respondent’s brief and the arguments thereunder, I prefer to couch only one issue for determination in this appeal as follows;
1. Whether the judgment of the Trial Court is supported by the weight of evidence or is the result of the proper evaluation of the evidence before it.
The Trial Court opened the consideration of the evidence before it by correctly directing itself thus:- “The proper procedure or approach in considering the evidence in this case is to consider first the evidence led by the plaintiff and thereafter proceed to consider that led by the defendant. Unless the evidence led by the plaintiff is so patently unsatisfactory, in which case I do not have to consider the case of the defence at alt, I will take the evidence led by both sides and put it in the imaginary scale, weigh it and decide upon the preponderance of credible evidence which one has more weight. See WOLUCHEM VS. GUDI (1981) 5 SC 291.”

Immediately after this direction, it considered the pleadings and the evidence led by the plaintiff on the traditional history of his root of title to the suit land and relying on the Supreme Court decisions in UKEAGBU VS NWOLOLO (2009) 1 S.C.N.J. 49, EZUKWU VS UKACHUKWU (2004) 7 S.C.N.J. 189 AT 208 – 209, it held that -“Since according to the plaintiff the land was an ancestral property of Okoye it means that Okoye had ancestors or progenitors from whom he derived title to the land, But the plaintiff failed to give the names of Okoye’s ancestors or how they derived the title which they passed to Okoye. It is obvious that there is no evidence on how the land came to be owned originally by Okoye or how it was founded by him. On the authority of Ukaegbu’s case (supra) and other similar authorities, the root of the title pleaded by the plaintiff in this case is not established and so it will be a futile exercise to consider or go to the additional issue of possession or acts of ownership also relied upon by the plaintiff. Moreover, the plaintiff having traced the root of his title to Okoye without proving how Okoye came to acquire title to the land in dispute, he has failed to discharge the burden of proof placed on him by law. Having failed to discharge the burden of proof placed on him in this regard successfully, the onus does not shift to the defendant and so this court is not obliged to look at the defendant’s case, this case being an action as to the declaration rights; see EPHMIM OKOLI DIM VS. ISAAC ENEMUO (2009) 38 NSCQR (PT.2) 873 AT 900, per Chukwuma-Eneh JSC. See also WOLUCHEM VS. GUDI (supra).

Against the backdrop of the above judicial authorities which dealt with circumstances similar to the ones that have arisen in this case, it follows that this case is a non-starter and so richly deserves to be dismissed: see DIM VS. ENEMUO (supra). This conclusion has saved this court the trouble of evaluating the evidence of the plaintiff’s witnesses as it would serve no useful purpose.”

Under issue No: 1 in the Appellant’s brief of argument, Learned Counsel for the Appellant argued that the Appellant relied not only on traditional history, but also on acts of ownership, long possession as well as the earlier decisions of the Trial Court in Suit No: AA/9073, and that if the Trial Court found that the traditional evidence was inconclusive, it had a duty imposed by law to consider the evidence of acts of ownership and long possession and its earlier decisions as stated above to determine if the Appellant did make out his case. He then submitted that the Trial Court was wrong to have held that the root of title pleaded by the Appellant was not established by his evidence and as such it would be a futile exercise to consider the acts of ownership or long possession relied upon by the Appellant. Learned Counsel also argued that the case of UKEAGBU VS NWOLOLO (Supra), heavily relied on by the Trial Court is not on all fours with the present case and that in any case, the decision therein supports the principle that where a party relies on traditional history and other grounds to prove title to land, if the evidence of traditional history is inconclusive, the other grounds can be relied upon to determine the issue of title to the land. According to Counsel, in UKEAGBU VS NWOLOLO (Supra) there was a conflict in the evidence of traditional history given by the Plaintiff’s witnesses and the evidence of the identity of the suit land and it was for this reason that the Supreme Court in that case applied the principle in KOJO VS BONSIE (1951) 1 N.L.R. 1223 in dealing with the said conflict and held concerning the approach in considering the evidence of the grounds for the claim of title to land, that ” The above principle is clear and unambiguous and I cannot fault it. In the case of ALADE VS. LAWRENCE AWO (1975) 4 SC 215 N 229, it was held that where evidence of traditional history is unsatisfactory, the need then arises for a plaintiff to prove numerous acts of ownership. It is my respectful and firm view, that KOJO VS. BONISE (supra) will apply where the land in dispute between the parties is in respect of one and the same piece or portion of land. In that case, the identity of the said land in dispute, will be well known to the parties and by the Court from the oral and/or documentary evidence such as survey plan before it cannot be otherwise.”

Learned Counsel also relied on the decisions in EKPO VS ITA 11 N.L.R. 68, ELEGUSHI VS OSENI (2005) 7 S.C.N.J, 416, ADEREMU VS ADEDIRE (1966) N.M.L.R. 398 N 402 – 403 AND ONWUBGUFOR VS OKOYE (1966) 1 S.C.N.J. 1 AT 20 in support of the above argument that the Trial Court should have considered the Appellant’s acts of ownership and long possession as well as the earlier decision of the Trial Court in suit No: AA/90/73 in determining the ownership of the suit land, if the evidence of traditional history of the suit land has been unsatisfactory.

The Learned S.A.N. for the Respondent has argued replicando that:
1. The Appellant in this case relied on traditional history and acts of ownership to prove his entitlement to the right of occupancy of the suit land
2. The Appellant has not traced his root of title to a person who has the capacity to make a grant. As such a gap exists in the traditional history which makes it incomplete and inconclusive
3. Accordingly, the traditional evidence of the Appellant having failed, all evidence of acts of ownership and possession built on the traditional evidence, must also fail since they are without foundation. He relied on the Supreme Court decision in UKEAGBU VS NWOLOLO (Supra)
4. Applying the relevant law, the Court has no choice but to dismiss the Appellant’s case

For the above submissions, the Learned S.A.N. relied on OLOFIN VS AYOOLA (1984) 11 S.C. 72, MOGAJI VS CADBURY NIGERIA LTD (1985) 2 N.W.L.R. (PT 7) 393 AT 413, IDUNDUN VS OKUMAGBA (1976) 9 – 10 S.C, 227, ARE VS IPAYE (1990) 2 N.W.L.R. (PT 132) 298 AND BALOGUN VS AKANJI (1988) 1 N.W.L.R. (PT 70) 301.

Let me now consider the merits of the above arguments by Counsel to both parties. It is clear from the statement of claim and the evidence elicited by the Appellant that he sought by the evidence of traditional history to show his root of title to the suit land and the fact that his grand father (Okoye) inherited the occupation of the suitland as an ancestral land. Okoye, who had only two sons, Amaefuna and Udo, partitioned the inherited ancestral land into two giving a portion to each of his son. Udo’s portion is called Ane Ofe Udo (the present suitland). When Udo died childless, Amaefuna, his elder brother, inherited Ana Ofe Udo. The appellant as the first son of Amaefuna inherited all ancestral land including Ana Ofe Udo, upon the death of Amaefuna in 1960 and has continued like his forbears for a long time to exercise acts of ownership over the land. It is obvious from the pleadings and from the evidence that the Appellant relied on traditional history of root of title, traditional history of long possession and acts of ownership and judicial decisions to prove his claim.

Where a Trial Court in a civil case has to decide whether the evidence led by the Plaintiff ought reasonably to satisfy it that the fact sought to be proved is established, so as to enable it decide if there is need to consider the Defendant’s evidence in rebuttal, what it has to look for is not a very strong or compelling or completely conclusive or decisive or irrebutable proof of that fact, but a minimal evidence that reasonably establishes prima facie, the existence of that fact, even if it is weak or rebuttable. The Trial Court is not to weigh the evidence at this stage. It is merely to consider if the evidence, unchallenged and unrebutted, is of any legal consequence in terms of establishing the existence of the fact sought to be proved. The evidence to be considered in arriving at such a decision is the totality of the evidence elicited by the Plaintiff and not some of it. It is the available evidence that will be considered and not the evidence that should have been elicited and not elicited. If the Court refuses to consider some of the evidence elicited by the Plaintiff, then any decision it arrives at cannot be the result of a consideration of all the evidence adduced by the Plaintiff and therefore cannot be right. To refuse to consider some of the evidence adduced by the plaintiff will violate section 133 (2) of the Evidence Act 2011 under which the Trial Court acted. It requires that in forming such a decision at that stage, it is the evidence adduced that the Trial Court will consider to find out if it ought reasonably satisfy it that the fact sought to be proved is established. So the Trial Court was wrong to have considered only the Appellant’s evidence of traditional history of root of title and refused to consider the evidence of long possession and enjoyment, acts of ownership and the exhibits tendered by the Appellant in arriving at its decision.

I will now consider the evidence elicited by the Appellant to find out if it ought to reasonably satisfy the Trial Court that the Appellant’s root of title is established.

