EKWEOGU & ORS v. ANYAMA & ORS (2020)

EKWEOGU & ORS v. ANYAMA & ORS

(2020)LCN/13945(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Tuesday, January 21, 2020

CA/OW/172/2014

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

JOHN EKWEOGU 2. ANTHONY NNOHAM 3. EVARISTUS ANYAOHA 4. WILFERED IBEBUIKE (For Themselves And On Behalf Of The People Of Amanato Umuezeala Ogboko) APPELANT(S)

And

EUSEBIUS ANYAMA 2. WILFERED CHIOMA 3. ETHELBERT IBEKWE 4. CANICE NNOROM ANYAMA 5. CHIEF LINUS ASIKA 6. CHIEF JULIUS OKORIE (For Themselves And As Representatives Of Umudara Village, Mgbee) RESPONDENT(S)

RATIO

WHETHER OR NOT AN OBJECTION TO A GROUND OF APPEAL CAN BE EQUATED TO A PRELIMINARY OBJECTION

I should start with the so-called, preliminary objection. We have stated, several times, that an objection to a ground (or grounds) of appeal is not, and cannot equate a preliminary objection to the hearing of an appeal, under Order 10 Rule 1 of the Court of Appeal Rules, 2016. If anything, such objection is simply an objection challenging the competence of some specified ground(s) of appeal, which, if upheld, can only lead to the striking out of such ground(s) of appeal, and not the entire Appeal, which will still be heard on the surviving ground(s). Thus, an objection to competence of a ground(s) of appeal should be done by means of a motion on notice, to be argued by the Respondents in the course of hearing of the appeal (preferably at the point of arguing the Respondents’ brief). See the case of Mbata Vs Umezurike & Ors (2019) LPELR – 47331 CA, where it was held:
“I have observed that the purported preliminary objection, was actually an objection to some grounds of the Appeal, not an objection to the hearing of the Appeal, as envisaged by Order 10 Rule 1 of the Court of Appeal Rules, 2016. We have stated the law, several times, that an objection to a ground(s) of appeal is done by filing a motion on notice to challenge it, not by means of preliminary objection, which can only be filed to attack the hearing of the appeal, as a whole, that it is incompetent. See the case of Nwaolisah Vs Nwabufoh (2011) LPELR – 2115 (SC); Osuji Vs The State (2016) LPELR – 40042 (CA); Alaribe Vs Okwuonu (2015) LPELR – 24297 (CA).
See also Daudu Vs FRN (2018) LPELR – 43637 (SC); Waziri & Anor Vs Geidam & Ors (2016) LPELR – 40660 (SC); Umanah Vs NDIC (2016) LPELR – 42556 (SC). PER MBABA, J.C.A.

A GROUND OF APPEAL CONSISTS OF ERROR OF LAW

A ground of appeal consists of error of law or fact alleged by an Appellant as the defect in the judgment appealed against, which he relies on to set it aside. See FBN Plc Vs A.G. Fed. & Ors (2018) LPELR – 46084 SC; FMBN Vs NDIC (1999) 2 NWLR (Pt.591) 333; Abubakar Vs Waziri & Ors (2008) LPELR – 54 (SC).
“A ground of Appeal must be couched in such a way as to attack the judgment of a Court on the issue decided by it.” Ikosi Industries Ltd Vs Abdullahi & Anor (2015) LPELR – 26022 CA; FBN PlcVs May Medical Clinics (1996) 9 NWLR (Pt.471) 195. PER MBABA, J.C.A.

WAYS OF PROVING OWNERSHIP OF TITLE TO LAND

The five known and acceptable ways of proving title to land are:
(1) By traditional history/evidence;
(2) By production of title documents to the land;
(3) By acts of ownership numerous and positive extending over sufficient length of time to warrant the inference that the person is the true owner;
(4) By acts of long enjoyment of possession; and
(5) By proof of possession of adjacent lands in circumstances which make it probable that the owner of such adjacent land would in addition, be the owner of the disputed land.
See Ezerioha & Ors Vs Mgbeajulu & Ors (2018) LPELR – 43811 CA; Idundun & Ors Vs Okumagba (1976) LPELR – 1431 (SC); Atanda Vs Ajani &Ors (1989) 3 NWLR (Pt.111) 511; (1989) LPELR – 589 (SC); Ayorinde & Ors Vs Sogunro & Ors (2012) LPELR – 7808 SC; Anagbado Vs Faruk (2018) LPELR – 44909 (SC).
In that case of Ezerioha & Ors Vs Mgbeajulu & Ors (supra), it was held:
“This case is founded on claims of title by means of traditional evidence and by plea of acts of long possession and exercise of acts of ownership. By law, any proof of one of the five modes of proof of ownership suffices, but sometimes one mode of proof of ownership may overlap or collapse into another. See Nwabuoku & Ors Vs Onwordi & Ors (2006) LPELR – 2082 (SC) and Oyerinde Vs Bamigbegbin & Anor (2017) LPELR – 42378 CA.” PER MBABA, J.C.A.

WHETHER OR NOT ONE WHO FAILS IN HIS EVIDENCE OF TRADITIONAL HISTORY, CAN RESORT TO EVIDENCE OF POSITIVE ACTS OF OWNERSHIP OR POSSESSION

I should, however, observe that while one may prove his title to land by use of one or more methods of proving title to land, there are situations that resort to more than one method of proving title amounts to desperation and or speculation, and becomes counterproductive, as one method asserted may rather operate to cancel the other! For instance, I find it difficult to understand why a person who pleads and leads evidence of traditional history to prove his title to land would also plead and place reliance on title documents, if the land devolved on him; or where he leads a clear evidence of traditional history and also relies on acts of positive ownership and possession, upon failure to establish the traditional history (Evidence).

Of course, the law is that, one who fails in his evidence of traditional history, cannot resort to evidence of positive acts of ownership or possession as that would mean that his acts of ownership and long possession would rather establish trespass on the land, if the adverse party proves better title to the land in dispute. See Oyadare Vs Keji (2005) 1 SC (Pt.1) 19 at 25; Enyinnaya Vs Otikpo (2015) LPELR – 25529.
The law is stated inEzerioha & Ors Vs Mgbeajulu & Ors (supra), that:
…. A Plaintiff who relies on a particular mode of or source of proof of title, but fails to prove that mode or source cannot rely on long possession or acts of ownership to prove/establish title: where a part’s root of title is pleaded, as for example a grant, a sale, or conquest etc, that root of title has to be established first, any consequential acts, following thereon can then properly qualify as acts of ownership. Where the title pleaded has not been proved, then it will be unnecessary to consider acts of possession for the acts then become no longer acts of possession but acts of trespass. See Registered Trustees of Diocess of Aba Vs Nkwme (sic) (2002) FWLR (Pt.90) 1270; also Accelerated Educational Services Ltd & Anor Vs Ekpo & Anor (2012) LPELR – 19693 CA; Balogun Vs Akanji (1988) 1 NWLR (Pt.79) 301 and Fasoro Vs Beyioku (1988) 2 NWLR (Pt.76) 263. PER MBABA, J.C.A.