The Appellant who testified as P.W. 2, stated in paragraphs 6 – 19 of his written deposition on oath which was on 18/11/2008 adopted by him as his evidence in examination in chief as follows;
6 Ama Ofe Udoi that is to the land in dispute is my own land. The land is situate in Eti village Nanka in Orumba North L.G.A. of Anambra State.
7 I inherited this piece of land from my father called Amaefuna who inherited the same from his father one “Okoye”. I know “Amaefuna” as the first son or “Diokpala” of his father one “Okoye”. This “Okoye” in his life time had two sons namely one Amaefuna and one “Udo” but Amaefuna was the first son and senior to “Udo”.
8 In the life time of the said “Okoye” he shared his landed property among his two children namely – Amaefuna and the said Udo. Amaefuna was given “Ana Ofe Egu” while the other portion was given to “Udo” and was referred to as “Ana Ofe Udo”, meaning the piece of land on the side of “Udo”.
9 The said “Udo” had no issue at all, so that his land reverted to the said Amaefuna the 1st male issue of Okoye after performing all the rites and ceremonies of the said Udo now deceased according to the customs of Nanka Town, The said Amaefuna thereafter started to enjoy the said Ana Ofe Udo by going into full possession of the said and planting and harvesting crops on the said land and also cutting oil palm fruits, breadfruit trees when ripe.
10. My father Amaefuna died in 1960 and after his death, I inherited all his landed property that is to say, “Ana Ofe Agu” and “Ana Ofe Udo” after performing his funeral rites. I also inherited his “Obu” in accordance with the customary rites or Nanka. During the life time of my father Amaefuna, he cultivated the said “Ana Ofe Agui and no one interrupted him or sued him to court. After I inherited the two pieces of land, no one has ever interrupted or disturbed my use of the land except in the recent times in the year 1997 when I was working on the land with some of my workers and suddenly, the said defendant to everone’s surprise invaded the said “Ana Ofe Udo” land, harvesting some planted crops such as cassava, yams, Mango fruits and other useful crops. The defendant trespassed into the said land with some hired hoodlums and severally beat up my workers on the land. I immediately reported the said incident to the police station at Oko in Orumba North L.G.A. I also went there and showed the Police some of the uprooted crops as specimens.
11. Between 1997 and 2004 we were detained for 3 days at the police detention camp at Enugwu Ukwu when the plaintiff and his relations ascured their bail, they approached a lawyer who petitioned the Commissioner of police by a letter dated 28/2/03 which will be founded upon by me at the trial of this case
12. Before the petition aforesaid by the plaintiff, the defendant had earlier filed a motion to commit myself and my relations for alleged contempt or court that according to the defendant, I and my relations trespassed into his land called “Ana Oji Okpo” alleging therein that the ad-called” Ana Oji Okpo” is situate in Agulu Town in the Anaocha L.G.A. of Anambra State.
This motion and the Ruling therein will be founded upon at the hearing of this case. The ruling is dated 4/4/2004. The suit No. is AA/90/73 – decided by Hon. Justice Uzodike – Jonathan Okoli vs Simeon Amaefuna and 5 ors. The Hon. Justice Uzodike made a finding of fact that the so called
“Ana Oji Okpo” of the said defendant in Agulu Town and is not the same as “Ana Ofe Udo” of the plaintiff which is situate in Eti village Nanka and dismissed the application with N5,000 (five thousand Naira) costs in favour of the plaintiff herein.
13. The defendant herein (Jonathan Okoli) purportedly exhibited a judgment in suit No. AA/90/73 Jonathan Okoli vs. Paul Ifedibe and ors of Agulu Town in which the plaintiff herein was neither a party therein at the time nor was ever sware at any or the pendency of the said suit. To the best of knowledge of the said plaintiff herein i.e. Simeon Amaefuna) the defendant did not file any appeal against the findings of fact and the Ruling on the said Contempt Case, nor have any documents been served on the said plaintiff’s counsel or the plaintiff himself (Simeon Amaefuna) indicating that the said defendant (Jonathan Okoli) is dissatisfied with the said Ruling of the Honourable Court and in the meantime the said defendant (Jonathan Okoli) appears to have retreated from his ambition to build up a land Empire stretching from Agulu town in Anaocha L.G.A, in Anambra State and embracing other contiguous towns including Nanka or other areas in Orumba North L.G.A. of Anambra State.
14. While the said contempt proceedings were still pending in the Awka High Court against the said plaintiff herein (Simeon Amaefuna) and others, at the instance of the defendant (Jonathan Okoli) the plaintiff herein and his said relations were again arrested by the police and were brought to the State C.I.D. for further interrogations, and after examining the matter, the Assistant Commissioner of Police in charge then rebuked the said defendant sternly (Jonathan Okoli) and referred them back to the High Court where the contempt proceedings were still pending at the Awka High Court, the said defendant Jonathan Okoli) left the office of the police disappointed. Later the contempt case was heard on its merits and the Ruling of the High court dismissing the said contempt proceedings confirmed the views of the said Assistant Commissioner of police in charge of Crime State C.I.D. police Headquarters Awka.
15. There was a time the said plaintiff and his other relations were charged to the Chief Magistrate Court at Nneni. There was a ruling in respect in the matter by the presiding Magistrate. The charge was at the instigation of the defendant (Jonathan Okoli). The said defendant did not pursue his complaint and disappeared and the charge was dismissed. I obtained a copy of the said Ruling.
16.”Ana Ofe Udo” and Ana Oji Okpo” are not the same. The said “Ana Ofe Udo” is my own land and is situate in Eti village Nanka in Orumba North L.G.A. while “Ana Oji Okpo” is as alleged by Jonathan Okoli situate in Agulu town in Anaocha L.G.A. of Anambra State. I heard of this Ana Oji Okpo for the first time in 1997 when I went to the Customary court at Ajali in connection with a land matter I had with Jonathan Okoli who claimed that Ana Oji Okpo belongs to him.
17. To the best of my knowledge there was no appeal against the Ruling of Hon, Justice Uzodike of the High Court of Awka or that of the Magistrate Court at Nneni. The said Jonathan Okoli has done nothing about it uptill now, Sine the said Rulings, the said Jonathan Okoli has not disturbed me again over the “Ana Ofe Udo” land. Consequently I filed this action against the said Jonathan Okoli (The defendant herein) so that he would stop trespassing on my “Ana Ofe Udo” land. I showed my surveyor the features on my “Ana Ofe Udo” land.
18. It is not true that “Ekpe Enyi” boundary was allegedly constructed by one Eze Igbokwe. The said boundary had been in existence from the time of our ancestors although the height of the sand/mud wall boundary has been considerably reduced due to heavy rainfall over the years. It is also not true that the Ekpe Enyi boundary was to demarcate the land of one Aaron Okeke and one Alfred Chikwendu both of Nanka and the Jonathan Okoli’s land. I also heard Jonathan Okoli mentioning Ana Oji Okpo when the police visited my portion of land trespassed by the said Jonathan Okoli in about 2003 when the said Jonathan Okoli told the police that I trespassed on his land.
19. The Ekwulobia main Road to Amawbia town separates Ana Ofe Agu and Ana Ofe Udo otherwise the two piece of land are continuous. I gave one John Jabum a part of my Ana Ofe Udo land to be cultivating as my kinsmen others too, namely one Sylvanus Oranusi and one Daniel Okoye.

The certified true copy of the ruling of the Trial Court in the proceedings for the committal of the Appellant for contempt in suit No: AA/90/73 and the certified true copy of the ruling of the Magistrates’ Court in criminal case No: MCA/23C/2000 were tendered by him and admitted in evidence as exhibits P3 and P4 respectively. The survey plan of the suit land following the physical inspection and measurement of same by P.W.1 at the instance of the Appellant was tendered in evidence as exhibit P1.
The cross examination of P.W. 1 did not attack his evidence of traditional history of his root of title, long possession and acts of ownership regarding the land called Ani Ofe Udo and exhibits P3 and P4. Rather the cross examination focused on showing that the suit land is Ani Aji Okpo in Agulu belonging to the Respondent and that Ana Ofe Udo and Ana Aji Okpo refer to the same parcel of land which is the suit land in this case.

P.W. 3 testified in support of the evidence of P.W. 2. His written deposition on oath was adopted on 12/2/2009 as his evidence in examination in chief.
He stated in paragraphs 5 and 6 of the said deposition that-
5. That I know as a fact that the defendant herein (Mr. Jonathan Okoli) has been harassing the plaintiff in the said Ana Ofe Udo which land is entirely the bonafide property of Simeon Amaefuna the plaintiff in this case.
6. That I am one of the plaintiff’s customary tenants on the said land and the plaintiff has allowed me and some of our kindred men to be cultivating on the land Ana Ofe Udo on yearly basis.

His cross examination on the above evidence went thus;
a. Do you know this land in dispute?
A. Yes my Lord. I know it.
a. Do you still maintain that you do not know whether Aaron Okeke has testified for the defendant earlier?
A. I don’t know whether he testified for the defendant or not.
a. You say you are one of the customary tenants of the plaintiff in this land in dispute?
A. I am one of the persons the plaintiff gave land to farm on.
a. You know that the land is in dispute.
A. The land was not previously in dispute until about 10 years ago when the defendant came to the land where we were farming with police men who arrested us and detained us at the police station for 3 days.
a: For how long have you been farming in the land?
A. My father was farming on the land previously. When he died I also started farming on the land. It had taken about 15 years ago since my father started farming there. But it was about 10 years ago that the defendant came there and whisked us away with some police men.
a. When did the police arrest you as you said?
A. About 10 (ten) years ago.
a. Do you know what is contempt of court?
A. Yes my Lord.
a. Do you know that the plaintiff had sued in the Customary court concerning this land and that court asked the plaintiff to go to Agulu customary court?
A. It was when the defendant started disturbing us on the land that the plaintiff sued the defendant at the customary court.
a. Are you saying that all through the period you used the land there have been litigation and police have been harassing you?
A. As I said previously we were not disturbed on the land. It was about 10 years ago that the defendant used the police to disturb us on the land.

P.W. 4 also testified in support of the evidence of P.W. 2. His written deposition on oath was adopted as his evidence in examination in chief on 22/4/2009. P.W. 4 stated in paragraphs 5, 6, 7, 8, 9, 10 and 11 therein as follows;
5. That my house is situate in Umuenu family land in Eti Nanka in Orumba North L.G.A whereas the family land of Jonathan Okoli is situate in Amaezike village Agulu in Anaocha L.G.A of Anambra State.
6. That my said land aforesaid was built in 1974. It is very close to the portion of land now in dispute which is owned by the plaintiff Simeon Amaefuna.
7. That no one disturbed me when I was building my own house close to that of the plaintiff Simeon Amaefun. The said Jonathan Okoli the plaintiff in this matter never at any time disturbed me, nor any other human being, that is to say questioning my title to the said land or otherwise.
8. That about 10 years ago or so, I noticed that Jonathan Okoli the said plaintiff in this suit was using some members of the Nigeria police force to disturb Simeon Amaefuna in respect of the latter’s land, and even trying to use force or intimidation to threaten some tenants of the said Simeon Amaefuna on the said land into abandoning their crops on the said land’
9. That I was living at Enugu at the material time but sometimes I return to village to notice some ugly done to my kinsman Simeon Amaefuna because Jonathan is a very rich man. I sometimes questioned the said Simeon why members of the Nigeria police force were disturbing him and his tenants on his land and he explained to me. I was later informed by Simeon Amaefuna the plaintiff that he had personally briefed a lawyer to deal with the situation and to file a suit against him.
10. That as far as I know, Simeon Amaefuna has been planting and reaping economic crops on the said land before the recent incurcions or trespassed on the said land by the said Jonathan Okoli or his hirelings.
11. That this is all I know about this land. The said piece of land in question has be known as “Ana Ofe Udo” and it is the property of Simeon Amaefuna the plaintiff in this suit. I know and I can also identify members of our family to whom the said Simeon Amaefuna gave some portions of the land for planting.

The cross examination of this witness did not attack this evidence of the Appellant’s occupation and acts of ownership pertaining to the suit land. It was rather focused on showing that the suit land is Ana Oji Okpo.

The above constitutes the evidence elicited from the Appellant on the traditional history of his root of title, long possession and acts of the ownership of the suit land. The evidence traces the Appellant’s root of title to the occupation of the land by his grandfather. The suit land has been in the exclusive and unchallenged occupation and enjoyment of the Appellant’s grandfather and the Appellant’s father. Upon the death of the Appellant’s father in 1960, the Appellant as his first son inherited the occupation of the said land and remained in exclusive possession and unchallenged possession and enjoyment of same, allowing other persons to occupy and cultivate portions of the land as customary tenants. These customary tenants have occupied this land undisturbed for many years. It was in 1997 that the Respondent suddenly started challenging and interfering with the Appellant’s occupation of the land.

The long, exclusive and unchallenged occupation and exercise of acts of ownership of the suit land by the Appellant’s grandfather, father and the appellant has legal significance in terms of the rights, which by law, arises therefrom. The primary right which possession confers on the possessor is the right to exclude intruders, except a person with a better title to the land. Secondly, the law presumes that the person in possession of the land is the owner of the land until the contrary is proven, and the burden of so proving is on the person alleging that the possessor is not the owner of said land. Section 143 of the same Evidence Act provides that “when the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner”. Section 35 of the Evidence Act 2011 provides that “acts of possession and enjoyment of land may be evidence of ownership of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected with it by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land”. So the appellant’s occupation and enjoyment of the suit land and exercise of acts of ownership raises a presumption of ownership in his favor, which the Respondent had a duty in law to rebut.

Where as in this case the Plaintiff who claimed for a declaration of right of occupancy, has elicited evidence of long exclusive and undisputed occupation and use of the land and acts of undisputed ownership of the same land over a long time, the Trial Court in considering whether the evidence adduced by the Plaintiff ought reasonably satisfy it that the Plaintiff’s title to the land is proved, so as to decide whether a rebuttable case is made out, cannot, by virtue of sections 35 and 143 of the 2011 Evidence Act, rightly hold that the said evidence of the Plaintiff has not made out a rebuttable case that he owns the land, because his evidence of traditional history of his root of title is inconclusive as it did not mention who occupied the land before the Plaintiff’s grandfather or how the title was originally founded or derived or how it was originally acquired. Such a decision cannot be reached at that stage of the of the case in the face of such evidence, until the rebutting evidence of the Defendant is considered by virtue of the above cited provisions of the 2011 Act. The decisions in UKEAGBU VS NWOLOLO (SUPRA), EXUKWU VS UKACHUKWU (SUPRA), ONWUGBUFOR VS OKOYE (SUPRA), IRAWO VS ADEGOKUN (2008) 1 N.W.L.R. (PT 900) 1999, ONI VS OLOKUN (1995) 3 N.W.L.R. (PT 370) 189 AT 200, relied on by the Learned S.A.N. for the Respondent as deciding that evidence of long possession and acts of ownership are useless if the traditional history is incompatible were reached after considering the evidence of both the Plaintiff and the Defendant and the competing strength of their cases.

For the above reasons I am inclined to hold that the decisions relied on by the Trial Court and the Learned S.A.N. for the Respondent in this appeal cannot apply in this case to support the trial court’s decision concerning the plaintiff’s case. In our present case, the Trial Court considered the Appellant’s evidence of traditional history of his root of title. It did not compare it with that of the Respondent. It had not reached the stage of considering the evidence led by both sides on the issue. It was still at the first stage of considering whether the evidence led by the Appellant ought reasonably to satisfy it that the Appellant’s root of title to the suit land was established so as to decide whether to consider the evidence led by the Respondent in rebuttal. The Trial Court held that the evidence led by the Appellant did not establish his root of title to the suit land and gave only one reason for this decision. The reason is that the evidence led by the Appellant did not state the names of the ancestors of the Appellant’s grandfather who founded or acquired or occupied the land before him or how the said grandfather founded or acquired the land. On the basis of this decision, the Trial Court held that it would be a futile exercise to consider the evidence of long possession or acts of ownership and there was no need to evaluate the evidence of the Appellant’s witnesses.

Part of the evidence elicited by the Plaintiff in support of his case is exhibit P3 which is the certified true copy of the decision of the Trial Court in suit No: AA/90/73, upon an application for committal of the Appellant and others for contempt committed by continuing to occupy the suit land in disobedience of the final judgment of the Trial Court in the said suit No: AA/90/73. The suit was brought by the Respondent as the Plaintiff against Paul Ifedibe and others who, like the Respondents herein, were indigenes of the same Agulu town in Anaocha Local Government Area. He claimed for a parcel of land called Ana Oji Okpo in Agulu. After the said judgment, the Respondent brought an application to commit the Appellant and others from Etiti village, Nanka in Orunba North Local Government Area for disobeying the said judgment by remaining in occupation of the land adjudged in that judgment as that of the Respondent. The Appellant and the Co-Respondents to that application contended that the land occupied by them is Ana Ofe Udo in Etiti, Nanka, the present suit land. The Trial Court dismissed the committal application holding that “the land called Ana Oji Okpo in Agulu is not the same as that in Nanka known and called Ana Ofe Udo land in Etiti village Nanka.” In the face of the decision in exhibit P3 and the evidence of this long occupation and enjoyment and acts of ownership of Ana Ofe Udo, the Trial Court was wrong to have held that the evidence elicited by the Appellant ought not to reasonably satisfy the Court that the Appellant’s title to the land was proved in that the Appellant made out a case that required the Court to consider the Respondent’s rebutting evidence.

I will now consider the evidence elicited by the Respondent in rebuttal, to find out if it did rebut the Appellant’s evidence. The Respondent testified as D.W. 1 and on 25/6/2009 adopted his written deposition on oath as his evidence in examination in chief. He stated in paragraph 13 therein that “my land Ana Oji Okpo in Amezike village, Agula in Anaocha Local Government Area, which I inherited from my own father who in turn inherited it from his own father (my grandfather), does not form part of Simeon Amaefuna’s landed property which is very far away from Ana Oji Okpo.” He stated in paragraphs 3, 4 and 8 therein that the suit land in this case is Ana Oji Okpo, He stated in paragraph 9 therein that –
9. I know the land in dispute very well. It is called “Ana Oji Okpo” and not “Ana Ofe Udo” as claimed by the plaintiff “Ana Oji Okpo” is situate in my village Amaezike Agulu in Anaocha LGA of Anambra State. The situs of “Ana Oji Okpo” had already been pronounced by a High court of competent jurisdiction in the case of AA/90/73 in which judgment was given in my favour against Paul Ifediba as being in Amaezike Agulu in Anaocha LGA.

The Respondent further testified in paragraphs 15, 16, 18, 21, 22, 24, 25, 26, 27 and 28 of the deposition that-
15. That in 1973, Paul Ifediba from Okpu Agulu and some others trespassed on defendant’s land “Ana Oji Okpo” the land in dispute. I sued them in the High Court Awka and got judgment in 1985. Among other things the court found in its judgment that “Ana Oji Okpo” the land in dispute is in Agulu Anaocha Local Government Area. There was no appeal against that judgment either by Paul Ifediba or Simeon Amaefuna as an interested party. After the judgment I continued to cultivate the land and reap economic and food crops therein undisturbed. In 1997 plaintiff sued me at Ajali Customary Court in Orumba North L.G.A. in suit No. CCA/21/98 and Motion No. MISC. 53/98 depriving me the peaceful enjoyment of the land “Ana Oji Okpo.”
16. That plaintiff entered the land reaping and destroying my economic trees and farm crops. Although the Ajali Customary Court ruled that it had no jurisdiction, as the land in dispute was situate in another Local Government Area Anaocha LGA outside the jurisdiction of Ajali Customary Court, if found as follows:
(a) The plaintiff/respondent was fully aware of the pendency of suit No. AA/90/73 – Jonathan Okoli vs. Paul Ifediba when that suit was pending at Awka High Court.
(b) The land subject matter of suit No. CCA/21/98 now pending in this court is the same as the land subject matter of suit No. AA/90/73 – Jonathan Okoli vs. Paul Ifediba.
(c) That the name of the land subject matter of suit No. CCA/21/98 is known as and called “Ana Oji Okpo” situate at Amaezike village Agulu town Anaocha Local Government area.
(d) That plaintiff/respondent merely gave “Ana Oji Okpo” another name so as to re-open a case that has been adjudicated upon by the High Court of Justice Awka in favour of defendant/applicant to the full knowledge of plaintiff/respondent and no appeal against the judgment of suit No. AA/90/73.

18. That I sued plaintiff in Agulu customary court suit No. CCAGU/17/99 tor trespass into my land “Ana Oji Okpo” and destroying the age long boundary Ekpe Enyi without justification. In that suit I as plaintiff prayed the court inter alia to compel the plaintiff (as defendant) to rebuild the Ekpe Enyi which he had mutilated.
21. That while this case was going on, plaintiff knew everything about it and the testimonies of his relations in defendants favour. He did not indicate his interest in the case. Ever since I inherited “Ana Oji Okpo” from my father and ever during the pendency of this suit and after I obtained judgment in 1985, plaintiff (Simeon Amaefuna) did not assert any form of ownership over the land “Ana Oji Okpo” until 1997.
22. That I do not know anything about “Ana Ofe Udo” which the plaintiff is talking about whether it is in existence or just a mirage. The plaintiff and his kinsmen in 1997 attacked me with dangerous weapons on the land “Ana Oji Okpo” I reported their unlawful activities such as harvesting my farm crops and economic trees to State CID Awka and they were arrested. On the date fixed by police for all the parties to return to police station, the plaintiff and his kinsmen disappeared. They never showed up. Instead they reported me to Oko police Station who arrested me. Their refusal to honour the appointment at the police station at Awka led to their arrest. I am not in any position to know about any other petition dated 28/2/2003 to police against me and the purported finding of the assistant Commissioner of police.
24. That I filed a motion in the High Court to commit plaintiff and his kinsmen for contempt of court for having trespassed on my land “Ana Oji Okpo” over which I obtained judgment against Paul Ifediba in 1985. I tendered the judgment of the High court Awka Suit No. AA/90/73 and judgment from Ajali Customary Court in suit No. CCA/21/98. This later case was first filed by the plaintiff in the Agulu High Court – AG/50/97. On the basis of a preliminary objection raised by defendant’s counsel on grounds of the Land Use Act, the plaintiff withdrew the suit and filed it at Ajali customary Court. Although the motion for contempt was not heard because all the parties were not served, the finding of fact by the judge in the said contempt case agreed with the finding in the court judgment of AA/90/73. Jonathan Okoli vs. Paul Ifediba that the land in dispute “Ana Oji Okpo” is situate in Agulu Anaocha Local Government Area and not in Nanka in Orumba North Local Government Area and the finding in suit No. CCA/21/98 and Motion No, MISC.53/98.
25. That notwithstanding the pronouncement of various courts on the situs of the land as being in Agulu and not in Nanka and its ownership, plaintiff continued his prolonged agitation. I am not a land speculator. Only land speculators like the plaintiff think and dream of building land empires.
26. That while the contempt case was still pending at Awka High Court plaintiff and his kinsmen kept intruding and trespassing into the land in dispute unlawfully reaping and destroying my economic trees and farm crops. They consistently boasted and still boat to me of their numerical strength as against me who is alone. They threaten to keep harassing and tormenting me saying I cannot fight back, being an old man. They are already planning to sell the land to money bags for the purpose of building and filling station there. Everyday they count and dream of the millions of naira they believe they will make from its sale.
27. That I run to the police for protection realizing that as an old man, I alone cannot fight against the plaintiff and his people who have evil intention against me. Such unholy intention they nurse irrespective of court judgments in my favour. I am not aware that the Assistant Commission of police ever rebuked me as claimed by plaintiff. I reiterate that plaintiff has no land in “Ana Oji Okpo” which he has renamed “Ana Ofe Udo” for the purpose of this case.
28. The attention of the police has always been drawn to the incessant harassment meted out to me by the plaintiff. The plaintiff cannot be encroaching on my land “Ana Oji Okpo” without authority or permission and expect me to swallow the insult and die in silence.
He also stated in paragraphs 29, 30, 31, 34, 35 36 and 37 therein that-
29. I deny that in 2003 February as claimed by the plaintiff that I unlawfully entered the land in dispute and destroyed his economic crops. The economic crops in “Ana Oji Okpo” belong to me.
30. The piece of land in dispute is this same Ana Oji Okpo, the same piece of land over which I sued Paul Ifediba in 1973 and obtained judgment against him.
31. The plan of the plaintiff in the present case is the same as my plan in the 1973 case produced by Chief Odumodu,
34. The court should not allow the plaintiff to proceed against me in the same land in which I got judgment in 1985.
35. I am asking the court to visit the land in dispute for a better and clearer picture of same.
36. the plaintiffs home and the land he inherited from his father are far away in Etti Nanka from the land in dispute which is in Agulu.
37. I urge the Court to dismiss the plaintiff’s claim as he is not entitled to the relieves claimed same being frivolous, vexatious and gold digging.

The Respondent testified in paragraph 19 of the said deposition, that his father granted Samuel Ezekeke Anabuko, a relative of the Appellant, to build a tailoring workshop and in paragraph 20 therein, testified that he allowed James Obiakonwa, another relative of the Appellant, easement through Ana Oji Okpo, to carry building materials to the building site of his brother Bernard Obiakonwa. The Respondent as D.W. 1, tendered the survey plan of the suit land as exhibit D1, the certified true copy of the proceedings in suit No: AA/90/73 as exhibit D2, the survey plan that was tendered in the said suit AA/90/73 as exhibit D3, the certified true copy of the proceedings in Ajali Customary Court in suit No: CCA/21/98 s exhibit D4 and the ruling therein as exhibit D5.

Under cross examination, D.W. 1 stated that the Defendants in the civil proceedings in suit AA/90/73 are from Okpu village in Agulu and not from Nanka. Under cross examination, it was put to the Respondent that “you encroached on the Plaintiff’s land in Nanka in 1997” and he responded by saying that “I never trespassed or encroached on the Plaintiff’s land. The Plaintiff is not my boundary neighbor and so I cannot encroach on his land.”