WHETHER OR NOT THE PLAINTIFF HAS THE DUTY TO PROVE HIS CLAIM ON THE STRENGTH OF HIS CASE IN A DECLARATORY RELIEF

Of course, the law is trite, that in a declaratory relief, particularly land dispute, for declaration of title to land, the Plaintiff has the duty of proving his claim, on the strength of his case and cannot rely on the weakness of the defence. See Osuji Vs Ekeocha (2009) LPELR – 2816 (SC); Dumez Nig. Ltd Vs Nwakhoba & Ors (2008) LPELR – 965 (SC); Mbodan Vs Dabai (2019) LPELR – 46739 (CA) and Uwahianri & Anor Vs Onyemaizu & Anor (2017) LPELR – 41672 (CA), where it was held:
“… the trial Court was perfectly in order, when he held that a Plaintiff does not have to rely on admission by defendants to establish declaratory reliefs sought, as the Plaintiff still has a duty to prove his case on the strength of his own case.”
And in the case of MTN Vs Corporate Communications Investment Ltd (2019) LPELR – 47042 (SC), it was held: “The law is that a party seeking declaratory reliefs must succeed on the strength of his own case and not on the weakness of the defence, if any. He has the obligation to prove his claims to the satisfaction of the Court notwithstanding any admission made by the defendant. This is because the grant of declaratory relief is discretionary.” See Okoye Vs Nwankwo (2014) 15 NWLR (Pt. 1429) 93; Kwajaffa & Ors Vs B.O.N. Ltd (2004) 13 NWLR (Pt.889) 146; Emenike Vs P.D.P. (2012) 12 NWLR (Pt.1315) Per Kereke Ekun JSC. PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of Imo State High Court in Suit No. HOR/46/99, delivered on 24th September, 2013 by Hon. Justice L.C. Azuama, wherein His Lordship dismissed the claims of the Plaintiffs, (now Appellants) on the grounds that their evidence was manifestly contradictory, inconsistent and unreliable.

At the lower Court, Appellants had sought the following reliefs, in a representative action, as per their 2nd Further, Further Amended Statement of Claim:
(a) A declaration… that the Plaintiffs are entitled of (sic) the Customary Right of Occupancy of the part of Akputara Land shown verged PINK on the Plaintiffs’ litigation plan.
(b) An Order of forfeiture against those of the Defendants whose houses are in the area verged RED of (sic) the Plaintiffs Akputara land.
(c) General damages for trespass assessed at one Million Naira.
(d) An Order of perpetual injunction restraining the Defendants by themselves, agents, servants and/or privies from trespassing into the Plaintiffs Akputara. Pages 238 – 239 of the Records of Appeal, which of course has, two

different paginations and I elected one strand.

After hearing the case and considering the evidence led and the addresses of Counsel, the trial Court held that the Plaintiffs had failed to prove their claim, that the land verged RED in Exhibit A (Survey Plan) was a land granted by them (Plaintiffs) to the Defendants. The Court dismissed the Suit, with N10,000.00 cost, against them (Plaintiffs) (Pages 901 – 902 of the Records).

Dissatisfied, the Plaintiffs, as Appellants filed this Appeal on 8/10/2013, but later filed Amended Notice of Appeal on 5/6/17 and Appellants’ brief on 31/10/17, wherein they distilled three Issues for the determination of the Appeal, namely:
(1) Whether the trial Court misdirected itself or was wrong in law when it held that the evidence of the Appellants revealed two versions or variants of traditional history which are sharply irreconcilable, inherently contradictory and false? (Grounds 2 and 3)
(2) Whether the trial Court was right in law in not considering and making findings on the numerous positive acts of possession which the Appellants proved in evidence? (Grounds 6 and 7)
(3) Whether the trial

Court’s evaluation of evidence and the dismissal of the Appellants’ case can be sustained under the law? (Grounds 1, 4, 5, 9, 10 and 11).

The Respondents filed their Brief on 13/2/18, with the leave of this Court. In the brief, the Respondents raised a preliminary objection to grounds 1, 2, 3, 4, 6, 7, 10 and 11 of the Appeal, as contained in the Amended Notice of Appeal, saying they are incompetent, and urged us to strike them out. On ground 8, Counsel for Respondents said no issue was distilled from the ground 8 and urged us to also strike it out. They, however, adopted the three issues, distilled by the Appellants, for the determination of the Appeal, but with slight modifications. Appellants filed a Reply brief to react to the Respondent’s brief.

When the Appeal was heard on 4/12/19, parties adopted their briefs, through their Counsel, and urged us, accordingly.

Arguing the Appeal, Learned Senior Counsel for Appellant, Dr. Livy Uzoukwu SAN, on Issue one, relied on the case of Idundun Vs Okumagba (1976) 10 SC 227, on the settled ways of proving title to land, saying as follows:
(a) By traditional evidence of the history of the

land which includes mode of acquisition of same by deforestation of the virgin forest by the first settler, conquest of the original owners through acts of war, gift etc;
(b) By production of documents of title to the land;
(c) Acts possession such as acts selling or leasing of portions of the land;
(d) Proof of possession of connected or adjacent lands.

Counsel added that in an action for declaration of title or right of occupancy to a piece of land, the Plaintiff must succeed on the strength of his case and not on the weakness of the defence, though in appropriate situation, where the case of the defence supports that of the Plaintiff, the Plaintiff is entitled to take advantage of the same in establishing his claim. He relied on Akinduro Vs Alaya (2007) 15 NWLR (Pt.1057) 312 at 330; Okpala Vs Ibeme (1989) 2 NWLR (Pt.102) 208.

In this case, at hand, Counsel said Appellants relied on traditional history, production of documents of title, acts of long possession and proof of possession of connected or adjacent lands, in establishing their claim. He referred us to pages 226 – 241 of the Records of Appeal (2nd Further Further

Amended Statement of Claim), and to the evidence of the Appellants on traditional history. Counsel said that the Respondents too pleaded traditional history, alleging that that of the Appellants was not correct – Pages 515 – 517 of the Records.

Counsel said the trial Court fell into serious error in appreciating the traditional history of the Appellants, relying on the final address of the Respondents, who had submitted that the parties presented parallel/traditional histories and added:
… the traditional evidence relied upon by the Appellants in proof of their case is conflicting and inconclusive and cannot be relied upon…” (Page 789 of the Records)

Counsel relied on Exhibit K, with which he said the Respondent admitted, in Suit No. O/20/58, that Akputara land belonged to them (Appellants); he said that Appellants had pleaded and tendered only a particular entry in the record admitted as Exhibit K; that it was for the Respondents, if they had wished to take advantage of any other entry in the Exhibit K, to have done so in their evidence or through cross-examination; that the Respondents did not do so, but the

trial Court decided to do so on Respondents’ behalf, and surprisingly, did so in the judgment and not while the trial was on. Counsel said Exhibit K was tendered only to show that a relation of the Respondents had, in an earlier litigation, admitted or acknowledged that Akputara land belonged to the Appellants, and not for general purpose; that it (Exhibit K) was therefore pleaded to confirm that possession of Akputara land by the Appellants was acknowledged by a relation of the Respondents; that the Respondents joined issues with the Appellants only to the extent that they did not have a relation known as Fred Ogabanya, who made the acknowledgment. Counsel said the Respondents, in their final address, had contended that the said Fred Ogabanya, in Exhibit K “testified in respect of another land which is different from the parcels of land presently in dispute.” (Page 848 of the Records).

But without much ado, Counsel said, the trial Court dismissed the Respondents’ contention, thus:
“Much as I cannot really see any path way through such seemingly conflicting position of the learned Senior Counsel for the Defendants, in

arguing at one time, that the Defendants did not systematically make out any conclusive or valid traditional history and at another time arguing that such alleged invalid traditional history is parallel to theirs, I will nonetheless only rely on my own view of facts of this case as presented before me as the direction this case should take.” (Page 883 of the Records).

Counsel said that in the effort to rely on its “own view of facts in this case”, the trial Court, within the confines of its chambers, commenced an independent research and private investigation, outside Exhibit K, and came out with its own purported result, which was the erroneous conclusion that Appellants’ traditional history and Exhibit K are in conflict; thus, the Court used ‘facts’, procured outside the Exhibit K, to fault the traditional history of the Appellants. He referred us to page 893 of the Records of Appeal, where the trial Court said:
“The implication is that there have arisen from the evidence of the claimants two variants of traditional histories which are sharply irreconcilable and inherently contradictory that they negate

themselves and ipso facto, do not in law answer to the demands of traditional history in the final analysis.”

Counsel said the trial Court was in error to say so and had descended into the arena, and relied on the purported outcome of its private research and investigation to take a decision; that the trial Court went on a demolition exercise of Appellants case and reached a perverse conclusion, which occasioned a miscarriage of justice; that it failed to evaluate Appellants’ traditional history, based on admissible evidence.