No other witness was called by the defence which closed its evidence in defence with the testimony of D.W. 1. It is clear from the testimony of D.W. 1 that the defence relied on the evidence of traditional history of title, long occupation, acts of ownership and court judgments to prove his title to the suit land.

The Trial Court after holding that the Plaintiff’s case failed because he did not state the names of ancestors of his grandfather Okoye, who founded or originally acquired the land, the ancestors who occupied the land before Okoye, how it passed from them to Okoye or how Okoye founded that land, held further that “this conclusion has saved this Court the trouble of evaluating the evidence of the Plaintiff’s witnesses as it would serve no useful purpose.” Following this holding, it stated that- “If this suit were to be decided on the credibility of the witnesses of both parties I would have come to the conclusion that the plaintiff and his witnesses did not score very highly at the credibility stakes, having watched their demeanour and bearing in the witness box.
In sharp contrast, the defendant who testified as sole defence witness (DW1) scored very highly at the credibility stakes and so deserves to have the plaintiff’s claim dismissed for lack of merit. The bearing and demeanour of the plaintiff and his witnesses in the witness box gave them away as a clever bunch (of people) who tried to make believe that the plaintiff had a good and valid case but knew deep down it was not true.”

The words “if this suit were to be decided on the credibility of the witnesses of both parties, I would have come to the conclusion…” suggests that the suit was not decided on the credibility of witnesses and that the Trial Court did not reach any conclusion on such credibility, but merely indicated what conclusions it would have reached if the suit were to be decided on the credibility of witnesses. But its statement that “whichever way one looks at the Plaintiff’s claim, it deserves to be dismissed”, its subsequent statements that D.W. 1 scored high credibility, that the Defendant deserves to have the Plaintiff’s claim dismissed for lack of merit and that the Plaintiff witnesses gave themselves away as a clever bunch that tried to make believe that the Plaintiff had a good and valid case but knew deep down that it was not true shows that it clearly reached conclusions on the credibility of the witnesses and that its decision was influenced by its views on the credibility of the witnesses.

Some of the evidence led by the witnesses were in documentary form.
The Plaintiff through his witnesses elicited documentary evidence of Court decisions as exhibits P3 and P4 and a survey plan of the suit land as exhibit P1. Learned S.A.N. for the Defendant tendered the survey plan used in suit AA/90/73 through P.W. 2 as exhibit P1 and Court proceedings as exhibit P5, P6 and P6A during the cross examination of P.W. 2. The Defendant, testifying for himself tendered High Court proceedings and judgments as exhibit D2, a certified true copy of the survey plan used in the said proceedings as exhibit D3, a certified true copy of Customary Court proceedings and ruling as exhibits D4 and D5.

In considering the credibility of the evidence of the witnesses of both parties, the Trial Court did not separate their documentary evidence from their testimonial evidence. It determined the credibility of the entire evidence of the witnesses of each party without exception and decided on the basis of its decision on the credibility of the witnesses that the Defendant deserves to have the Plaintiff’s claim dismissed for lack of merit.
The Court proceedings, ruling and judgment were tendered to show that the suit land, the subject of the final judgment of the Trial Court in the earlier suit AA/90/73 is the same as the suit land in the present suit. The success or failure of the Plaintiff’s claim depended on how this issue was determined. This evidence was of more primary importance than the evidence of traditional history. This is because its determination, one way or the other, will determine the need for the evidence of traditional history of title, occupation and acts of ownership of the suit land led by each side. Apart from dealing with the root of the merit of the claim, it was also relied on to invoke the principle of estoppel per rem judicata and issue estoppels to show that the subject of this suit had been litigated and conclusively determined by a Court of competent jurisdiction in suit No: AA/90/73 and so can no longer be competently tried by the Trial Court. So the issue of whether the suit land in suit No: AA/90/73 and the suit land in this case are the same cannot be resolved on the basis of credibility of witnesses without reference to the documentary evidence that contained the facts relevant to the determination of the issue. It is trite law that the existence of a fact cannot be determined on the credibility of witnesses where there is documentary evidence of the existence of such fact. As the Supreme Court held in OHIJINLE VS ADEAGBO (1988) 2 N.W.L.R. (pt 75) 238, that where documentary evidence has been admitted, demeanor plays an insignificant role, if any at all. The documents tendered in the case should be used as a hanger to assess oral testimony. See also the decision of the Court in IZE-IYAMU VS ALONGE (2007) 6 N.W.L.R. (pt 1029) 84.

It is clear from the above reproduced part of the judgment of the Trial Court that it decided that the Plaintiff’s claim failed because the evidence of traditional history was inconclusive. It decided not to evaluate the evidence of the Plaintiff’s witnesses and did not evaluate them. It is glaring that it did not evaluate the evidence of the Defendant’s witnesses in reaching the above decision. The question that arises at this juncture is, if the Trial Court did not evaluate the evidence of the witnesses of both parties, how did it arrive at its conclusion on the credibility of the witnesses on both sides. It is obvious that its views on their credibility are not the result of an evaluation of the evidence of the witnesses. It gave no reason for its conclusion that the bearing and demeanor of the Plaintiff and his witnesses in the witness box, gave them away as a clever bunch of people who tried to make believe that the Plaintiff had a good and valid case but knew deep down that it was not true. It gave no reason for scoring the credibility of the Defendant’s sole witness highly and those of the plaintiff’s witnesses low. There can be no proper assessment of the credibility of witnesses without an evaluation of the evidence of the witnesses. Any conclusion, finding or decision on the credibility of any witness without an evaluation of the evidence of the witness will be baseless and perverse. As held by the Supreme Court in MAGAJI ODOFIN AND ORS (1978) 1 L.R.N. 212, before a Judge in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he must put the totality of the testimony adduced by both parties on an imaginary scale. He should weigh one side against the other and then decide on the preponderance of credible evidence which weighs more.

For all the reasons I have stated above, I hereby set aside the above conclusions of the Trial Court concerning the credibility of the evidence of the witnesses of both parties on the basis of its perception of the bearing and the demeanor of the witnesses.
Let me now deal with the state of the evidence of both parties and the competing strengths of their claim for title to the suit land.

It is glaring from the pleadings and the evidence of both parties that they agree that each one of them own and occupy a certain parcel of land in their respective villages and local governments and that their said villages which are on the border of the two local governments, share a common boundary. The Appellant’s land is in Etti Village, Nanka Town in Orumba North Local Government of Anambra State. The Respondent’s land is in Amaezike Village of Agulu Town in Anaocha Local Government Area of Anambra State. The Appellant claims that his said land is called Ana Ofe Udo and is the suit land in this case. The Respondent claims that his said land called Ana Oji Okpo is the suit land in this case. It becomes necessary therefore to find out if the suit land herein is Ana Ofe Udo or Ana Oji Okpo.
The Respondent testified during his examination in chief as contained in paragraph 13 of his written deposition that “my land Anaoji Okpo in Amaezike Village, Agulu, in Anaocha Local Government Area which I inherited from my own father who in turn inherited it from his own father (my grandfather) does not form part of Simeone Amaefuna’s landed property which is very far away from Ana Okji Okpo.” He further testified in paragraph 3 of the same deposition that “the Plaintiff’s home and the land he inherited from his father are in Etti Nanka which is far away from the land in dispute which is in Agulu.” Under cross examination the Respondent testifying as D.W. 1 stated that “the plaintiff is not my boundary neighbor and so I cannot encroach on his land.”

The Appellant testified in examination in chief in paragraph 3 of his written deposition that- “I sued him at the High Court Ekwulobia in the year 2004 claiming against him title to my piece of land known as and called “Ana Ofe Udo” situate at Eti Nanka in Orumba North LGA of Anambra State, He also counter claimed against me in respect of the said piece of land which he called “Ana Oji Okpo” said to be situate at Amaezike village of Anaocha L.G.A of Anambra State.”

In paragraph 16 of the said deposition, appellant testified that -“ana ofe Udo” and Ana Oji Okpo” are not the same. The said “Ana Ofe Udo” is my own land and is situate in Eti village Nanka in Orumba North L.G.A. while “Ana Oji Okpo” is as alleged by Jonathan Okoli situate in Agulu town in Anaocha L.G.A. of Anambra State.
I heard of this Ana Oji Okpo for the first time in 1997 when I went to the Customary Court at Ajali in connection with a land matter I had with Jonathan Okoli who claimed that Ana Oji Okpo belongs to him.

Exhibit D2 is the final judgment of the Trial Court in an earlier suit No: AA/90/73 filed by the Respondent against his fellow indigenes of Agulu Town (Paul Ifediba and others) claiming for title to Ana Oji Okpo land. The judgment in exhibit D2 granted the Respondent the customary right of occupancy to Ana Oji Okpo after holding that it belongs to the respondent.
In 1998 the Appellant sued the Respondent at Ajali Customary Court in Orumba North Local Government Area claiming for a declaration that he is entitled to the customary right of this suit land which was described therein as Ana Ofe Udo, damages for trespass and injunction to restrain further trespass. The Ajali Customary Court in the concluding part of its judgment stated thus- “From what I have said above I hereby find as a fact as follows:-
(1) That plaintiff/respondent was fully aware of the pendency of suit No. AA/90/73 – Jonathan Okoli vs. Paul Ifediba when that suit was pending at Awka High court.
(2) That land subject matter of suit No. CCA/21/98 now pending in this court is the same as the land subject matter of suit No. AA/90/73 – Jonathan Okoli vs. Paul Ifediba.
(3) That the name of land subject matter of suit No. CCA/21/98 is known as and called Ana Oji Okpo situate at Amaezike village Agulu town Anaocha Local Government Area.
(4) That plaintiff/respondent merely gave Ana Oji Okpo another name so as to re-open a case that has been adjudicated upon by the High Court of Justice Awka in favour of defendant/applicant to the full knowledge of plaintiff/respondent and there is no appeal against the judgment of suit No. AA/90/73.

Having found as a fact that the land now in dispute situate at Amaezike village Agulu Anaocha Local government Area and that plaintiff/respondent was aware of suit No. AA/90/73 aforesaid, the question which this court will ask itself is “Does this court have jurisdiction and/or power to hear suit No. CCA/21/98 instituted by the plaintiff/respondent against the defendant/applicant over a land situate in another Local Government Area, outside the jurisdiction of this court? It is well known that this court had no jurisdiction and/or power to hear a case over a land situate to another Local government Area save by way of transfer. It is not in doubt that suit No. CCA/21/98 did not come to this court by way of transfer. This court therefore hold that it has no jurisdiction to hear and determine suit No. CCA/21/98 – Simeon Amaefuna vs. Jonathan Okoli accordingly, the said suit No. CCA/21/98 now pending in this court is hereby struck out for want of jurisdiction on the part of this court.”

On 13/3/2002 the Respondent filed and moved an application at the High Court at Awka, to commit the Appellant and 6 others to prison for disobedience of its judgment of 20/5/1985 in suit AA/90/73. In arguing the motion, the Respondent also relied heavily on the Ajali Customary Court decision in CCA/21/98 of 16/7/99 (exhibit P5) reproduced above. In its ruling on 4/5/2004, the Trial Court at Awka held thusly- “In my previous ruling on this Motion this court did indicate that not all of the contemnors were personally served and this is fatal to the case of the plaintiff/applicant particularly where the proceeding is for committal. The court also observed that the original land called Ana Oji Okpo in Agulu is not the same land as that in Nanka known and called Ana Ofe Udo land in Etti village in Nanka. This motion is improper before this court and is therefore dismissed with N5,000.00 costs.”(underlining mine)

Upon the complaint of the Respondent, one John Jabun (P.W. 3 herein); a customary tenant of the Appellant, the Appellant and other persons were charged before the Anaocha Chief Magistrates’ Court at Nnewi on 26/7/2004 for malicious damage of crops on the Suitland herein. Learned Counsel for the accused persons in that case objected to the jurisdiction of the Chief Magistrates’ Court to try accused persons because the disputed land is at Nanka In Orumba North Local Government Area, outside the jurisdiction of the Court. The Learned Magistrate determined the objection thus- “On the 13/9/2004, all the accused persons were present with their counsel and his junior in Chambers while the prosecuting Counsel and the complainant were absent a third time without any reason given to the court for their absence and at that stage, the defence counsel addressed the court on the issue of jurisdiction. He submitted that the jurisdiction of this court to continue hearing this charge is a question in that the land the subject matter for which the accused persons are charged for malicious damage is situate at Nanka in the Orumba North Magistrate district and which is not within the jurisdiction of this court. Counsel submitted however that parties in this charge were disputing over the same land the subject matter of this charge at the High court sitting at Awka in suit No. AA/90/73-
Jonathan Okoli Vs. Simeon Amaefuna & 5 Ors. Before Hon. Justice Uzodike. Counsel submitted further that G.O.C. Uzoma Esq. was also the Counsel for the complainant in the suit at the High Court. Defence Counsel stated that the High Court ruled that the land, the subject matter of this charge, situate at Nanka which is outside the jurisdiction of this court. He submitted that it was after the ruling of the High court that Mr. Uzoma had the complainant stopped appearing in this charge. The defence Counsel then urge the court to strike out this charge for want of jurisdiction.
Counsel tendered the ruling of the High Court in suit No. AA/90/73 – Jonathan Okoli vs. Simeon Amaefuna & 5 Ors. Dated the 7th day of July, 2004 and which is Exhibit ‘B’ before this court. He cited the case of OGBUANYINYA VS. OKUDO (1979) 3 LRN AT PAGE 318. The case was adjourned to 23/9/2004 for reply by the prosecuting counsel. On the 23/9/2004, both the prosecuting counsel and the complainant were absent a forth time while all the accused persons including the defence counsel were in court. The case was then adjourned to 30/9/2004 for ruling.

COURT
The issue of jurisdiction goes to the root of the case and once it is raised, it has to be heard and determined first. In the instant case, the defence counsel raised a preliminary objection challenging the jurisdiction of the court to hear and determine this charge. In his argument he submitted that the land the subject matter of this charge for which the accused persons were charged for malicious damage is situate at Nanka the jurisdiction outside this courts. He tendered Exhibit ‘B’ which was the ruling of the High court Awka on the same land being disputed by the same parties.
The prosecuting counsel was given an opportunity to reply to the arguments of the defence counsel on jurisdiction but he never showed up. The case had been earlier adjourned on several occasions at the instance of the prosecution without plea taken in the charge and without any reasonable excuse given to the court for his absence. I have no reason to doubt any of the submissions made by the defence counsel. I believe that the sudden abandonment of the charge by the prosecuting counsel and the complainant is because they have nothing to offer in the prosecution of the charge. I therefore uphold the entire submissions of the defence counsel and hold that this court has no jurisdiction to adjudicate on the instant charge. When a court has no jurisdiction to try a matter, the only Order it can make is that striking out the case. I hereby strike out this charge for want of jurisdiction.”

The said ruling in charge No: MC/23C/2000 was admitted as exhibit P4 in the Trial Court.

I will now consider how the Trial Court treated these exhibits. I will start with exhibits D2, D3, D4 and D5 tendered by the Respondent to rebut the Appellant’s case by showing that the suit land in this case is Ana Oji Okpo and title to its right of occupancy had been litigated upon and declared to vest in the Respondent by the Trial Court on 20/51/985 and supported by the Customary Court in its ruling of 16/7/1999. The Trial Court first considered if its judgment of 20/5/1985 in exhibit D2 can support the plea of estoppel per rem judicata and estoppel by standing by in favour of the Respondent. After restating the law on the effect of a successful plea of res judicata on the Court’s approach to the case, the Trial Court held that “it seems the Respondent abandoned the plea of the Defendant because he had not successfully shown that the parties, issues and subject matter were the same as those in the previous suit AA/90/73: JONATHAN OKOLI VS PAUL IFEDIBA AND ORS as those in the present action in which the plea of res judicata is raised”. It then rightly highlighted the content of exhibit D2 as to the parties and subject matter in suit AA/90/73, held that “this shows that the plea of res judicata could not have succeeded” and “that the Defendant rightly abandoned the plea of res judicata in his final address.” It is also rejected and discountenanced the plea of estoppel by standing as not established by evidence. It held that “Now too the issue of estoppels by standing by. Estoppel by standing by or estoppel by conduct operates when a party was content to stand by and see or watch his battle fought by somebody else in the same interest. In such a situation the party is bound by the result of the battle and so should not be allowed to re-open the case. It seems to me that estoppels by standing by can only operate in this case if it is shown that the plaintiff in this case is in privity with the defendants in Suit No. AA/90/73 aforementioned or that the said defendants were professing to act in the interest of the plaintiff while defending that earlier suit…. One essential feature for the applicability of estoppels by conduct is that the defendant had acted based on his presumption of the conduct of the plaintiff who now wants to enforce his legal right. Evidence must be led to show this presumption and action. I have not received such evidence in this case. I would have upheld the plea of estoppel by standing by in this case if the plaintiff in this case belonged to the Umuanyiuka family of Okpu village, Agulu who defended the defendant’s 1973 suit aforementioned or if he had given evidence as a defence witness in that case. Consequently, the defendant’s plea of estoppels by standing by is not made out and is hereby discountenanced or rejected accordingly.”

Later in the judgment, after dismissing the Plaintiff’s claim on the sole basis of its finding that his evidence of the traditional history of the root of title did not name the ancestors of the Appellant’s grandfather who occupied and founded the suit land before him and so it was incomplete, the Trial Court curiously tried to revisit the issue of whether exhibit D2 and exhibits D4 and D5 confirming it, can support a plea of res judicata in favour of the Respondent. It stated thus-
In addition, I would have sustained the plea of res judicata if the defendant’s counsel (Mrs. J.N. Edochie) had not withdrawn same in her final address to this court. In other words, in view of the adverse findings of the Customary Court Ajali in suit No. CCA/21/98 that the plaintiff in suing the defendant over Ana Ofe Udo tried to re-open a claim over Ana Oja Okpo which had been awarded to the defendant by Awka High Court in suit No. AA/90/73 and those adverse findings of the Customary Court were not appealed against by the plaintiff. He the plaintiff is not entitled to file this suit to re-open or re-litigate the matter. If the defendant had raised the issues or pleas of res judicata and abuse of process against the filing of this suit on the basis of the said adverse findings made against the plaintiff in the Ruling of the Customary court Ajali in suit No. CCA/21/98 – Simeon Amaefuna v. Jonathan Okoli contained in Exhibits P5, P6, P6(A), D4 and D% tendered at the trial of this suit, I would have sustained both pleas by dismissing this suit on those grounder see ONYEABUCHI V. INEC (2002) 4 SCNJ 265 AT 279, per Ayoola, JSC. I say no more on that since the issues of res judicata and abuse of process are not the basis for dismissing the plaintiff’s claim in this suit.”

This last part of the judgment, with due respect, is speculative as it merely states what the Trial Court would have done if the plea was not withdrawn.
It clearly did not decide any issue. In any case the position it said it would have taken would have been invalid and unsustainable in the light of its earlier decision that the judgment in suit AA/90/73 cannot sustain a plea of res judicata against the present case. There is no need to say more on this matter since the Trial Court stated expressly that it did not dismiss the Appellant’s claim on the basis of res judicata or abuse of process.

Exhibit P3 (the ruling of the Trial Court on the application for committal in suit AA/90/73, dated 4/5/2004) and exhibit P4 (the decision of the Chief Magistrates’ Court in charge No MCA/23C/2000) were not even mentioned by the Trial Court throughout its judgment. It ignored and disregarded them completely. It did not consider them in arriving at its judgment.
Therefore, the judgment is not the result of the consideration of the entire evidence before the Court. There can be no proper evaluation where some of the relevant evidence in the case was not considered in arriving at a judgment.

In ONISAODU AND ANOR VS ELEWUJU AND ANOR (2006) 13 N.W.L.R. (PT 998) 517, the Supreme Court held that “proper evaluation of evidence is absolutely important in determining a case and coming to a just conclusion. It is trite that the Learned Trial Judge must assess and appraise all evidence before him.

The Trial Judge obviously erred in law where he failed to consider exhibits P3 and P4. However, it is not every error of procedure in the proceedings before a court that can vitiate the proceedings. Only such errors that are substantial and occasion a miscarriage of justice in the sense that the decision would have been different without the error, can vititiate the proceedings or decision.

I will now consider the said exhibits to find out if the said error occasioned a miscarriage of justice in the sense that the judgment of the Trial Court would have been different if it had considered them. In exhibit P3, the Trial Court considered the terms of exhibits D2, D4 and D5 and held as one of the reasons for dismissing the motion for contempt as improper, it’s observation, in an earlier ruling in the hearing of that motion, that Ana Oji Okpo in Agulu was not the same as the land called Ana Ofe Udo in Etiti Village in Nanka. In exhibit P4, the Chief Magistrate Court upheld the contention of Learned Counsel for the accused person that the land in respect of which the accused person were charged with malicious damage was located in Nanka in the Orumba North Magisterial District, outside its jurisdiction. The Learned Magistrate held that he lacked the jurisdiction to try the charge and struck it out. If the Trial Court had considered these two exhibits it would have come to the conclusion that they show that it had been previously judicially determined in the cases in exhibits P3 and P4 that the suit land in this case is different from Ana Oji Okpo, the subject of litigation and the final judgment in suit AA/90/73. The decision of the Trial Court on whether the judgment in suit AA/90/73 sustained the plea of res judicata confirms the decision in exhibits P3 and P4. As I had pointed out earlier in this judgment, the Trial Court has already held, while considering whether exhibit D2 can sustain a plea of res judicata and estoppel by standing, that it cannot because the parties and subject matter in that case are different from the parties and subject matter in this case. The implication of this decision is that the sole basis of the Respondent’s rebuttal of the Appellant’s case had failed. This decision of the Trial Court that exhibit D2 cannot sustain the plea of rejudicata and standing by and exhibits P3 and P4 removed the basis of that rebuttal. If the suit land is different from Ana Oji Okpo, then the Respondent has no defence to the Appellant’s claim. So if the Trial Court had considered and given effect to exhibits P3 and P4, and followed its earlier finding in the judgment, its final conclusion would have been different. It is therefore obvious that if the Trial Court had considered the evidence of the Appellant’s family’s long occupation and use of Ana Ofe Udo and the acts of ownership of the land exercised by the Appellant’s grandfather, father and the Appellant and the evidence of the Respondent that the Appellant’s family actually own and occupy their own land in Etiti, Nanka in Orumba North Local Government, the Appellant’s evidence that Ana Ofe Udo is the suit land and exhibits P3 and P4, it would not have dismissed the Appellant’s claim. It would have been clear to it that the suit land is ana ofe udo and belonged to the appellant
The Trial Court chose to avoid all these pieces of evidence and the issues arising therefrom, and restricted itself solely to the issue of whether the evidence of traditional history of the Appellant’s root of title to Ana Ofe Udo elicited by the Appellant, proved his claim of title to the land. This judicial approach to the consideration of the evidence before a Court is wrong and does not meet the requirement of a fair trial. This is a clear case of abdication of the mandatory judicial responsibility of the Court to consider all the evidence and issues before it in reaching a decision on the case presented by the parties. The submission of Learned Counsel for the Appellant is correct and he rightly relied on the decisions in DARAMOLA vs GOVERNOR OF OSUN STATE (2004) F.W.L.R. (PT 192) 112 AT 124, BASSIL VS FAJEBE (2010) F.W.L.R. (PT 51) 1914 AT 1962 – 1927 AND SHAMAKI VS BABA (2000) F.W.L.R. (PT 26) 1878 AT 1888 – 1889.