He concluded by saying that the trial Court was wrong to enlarge the purpose for which Exhibit K was tendered, and to conduct private search and investigation into what was not tendered before it and utilizing such inadmissible evidence to reach its decision. He added that the trial Court was sitting on appeal over its decision on the Exhibit K and so what it did was taking cloistered justice to an unprecedented level. He relied on Ngwa Vs Nnaji (1991) NWLR (Pt.189) 18 at 30 on the need to stay with the purpose for which a document was admitted in evidence. Wassah Vs Kara (2015) 4 NWLR (Pt.1449) 374;

Senator Ali Ucha Vs Martin Elechi (2012) LPELR – 7823; Ikpeazu Vs Otti (2016) 8 NWLR (Pt.1513) 38.

Counsel said that it is not the duty of the trial Court to do its own independent research into a document tendered as exhibit and come out with the result of its private investigation; that it is the duty of any party that tenders a document to establish before the Court its relevance and what it expects the Court to do with it. He relied on Gov. Kwara State Vs Eyitayo (1997) 2 NWLR (Pt.485) 118; Terab Vs Lawan (1992) 3 NWLR (Pt.231) 569; Duruminiya Vs C.O.P. (1962) NMLR 70, to say that a trial is not an investigation panel, and that investigation is not the function of the Court.

Counsel said that since the Respondents did not raise the issues upon which the trial Court relied to contradict the Exhibit K, and the Respondent did not see reason to cross-examine the Appellants on the said issues, the trial Court occasioned a grave miscarriage of justice to have taken up those issues, sou motu.

On Issue 2, whether the trial Court was right in not considering and making findings on the numerous positive acts of possession which Appellants proved in evidence,

Counsel answered in the negative. He said that a party is not bound to plead and prove more than one root of title to land, to succeed; that if he relies on more than one root of title, it is only to make assurance, doubly sure, doing so ex-abundant cautela. He relied on Akpan Vs Otong (1996) 10 NWLR (Pt.476) 108 at 137 and Balogun Vs Akanji & Anor (1988) 1 NWLR (Pt.70) 301 at 321.

Counsel said Appellants had relied on traditional history, production of title and acts of long possession to prove their title to the land; that the fact that they are in possession of the disputed land verged PINK in the Exhibit A was not in doubt. He relied on Exhibits C and E – certified true copies of Survey Plans used in a previous Suit, saying that the Exhibit C was evidence of possession of lands lying south of the area, verged PINK and that there was evidence of Alphonsius Chijioke Uzih (DW4), under cross examination, that his community litigated over this land with the Appellants and they won (Pages 772 – 774 of the Records); that while Exhibit C was the litigation Survey Plan, dated 20/10/97 in that Suit; Exhibits D and E were the old plans, used by

the Appellants and/or their kith and kinsin earlier litigations affecting other lands in the vicinity of the land in dispute, and the term “AKPUTARA LAND” can be seen on the Exhibits D & E.

Counsel also referred us to the Exhibit K on page 23 of the Records of Appeal, being Suit No. O/20/58 (wrongly written as O/20/50 on page 675 of the Records) where he said one Fred Agabanya (a relation of the Respondents) testified and admitted the interest of the Appellants in the Akputara land; he said that the Respondents, being aware of the danger of the admission by the said Fred Agabanya, in their Amended Statement of Defence, denied any relationship with the said Fred Agabanya; but that DW1 (Chief Jones Ochichi), under cross examination repudiated the above claim of the Respondents, when he said he knew the said Fred Agabanya, that he was a relation of the Respondents (Page 745 of the Records). Counsel said that Appellants, having established that in Suit No. O/20/58, a relation of the Respondents testified in favour of Appellants, to the effect that Akputara land is their own, that that piece of evidence clearly established possession in favour

of the Appellants. He relied on the case of Ibezim Vs Ndulue (1992) 1 NWLR (Pt.216) 153 and Ikeni Vs Efamo (1996) 5 NWLR (Pt. 446) 64, on where evidence by adverse party supports the case of the opponent (Plaintiff).

Counsel further relied on Exhibits L1 – L14, O, P, Q and R; Exhibits L1 – L14 being receipts for annual rents from 1994 – 2010 paid in respect of the certificate of Customary rights of Occupancy – Exhibit O, granted to Appellants by Ideato Local Government.

Counsel said the Exhibit O was granted on 12/6/83, 16 years before the filing of the Suit; that there was evidence that the Respondents challenged the grant of the certificate of customary right of occupancy (Exhibit O). He relied on the presumption of regularity over the issuance of the said certificate of customary right of occupancy, and founded on the case of Otukpo Vs John (2012) 7 NWLR (Pt.1299) 357 at 381. Counsel also relied on Exhibit M to say that the Respondents made false claim when they alleged that they planted palm trees obtained from NIFOR (Nigerian Institute for Oil Research) in 1982, as shown in their belated amended pleadings. Counsel also

relied on Exhibit P, which, he said, showed that Respondents admitted, through 2nd Respondent, that Akputara land belongs to the Appellants. He relied on Cameroon Airlines Vs Otutuizu (2011) 4 NWLR (Pt.1238) 512, and said that Exhibit R was evidence of possession of Akputara land by the Appellants, exercising rights of ownership thereon – planting therein and even donating power of attorney (Exhibit Q) to one Cyril Anusionwu, over part of the land (on which the Exhibit O– certificate of Customary right of Occupancy, was issued).

Counsel said the Respondents had claimed to have planted palm trees on the land in 1982, bought from NIFOR (Exhibit Z) but that the said NIFOR, in Exhibit M, denied selling palm trees in 1981, 1982 and 1983; he said that when the Respondents were confronted with the above facts, they changed their story, and the year 1982 became 1958, nevertheless that the new year, 1958, was in sharp conflict with the Exhibit Z, which stated 1982 as the year that Linus Asika (one of the Respondents) claimed to have planted the palm trees! Counsel said none of the versions by the Respondents should be believed, as the Court cannot pick

and choose, from their testimonies, what to believe. He relied on Ariolu Vs Ariolu (2011) 11 NWLR (Pt.1258) 288. Counsel said the story of Respondents planting palm trees in the portion verged PINK in Exhibit A was discredited. Consequently, Respondents did not dislodge the evidence of Appellants of planting palm trees on the land in 1982, and farming on the land.

Counsel said the trial Court had made correct findings as to the relevance of Exhibits C, D, and E to the Suit and the land in dispute, but failed to follow through to examine and evaluate the acts of possession and ownership of the Appellants over the area verged PINK in Exhibit A. He also said the trial Court erred when it demolished the Appellants’ case, because, according to it, the traditional history of the Appellants was contradictory, without taking into consideration that Appellants also relied on positive acts of ownership over a time sufficient to warrant the inference that they were the true owners of the land in dispute. He relied on Section 143 of the Evidence Act, 2011, which says:
“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.”

Counsel also relied on Alade Vs Awo (1975) 4 SC 215 at 228, to say that, where traditional evidence is inconclusive, the Court is entitled to consider whether Appellant has established such numerous and positive acts of ownership within living memory, sufficient to establish that he is the absolute owner of the land in dispute. He also relied on Eze and Ors Vs Obiefuna & Ors (1995) 6 NWLR (Pt.404) 639 to say that, if possession is established in favour of a party, any interference with that possession, no matter how slight, amounts to trespass. He relied onOgbechie Vs Onochie (1998) 1 NWLR (Pt.70) 387.

Counsel said, since there was no evidence of rebuttal of the possession by the Appellants, the Court ought to have acted on the uncontradicted and unchallenged evidence of the Appellants. He relied on Nwabuoku Vs Ottih (1961) 2 SCNCLR 232; Kosile Vs Folarin (1989) 3 NWLR.