The Learned S.A.N. for the Respondent, after reproducing the statement of the Trial Court restating the law on the proper judicial approach to considering the evidence led by each party to the case, submitted that “in evaluating the evidence before him the Trial Judge first as he is required to do, exhaustively considered the Plaintiff’s claim…” Again, after correctly restating the principles guiding the process of evaluation of any evidence before a Court as laid down by the Supreme Court in ANYANWU VS UZOMAKA (2009) 13 N.W.L.R. (PT 1159) 445, the Learned S.A.N. for the Respondent submitted that “adopting these laid down principles, the Learned Judge then proceeded to critically, rigorously and dispassionately analyze the evidence before him.”

The above submissions of the Learned S.A.N. are not supported by the terms of the judgment of the Trial Court dismissing the Appellant’s claim.
The Trial Court, upon its conclusion that the Appellant did not discharge the burden to prove his claim for the reason that the Appellant’s history of his root of title is incomplete stated that “this conclusion has saved this Court the trouble of evaluating the evidence of the Plaintiff’s witness as it would serve no useful purpose.” As I have already held herein, it is glaring from the judgment of the Trial Court that it did not evaluate the evidence of the Appellant’s long possession, use and acts of ownership of the suit land and did not even consider any of the documentary evidence (exhibits P1, P3 and P4) tendered by the Appellant and the evidence of the Defence before it dismissed the Appellant’s claim. The Learned S.A.N. for the Respondent was therefore wrong to have submitted that the Trial Court exhaustively considered the Appellant’s claim and critically rigorously and dispassionately analyzed its evidence before him. It is obvious from the foregoing that if the Trial Court had evaluated all the evidence of each side, it would have rightly directed itself as to the primary issue in dispute between the parties, would have approached the determination of the case differently and decided it differently. The primary issue in dispute was whether the suit land was Ana Ofe Udo or Ana Oji Okpo. It is obvious from the judgment that the Trial Court understood this clearly when it restated the summary of the case of each side in the introductory part of the judgment. The right of each party to the land occupied by him in his village was not in dispute. The determination of the Appellant’s root of title to Ana Ofe Udo had no bearing on the determination of the primary issue of whether the suit land was Ana Oji Okpo or Ana Ofe Udo. If it is resolved that it is Ana Oji Ukpo, the Appellant’s claim must fail, whether his evidence of traditional history of root of title to Ana Ofe Udo is complete or incomplete and irrespective of his evidence of long occupation, use and acts of ownership of Ana Ofe Udo. The land he owned and occupied would thereupon be different from the suit land. If on the other hand, it is resolved that the suit land is Ana Ofe Udo and not Ana Oji Okpo, then the Appellant’s claim must succeed on the basis of his evidence of traditional history of root of title or of long occupation, use and acts of ownership of Ana Ofe Udo.

The Appellant relied on exhibits P3 and P4 to show that the suit land in suit No: AA/90/73 (Ana Oji Okpo) is not the suit land in this case and that the suit land in this case is Ana Ofe Udo. The Respondent relied on exhibits D2, D4 and D5 to rebut the case of the Appellant. Ajali Customary Court in exhibit D4 and D5 held that the land being disputed by the Appellant and the Respondent was the one declared by the High Court in suit AA/90/73 as belonging to the Respondent and is called Ana Oji Okpo and not Ana Ofe Udo as the Appellant called it. When the Respondent subsequently applied for the committal of the Appellant for contempt for disobeying the judgment in suit AA/90/73, he relied on the judgment in AA/90/73 and the proceedings and ruling of the Customary Court at Ajali in CCA/21/98. The said processes were placed before this Court to consider in determining the committal application. It held that the land Ana Oji Okpo in Agula is not the same land as that in Nanka, known as Ana Ofe Udo land in Etiti Village, Nanka. This decision is contained in exhibit P3. The Trial Court at Awka considered the Ajali Customary Court proceedings and ruling as contained in exhibits D4 and D5 before arriving at the decision in exhibits P3. For this reason, the High Court decision in exhibit P3 overrides and supersedes the decision of the Ajali Customary Court as contained in exhibit D5. There is nothing showing that the decision of the High Court in exhibit P5 was challenged or reviewed by way of an appeal or any other legal process.
The Respondent by not challenging had accepted it as valid and binding on him. See Odjevwedje & Anor V Echanokpe (1987) 35C47, Adedayo V Babalola (1995) 7 NWLR (Pt.408) 383 (SC) and Iyoho V Effiong (2007) 4SC (Pt iii) 90.

The Anaocha Chief Magistrates Court on the basis of the High Court decision in exhibit P3 held that a criminal case against the Appellant and others involving the suit land was not within its jurisdiction as the land in dispute is located at Nanka in Orumba North Magisterial District. The decision is contained in exhibit P4. The Respondent did not challenge this decision by way of an appeal or any other legal process. He thereby accepted the decision as valid and binding on him. The views expressed by the Trial Court when considering if the plea of res judicata would have succeeded if the Respondent did not withdraw it, supports the decision in exhibit P3 and P4.

In light of the foregoing, I hold that the evidence adduced by the Respondent did not rebut the case of the Appellant that the suit land is Ana Ofe Udo in Etti, Nanka, Orumba North Local Government Area and not Ana Oji Okpo in Amaeze, Agulu, Anaocha Local Government Area. It was therefore wrong for the Trial Court to have dismissed the Appellant’s claim.
The claim succeeded on the preponderance of evidence. I therefore hereby set aside the decision of the Trial Court dismissing the Appellant’s claims. I hereby hold that the Appellant is entitled to the customary right of occupancy to the suit land(ana ofe udo), general damages for trespass and an order of perpetual injunction restraining the Respondent or his agents from further trespassing unto the suit land Ana Ofe Udo.

The judgment of the Trial Court is in two parts. The first part dealt with the Plaintiff’s claim (main claim). The second part dealt with the Defendant’s counter claim. After dismissing the Plaintiff’s claim, the Trial Court then proceeded to consider the Counter claim and granted same.

Learned Counsel for the Appellant under issue no; 2 of the Appellant’s brief argued that the trial Court should not have entertained and determined the counter claim without regard to the provisions of Order 2 Rules 1 and 5 of the Anambra State High Court (Civil Procedure) Rules 2006 when the land the subject matter of the counter claim is stated in the counter claim to be in Amaezike, Agulu, Anaocha Local Government Area, outside Aguata Division and is rather in Awka Judicial Division and as such is outside the jurisdiction of the Anambra State High Court sitting at Aguata Judicial Division. This issue was raised in paragraph 30 (b) of the Plaintiff’s reply to the amended statement of defence. The Plaintiff did not raise it timeously before taking further steps and did not apply to have the counter claim set aside for non compliance with the said 2006 Rules. Rather it proceeded to elicit evidence in support of his case, filed and adopted his written final address after the conclusion of the evidence of all the parties’ final addresses. The Trial Court did not consider or decide it, as it was not one of the issues raised for its determination in the address of the parties. The foregoing shows that the Appellant had consented to the trial of the counter claim in Aguata Judicial Division. I do not think that he can competently raise and argue it here. It is too late. My earlier decision in this judgment concerning the same issue and argument by the learned S.A.N. under issue no: 1 of the Respondent’s brief against the Appellant’s claim applies with equal force here. Therefore I hold that issue no: 2 and the arguments thereunder in the Appellant’s brief, lack both competence arid merit for the detailed reasons stated in my earlier decision herein on non compliance with Order 2 Rule 1 and 5 of the Anambra State High Court (Civil Procedure Rules) 2006.

The Learned S.A.N. for the Respondent argued in support of the decision of the Trial Court granting the counter claim. He restated what the Trial Court said.

Let me state straight away that having already held herein that the suit land is Ana Ufe Odo and not Ana Oji Okpo and that the Appellant’s claim succeeds on the preponderance of evidence, it follows naturally that the Respondent’s counter claim failed and that the decision of the Trial Court granting same was wrong. The Trial Court in considering the counter claim first determined whether the suit land described as Ana Oji Okpo in suit AA/90/73 (exhibit D2), is the same as the land counter claimed for by the Respondent in this case as Ana Oji Okpo. This determination amounts to reopening an issue that has been judicially settled by by the same trial court in its earlier decision at Awka in exhibits P3. It cannot reopen for the additional reason that it had earlier in the same judgment determined the issue. As the Supreme Court held in Nwoga V Benjamin “a court of law has no jurisdiction to reopen an issue upon which it has made a determination within the same proceedings or to alter the effect of its decision in a matter”. It cannot competently do so.

I do not think that the Trial Court has the power to reopen an issue previously settled by it and review its earlier decision rendered whilst sitting at Awka. There was no appeal against its decision in exhibit P3 to this Court and there was no application to it to review its said earlier decision on the grounds of the same being a nullity in that it was made without jurisdiction or that it was illegal in that it was obtained by fraud.
The Trial Court lacked the jurisdiction to reopen and determine the issue of whether the land the subject of dispute between the Appellant and the Respondent is Ana Oji Okpo or Ana Ofe Udo, having already decided same.
Generally, it lacks the power to review its own decisions except where such a decision is ex facie a nullity or illegal.

The Trial Court relied exclusively and completely on the survey plan used in suit AA/90/73, which was tendered in this case as exhibits P2 and D3 and another survey plan tendered in this case as exhibit D1 which is held to have been super imposed on the Appellant’s plan in exhibit P1 to determine if the land counter claimed for herein is the same as the suit land in suit AA/90/73. After restating the law that a Court can compare survey plans tendered by either side to determine the identity and extent of the suit land, relying on the precedents of LATINWO AND ORS VS AJAO AND ANOR (1973) A.N.L.R. 118, OKAFOR VS ABIWO (1978) 9 AND 10 S.C. 115 AT 123 AND ADONE AND ORS VS IKEUDU AND ORS (2001) 7 S.C.N.J. 573, it held that – “A close examination of the plans tendered in this case and the judgment in the earlier suit No. AA/90/73 (Exhibit D2) clearly establishes that the piece of land called Ani Oji Okpo verged pink in plan No. MG:5/73 tendered as Exhibit A in suit No. AA/90/73 (now tendered in this suit as Exhibit P2 and D3) is the same piece of land claimed by the defendant in his counter-claim shown and verged green in the composite survey plan No. MG/AN, 84/2004 tendered as Exhibit D1 in this proceeding.”

The survey plan in exhibits P2 and D3 was part of the evidence that was relied on by the Trial Court at Awka, in suit AA/90/73 in reaching its final judgment therein. It is that judgment and the view of the Ajali Customary Court on it, that the same High Court at Awka considered and held that the land the subject matter of suit Ad.l90l73 is different from the land being disputed by the Appellant and Respondent and that the one in dispute between them is at Etti Village at Nanka. The said land the subject of suit No AA/90/73 was defined and depicted in that survey plan and used in that case as exhibit A. The Trial Court disregarded its own decision in exhibit P3 in determining whether the land in that survey plan, the subject of the judgment in suit AA/90/73 is the same as the land being disputed by the Appellant and Respondent. If it had considered its decision in exhibit P3 and the decision in exhibit P4, it would not have engaged in that determination of an already settled matter and would not have used the said survey plan in suit AA/90/73. See OKPAOLUWA VS UMEH (1976) 9-10 S.C. 269, where the Supreme Court held that the Trial Court could not review the previous decision of the High Court that had not been appealed against to the West African Court of Appeal.

Learned S.A.N. for the Respondent correctly stated the law as being that a Trial Court can compare plans and draw valuable inferences therefrom. But the inference drawn therefrom must be based on the Court’s evaluation of the contents of both plans and must be justified by reasons. It is not correct for a Trial Court to look at two or more plans and state that the plans refer to the same piece of land without stating any reasons for such a conclusion. Merely looking at or examining the plans without reference to the specific contents of each survey plan that justify the inference that they refer to or do not refer to the same land, cannot amount to a comparison of the plans. A comparison of two or more things involves an analysis or a consideration of the similar and dissimilar features between the two or more things after examining them. There is nothing in the judgment that shows that the Trial Court compared the survey plan in suit AA/90/73, the Appellant’s survey plan in exhibit P1 and the Respondent’s survey plan in exhibit Dl. Therefore its conclusion that they refer to the same land is not justified. It is obvious from the entire tenor of the pleadings and the evidence of the Respondent that he relied on the judgment in exhibit D2 to plead res judicata and estoppel by standing by and to support his counter claim. The Trial Court held that the plea of res judicata and estoppel by standing by could not be sustained on the judgment in suit AA/90/73 as the parties and the subject matter in the case are different from the parties and the subject matter in this case. Later in the same judgment while considering the counter claim, it held that the same judgment in suit AA/90/73 is deemed to be utilized by the Respondent to establish acts of possession over the suit land and that Respondent can utilize it to establish his title or ownership of the suit land in this case. It held that –
“In Exhibit D2, the trial court accepted the traditional history and acts of ownership given in evidence by the plaintiff in that case (now defendant/counter-claimant in this case) and so the defendant’s root of title to the land in dispute in the counter-claim had been established, in which case he can utilize that judgment as the basis of title to the land in dispute and I so hold. The position would have been different if the plaintiff had given a contrary credible evidence rebutting the presumption of validity or finality in favour of Exhibit D2 (the judgment in the earlier suit No. AA/90/73) obtained by the defendant over the same Ana Oji Okpo in dispute in this case against fellow natives of Agulu who did not include the plaintiff in this case who is a native of Nanka. If I had come to a different conclusion with respect to the effect of Exhibit D2 on the defendant’s counter claim, I would have indirectly or directly overturned the judgment in Exhibit D2 pertaining b the land in dispute. I am not entitled to do so not only because the judgment (Exhibit D2) was not appealed against nor set aside on appeal but also it is a judgment entitled to a great deal of respect having been delivered by a very sound judge (Hon. Justice Eze Ozobu) who had a long and fulfilled judicial career crowned with a peaceful retirement as the Chief Judge of Enugu State following the creation of the present Anambra State out of the old Anambra State in August, 1991. The point I am trying to make is that Exhibit D2 had confirmed the evidence on traditional history and acts of ownership given by the defendant in the case in hand and no evidence as to the defendant’s title to the land in dispute can be more compelling and telling than Exhibit D2. Therefore, Exhibit D2 in which the defendant received a declaration of title in his favour over the land in dispute, i.e. Ana Oji Okpo, is compelling enough to make this court grant the same declaration of title in his favour based on his counter claim in this case. From the foregoing, it follows that the defendant’s counter claim seeking a declaration of entitlement to the customary right of occupancy over the piece or parcel of land known as Ana Oji Okpo succeeds.”

This part of its judgment is in conflict with its earlier decision that the judgment in exhibit D2 could not sustain the Respondent’s plea of res judicata and estoppel by standing by. Furthermore, the decision cannot stand because I have already held herein that the suit land in AA/90/73 is different from the suit land in this case. This suit land is Ana Ufe Odo and not Ana Oji Okpo. The fact that the Respondent counter claimed for it as Ana Oji Okpo does not make it the same as that litigated in suit AA/90/73.
The trial court sitting at Awka held in exhibit P3 that “Ana Oji Okpo in Agulu is not the same land as that in Nanka referred to as Ana Ofe Udo land in Etiti Village in Nanka.” Therefore the declaration in suit AA/90/73 that Ana Oji Okpo belongs to the Respondent cannot be relied upon to declare that he owns the suit land in this case.
The Trial Court had earlier held that the parties in suit AA/90/73 are different from the parties in this case in that the Appellant was not a party to that case and the Defendants in that case are not parties to this case.

So that even if it assumed that the suit land in the two cases are the same, the decision in suit AA/90/73 cannot apply to and bind the Appellant who was not a party to the suit. While it may amount to valuable evidence of an act of exercise of ownership by the Respondent in the past on which the Court can rely on, along with other evidence to assess the competing strength of the rival claim of title to the suit land, the Court in the present case is not bound to declare title in his favor on the basis of the declaration of title in the earlier suit. This is what the Trial Court seems to have said by holding that “if I had come to a different conclusion with respect to the effect of exhibit D2 on the Defendant’s counter claim, I would have indirectly or directly overturned the judgment in exhibit D2 pertaining to the land in dispute. I am not entitled to do so because the judgment (exhibit D2) was not appealed against nor set aside on appeal. It was clearly a one sided consideration. The position of the appellant who was not a Defendant in that case was not considered. The relative or comparative strength of the claims of each party in a case will certainly be different from those of the parties in another case over the same subject matter. In the previous suit the Respondent may have had a weightier case than the Defendants therein. In the present case, the Appellant who was not a party in that case and not privy to any of the parties therein, with an entirely different story and case, may have a stronger case than the Respondent. So the new case must be considered on the basis of the totality of evidence led by the parties and not on the basis of the judgment in the previous suit only. The Court in the new case does not rubber stamp or adopt the judgment in the previous case. It tries the new claims by the new parties before it by assessing the relative strength of their respective claims on the totality of the evidence before it. The decision of the supreme court in OKPAOLUWA VS UMEH (supra), relied on by the Trial Court in its judgment reproduced above, cannot apply here because the parties and subject matter in the two suits were the same in that case.

As such, the judgment of the previous suit between them, determining which of them owned the land, sufficed in the earlier case as evidence of title in favor of the party declared in the previous case as the owner, and who now had sued the other party for damages for trespass and injunction relying on the judgment that declared title in his favor. The Trial Court was wrong to have relied on exhibit D2 to declare title for the Respondent. It can only rely on such previous judgment to determine the present case if such judgment can qualify as estoppel per rem judicatam. But the Trial Court had held that it does not qualify. See OMIYALE VS MACCAULAY AND ORS (2009) 7 N.W.L.R. (PT 1141) 597, where the Supreme Court held concerning reliance on a previous judgment to prove title in a case involving a person who was not a party in the previous case in which the judgment was rendered, that “I have no hesitation in holding that the Learned Trial Judge wrongly relied on the judgment as per exhibit M and M1 in the circumstances to decide the relative strength of the title of the Iyanni family and the Ola Rokum family. As I said earlier, those judgments do not bind the Iyanni family as they were not a party the proceedings in which they were given. Before such judgment can bind them, they must qualify as estoppel per rem judicatam”.

The dictum quoted by the Trial Court as that of the Supreme Court in Okpaoluwa V Umeh was not made by the Supreme Court in that case. It was part of a long statement of law on laches and acquiescence by Bairaiman F.J. delivering the judgment of the Federal Supreme Court in NWAKOBI AND ORS VS NZEKWU AND ORS (1961) ALL N.L.R. 445 AT 450.

In the light of the foregoing, I hold that the Trial Court was wrong to have relied on exhibit D2 to declare title to the suit land, by whatever name called, in favour of the Respondent.

Before the final holding of the Trial Court granting the counter claim, it stated thus “I have put the cases of both parties in the main suit and counter claim on the imaginary scale. Whereas there is something on the defendant’s side of the imaginary scale with respect to his evidence on title and acts of ownership, there is absolutely nothing on the plaintiff’s side of the imaginary scale with respect to the same kind of evidence on title and ownership.” This statement is not correct. The judgment did not show that the Trial Court put the cases of both parties in the main suit and counter claim on the imaginary scale. In respect of the main suit, the Trial Court after holding that the Appellant’s evidence of traditional history did not name the ancestors of the Appellant’s grandfather that founded or occupied the land before him or how the land was founded or acquired, dismissed the Appellant’s claim, stating expressly that there was no need to evaluate the evidence of long possession and acts of ownership of the suit land elicited by the Appellant.
It did not even consider exhibits P1, P3 and P4 tendered by the Appellant and did not consider the Respondent’s evidence in defence of the appellant’s claim. In respect of the counter claim, it considered only the evidence elicited by the Respondent relying exclusively on exhibits P2, D2 and D3 tendered by the Respondent to determine the counter claim. It did not evaluate or even refer to the Appellant’s evidence before determining the counter claim. The consideration of the evidence was selective and not balanced. It was one sided in favour of the Respondent.

Both sides elicited the same type of evidence in support of their respective claims, yet the Trial Court without considering all the evidence, held that there was absolutely nothing in the Appellant’s side of the imaginary scale.
Both sides relied on traditional history of title. The Appellant stated that the suit land was owned and occupied by his grandfather Okoye, as part of an inherited ancestral property and that Okoye in his life time divided the inherited land into two portions, namely, Ana Ofe Agu and Ana Ofe Udo.
Okoye has only two sons. He gave Ana Ofe Agu to his first son, the Appellant’s father, Amaefuna and Ana Ofe Udo to his second son, Udo. The said Udo died childless and in accordance with the custom of Nanka, his said land Ana Ofe Udo passed to Amaefuna. When Amaefuna died in 1960, all his lands including Ana Ofe Udo, were in accordance with Nanka custom inherited by the Appellant as his first son. This is the Appellant’s evidence of traditional history of his root of title in respect of which the Trial Court held that “since according to the Plaintiff, the land was an ancestral property of Okoye it means that Okoye had ancestors or progenitors from whom he derived title to the land. But the Plaintiff failed to give the names of Okoye’s ancestors or how they derived the title which they passed to Okoye, It is obvious that there is no evidence on how the land came to be owned originally by Okoye or how it was founded by Okoye or how it was founded by him. On the authority of Ukaegbu’s case (Supra) and other similar authorities, the root of title pleaded by the Plaintiff in this case is not established and so it will be a futile exercise to consider or go to the additional issue of possession or acts of ownership also relied on by the Plaintiff’.

The Respondent’s pleading and evidence of traditional history is that “my land Ana Oji Okpo in Amaezeke Village, Agulu, in Anaocha Local Government Area, which I inherited from my own father who in turn inherited it from his own father (my grandfather)…” Throughout the judgment of the Trial Court it said nothing about the probative value of this evidence which it merely restated in its statement of the evidence presented by the Respondent at the beginning of the judgment and in considering the evidence in support of the counter claim. It simply held that exhibit D2 had confirmed the evidence of traditional history given by the Defendant in this case. It is very glaring that the evidence of traditional history of title of the Respondent did not state that anybody, whether named or unnamed, owned or occupied Ana Oji Okpo before respondent’s grandfather or that it was an ancestral property inherited by the father. It simply stated that he inherited the land from his father who in turn inherited it from his grandfather. It did not state how the grandfather acquired the land.