On Issue 3, whether the trial Court’s evaluation of evidence and the dismissal of the Appellants case can be sustained under the

law, Counsel answered in the negative. He urged us to interfere with the findings arrived at by the trial Court, relying on the case of Anyakora Vs Obiakor (2005) 5 NWLR (Pt.919) 509 at 528 – 529, with respect to the circumstances, this Court can interfere with the findings of the trial Court. He also relied on Ebba Vs Ogodo (1984) 1 SCNLR 373; Odofin Vs Anyoola (1984) 11 SC 72 and Fabunmi Vs Agbe (1985) 1 NWLR (Pt.2) 299.

He argued that the Trial Court used Exhibits A and D for purposes different from what they were tendered for, and that occasioned miscarriage of justice on the Appellants; that the trial Court also used an inadmissible, document (Exhibit K) (where only page 23 of it was tendered), to contradict, castigate and reject the traditional evidence of the Appellants, and rather sourced for facts from Exhibit D in respect of which there was no pleadings and issues were not joined by the parties, to discredit Exhibit A – Appellants’ dispute Survey Plan. He said that the trial Court retired to its chambers, did a superimposition of the aforesaid Exhibits D and Y1 on Exhibit A, found a ‘Puzzle’ and alleged ‘intriguing

fact’ to reach its conclusions! (Page 896 of the Records referred).
He called on us to resolve the Issues for Appellants.

Responding, the Respondents’ Counsel, Kelechi Nwaiwu Esq., argued their preliminary objection. (Note: It should not have been tagged preliminary objection, as it was only objection against some grounds of Appeal- see Mbata Vs Umezurike (2019) LPELR – 47331 (CA); Nwaolisah Vs Nwabufoh (2011) LPELR – 2115 (SC), as preliminary objection only applies, where there is a challenge to the competence of the Appeal, as a whole, pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2016).

Counsel argued that grounds 1, 2, 3, 4, 6, 7, 10 and 11 of the Appeal, as contained in the Amended Notice of Appeal, were incompetent, while ground 8, was deemed abandoned, as no issue was distilled from it; that the grounds 1, 2, 3, 4, 10 and 11 contained arguments and narratives, in breach of Order 7 Rule 2(3) of the Court of Appeal Rules, 2016; that grounds 6 and 7, were vague and general in terms and did not disclose any reasonable ground of appeal, in breach of Order 7 Rule 3 of the Court of Appeal Rules, 2016. Counsel

also relied on some decided authorities, including the case of Chidiak Vs Laguda (1964) 1 ALL NLR 160; Ulegede Vs MILAD Benue State (2001) 2 NWLR (Pt.696) 73; A.S.R.CO. Ltd Vs O.O. Biosah (1997) 11 NWLR (Pt.527) 145, in respect of grounds 1, 2, 3, 4, 10 and 11, which he urged us to strike out. And in respect of grounds 6 and 7 of the Appeal, Counsel relied on the Case of Ikem Vs Ezianya (2002) 4 NWLR (Pt.757) 252 at 262; Akinwale Vs B.O.N. (2001) 4 NWLR (Pt.704) 448; C.B.N. Vs Okojie (2002) 8 NWLR (Pt.768) 48; Mechanic Vs Onissen (1998) 2 NWLR (Pt.538) 446; Orakosim Vs Menkiti (2001) 9 NWLR (Pt.713) 529, and urged us to strike out same.

On the main Appeal, on Issue 1, Counsel cited Section 134 of the Evidence Act, 2011 and the case of Elias Vs Omobare (1982) 5 SC 25, to the effect that a party who makes assertion has a duty to prove the same and it is only then that the onus would shift to the defendant to counter or disprove the assertion (Ogbu Vs Wokoma 2005) 24 NSCQR. He argued that, where valid or credible evidence is eventually made out by both sides, the Court then evaluates same and determines the case on the preponderance of evidence or balance of

probabilities. He relied on Madam A. Arage Vs Peter U. Aroe (1981) 5 SC 33; Ishola Vs UBN (2005) 21 NSCQR 167 at 180. He added that in all Civil cases, the claimant must succeed on the strength of his own case and not the weakness of the defence (Kodilinye Vs Odu (1935) 2 WACA 336); see also Nnaemeka – Agu in Re Okpala (1989) 2 NWLR (Pt.102) 22.

Counsel said Appellants had resorted to traditional history in proof of their case at the Court below, but failed to prove their traditional history as what they stated was inconclusive and could not be relied on; he argued that Appellants had argued, to rule out the application of the rules in Kojo Vs Bonsie (1957) 1 WLR 1223 in this case, but later sought it, in the alternative.

Counsel said, in deciding the above submission, the trial Court rightly had recourse to the relative implication of Exhibits C, D and K and paragraph 15 of the Appellant’s 2nd Further, Further Statement of Claim, and especially Exhibits D, and K which spoke of MKPUTARA; that by painstaking evaluation of the evidence and the contents of Exhibit K, the trial Court rightly found that the Appellants’ traditional history

(evidence) was contradictory and irreconcilable – Pages 891 – 895 of the Records of Appeal; Counsel said the trial Court had justified its application of Exhibit K to the Appellants’ traditional history via paragraph 15 of Appellants’ pleadings, which permitted the Court to do so; that the Court’s findings on Appellants’ traditional history, via a vis Exhibit K, was sound and devoid of errors. He relied on Pages 891 – 892 of the Records of Appeal and on the case of Sajere Vs Iretor (1991) 3 NWLR (Pt.179) 340; Ejuetami Vs Olaiya (2002) NWLR (Pt.88) 955 at 991 to say that a document pleaded and tendered for a specific purpose can become available for full consideration by the Court; he also relied on Omega Bank Vs OBC Ltd (2005) NWLR (Pt.249) 1944, to say that where a document is pleaded to establish a particular fact, it can only be used to establish the fact and cannot be used to establish another fact which is not an issue in the pleadings; but that, if there are other facts in issue as gleaned from the pleadings which the document pleaded could be used to establish, then that fact may be established by the use of

that document. Counsel said the trial Court, in seeking to do substantial justice in the case, placed before it, properly considered the Exhibit K, vis-à-vis the paragraph 15 of the pleadings of the Appellants, on page 231 of the Records of Appeal.

Counsel said the trial Court, at page 891 of the Records of Appeal, found that in paragraph 14 of the pleadings ‘Akputara’ land (and not ‘Mkputara’) was mentioned, however in paragraph 15 of the pleading, the land was referred to, not only as Mkputara, the Court was implored to venture beyond the limitation inherent in paragraph 14, not only with the name of the land, but also to explore other parts of Exhibit K. He said it is unarguable that parties had joined Issues on title and led traditional evidence to establish same, thus, in line with the authority in the Omega Bank Case (supra), the trial Court rightly used Exhibit K to establish the fact of title, which was an issue in the pleadings, inter parties; that it rightly found that the effect of paragraph 15 of the pleadings of Appellants, as well as Exhibit D, was that the trial Court was granted access into other parts of

Exhibit K, as to be entitled, to take advantage of the full ramifications of the land, Mkputara, in the interest of justice, beyond the evidence of Fred Ogabanya (See page 892 of the Records).

Counsel said the trial Court therefore compared the traditional evidence of the Appellants in Exhibit K, with that led by them in this case (at hand), whereby they pleaded that they acquired Akputara land part of Ugwa and, from their great grand ancestor, Owekpa, as against the traditional evidence in Exhibit K, which stated that the Ugwu land, part of which is Mkputara land, was acquired by Amanato Ogboko people, as blood ransom from Mbei, because of Ogboko people killed by the Mbei group (See page 40 of Exhibit K).

Counsel said the trial Court was therefore right, when it concluded that the traditional evidence of the Appellants in Exhibit K conflicted with the traditional evidence led by Appellants in the case and the two were irreconcilable. Counsel relied on the case of Obioha Vs Duru (1994) 8 NWLR (Pt.365) 631 at 641 SC; Omgbede & Ors Vs Balogun & Anor (2002) FWLR (Pt.99) 1062. He referred us to page 894 of the Records, to say that the trial

Court was right to hold that the traditional history of the Appellants, being in conflict and irreconcilable, was a radical one that touched on the root of their case and ran deep, affecting every facet of the case, adversely.