A comparison of the two sets of evidence of traditional history shows that the evidence of the Appellant is more detailed and explains how Okoye acquired the land even though it did not state the names of his ancestors, while the evidence of the Respondent is scanty, states nothing at all about how the grandfather got the land. The evidence of the Appellant is weightier than that of the Respondent. The Trial Court could dismiss the Appellant’s evidence that is more detailed and stated the ancestral source of the Appellant’s grandfather’s title as not sufficient evidence of the root of title because it did not name the names of such ancestors and yet uphold and sustain the Respondent’s scanty evidence of traditional history that did not trace the title beyond the grandfather and did not state how he acquired it. Going by the yardstick applied by the Trial Court in considering the evidence of the Appellant, it ought to have equally dismissed the Respondent’s evidence of traditional history as not sufficient to prove his counter claim since it did not state how the grandfather got the land. Like it did to the Appellant’s case, the Trial Court should have peremptorily dismissed the Respondent’s counter claim and refused to consider his evidence of long possession and exercise of acts of ownership and exhibits P2, D1, D2, D3, D4 and D5, since his evidence of traditional history of his root of title did not state the source of the grandfather’s title.
Curiously, it did not. It rather relied on the evidence without evaluating it, and relied on exhibits P2, D1, D2 and D3 to grant the counter claim without any reference to the Appellant’s evidence. It is obvious that the Trial Court did not treat the Appellant’s claim and respondent’s counter claim equally.

It is trite law that the burden and standard of proof of the Plaintiff’s claim is the same as the burden and standard of proof of the Defendant’s counter claim. While the Plaintiff has the burden to prove his claim on a preponderance of evidence, the Defendant has the burden to prove a counter claim on a preponderance of evidence. The law treats each as a separate action.

Both parties relied on long possession, use and acts of ownership of the suit land in support of their respective claims. The Appellant elicited evidence of long possession, use and acts of ownership of the suit land stating that;
1. Okoye partitioned the inherited ancestral land into Ana Ofe Agu and Ana Ofe Udo (the suit land) and gave Ana Ofe Udo to his second son Udo
2. Upon the death of Udo without child, Amaefuna inherited his brother’s land and remained in full occupation of same, enjoying same, planting and harvesting crops there and cutting oil palm fruits and bread fruit trees when ripe
3. Upon the death of Amaefuna in 1960, the Appellant, as his first son inherited all his lands including Ana Ofe Udo and remained in exclusive and undisputed occupation and use of same
4. The Appellant leased portions of the suit land to customary tenants who included P.W.3 and members of his kindred who have been planting and harvesting crops on the land
5. The Appellant challenged and resisted the unpermitted and unlawful entry and use of the suit land by the Respondent.
6. The Appellant’s evidence of the above facts were corroborated or confirmed by P.W.3, P.W.4 and P.W.5

P.W.3, John Jabum, one of the customary tenants of the Appellant on the suit land confirmed that he and other members of his kindred were the Appellants customary tenants on the land. He stated that his father farmed there as the Appellant’s customary tenant for 15 years and after his father’s death, he confirmed farming on the same land as a customary tenant. He also stated that they farmed there, undisputed for about 10 years before the Respondent started interfering with their peaceful occupation of the land.
P.W.4, Benard Obi, who lives close to the land in dispute, testified that the suit land belongs to the Appellant, that the Appellant has been planting and reaping economic crops on the suit land before the recent incursions of the Respondent on the land and that he knows and can identify members of his own family to whom the Appellant gave portions of the suit land for farming. He stated also that the Respondent’s land is about 10 meters away from the suit land and is separated from the suit land by a traditional boundary called Ekpe Enyi.
P.W.5, one Clement Okeke, testified that the Appellant has been in peaceful possession of the suit land for very many years and gave portions of the land to members of the family of P.W.5 to farm. He stated that “I know that one Jonathan Okoli, a successful business man, has been intruding on the land in recent years now. The said Jonathan Okoli a few years ago attempted to clear the said land now in dispute for planting his own crops therein. Simeon Amaefuna challenged him and in the course of the open quarrel, members of our family rushed to the scene to find out what was happening. The members of our family also challenged Jonathan Okoli and asked him to leave the land for Simeon the owner.”

It is noteworthy that the evidence of the Appellant and his witnesses on the long occupation, use, acts of ownership of the suit land by the Appellant and the recent intrusions into the land were not challenged or contradicted under the cross examination. The Trial Court in its statement of the facts of the case of each side at the early part of its judgment held that “the Plaintiff’s claim to maximum acts of possession and ownership on the land in dispute was confirmed by P.W.3, P.W.4 AND P.W.5.”

The Respondent’s evidence of his long occupation, use and acts of ownership of the suit land states that:-
1. The Ekpe Enyi that demarcates the suit land from the lands in Etti, Nanka, was built by his grandfather, Ezeigboekwe
2. The grandfather farmed on the land. The father farmed on it. He continued to cultivate the land and reap economic and food crops thereon, undisputed until 1997 when the Appellant sued him at Ajali customary court, depriving him of the peaceful enjoyment of the land.
3, The Respondent’s father, Okoli, gave a portion of the suit land to one Anabuko from Etti, Nanka to build and run a tailoring workshop.
Anabuko occupied the land for nine years in Okoli’s life time and for seven years with the Respondent
4. The Respondent allowed one Janus Obiakunwa from Etiti, Nanka, easement through the suit land to enable Janus carry building materials to the building site of Bernard Obiakonwa.

The Respondent called no witness to confirm the above evidence. Both sides relied on previous Court decisions in support of their respective cases. The Respondent relied on exhibit D2, the judgment of the Trial Court sitting at Awka in suit AA/90/73 filed by him against Paul Ifedile and others, all indegens of Agulu in respect of a parcel of land called Ana Oji Okpo, situate at Amaezike in Agulu, Anaocha Local Government Area. The judgment declared Ana Oji Okpo as belonging to the Respondent. The Respondent also relied on exhibits D4 and D5, the proceedings and the ruling of the Ajali Customary Court, wherein it was held that the land in dispute between the Appellant and the Respondent is the suit land in suit AA/90/73 located in Agulu, outside its jurisdiction.

The Appellant relied on exhibit P3, the ruling of the Trial Court on a committal application between the Respondent and others from Etiti, Nanka, but brought in suit no: AA/90/73. The Trial Court after considering the judgment in exhibit D2 and the proceedings and ruling in exhibits D4 and D5 held that the land in dispute between the Appellant and the Respondent is Ana Ofe Udo situate at Etiti, Nanka in Anaocha Local Government Area. The Appellant also relied on exhibit P4, the ruling of the Anaocha Chief Magistrates’ Court dismissing the charge of malicious damage on the ground inter alia that the land in dispute therein between the Respondent who was the complainant and the Appellant, his customary tenants and workers, was in Nanka, outside its jurisdiction. It followed the decision of the High Court in exhibit P3.
The evidence of both sides reproduced above on long possession, use and acts and ownership of the suit land show clearly that the statement of the trial that whereas there is something on the Defendant’s side of the imaginary scale, there is absolutely nothing on the Plaintiff’s side of the imaginary scale is wrong. It is surprising that the same Trial Court that stated the summary of the facts of the case presented by each party and even held that the evidence of P.W.3, P.W.4 and P.W.5 corroborated the evidence of P.W.2, the Appellant on maximum acts of possession and ownership reached such a conclusion, that there was absolutely nothing on the Plaintiff’s side of the imaginary scale This shows that the Trial Court did not consider the Appellant’s evidence of long possession, use and acts of ownership of the suit land as well as exhibits P3 and P4. If the Trial Court had considered the evidence of both sides and weighed them, it would have found that the evidence elicited by the Appellant was weightier than that of the Respondent.

The evidence did not show concurrent possession of the suit land in this case. It shows that the Appellant and his customary tenants had been in long possession of the suit land and farming thereon for a very long time before the intrusion of the Respondent in the assertion of title of ownership of the land. It is glaring from the evidence that the Respondent’s entry on the land in claim of right of ownership started in recent years, beginning in 1997, resulting in several quarrels and criminal complaints by both sides in police stations as well as culminating in the Appellant suing the Respondent at the Ajali Customary Court in 1998. Following the striking out of the Appellants said suit for lack of jurisdiction on the basis of its finding that the land in dispute between the Appellant and the Respondent is the suit land in suit AA/90/73, the Respondent then brought a motion on notice numbered suit no: AA/90/73, praying the High Court to commit the Appellant, his tenants and workers to prison for disobedience of the judgment in suit AA/90/73. The High Court dismissed the Application holding inter alia that the land in dispute between the Respondent and the Appellant is Ana Ofe Udo land, in Etiti, Nanka and not Ana Oji okpo land in Agulu. In other words the land in dispute between the Appellant and the Respondent is different from the suit land in AA/90/73. The Trial Court itself had found that the evidence of the Appellant on his maximum acts of possession and ownership is corroborated by the evidence of P.W.3, P.W.4 and P.W.5. The Respondent did not call any of the witnesses that testified in his support in suit No AA/90/73 to testify that the land in dispute between the Respondent and the Appellant is the same land in respect of which they testified in suit No AA/90/73.
The Respondent did not call Anabuko, whom he said was given a land by the Respondent’s father, Okoli, to build and run a tailoring shop and had been on the land for sixteen years, to testify confirming that fact.
The Respondent did not call James Obiakonwa to testify confirming that the Respondent granted him an easement through the suit land to carry building materials. The Respondent gave no reason for not having called any of all these witnesses including the surveyor who produced both the survey plan used in suit AA/90/73 and exhibit D1, the survey plan of the suit land in this case. Yet the case of the Respondent is based on his contention that the suit land in suit M/90173 is the same as the suit land in this case. It is obvious that the evidence of the Appellant outweighs that of the Respondent on this fundamental issue. For the above reasons, I hold that the entire statement of the Trial Court summing up its position on the main suit and the counter claim is wrong.

In the light of the foregoing, I hold that the judgment of the Trial Court is not the result of a proper evaluation of all the evidence before it and that it is not supported by the weight of the evidence in the case.
This Appeal has merit and succeeds. It is allowed. Accordingly, the decision of the Trial Court dismissing the Appellant’s claim is hereby set aside. The decision of the Trial Court that the Respondent’s counter claim succeeds and the orders it granted as a result thereof are hereby set aside.

Accordingly, I hold that the Appellant’s claim succeeds in the terms stated hereunder:
a. That the plaintiff is entitled to the Customary right of occupancy over the piece or parcel of land known as and called “Ana Ofe Udo” situate at Etti village, in Nanka town in Orumba North Local government Area of Anambra State of Nigeria within the jurisdiction of this Honourable court which said is more properly described, delineated and shown in survey plan No. FS/AN 032/2004 prepared by Licensed Surveyor Mr. E.E. Ezeanaka, filed with the said statement of claim of the plaintiff whose annual value is N5,000.00.
b. N1, 000, 000 .00 (one million Naira) as general damages for trespass in that in the month of February 2003, the defendant unlawfully invaded the said piece of land of the plaintiff and cut down several heads of palm fruits, and also uprooted several cassava plants planted therein by the said plaintiff.
c. For perpetual injunction restraining the defendant or his agents or members of the Nigeria police force acting under his direction or influence from further trespass into the said land.
The Respondent shall pay costs in the sum of N100, 000 to the Appellant.

AMIRU SANUSI, OFR J.C.A.: I agree.

TOM SHAIBU YAKUBU, J.C.A.: I had the advantage of reading the draft of the judgment prepared and rendered by my learned brother, EMMANUEL AKOMAYE AGIM, JCA. I am satisfied with the meticulous and comprehensive reasoning of his lordship which led to the conclusion that this appeal has onions and must be allowed.
I, also allow it and set aside the judgment of the Anambra State High court in re-Suit No. AG/64/2004, delivered on 29th March, 2010.
I, adopt the consequential order with respect to the success of the appellant’s claim and the order as to costs, contained in the lead judgment, as mine.

Appearances

CHIEF S.U.S MBANASO WITH K.S. ONWUKA ESQ.For Appellant

AND

CHIEF A.O. MOGBOH SAN WITH A.O. MOGBOH JNR, AND MRS J.N. EDOCHIEFor Respondent