Counsel said Appellants had made heavy weather of the treatment of Exhibit K by the trial Court, and had harshly criticized the Court, saying that it conducted independent and private research in its chambers, outside the Exhibit K, to found reasons to find its decision; Counsel said that was a misconception, and not correct, considering the brilliant findings of the trial Court on pages 891 – 892, in relation to the Exhibit K, and the traditional evidence of the parties at the trial.

Counsel relied on the case of Chima Vs Nkama (2000) 7 WRN 53 at 68 to say that it is the business of the trial Court to make finding of fact and appraise the evidence led in a case. See also Oladele Vs State (1991) 1 NWLR (Pt.170) 708; Mogaji Vs Odofin (1978) 4 SC 37; Baba Vs NCATC (1991) 5 NWLR (Pt.192) 388 SC; Karibo Vs Grend (1992) 3 NWLR (Pt.230) 426.

Counsel also argued that Appellants did not raise any ground of appeal against the

findings of the trial Court, which he said, were founded on the evidence before the Court. He added that the trial Court did not raise any issue, suo motu, but ruled, based on the evidence adduced and facts before the Court.

On Issue 2, whether the trial Court properly considered and made findings on the alleged acts of possession by the Appellants, before reaching its conclusion, Counsel answered in the affirmative and referred us to pages 886 to 891 of the Records particularly 891, where the trial Court said:
“I would not have had any problem dealing with the above submission, if this Court were not to consider the implications of Exhibits C, D, K vis a vis paragraph 15 of the 2nd Further Further Statement of claim of the Claimant and the evidence around them, especially Exhibits D & K, that speak of MKPUTARA.”

Counsel said the trial Court had opted to first consider Appellants first method of proving title to the land, which was traditional history, which option was logical; he said that the trial Court was not satisfied by the traditional evidence of the Appellants, and held:
“Given the said conflict, it would

safely be said, that what is before this Court, is not a mere case of defective traditional history or an inconclusive one as stated by the learned Senior Counsel for the defence. It is not even a case of competing traditional history. It is rather a case of contradictory and irreconcilable traditional evidence between which this Court cannot pick and choose. Where the traditional history of a party tells a deliberate lie on its face value, my view is that it will fall outside the philosophy of the dictum of Ibiyeye JCA in the case of Nwamuo Vs Okoro … The implication is that all about this case is, ab initio, false and therefore nothing can be built on nothing.” (Pages 893 and 895 of the Records).

Counsel for Respondents referred us to the holding of the Supreme Court in Alade Vs Awo (1975) 4 SC 215 at 228, on the need to recourse to evidence of numerous and positive acts of ownership and possession within recent or living memory, sufficient to establish ownership, where the evidence of traditional history fails or is inconclusive. That, of course, is resort to the Rules in Kojo II Vs Bonsie (Supra). But in this case, Counsel said, there was

no need for such resort, because the traditional history/evidence of the Appellants were not found to be inconclusive, but contradictory, irreconcilable and a deliberate lie! Counsel said, the trial Court, in the circumstances, would be right not to consider acts of possession by the Appellants.

But then, Counsel said, the trial Court still considered the said acts of ownership and possession, and held that, where the claim of traditional history fails as it did, the acts of ownership/long possession cannot defeat a valid title and becomes otiose. He relied on Oni Vs Olokun (1995) 1 NWLR (Pt.370) 189.

On Issue 3, whether the trial Court rightly evaluated the evidence and dismissed the Appellants’ case, Counsel answered in the affirmative. Counsel observed that the Issue 3 was to be founded on the ground 8 of the Appeal, which Appellants had abandoned; he said that Appellants were wrong to found the Issue 3 on grounds 1, 4, 5, 9, 10 and 11 of the Appeal; that Appellants cannot abandon ground 8 of the Appeal and expect to rely on grounds 1, 4, 5, 9, 10 and 11 of the Appeal to attack the Lower Court’s assessment of the evidence, Counsel

relied on the case of Chief T.G. Berejin & 5 Ors Vs Prayer Brown Gbobo (1989) 1 NWLR (Pt.97) 372, to the effect that a competent ground of appeal cannot be argued together with the an incompetent one. He urged us to hold that the Issue 3 for determination of the Appeal was incompetent.

Counsel also urged us to hold that the trial Court had rightly evaluated the evidence and dismissed Appellants’ Case. He urged us to resolve the Issues against Appellants and to dismiss the Appeal.

Appellants had filed a Reply Brief to contest the objection raised by Respondents and argued that the grounds of Appeal complained about were competent. They, however, admitted abandoning the ground 8, for being irrelevant to the Appeal.

On the main brief, Counsel for the Appellants said Respondents equated cloistered justice with substantial justice, insisting that the trial Court did not consider and evaluate the contents of Exhibit K, which he said was a one paged document and which document was used by the Court other than for the purpose it was tendered. He urged us to dismiss the preliminary objection and to allow the Appeal.
27

RESOLUTION OF THE ISSUES
I should start with the so-called, preliminary objection. We have stated, several times, that an objection to a ground (or grounds) of appeal is not, and cannot equate a preliminary objection to the hearing of an appeal, under Order 10 Rule 1 of the Court of Appeal Rules, 2016. If anything, such objection is simply an objection challenging the competence of some specified ground(s) of appeal, which, if upheld, can only lead to the striking out of such ground(s) of appeal, and not the entire Appeal, which will still be heard on the surviving ground(s). Thus, an objection to competence of a ground(s) of appeal should be done by means of a motion on notice, to be argued by the Respondents in the course of hearing of the appeal (preferably at the point of arguing the Respondents’ brief). See the case of Mbata Vs Umezurike & Ors (2019) LPELR – 47331 CA, where it was held:
“I have observed that the purported preliminary objection, was actually an objection to some grounds of the Appeal, not an objection to the hearing of the Appeal, as envisaged by Order 10 Rule 1 of the Court of Appeal Rules, 2016. We have stated the law,

several times, that an objection to a ground(s) of appeal is done by filing a motion on notice to challenge it, not by means of preliminary objection, which can only be filed to attack the hearing of the appeal, as a whole, that it is incompetent. See the case of Nwaolisah Vs Nwabufoh (2011) LPELR – 2115 (SC); Osuji Vs The State (2016) LPELR – 40042 (CA); Alaribe Vs Okwuonu (2015) LPELR – 24297 (CA).
See also Daudu Vs FRN (2018) LPELR – 43637 (SC); Waziri & Anor Vs Geidam & Ors (2016) LPELR – 40660 (SC); Umanah Vs NDIC (2016) LPELR – 42556 (SC).

I have taken a careful look at the grounds of appeal complained against by the Respondents. I cannot see the flaws complained of by the Respondents, apart from the fact of abandonment of the ground 8 of the Appeal, which Appellants have admitted. The grounds of Appeal, in my view, are in order. The grounds 1, 2, 3, 4 and 6 (for instance) without reproducing their particulars, state:
(1) “The Learned Trial Judge erred in law when he used documents or exhibits tendered for particular purposes different from the ones for which they were pleaded and tendered

and thereby occasioned miscarriage of justice.
(2) The Learned Trial Judge misdirected himself on the evidence led at the trial when he came to the conclusion that “the implication is that there have arisen from the evidence of the claimants two variations of traditional histories which are sharply irreconcilable and inherently contradictory that they negate themselves and ipso factor do not in law answer to the demands of traditional history in the final analysis” and thereby occasioned miscarriage of justice.
(3) The Learned Trial Judge erred in law in treating the other parts of the document in which Exhibit K evidence before him when it is contained (sic) was neither pleaded or tendered as such and thereby occasioned a miscarriage of justice.
(4) The Learned Trial Judge erred in law when he raised and entertained points not submitted to him by the parties, without inviting the parties to address him on them and proceeded to hinge his decision on those points raised by him suo motu and thereby occasioned miscarriage of justice…
(6) The Learned Trial Judge erred in law when he failed and or ignored to make any pronouncement

on the numerous acts of possession which the Plaintiffs proved with respect to the area verged Pink on their plan and thereby occasioned a miscarriage of justice.” (See pages 903 – 908 of the Records).

I cannot see anything untoward about the couching or wording of those grounds of Appeal, as they appear normal and valid complaints against the judgment, touching on what the Appellants considered wrong or misapplication of facts or evidence or law by the trial Court in reaching its decision. A ground of appeal consists of error of law or fact alleged by an Appellant as the defect in the judgment appealed against, which he relies on to set it aside. See FBN Plc Vs A.G. Fed. & Ors (2018) LPELR – 46084 SC; FMBN Vs NDIC (1999) 2 NWLR (Pt.591) 333; Abubakar Vs Waziri & Ors (2008) LPELR – 54 (SC).
“A ground of Appeal must be couched in such a way as to attack the judgment of a Court on the issue decided by it.” Ikosi Industries Ltd Vs Abdullahi & Anor (2015) LPELR – 26022 CA; FBN PlcVs May Medical Clinics (1996) 9 NWLR (Pt.471) 195.
I think the grounds of appeal complained of have satisfied the above

requirement of the law; that they are not narrative, argumentative or vague. See Order 7 Rule 2(2) (3) of the Court of Appeal Rules, 2016. The objection fails and is dismissed.

I shall consider this Appeal on the three Issues distilled by the Appellants, which were adopted by the Respondents with some modifications. But I shall take them, together, as I think the three Issues query whether the trial Court was right to reject the traditional history (evidence) presented by the Appellants and to dismiss the case and would not invoke the rule in Kojo II Vs Bonsie (supra) to give judgment to Appellants with respect to their alleged numerous acts of possession/ownership, as pleaded and canvassed by them.

Appellants have stated the 5 different ways of proving title to land and the fact that establishment of any one (or more) of the 5 ways, will entitle the Plaintiff to judgment. The five known and acceptable ways of proving title to land are:
(1) By traditional history/evidence;
(2) By production of title documents to the land;
(3) By acts of ownership numerous and positive extending over sufficient length of time to warrant the inference

that the person is the true owner;
(4) By acts of long enjoyment of possession; and
(5) By proof of possession of adjacent lands in circumstances which make it probable that the owner of such adjacent land would in addition, be the owner of the disputed land.
See Ezerioha & Ors Vs Mgbeajulu & Ors (2018) LPELR – 43811 CA; Idundun & Ors Vs Okumagba (1976) LPELR – 1431 (SC); Atanda Vs Ajani &Ors (1989) 3 NWLR (Pt.111) 511; (1989) LPELR – 589 (SC); Ayorinde & Ors Vs Sogunro & Ors (2012) LPELR – 7808 SC; Anagbado Vs Faruk (2018) LPELR – 44909 (SC).
In that case of Ezerioha & Ors Vs Mgbeajulu & Ors (supra), it was held:
“This case is founded on claims of title by means of traditional evidence and by plea of acts of long possession and exercise of acts of ownership. By law, any proof of one of the five modes of proof of ownership suffices, but sometimes one mode of proof of ownership may overlap or collapse into another. See Nwabuoku & Ors Vs Onwordi & Ors (2006) LPELR – 2082 (SC) and Oyerinde Vs Bamigbegbin & Anor (2017) LPELR – 42378 CA.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In this case (at hand), Appellants asserted multiple methods of proof of title to the land in dispute, including traditional history, production of title documents, numerous and positive acts of ownership and possession over a long period to warrant the inference that they are the owners of the land in dispute. They also asserted possession of the adjacent lands! See paragraph 3.4 of the Appellants’ Brief.
I should, however, observe that while one may prove his title to land by use of one or more methods of proving title to land, there are situations that resort to more than one method of proving title amounts to desperation and or speculation, and becomes counterproductive, as one method asserted may rather operate to cancel the other! For instance, I find it difficult to understand why a person who pleads and leads evidence of traditional history to prove his title to land would also plead and place reliance on title documents, if the land devolved on him; or where he leads a clear evidence of traditional history and also relies on acts of positive ownership and possession, upon failure to establish the traditional history (Evidence).

(sic) (2002) FWLR (Pt.90) 1270; also Accelerated Educational Services Ltd & Anor Vs Ekpo & Anor (2012) LPELR – 19693 CA; Balogun Vs Akanji (1988) 1 NWLR (Pt.79) 301 and Fasoro Vs Beyioku (1988) 2 NWLR (Pt.76) 263.

The trial Court had picked flaws with Appellants history in proof of their claim of title, when it held as follows, on page 893 of the Records:
“The implication is that there have arisen from the evidence of the Claimants, two variations of traditional histories which are sharply irreconcilable and inherently contradictory that they negate themselves and ipso facto, do not in law answer to the demands of traditional history in the final analysis. In the case of Obioha Vs Duru (1994) 8 NWLR (Pt.365) Page 631 at 641, the Supreme Court stated thus:
Where however the traditional history put by one of the parties is so intrinsically conflicting that a reasonable Tribunal would not place credence on it there is no room for the application of the approach in Kojo Vs Bonsie supra.”

Before the trial Court reached the above decision, it analysed the evidence led by the Appellants in proof of their claims

to the land by means of traditional history, vis a vis, their pleadings (paragraphs 14 and 15 of the 2nd Further, Further Amended Statement of Claim) and the Exhibit K.

It observed as follows on pages 891 to 892 of the Records of Appeal:
“I have earlier reproduced paragraphs 14 and 15 of the Claimants Statement of Claim aforesaid in this case in relation to Exhibit K and would say that as far as paragraph 14 is concerned, this Court has no business venturing outside the limit of the fact pleaded and evidence tendered thereto. This is because when an issue is not placed before a Court of law it has no business, whatsoever to deal with it. See the case of Olasanya Vs Olasanya (1983) 3 SC 41 at 56/57.
But whether the same limitation applies with respect to the paragraph 15 of the Claimants pleadings that talks of MKPUTARA, not mentioned at page 23 of EXHIBIT K, specifically referred to by paragraph 14 of the said Statement of claim but at other parts of EXHIBIT K and EXHIBIT D, is the subject of consideration in this case. The nature of paragraph 15 is once again herein reproduced thus:
“The Plaintiff used part of the AKPUTARA

land, part of which was referred to in some part of the record of Appeal earlier pleaded as Mkputara land as farm land, except the area which was allowed to the defendants to reside on and on which they have their houses, but which the Plaintiffs now seek to have them forfeit as a result of the activities of the defendants and/or their privies in interest which shall be presented here under.”
For one thing, in paragraph 14, the land was mentioned as AKPUTARA and not MKPUTARA. However, in paragraph 15, the land was referred to, not only as MPUPARA but the Court implored to venture beyond the limitation inherent in paragraph 14 not only with respect to the name of the land but also, to explore other parts of Exhibit K. In effect, by paragraph 15 of the Statement of claim of the Claimants as well as Exhibit D, this Court, in express terms, has validly been granted access into other part of Exhibit K as to be entitled to take advantage of the full ramifications of the land MPUTARA in the interest of justice beyond the evidence of Fred Ogbabanya, which it could not have done under paragraph 14.
Now page 40 of Exhibit K is the Judgment in the said

Suit No. O/20/58, in which the Court recorded regarding MKPUTAR land thus:
“It would appear that according to tradition, after UGWU was acquired from MBEI and became the property of the UMUOGBOKO PEOPLE KILLED BY MGBEI, it was divided by a common ancestor, perhaps OGBOKO HIMSELF, between the AMANATO and AMANANO if that is indeed what happened…”
In this case, the Claimants, who pleaded that they acquired the MPUTARA land said to be part of UGWU land, from their great grand ancestor OWAKPA are also the same AMANATO OGBOKO people who were said to have acquired the same UGWU LAND of which MPUTARA land is part of, as a BLOOD RANSOME from MBEI because of OGBOKO PEOPLE killed by the MBEI group. Please note, that for the claimants, MBEI is the same thing as MGBEE (sic) as AKPUTARA is the same as MKPUTARA.”

I observe that Appellants appeared not to have quarreled with or faulted the findings and decision of the Trial Court, that “there have arisen from the evidence of the Claimants, two variations of traditional histories, which are sharply irreconcilable and inherently contradictory that they negate themselves and ipso

facto, do not in law answer to the demands of traditional history…” They (Appellants) appear to have been rather disturbed about the source of the information/facts, which the trial Judge applied or used to reach the above conclusion, saying that the trial Judge had relied on some contents of Exhibit K (Record of Proceedings in O/20/58), for which Appellants (who tendered the document) did not place reliance on! Appellants argued that the trial Court went beyond the purpose for which the Exhibit K was tendered, to hold as it did; that Exhibit K (only page 23 thereof) was tendered to show that one Fred Ogabanya (a relation of the Respondents) had testified to favour Appellants’ course in a previous case – O/20/58 – that Akputara land belonged to the Appellants. He argued that the trial Court was wrong to use or apply other information in Exhibit K, other than the page 23!

Appellants had argued that what Fred Ogabanya said then (in O/20/58) would apply in the later Suit (this case) as admission against interest. He argued that the trial Court cannot wander outside the purpose for which Exhibit K was tendered, scouting for other

reason/cause in the said document to found its decision, which reason/cause was not put forward as purpose for tendering the document. He had placed reliance on judicial authorities, including Ngwu Vs Nnaji (1991) NWLR (Pt.189) 18 at 30:
“Where a document is admitted in evidence for a particular purpose or in respect of only a particular entries, the trial Court cannot use any other portion of the document which has not been specifically put in evidence. It is different, if a document is put in evidence without any particular specification. In such case, the document is presumed to be totally put in evidence and the Court can use any portion of it. In the present Appeal, Exhibit A was put in evidence on the condition, that it is accepted as a receipt for payment of money and nothing else. It must be limited therefore to that use.”
Counsel said that a judge is an adjudicator; not an investigator, relying on the case of Senator Ali Uche Vs Martin Elechi (2012) LPELR – 7823 (SC), where it was held:
“Where a judge abandons that duty and starts looking for irregularities in electoral documents, and investigating documents not

properly before him, he would most likely be submerged in the dust of the conflict and render a persevere judgment in the process.”
See also Ikpeazu Vs Otti (2016) 8 NWLR (Pt.1513) 38 at 107 and Gov. of Kwara State Vs Eyitayo (1997) 2 NWLR (Pt.485) 118; Terab Vs Lawan (1992) 3 NWLR (Pt.231) 569 at 590 which Counsel also relied on to say that the Court is barred from conducting private research into documents tendered, as exhibit, or to rely on its independent private investigation to decide a case, doing cloistered justice.
Of course, the Respondents had faulted the arguments of the Appellants on the use of exhibits before the Court, where issues raised in the pleading and in the cause, would favour reliance on aspect or portion of the Exhibit (document) relating thereto, even when same was not the primary of purpose tendering the document. He relied on the case of Omega Bank (Nig.) Plc Vs OBC Ltd (2005) NWLR (Pt. 928) 547 (SC).
I think Appellants would be wrong to seek to bar the trial Court from looking at a document (Exhibit) before it and from applying the same to settle issues raised in the case of parties, as pleaded by the parties,

beyond the very narrow compass for which a party tendered the document. In the case of Omega Bank Plc Vs OBC Ltd (supra), the Supreme Court said:
“Furthermore, where a document is pleaded to establish a particular fact, it can only be used to establish that fact and cannot be used to prove another fact which is not an issue in the pleadings. See Onwumere Vs Agwunede (1987) 3 NWLR (Pt.62) 673.” (underlining mine)
I understand the above ratio to imply that the document can still be used to prove any other fact, which is an issue in the pleadings. That, appears to accord with the logic and common sense. I think one who pleads a document to show that there was admission against interest in a cases of traditional history as means to prove title, cannot claim that the evidence of traditional history in the said document, tendered is not a relevant issue in the case at hand, which also relies on traditional history over the same land! Of course when the document was admitted, to prove title by traditional history, that fact became relevant issue.
The law, as stated in the above case is:
“It is different, if a document is put in

evidence without any particular specification. In such case, the document is presumed to be totally put in evidence and the Court can use any portion of it…” See again Ngwu Vs Nnaji (supra).
In the case of Ejuetami Vs Olaiya (2002) FWLR (Pt.88) 955; (2001) LPELR – 1072 (SC), it was held:
“The letters which I have earlier stated were admitted in evidence during the trial. It is evident from the pleadings that they were primarily tendered by the appellant to prove his own equitable interest in the disputed property. Though the document were pleaded and tendered primarily for this purpose, they became available, in any event for full consideration by the Court.”
Appellants had pleaded and relied on Traditional history to proved their title, and they also relied on exercise of acts of ownership, without any let or hindrance from the Respondents over the land in dispute (see paragraphs 3, 4(c) of the 2nd Further, Further Amended Statement of Claim on pages 224 – 225 of the Records). Appellants had pleaded and acknowledged the rights of the Respondents over the lands they (Respondents) occupied (not in dispute) and

the closeness of the two parties, saying they were related, and were of a common ancestor – See paragraph 4c of their pleadings:
“At the trial, the Plaintiffs will show that the reason for the seeming closeness between the land in dispute and other lands belonging to the Defendants or their kinsmen, not in dispute, is largely because both parties i.e. the Plaintiffs and the Defendants received their respective portions of land from the same source. While the Plaintiffs received their own from the share of their great ancestor, Ogboko from his father Owakpa’s landed estate, the Defendants also received theirs from the share of Mgbee their ancestor from the same Owakpa’s landed estate.” (Page 209 of the Records)
In paragraphs 5, 6 and 7 of the pleadings, Appellants averred:
5) “The Akputara land and indeed other lands in the area which are not in dispute, generally, constitute what the plaintiffs refer to as ‘Ugwu Land’ which is generally the farm land of the Plaintiffs.
6) The entire Ugwu Land, of which Akputara is part of was shared by the Plaintiffs great ancestor Ogboko between his two Sons,

Duruagwu and EzeallaIhuaku who respectively founded Amanano Ogbboko and Amanato Ogbooko (The Plaintiffs)…
7) The Ugwu land itself including Akputara Land was deforested by Umuma Owakpa the great grand ancestor of the parties i.e. Plaintiffs and Defendants.” (Pages 225 to 226 of the Records)
However, in paragraphs 9, 10 and 11 of their pleadings, Appellants said that Defendants, as part of Mgbee have their own land outside Akputara land; that the area shown RED on their (Appellants) Plan, was allowed to the Defendants to live and it enabled them to come out to the road, as against where they were living before the grant, which was very far inside; that the grant was made to the grand fathers and/or fathers and/or fathers and/or uncles of the present Defendants on record, namely Ibekwe, Umeashiegbu Ibekwe. (Pages 229 – 230 of the Records).
Appellants thereafter pleaded in paragraphs 13 and 14 of their pleadings that the relationship between them and Respondents was “excellent” from time immemorial and beneficiary, as they intermarried, and shared and at one time or the other members of the Respondents family

testified for them (Appellants) in land disputes between them and others, and that one of such times was in land dispute (Suit No. O/20/58) between the Appellants and their kith and kin of Amanano Ogboko, when one Fred Ogbabanya, a relation of the Respondents, testified for the Appellants and said:
“I know the land called Akputara. It is not in dispute. I see the Plaintiffs farming on the land. Never had any land dispute with Plaintiff on “Ugwu land”…” Pages 230– 231 of the Records of Appeal.
But in what appears to be a somersault, Appellant pleaded in paragraph 15 of the pleading:
“The Plaintiffs used the other parts of Akputara land part of which was referred to in some parts of the Record of Appeal earlier pleaded as “MPUTARA’ land as farm land except the area which was allowed to the Defendants to reside on, and on which they have their houses, but which the Plaintiffs now seek to have them forfeit as a result of the activities of the Defendants and/or their privies in interest which shall be presented hereunder. (Page 231 of the Records)”
Apart from the name of the land in the

earlier paragraphs, consistently stated as AKPUTARA, being changed to MPUTARA in paragraph 15 of the pleading (as the name of land pleaded in some parts of the Records of Appeal, earlier pleaded), Appellants pleaded that they farmed on it, except the area which was allowed to the Defendants to reside on and on which they have their houses, (but which the Plaintiffs now seek to have them forfeit as a result of the activities of the Defendants and/or their privies)! Evidence was also led on the above pleading by Appellants.
The question is:
If they had enjoyed such excellent relationships, resulting in inter-marriages and sharing, and in their grandfathers/fathers giving part of the Akputara land to the Defendants to live in and build their houses (according to the Appellants), how come this contradictory posturing in this case? And if the earlier case in Suit No. O/20/58, was about the land called MPUTARA (or partly referred to, as such, which Fred Ogbabanya testified about), how come the same is confused with this case – about Akputara land?
The trial Court had observed such inherent contradictions and sharp irreconcilable differences in

Appellants pleadings and evidence, especially, when the trial Court found, as a fact, that the traditional history pleaded and led in the case, was completely different from the traditional history led in the said previous case – O/20/58, (also pleaded and relied on by Appellants in this case relating to the same Akputara land). Whereas, in Suit No. O/20/58 (Exhibit K), page 40 thereof, the trial Court which heard the case had recorded thus, regarding MKPUTARA land (or MPUTARA):
“It would appear that according to tradition, after UGWU was acquired from MGBEI and became the property of the Umu- Ogboko as a Blood Price for Ogboko people killed by MGBEI, it was divided by a common ancestor, perhaps Ogboko himself, between the Amanato and Amanano if that is indeed what happened…” (Page 892 of the Records)
In this case, Appellants had pleaded that they acquired the Akputara land, said to be part of Ugwu land, from their grand ancestor Owakpa; that “the Ugwu land itself including Akputara land was deforested by Umuma Owakpa, the great grand ancestor of the parties i.e. the Plaintiffs and Defendants.” (See paragraph 7 of

the 2nd Further, Further Amended Statement of Claim on page 226 of the Records of Appeal).
Thus, the same Ugwu land (which include part of Akputara land (or is it MPUTARA or MKPUTARA land?), was deforested by Umuma Owakpa, the grand ancestor of the parties, (as per pleadings in this Suit). But according to Exhibit K, “it was acquired from MGBEI and became the property of Umu-Ogboko as a Blood Price for Ogboko People killed by MGBEI, (and) was divided by a common ancestor, perhaps Ogboko himself, between the Amanato and Amanano…” That was, indeed, irreconcilable two traditional histories – one talking about acquisition by deforestation and the other as acquisition as Blood Price for Ogboko People killed by Mgbei!
Appellants’ contention in this appeal is that the trial Court should not have looked beyond the page 23 of the Exhibit K (where they sought to rely on what they claimed was evidence against interest by a relation of the Respondents – Fred Ogabanya, for which purpose the document was tendered. Such argument appears untenable, in this circumstance. The whole proceedings (Record of Appeal) in Suit No. O/20/58

was tendered in this case, and it spans pages 293 to 349 of this Records of Appeal. (So it is not true that only page 23 was tendered, and it could not have been!) And the previous case also touched on title to land – same Ugwu land, which Akputara land was part, wherein the claimant also pleaded traditional history to prove their claim. It would be wrong and I think mischievous, for the Appellants to seek to place reliance on page 23 of the Exhibit K, only (to harvest evidence against interest), but reject the cause, whereof the evidence was adduced. The law would be unduly technical and absurd, to allow Appellants to do that, and reject the evidence which works against their (Appellants’) cause, in the same document (Exhibit K) touching on the other issues raised in the case of Appellants, as seen in paragraphs 14 and 15 of the pleadings of the Appellants in this case. See the case of Ngwu Vs Nnaji (1991) NWLR (Pt.189) 18 at 30. I think the whole evidence in Exhibit K was, therefore, available for the use of the Lower Court, in the circumstances.

I also think the trial Court was right to have ruled out the application of the rule in

Kojo II Vs Bonsie (supra) in the circumstances, since this was not a case of inconclusive traditional history/evidence, or competing traditional histories of the two parties (See Ayorinde & Ors Vs Sogunro & Ors (2012) LPELR – 7808 (SC); Enyinnaya Vs Otikpo & Anor (2015) LPELR – 25529 CA; Egwu & Ors Vs Emeike (2018) LPELR – 44689 (CA). Having adjudged the traditional history, put forward by Appellants as contradictory and irreconcilable, I think it was not necessary to further consider the acts of ownership and possession (which of course, the trial Court did, and still resolved against Appellants).

I also think, in a situation where the Appellants had pleaded excellent and cordial relationship with the Respondents, and that they (two sides) derived and their titles in the area of the dispute from a common ancestor, with the claim that their (Appellants) ancestors allowed the Respondents to live and build in the area of the land in dispute, whereof they now seek forfeiture, I fail to see how Appellants can succeed in their claims, even if it were true that their grandfather/fathers allowed the Respondents to live and build on the

land in dispute (which is not conceded). See the case of Ekpa Vs Utong (1991) LPELR – 1084 (SC), where the Supreme Court held:
“I think it has to be conceded that a person is completely without power or competence to revoke a completely constituted gift of land made inter vivos by his ancestor, who let the donee into possession some one-and-half centuries ago, unless, perhaps, he can show that such a gift was null and void ab initio or that the gift was subject to condition which has been broken.” Per, Nnaemeka – Agu JSC
The above decision was adopted and applied by this Court in the case of Amaefula Vs Mbaegbu & Anor (2018) LPELR – 46627 CA, where we held:
“It should be appreciated that even in a situation that the Respondents were to have proved that their forefathers granted the land in dispute to the Appellant, that that would not discount from Appellant’s right of ownership or possession over the land, going by the principle in the old case of Ekpa & Ors Vs Utong and Ors (1991) LPELR – 1084 SC… See also Isiohia & Ors Vs Elechi (2018) LPELR – 44988 (CA) and

Ashilonu & Anor Vs Ohale & Anor (2018) LPELR – 44267 (CA).”

claims to the satisfaction of the Court notwithstanding any admission made by the defendant. This is because the grant of declaratory relief is discretionary.” See Okoye Vs Nwankwo (2014) 15 NWLR (Pt. 1429) 93; Kwajaffa & Ors Vs B.O.N. Ltd (2004) 13 NWLR (Pt.889) 146; Emenike Vs P.D.P. (2012) 12 NWLR (Pt.1315) Per Kereke Ekun JSC.

Thus, Appellants’ struggle to rely on alleged admission of Fred Ogabanya, said to be a relation of the Respondents, would not assist the Appellants’ cause, even if such admission was established, which was not, in this case, in my view.

I therefore see no merit in this Appeal, as I resolve the whole Issues against the Appellants and dismiss the Appeal, with cost of Fifty Thousand Naira (N50,000.00) to the Respondents, against Appellants.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: Having had the privilege of reading the Judgment just delivered by my learned Noble Lord I.G. MBABA JCA, I agree with his reasoning and conclusions that this Appeal lacks merit and deserves to be dismissed.

I accordingly dismiss same and abide by the ancillary orders made in the lead Judgment as to cost.

Appearances: