Mr. Saturday Dibia & Anor v. Maxwell O. Tubonimia & Ors

By the Amended Statement of claim dated 27th September, 1984, the Respondents sued the Appellants before the Rivers State High Court, sitting at Ahoada (trial Court) for trespass, damages, injunction and title to a piece of land they called “Ade-Ikobo Adoghany, Omalem” situated at Amalem Abua Village in the Abua-Odua District of Ahoada, L. G. A.

The appellants as Defendants denied the claims against them in the Amended Statement of Defence dated the 9th May, 1994 and so the matter proceeded to trial during which the Respondents called four (4) witnesses in proof of their case, while the Appellants called five (5) witnesses in defence.

Survey plans were tendered by consent at the trial and admitted in evidence as Exhibit ‘A’- for the Respondents and Exhibit ‘B’- for the Appellants.

At the end of the trial, judgment was entered in favour of the Respondents, on the 28th April, 1998. “as per their writ of summons”. Dissatisfied with the judgment of the trial Court, the Appellants filed a Notice of Appeal

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dated the 14th July, 1998 before Court of Appeal, Port Harcourt Division (Court below) against same on six (6) grounds as shown at page 213-218 of the Record of Appeal.

In a judgment delivered on the 10th December, 2009, the Court below dismissed the Appellants’ appeal for lacking in merit and affirmed the decision of the trial Court.

Again, not satisfied with the decision of the Court below to dismiss their case (appeal), the Appellants then brought this final appeal vide the Notice and Grounds of Appeal, dated and filed on the 4th May, 2010, pursuant to the leave of the Court granted on the 28th April, 2010. There are Sixteen (16) grounds contained on the Notice of Appeals from which four (4) issues are submitted to the Court for determination in the Appellants’ Brief filed on the 5th November, 2010 as follows:-
‘’3.01 Issue No. 1 whether considering the pleadings, survey plan and evidence of the respondents, there was no inconsistency or uncertainty on the location of the land which was claimed by them (respondents). (Distilled from Ground 1 & 2).
3.02 issue No. 2: whether the Court of Appeal was right to

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conclude/find that the respondents proved title to the land in dispute and their claims in this case. (Distilled from Grounds 3, 4, 8, 10, 14, & 16).
3.03 Issue No. 3: whether the Court of Appeal was right, fair and in its consideration/treatment of the evidence/case of the appellants vis-a-vis that for the respondents. (Distilled from Ground 5, 6 & 7).
3.04 Issue No. 4 whether the findings and conclusions of the Court of Appeal in its judgment in this suit are proper/justified in law. (Distilled from Ground 9, 11, 12, 12 & 15).”

For the Respondents, the issues said to call for decision in the appeal from the grounds on the Notice of Appeal are in the following terms:-
“1. Whether there is inconsistency and uncertainty with respect to the location of the land in dispute front the state of the pleadings, survey plan (i.e Exhibit A) and evidence of the Respondents herein.
(Distilled front Grounds 1 and 2)
2. Whether the lower Court was right in law in sustaining the judgment of the trial Court having regards to the evidence adduced by parties herein.
(Distilled front Grounds 3 4, 5, 6, 7, 8, 9, 10, 11,

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12, 13, 14, 15 and 16). ”

I also note that the Appellants filed an Appellants’ Reply Brief on the 29th September, 2022 after receipt of the Respondents’ Brief.

The Appellants’ issues, for representing the points of dissatisfaction and complaints against the decision by the lower Courts, would be used for the determination of the appeal.

Issue 1: Appellants’ Submissions:
Reference is made to paragraph 3 of the Respondents’ Amended” Statement of Claim, evidence of PW1, PW3 and PW4, Exhibit ‘A’ wherein the land claimed is said to be situate at Amalem, Abua and paragraph 5(b) of the Amended Statement of Claim and evidence of PW1 where it is said that the land in dispute is situated at Ikobo Village from where the Respondents migrated to Amalem, Abua, thereby showing inconsistency and uncertainty on the location of the land claimed by the Respondents. It is submitted that since the Respondents claimed title to the land and the Appellants did not make a counter-claim, they have the burden to establish the location of the land with certainty, on the authority of Ukaegbu v. Nwololo (2009) 1 SCNJ,

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49 at 77 – 78 and Salami v. Gbodoolu (1997) 4 SCNJ, 196 and that the lack of explanation of how the land claimed to have been founded in Ikobo Village is now located in a different place; Amalem, Abua, is fatal to the Respondents’ case claim. Reference is also made to Obawole v. Coker (1994) 6 SCNJ (pt. 1) 20 at 33 and it is submitted that it was wrong for the lower Courts to have found that the Respondents had proved their case, contrary to the evidence and that for being perverse, this Court has the power to intervene and reverse it, in the interest of justice. The cases of Bunge v. Gov. Rivers State (2006) ALL FWLR (pt. 325) 1 at 34, Kale v. Coker (1982) 12 SC 252 at 272, Iroegbu v. Okwordo (1990) 6 NWLR (pt. 159) 643 at 744 745, Udeze v. Chidebe (1990) 1 NWLR (pt. 125) 141 at 160, among others, are relied for the submissions and it is further argued that the above submissions are not an attack on the concurrent findings by the lower Courts but on the conclusions/inferences on documentary evidence which this Court, on the authority of Ogbonna v. A. G. Imo State (1992) 1 NWLR (pt. 220) 647 at 657 – 658, inter alia, is in as good a vintage position as

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the lower Courts to construe and draw its own conclusions/inferences from.

In the alternative, reliance is placed on the case of Ojo v. Gov. Oyo State (1989) 1 NWLR (pt. 95) 1 at 19, to argue that even if the appeal is against concurrent findings of (he lower Courts, they are founded on erroneous considerations and the Court is entitled to interfere with same.

The Court is urged to resolve the issue in Appellants’ favour.

Respondents’ Submissions:
It is submitted that the pleadings of the Respondents in paragraph 3 of the Amended Statement of Claim and the evidence of PW1, the star witness, PW2, PW4 adduced by them in respect of the location of the land they claimed, consistently, show the land called “Ade-Ikobo Adoghany) Omalem”, is situate at Amalem, Abua, with defined boundaries.

It is then argued that the only weakness in the evidence of PW4 who said that the land in dispute is known as “Oharamoh” owned by “Oto-Adoghany” family is not a material contradiction since his evidence on the ownership and boundaries of the land is in line with the Respondents’ claim. On the authority

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of John v. State (2011)18 NWLR (pt. 1278) 353) at 374 and State v. Azeez (2008) 4 SC, 188, it is submitted that for any inconsistency or contradiction in evidence to negatively affect its veracity, it must be materially significant to impact the case of a party and that is not the position in the case of the Respondents. In further arguments, learned counsel said the cases cited and relied on by the Appellants are not relevant since there is no material contradiction or inconsistency in the Respondents’ case and so the lower Courts are right to hold that they have proved their case.

In addition, it is the case of the Respondents that the pleadings and evidence of the witnesses support the Exhibit ‘A’ which all show that the land claimed by the Respondents is the same land claimed by the Appellants who did not challenge the identity of the land and so deemed to have admitted it, vide the authority of Nigerian Army v. Yakubu (2015) 9 SC, 138 at 152, Yesufu v. Co-operative Bank Ltd. (1989)3 NWLR (pt. 110) 483, Hilary Farms Ltd. v. M/V. “Mahtra” (2007) 14 NWLR (pt. 1054) 210 at 237.

The Court is prayed to resolve the

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issue in Respondents’ favour.

In the Appellants’ Reply Brief, it is contended that the real issue at stake is not on boundaries of the land nor the name stated in the evidence of PW4, but that the Respondents in pleadings and evidence stated two (2) different/contradictory locations for the one land in dispute. Same and further arguments on the issue as contained in the Appellants’ Brief are made in the Reply brief in breach of the known, purpose of an Appellants’ Reply brief. In fact, the Appellants’ learned counsel embarked on wholesome arguments on all the every points canvassed in the Respondents’ briefs on all the issues in the appeal. It must be pointed out, as a reminder, that the firmly established purpose to which an Appellants’ Reply Brief is to and can be put or used, is to answer or reply to only new or fresh points of law raised or arising from the Respondents’ Brief that require response or answer in order to clarify issues decided in the decision appealed against.
Principles of law do not allow or permit that an Appellants’ Reply Brief be used for the purpose of repeating

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arguments already made in the Appellants’ Brief or to further argue issues or points raised and argued in the Appellants’ Brief, as a second bite of the cherry. See Okpala v. Ibeme (1989) 2 NWLR (pt. 102) 208 (SC), Uzoegwu v. Ifekandu (2010) FWLR (pt. 72) 1950, Oguanuhu v. Chiegboka (2003) FWLR (pt. 165) 512, Husseni v. Mohammed (2015) 3 NWLR (pt. 1445) 100 (SC), Ogbu v. State (2017) 8 NWLR (pt. 1507) 236 (SC), Ajiboye v. FRN (2018) 13 NWLR (pt. 1637) 430 (SC), Awusa v. Nigerian Army (2018) 12 NWLR (pt. 1634) 421 (SC), ABC Transport Co. Ltd. v. Omotoye (2019) 14 NWLR (pt. 1692) 197 (SC), Onwubuya v. Ikegbunam (2019) 16 NWLR (Pt. 1697) 94 (SC), I intend to disregard, repeat or further arguments contained in the Appellants’ Reply Brief on this and the other issues in the appeal.

Resolution
As a foundation, I would like to state that by the provisions of Sections 131, 132 and 133 (1) of the Evidence Act, 2011 (Sections 135, 136 and 137(1) of the 2004 Evidence Act which was in operation at the time of the trial before the High Court) the initial duty and burden of introducing and adducing evidence in support and proof of the existence

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of any fact asserted by a person in civil claims made before a Court of law, is placed on him because it is he who wants judgment to be entered in his favour by the Court on the basis of the assertion and would therefore be the one to lose if no evidence at all was produced in the case. Adighije v. Nwaogu (2010) 12 NWLR (Pt. 1209) 419, Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460 (SC), Nigerian Army v. Yakubu (supra), Nagogo v. C.P.C (2013) ALL FWLR (pt. 685) 272 (SC), Awodi v. Ajagbe (2015) 3 NWLR (Pt. 1447) 578 (SC), Yusuf v. FRN (2018) 8 NWLR (Pt. 1622) 502 (SC), Onemu v. Comm. Agric & Nat. Resources, Asaba (2019) 11 NWLR (Pt. 1682) 1 (SC).
In this appeal, since it was the Respondents (as plaintiffs) who approached the trial High Court to make assertions of facts on the existence of which they predicated the clams they made in respect of the land in dispute against the Appellants, they, in law, had and owed the evidential burden of proving the fact asserted on the balance of probabilities by dint of the provisions of Section 138 of the Evidence Act, 2004 to the satisfaction of that Court, if judgment was to be entered in their favour in

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the case.
Until that duty and burden was discharged by relevant, credible and sufficient evidence to the Court’s satisfaction, the assertions would remain mere allegations without proof which are liable be dismissed. See Balogun v. Labiran (1988) 3 NWLR (pt. 80) 66 (SC), Gaji v. Paye (2003) FWLR (pt. 163) 1 (SC), Owie v. Ighiwi (2005) ALL FWLR (pt.248) 1762 (SC), Dagaci of Dere v. Dagaci of Ebwa (2006) 7 NWLR (pt. 979) 382 (SC), Ezemba v. Ibeneme (2004) 10 MJSC 54.
Evidence adduced in proof of fact/s asserted by a party in the discharge of the burden of proof must be evidence which is not only admissible by law, but also credible and sufficient to satisfy the standard of proof required in order to attract probative value or worth and be the basis of a decision by the Court. For evidence to be relevant, credible and adequate to ground a decision by the Court, it should be consistent cogent and reasonably believable in the peculiar circumstances and on the facts peculiar to a case. Agbi v. Ogbeh (2006) 3 FWLR (pt. 329)5164 (SC), A. M. Co. Nig. Ltd. v. Volkswagen Nig. Ltd. (2010) 7 NWLR (pt. 1192) 97, Gezoji v. Kulere (2012) 4 NWLR (1291) 454. In that

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regard, evidence which is materially inconsistent or contradictory with or to the facts which it seeks to prove, is not and cannot be regarded as being credible, cogent and reasonably believable to attract and be worthy of any probative value or worth in the determination of the existence of such facts so as to ground or be the basis of a decision by a Court of law. Evidence which contradicts or is inconsistent with the facts it is supposed to prove, would be irrelevant to a case and goes to no issue in the determination of the case, just as facts on which no relevant evidence was adduced in support, would be deemed abandoned. Bamgboye v. Olanrewaju (1991) 3 LRCN, 897 (SC), Odunsi v. Bamgbala (1995) 1 SCNJ, 275 at 285, Egbunike v. A.C.B. Ltd. (1995) 2 NWLR (pt. 375) 34, Shell v. Ambah (1999) 2 SCNJ, 152 at 164.

The fulcrum of the complaint by the Appellants under this issue is that the Respondents presented inconsistent and contradictory case in pleadings and evidence on the location of the land in dispute, which according to the learned counsel for the Appellants, is material and so fatal to the case. Specifically, paragraphs 3 and 5 (b) of the

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Respondents’ Amended Statement of Claim as well as the evidence of PW1 (said to the star witness) and PW4 were referred to for the arguments.

Paragraph 3 of the Amended Statement of Claim appears at pages22 – 23 of the Record of Appeal and is as follows:-
“3. The land the subject-matter of the dispute (now known as “the land in dispute”) is known as and called “ADE-IKOBO ADOGHANY OMALEM” and is situate at Amalem Abua in the Abua-Odual District of the Aboada Local Government Authority Area within the jurisdiction of this Honourable Court.
The entire plaintiffs’ land is clearly shown and delineated with its features on the plan NO. ECRS/12/84 of 2nd July, 1984 filed with this statement of claim, and thereon verged in “GREEN” while the land in dispute is verged in “PINK” and cause of action verged in “YELLOW”.
The exact boundaries and other features of the said land are clearly shown on the said plan as follows:-
(a) On the North by the land of Agana Family of Amalem village.
(b) On the south by the land of Agana Family Village (Olokpogana).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px; scrollbar-color: var(–thumbBG) var(–scrollbarBG);”>

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(c) On the East by land of Ekpoko Family of Amalem Village and late Chief Omonibos rubber plantation.
(d) On the South West by land of Akwaya Family of Oghoro Village Abua.
(e) On the North West land of Obi Family of Omolem Village Abua.”

On its part, the whole of paragraph 5 of the same pleadings, is in the following terms:-
“5.(a) The land in dispute has from time immemorial been the property of the Oto Adoghany Omalem Village in the Abua-Odual District, having been originally owned by their ancentor Ikobo Adoghany (after whom the land in dispute is also named) and has descended to the present plaintiffs by inheritance in accordance with the Abua customary law of inheritance.
(b) Ekobo Adoghany, the ancestor of the plaintiffs’ family and founder of the land in dispute was also the founder of the ancient Ikobo Village. Owing to an epidemic which caused much death, the villagers moved to nearly Amalem village to form the present Oto-Adoghany Omalem but retained and controlled the land as owners. Their former village than became the Ado Ikobo Adoghany Omalem farm land on which they far as owners. ”

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By the combined facts pleaded in paragraphs 3 and 5 by the Respondents, the case presented was that their ancestor founded the land in dispute known as “Ade-Ikobo Adoghany Omalem”, situate at Ikobo Village, which was their former village after moving to Amalem village to form the present day Oto-Adoghany Omalem, also founded by their ancestor. The exact boundaries and other features of the land are delineated on the survey plan no. ECRS/12/1984 of 2nd July, 1984 which was admitted in evidence by consent as Exhibit ‘A’.

The evidence of PW1; Israel Elilphesi, in-chief and under cross-examination is at page 30 – 35 and 37 – 39, respectively, of the Record of Appeal. The entire evidence of PW1 is not only consistent with, but is in unequivocal support and line with the pleadings in paragraphs 3 and 5 of the Respondents’ Amended Statement of Claim that their ancestor; founded the land in dispute situate at Ikobo Village, which they retained after moving to the place now known as Ota-Adoghany Omalem due an epidemic which caused a lot of death.

This evidence was not in any material way discredited or controverted under

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cross-examination by the Appellants.

Learned Counsel for the Appellants has argued that the Respondents’ pleadings and evidence are inconsistent or contradictory on the location of the land in dispute which is said to be located at two (2) different places. As shown, the pleadings in paragraphs 3 and 5 of the Amended Statement of Claim clearly stated that the land in dispute is situate at Amalem, Abua from where the Respondents’ ancestor moved to Oto Adoghany Amalem. The relevant portion of the PW1 and the location of the land in dispute is at page 32 of the Record of Appeal and as follows:
“The land in dispute has been owned by my family from time immemorial. Ikobo Adoghany was the original founder and owner of the said land, being the ancestor of the family and also the founder of ancient Ikobo Village. The land has descended to the present plaintiffs by inheritance.
Owing to an epidemic that caused such death, the villagers moved nearer to Amalem village to form the present Oto-Adoghany Omalem. We still retained and cultivated the old land which is called the Ade Ikobo Adoghany Omalem farm land. By custody, I mean, we grant

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portions to people to cultivate economic trees and we also ourselves farm on the land.”

As can easily be seen, the above piece of evidence is in line and consistent with the pleadings on the location of the land in dispute and there is nowhere in both it is said that the land in dispute is situate at two (2) different places, as argued by the learned counsel for the Appellants. Apparently, there is no inconsistency or contradiction between the pleadings and the evidence of PW1 on the location of the land in dispute.

An inconsistency or contradiction is said to occur between facts and/or in evidence when two (2) versions of facts or evidence cannot be in existence or true at the same time because each of them automatically cancels the existence or the truth of the other in the peculiar circumstances of a case. Contradiction in facts and evidence happens or arises when one version materially asserts and affirms the direct opposite of what another version asserts or affirms in a particular case such that the two (2) versions cannot be correct at the same time. See Pada v. Galadima (2018) 3 NWLR (pt. 1607) 436 (SC), Ayinde v. State (2009) 12 NWLR

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(pt. 1687) 410 (SC), Olasehinde v. State (2019) 1 NWLR (pt. 1654) 555 (SC), Uche v. State (2015) 11 NWLR (pt. 1470) 380 (SC), Egwumi v. State (2013) All FWLR (pt. 678) 824 (SC), Adewale v. Olaifa (2012) 17 NWLR (pt. 1330) 478, Bodi v. Agyo (2003) FWLR (pt. 156) 815, Larmie v. Data Processing (2006) 1 FWLR (pt. 302) 1092 (SC), Ebeinwe v. State (2011) 7 NWLR (pt. 1246) 402 (SC). Another settled position of the law on contradiction or in consistency in evidence is that for it to affect the credibility of the evidence in question, it must be material to the facts which it seeks to prove otherwise it would have no adverse effect or be detrimental and fatal to the case in which it was given. Shurumo v. State (2010) 16 NWLR (pt. 1218) 65, Osadim v. Tawo (2010) 6 NWLR (pt. 1189) 155, Wachikwu v. Owunwanne (2011) 14 NWLR (pt. 1266) 1 (SC), Egwumi v. State (supra), Kayili v. Yilbuk (supra), Zakari v. Muhammad (2017) 17 NWLR (pt. 1594) 181) (SC), Anyasodor v. State (2018) 8 NWLR (pt. 1620) 107 (SC), Kanu v. A. G., Imo State (2019) 10 NWLR (pt. 1680) 369 (SC), Ayorinde v. Kuforiji (2022) 12 NWLR (pt. 1843) 43 (SC). The duty of demonstrating material contradicting or

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inconsistency in facts or evidence that would affect the credibility of the evidence in a case is placed and rests on the party making the assertion or allegation of the contradiction. See Brilla Energy Ltd. v. FRN (2018) 16 NWLR (pt. 1645) 304, Ogu v. C. O. P. (2018) 8 NWLR (pt. 1620) 134 (SC), Ebeinwe v. State (supra), Okanlawon v. State (2015) 17 NWLR (pt. 1489) 445 (SC), Anyanwu v. PDP (2020) 3 NWLR (pt. 1710) 134 (SC).

From the pleadings in paragraphs 3 and 5 of the Appellants’ Amended Statement of Claim and the evidence of PW1, the location of the land, claimed by the Appellants is certain, clear and precise to dispel any reasonable confusion, as demonstrated above.

I now consider the evidence of PW4 which learned counsel for the Appellants has strenuously argued to be inconsistent and contradictory to the pleadings on the location of the land in dispute.

PW4 was Kenoye Gabriel Pilata, whose entire evidence appears from pages 46 – 47 or the Record of Appeal which I can afford to set out in details. Here it is:-
“I know the plaintiffs and defendants. I also know the land which, is the subject-matter in dispute. The

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land is situated at Amalem. The land in dispute is known as Oharamon. This is the bush in Amalem owned by three families; Adoghany family, Obi family i.e. my family; and Agana and Akwuwaya family.
The land in dispute is owned by Oto-Adoghany family. The plaintiffs belong to this family. I know that the plaintiffs own this land in dispute because we share one common boundary. Our sacred pond marks out the boundary between us. The land in dispute is called Oharamon.
Cross-Examined by counsel for the defendants:
I am trading in general commodities in Abua e.g. rice, beans, popper, etc at Amalem. I sell them in retain. My calling myself first is a business man was a mistake and withdrew it and stated that I am a trader. I am not wandering about sitting doing anything.
I know the land very well. I am 32 years old, I know road leading from Aboad though Abua to Agada, i.e. Hulk. This road does not separate the land in dispute from Amalem land. J know that a road is being constructed by Zenett but I do know where it is being constructed to. This road passes through Abua but does not pass through the land in dispute. I know that this road passes

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through Omaraka village. The Omaraka people have no land in the land in dispute.
There is no burrow pit in the land in dispute.
The land in dispute does not belong to the Ogbora people. It is not called Ade-Ikobo. The plaintiffs do not call it Ade-Ikobo.
There is nothing like an old play-ground on the land in dispute.
The River sombrero does not exactly passes through the land of the Oto-Adoghany of Amalem family here being is a lake which is very closed to their land. The land does not belong to the defendants’ family. The Ohi family has a boundary with the plaintiffs ’ land.
No Re-Examination.”

In brief, the evidence is that the land in dispute, situates at Amalem, is owned by the Respondents’ family and is known as “Oharaman” PW4 said the Respondents do not call, the land in dispute “Ade-Ikobo”, under cross-examination. It is apparent from the clear and concise evidence of PW4 that there is no suggestion that the land in dispute is located at a place different, distinct and separate from the location pleaded by the Respondents in paragraphs 3 and 5 and the evidence of their star

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witness; PW1. The only difference between the pleadings of the Respondents and the evidence of PW4 under cross-examination is the name by which the witness called the land in dispute, but not on the location and certainty of the land claimed. As far as the location of the land in dispute is concerned, the substance and material part of the evidence of PW4 is in harmony, agreement, support and in line with the pleadings and the evidence of PW1 to make them consistent and certain to eliminate any doubt and confusion which may require or call for explanations or clarification.

In this regard, the Court below is right to have found and held, at page 13 – 15 of the judgment; page 311 – 213 of the Record of Appeal, that:-
“In the case in hand, I am of the respectful view that the learned trial judges fully adverted his mind to the applicable principles of law before resolving the matter in favour of the Respondents. Their evidence on acts of ownership and possession which were numerous and positive are enough to justify the inference of ownership. They were consistent with their pleadings, and evidence led through PW1, that they farmed on the land,

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fished in the ponds thereon, and pledged out portions thereof to various individuals to plant rubber plantations. See page 35 lines 5 – 26 and page 35, lines 5 – 26 exercised exclusive acts of possession in and over the disputed land. They promptly reported the intrusion of the Appellants to the police who advised them to institute civil action. They heeded the advice by taking the appellants to Court. As earlier noted PW1 was the star witness for the Respondents. At the trial, he led uncontroverted evidence on the communal character of the land. He described in detail the location and features of the land – such as the streams, rubber plantations; and these are clearly shown in Exhibit ‘A’. PW3 and W4 categorically confirmed PW1’s evidence that the land was situated at Amalem. I do not agree with the contention of the Appellants that there was inconsistency in the Respondent’s evidence on the location, certainty and/or boundaries of the land. At page 46 of the Record PW4 testified that the land in dispute known as “Oharamon” is owned by “Ota-Adogbuny” family of the Respondents. He is a neighbor sharing

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common boundary with the Respondents. The name he described the land in dispute neither corresponded with the name by which the Appellants called is nor that of the Respondents. PW4 may not have known the correct name of the land he was familiar with, but he knew exactly the land in dispute. He knew the names of other families who shared the common boundary with the disputed land. He demonstrated he knew some key features of the land, such as the absence of any burrow pit on the land. ”

As shown by the Court below, even though PW4 gave the land in dispute a name different from the one mentioned in the pleadings and evidence of the other witnesses, there is no doubt about the location, the peculiar features and clear boundaries of the land stated by the witness to make his evidence credible and cogent on, not only the identity, but also the location of the land claimed by the Respondents.

Giving a different name by PW4 to the land in dispute under cross-examination, I agree with the Court below, is “Weak”, immaterial and infinitesimal to the credibility of his evidence in particular, and to have any detrimental effect on the

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Respondents’ case. The difference in the name given by PW4 is essentially a mere minor discrepancy that has nothing to do with the location and certainty of the land in dispute on which the Appellants have primarily predicated their arguments under this issue. Okere v. I.G.P. (2021) 7 NWLR (pt. 1775) 199 (SC), Anyawu v. PDP (supra), Shola v. State (2020) 9 NWLR (pt. 1727) 530 (SC), Ayiuwa v. C. O. P. (2022) 9 NWLR (pt. 1834) 89 (SC).

With the failure by the Appellants to satisfactorily demonstrate before this Court that in fact, there was a material inconsistency or contradiction and uncertainty in the pleadings and evidence of the Respondents on the location of the land in dispute, their arguments under this issue are lacking in requisite merit and so untenable in law.

The issue is resolved against the Appellants.

The issue two (2) of the Appellants appears to be one which covers and encompasses the issues 3 and 4.

As a reminder, the issues 2, 3 and 4 are as follows:-
“Issue No. 2: Whether the Court of Appeal was right to conclude/find that the respondents proved title to the land in dispute and their claims in this case.

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(Distilled from Grounds 3, 4, 8, 10, 14 and 16).
Issue No. 3: Whether the Court of Appeal was right, fair and just in its consideration/treatment of the evidence/case of the appellants vis-a-vis that for the respondents. (Distilled from Grounds 5, 6 and 7).
Issue No. 4: Whether the findings and conclusions of the Court of Appeal in its judgment in this suit are proper/justified in law. (Distilled from Grounds 9, 11, 12, 13 and 15).”

For that reason, I would consider the issues together.

Appellants’ Submissions:
The submissions are to the effect that, on the authority on Onibudo v. Akibu (1982) 7 SC, 60 at 84, Achiakpa v. Nduka (2009) FWLR (pt. 71) 1804 at 1828 – 1829, Ukaegbu v. Nwololo (2009) 1 SCNJ, 49 at 66 – 67, among other cases, the Respondents, who pleaded and relied on traditional evidence/history to claim for title to the land in dispute had the burden to plead and give evidence of the history of the founder as well as the intervening successors/ancestors through whom the land devolved down to them without leaving any unexplained or mysterious gabs in the chain/line of succession. According to the learned

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counsel for the Appellants, the Respondents only pleaded that the land in dispute was founded by Ikobo Adoghany, but did not plead how it was so founded, e.g., by deforestation, conquest, etc and that there are mysterious and unexplained gabs in the genealogy of succession on the successors and their relationship between one and another. Reference is made to paragraphs 5 and 6 of the Respondents’ Amended Statement of Claim and evidence of PW1 and it is contended that the Respondents had failed to establish any link between them and the founder of the land they claimed in order to prove the title. Reliance is place on Udi v. lyalia (2004) 4 SCNJ 135 at 54-55 and Achiakpa v. Nduka (supra) at 1829 for the argument. In addition, it is said that there are contradictions/conflicts between the Respondents’ pleadings on the succession/devolution of the land and the evidence given which is incapable of sustaining a claim for title, on the authority of Onibudo v. Akibu (supra). After setting out a Table on the pleadings and evidence of the Respondents on the genealogy of succession of the land in dispute, it is submitted that there are 12 successors in the

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pleadings while only ten (10) are named in the evidence of PW1 by whose evidence, the 3rd successor was Ogie, said to be Ogo in the pleadings. The same position is said to apply to 5th and 8th successor and that there was no evidence of the relationship between the different names in the pleadings and evidence and that it was wrong for the Court below to conclude/find that PW1/Respondents proved title by credible evidence traditional history, relying on Eze v. Atasie (2000) FWLR (pt. 13) 2180 at 2193, Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (pt. 7) 393 at 423, Nwokorobia v. Nwogu (2009) 5 SCNJ, 218 at 237 and Lawal v. Olufowobi (1996) 12 SCNJ, 376 at 384.

It is the case of the Appellants, that since the Respondents failed to prove their pleaded root of title based on traditional history, they could not turn round to rely on acts of ownership/possession for claim in trespass or injunction, on the authority of inter alia, Solomon v. Mogaji (1982) 11 SC, 1 at 37 – 40, Reg. Trustees of Diocese of Aba v. Nkume (2002) FWLR (pt. 90) 1270, Salami v. Gbodoolu (supra) and Eze v. Atasie (supra). Learned counsel then argued that the Respondents did not make

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out any case of the title they claimed and so there was nothing for the Appellants to rebut contrary to the finding by the Court below that the burden shifted to the Appellants to rebut the Respondents’ evidence, relying on Lawson v. Ajibulu (1997) 6 SCNJ, 1 at 12 – 15 and Aromire v. Awoyemi (1972) 1 All NLR, 101 at 102, among other cases. He also said, on the authority of cases, including Nwokidu v. Nkanu (supra) and Elias v. Omo-Bare (1982) 5 SC, 25 at 47, that the law is settled that a party who claims for a declaration of title to land must succeed on the strength of his own case and not on the weakness of the defence and so, once again, the Court below is said to be wrong when it held that the Respondents proved the title claimed. In further submission, learned counsel said the Court below treated the Appellants unjustly and inequitably by refusal to consider the case presented by them in respect of Exhibit “B” which was tendered in evidence by consent just like Exhibit ‘A’ of the Respondents to establish many features showing acts of ownership and possession in favour of the Appellants and that non consideration of Exhibit

29
‘B’ occasioned miscarriage of justice to the Appellants as the decision of that Court would have been different if it had done so.

Again, the Court below is said to have erred in holding that the trial Court had fully adverted to all the applicable principles of law before’ resolving the matter in favour of the Respondents in view of the forgoing arguments.

The judgment of the Court below is said to be perverse and the Court is urge to set it aside since the findings made therein, though concurrent, do not involve credibility of witnesses.

Respondents’ Submissions:
It is submitted that the Court below is right to have affirmed the decision by the trial Court that by their pleadings and evidence, the ’ Respondents proved the titled claimed on the basis of traditional history evidence and acts of ownership/possession of the land in dispute. Among others, Dabo v. Abdullahi (2005) 5 MJSC, 57 at 62, Idundun v. Okumagba (1976) 10 SC, 227 at 246, Teniola v. Olohunkun (1999) 2 SC, 120 and Adebayo v. Shogo (2005) 4 MJSC 35 at 40 are referred to on the five different ways of proving or establishing title to land and

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it is submitted that the Respondents proved their title by means of traditional history through PW1 whose evidence was not controverted nor cross-examined on the issue, thereby deemed to have been admitted, on the authority of Hilary Farms Ltd. V. M/V “MAHTRA” (2007) 14 (PT 1054) 210 AT 237 – 238. It is then argued that the evidence of DW1; the Appellants’ star witness, was discredited under cross-examination by the Respondents and so the lower Courts are right not to ascribe any probative value to it, on the authority of Ugboji v. State (2018) All FWLR (pt. 925) 68. Learned Counsel for the Respondents then said, relying on Smart v. State (2016) All FWLR (pt. 826) 548 at 574 – 575, this Court very rarely upset concurrent findings of fact by lower Courts and the findings in this appeal are valid being borne out of a proper evaluation of the evidence adduced by the parties.

The Court is called upon to resolve the issue in favour of the Respondents.

In conclusion, the Court is urged to dismiss the appeal.

I have earlier noted that the Appellants’ Reply Brief is a wholesome repetition of arguments on all the issues

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canvassed in the Appellants’ brief as well as further arguments of the issues in clear disregard to established purpose of a Reply brief. The Court has no duty to consider such repetitions and further arguments, but to discountenance them.

Resolution:
There are certain principles of law that are firmly established in our judicial jurisprudence on the claims for declaration of title to a piece of land in Nigeria which have become trite, as shown in some of the cases cited by the learned counsel above. Among them are the following:-
1. That there five (5) individual ways or modes of proving ownership/title to a piece of land as follows:-
(a) by documents of title, or
(b) by evidence of traditional history, or
(c) by various acts of ownership, numerous and positive and extending over a length of time as to warrant reasonable inference of ownership, or
(d) by acts of long enjoyment and possession of the land under Section 143 of the Evidence Act, 2011 (Section 146 of the 1990 and 2004 Evidence Acts), or
(e) by proof of ownership of adjacent piece of land in circumstances which render it probable that the owner of

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such adjacent land, would, in addition, be the owner of the land in dispute under Section 35 of 2011 Evidence Act (Section 46 of 1990 and 2004 Evidence Acts).
See the famous and locus classicus on the principle; Idundun v. Okumagba (supra) which was referred to and applied in later decisions by this Court in, among battalionsof others, Piaro v. Tenalo (1976) 12 SC, 31, Okafor v. Idigo (1984) 1 SCLNR, 481, Mogaji v. Cadbury (supra), Ogundipe v. Awe (1988) 1 SCNJ, 84, Atanda v. Ajani (1989) 3 NWLR (pt. III) (SC), Adeniran v. Alao (1992) 2 NWLR (pt. 223) 350 (SC), Agbara v. Amara (1995) 7 NWLR (pt. 410) 712 at 734 (SC), Agu v. Nnadi (1999) 2 NWLR (pt. 589) 131 at 946 (SC), Onwugbufor v. Okoye (1996) M.A.C. 1 at 12, Ezeakabekwe v. Emenike (1998) 62 LRCN, 4855, Ebevuche v. Ukpakara (1996) 7 NWLR (pt.460) 254 at 277 – 2?8 (SC).
2. That in a suit or claim for declaration of title to land by any of the above five ways or modes, the claimant or plaintiff is to succeed, only, on the strength of the case presented by him though pleadings and evidence adduced, and not on the weakness of the difence or even absence of such defence. He must establish entitlement

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to the relief of the declaration to the title/ownership sought by way of admissible, credible and sufficient evidence on the balance of probabilities to the satisfaction of the Court. See Awote v. Owodunmi (1987) 5 SCNJ, 1, Efetiroroje v. Okpalefe II (1991) 5 NWLR (pt. 193) 517 (SC), Bankole v. Pelu (1991) 8 NWLR (pt. 211) 523 (SC), Okelola v. Adeleke (2004) 7 SC (pt. 1) 35, Odi v. lyala (supra) Ogun v. Akinyelu (2004) 18 NWLR (pt. 905) 362 (SC), Otanma v. Youdubagha (2006) All FWLR (pt. 300) 1519 (SC), Adu v. Gbadamosi (2009) 6 NWLR (pt. 1136) 110 (SC), Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265 (SC), in addition to the cases cited above by learned Counsel on the position of the law.
For being relevant to this appeal,
3. Where a claimant/plaintiff relies on and bases his claim for declaration of ownership/title to land on traditional history evidence, he must plead and prove by credible evidence on the following:-
(a) Who founded the land;
(b) How the land was founded by the named founder, e.g. by deforestation, conquest, first settlement, gift, . inheritance, purchase,
(c) Names and particulars of the intervening

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owners to whom the land had passed or devolved from the founder and their relationships to him down to the claimant/plaintiff in an unbroken genealogical chain in which there exists no unexplained gabs that would puncture the credibility of the claim.
See Odi v. lyalla (supra), Achiakpa v. Nduka (supra), Ukaegbu v. Nwololo (supra), Nwokorobia v. Nwogu (supra) all decisions of this Court referred to in the Appellants’ brief on the requirement. In addition, in Nwokidu v. Okanu (supra), Alli v. Alesinloye (2000) 6 NWLR (pt. 660) 177 (SC), Adejumo v. Ayantagbe (1989) 3 NWLR (pt. 110) 417, Odunukwe v. Ofomata (2010) 18 NWLR (pt. 1225) 404 (SC), Ewo v. Ani (2004) 1 SC (pt. II) 115, Ogun v. Akinyelu (2004) 11-12 SC, 4, Elegushi v. Oseni (2005) 7 SC (pt. III) 205, Hanatu v. Amadi (2020) 9 NWLR (pt. 1728) 1 15 (SC), Iseogbekun v. Adelakun (2012) 3-4 MJSC, 46, the principle was restated.

Under the issues, the complaints of the Appellants’ counsel are that the pleadings and the evidence of the Respondents are in conflict and inconsistent on how the land claimed was founded and that there are differences in the names of persons/successors in the

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genealogical chain pleaded and those given in evidence, as shown in the table set out at page 13 of the Appellants’ brief. In its judgment, the trial Court after a review of the evidence placed before it by the. parties, found, inter alia, at page 205 of the Record of Appeal, that:-
“it has been found earlier above that the pleadings of the plaintiffs in their statement of claims were clear and quite understandable. This is so in their boundary description which agrees quite clearly with their survey plan, Exhibit A; the pleading were also clear in the account of their traditional history and acts of ownership and possession. They successfully traced and established their descendants from the original owner and founder of the land in dispute, to wit, Ikobo Adoghany. From their original ancestor, they pleaded according to the laid down and accepted principles led evidence to prove the tree of succession and traditional history. Their oral evidence as stated earlier corresponded with their pleadings. The evidence led to prove their traditional history and acts of ownership and possession through the testimony of PW1.”

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Before arriving at this finding, the trial Court had considered the pleadings of the Appellants in paragraphs 3-11 of the Amended Statement of Defence dated 9th May, 1994, the evidence adduced on the traditional history relied on by them and held, among others, that:-
“There seems to be several pit-holes in these depositions which raise some questions. In paragraph 7 of the Statement of Defence Oghora was said to be the founder or the defendants villages and he was the first son of Olokponeany; that he had six children. The question arisen that if Onora was the founder of the defendants village, which part did his father Olokpohany play. If it was Oghora who cleared the land, ‘what part did his father play from the childhood days of the Oghora till probably his adulthood days when he must have started to play active part as to become the founder of the defendant village. Olokponany also had other children and the part, these other children played seems to he lost in oblivion. In the traditional account. Among the children of Ognica, it seems that Ekidi was the most prominent man. In paragraph 8 it was deposed to the facit that the defendants’

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ancestor, Oghora was the first person who cleared a very large piece or parcel of land, part of which now forms the land of the defendants, it was further deposed to the fact that on the death of Oghora all his land was shared among his six children and the land now in dispute, is part of Ekidi the ancestor of the defendants; on the death of Ekidi, Ikobo his son took emerge of the land. It seems to be confusing who is really the ancestor of the defendant was it Olokponaany, or Oghora or Ekidir for in paragraph 6 it is said “the defendants inherited the land from their ancestor Ekidi. In paragraph 7 Oghora referred to as the ancestor founder and his father was Olokponaany. In paragraph 9 it is said Oghora, the defendants ancestor was the 1st person who cleared a very large piece or parcel of land. Thus in paragraph 9, it was also deposed that on the death of Ekidi, his son Ikobo took charge of the land. On the death of Ikobo Edum became the head of the family. They went further to depose in paragraph 11 that Ekidi was the 3rd son of Oghora; that Ekidi had a wife called Ikoba who was his first wife and accordingly to the Abua custom the land in dispute was

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given to her as her form land and that she became the first person to farm on the land in dispute. Earlier on, it was deposed that on the death of Ekidi his son Ikobo took emerge of the land. The land in dispute could be one of the lands taken over by his son Ikobo. Why the name of the land in dispute is not given in memory of the son rather than the wife beats, our imagination and on the historial account the wife of Ekidi Ikobo died before him and when he died, his son Ikobo inherited his land. Considering the land cleared by their ancestor Oghora and Ekidi his son and the other children of Oghora and Ekidi his wife Ikobo could not be the first to farm the land in dispute.
In paragraph 8, instead of limiting themselves to the historical account of the farm land, the land in dispute, they when far beyond to state the founder of Abua Claim and now many groups made up the Abua Clan.
It confuses one in going through the pleading; further the long list of those who inherited the land in succession in appears far long and confusing i.e. in paragraph 9. The question arises as to how may generation did the succession cover, and whether it includes the

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other children of Oghora or the children of Ekidi alone.
Thus this sort of historical account of the defendants makes a weak and doubting account.”
(See pages 177-179 of the Record of Appeal.

But briefly, the above finding is that the pleadings and evidence adduced by the Appellants on the traditional history they relied on in defence of the claims by the Respondents are conflicting, confusing, weak, doubtful and not in line with the case put forward by them. That Court therefore preferred the case of the Respondents and concluded that they proved their claims based on the traditional history evidence and acts of ownership/possession.

I have earlier set out the decision by the Court below, affirming the decision of the trial Court that the Respondents proved their claims on the basis of the traditional history evidence they pleaded and relied on the case.

In addition, the Court below, at pages 16 – 17 of the judgment appealed against (page 314 – 315 of the Record of Appeal) stated that:-
“The learned trial judge in my view, properly evaluated the evidence before him and arrived at the judgment based on the

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preponderance of evidence in favour of the Respondents. I cannot now embark on a re-appraisal of the evidence in order to arrive at a different conclusion as the Appellants would wish in the circumstance.
The Appellants have argued further that their reliance on their traditional history and recent events in respect of the disputed land make their claim more probable. I agree with the learned counsel for the Respondents that this argument is not borne out by the evidence on record. Thus, is particularly so in view of the conflicts and contradictions in the evidence of DW1 who was the Appellants’ star witness. This evidence is not clear. On the question of the order of inheritance, the Appellants had pleaded that on EKIDEs death his son inherited the land. Under the heat of cross-examination, DW1 said:
“Ekidi had a wife called Ikoho. He did not have a son called Ikoho. It is not correct to say that when Ekidi died his son took over the lands.”
While at page 56 of the Record, DW1 had asserted that the appellants had ponds on the disputed land and they had fished there, but under cross-examination he said:
“The fish ponds we

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have not on the land in dispute hut they are on the creeks. They are situating at Ore creek. ”
Also, while DW1 had testified that the disputed land had no boundary with DW2 whom they had called as boundary neighbor, DW2 contradicted him when he said under cross- examination, that he had boundary with the disputed land.
They learned trial judge then, in the light of the forgoing concluded that DW1’s evidence was not in agreement with their own pleadings. ”

I have perused the pleadings of the Appellants on the traditional history relied on by them, particularly at paragraphs 3, 6, 7, 8, 9, 10 and 11 and considered the material evidence of DW1; Sunday Dibia, who was the star witness for the Appellants at the trial, which appears from pages 141 – 144 of the Record of Appeal (in-chief) and pages 144 – 146 of the Record of Appeal (cross-examination). I have no difficulty in agreeing with the finding by the Court below that the trial Court properly evaluated the evidence placed before it by the parties, made and drawn correct inferences from it by placing it on the imaginary scale of justice to find that the side of the Respondents

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weighed heavier and that the scale titled in their favour. The evidence adduced by the Appellants on the traditional history they pleaded was not in support of, but at variance and inconsistent with their pleadings such that it makes their case tenuous, feeble and weak, on the balance of probabilities and in the face more credible, strong, materially uncontroverted and cogent evidence of the Respondent. See Mbani v. Bosi (2006) FWLR (pt. 330) 533-534 (SC).

Even if the Appellants did not make a counter-claim in respect of the land in dispute, in order to successfully defend and resist the case put forward by the Respondents, they must show and satisfy the trial Court that they are not entitled to judgment on the preponderance of the evidence adduced at the trial on the basis of the traditional history they relied on. Contrary to the argument by the learned counsel for the Appellants, there is no material unexplained gabs in the genealogy chain of succession from the founding ancestor of the Respondents; Ikobo Adogbany, to the Respondents in the pleadings as shown in. paragraph 6 of the Amended Statement of Claim and the unchallenged and uncontroverted

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evidence of PW1 which are in harmony in advancing the case of the Respondents.

In the discharge of its primary duty of evaluation of evidence, the trial properly evaluated the evidence of traditional history placed before it by the parties and the Court below rightly endorsed the evaluation in the above finding. The law is known that an appellate Court would have no reason to interfere with the evaluation of evidence by a trial Court where that Court has fully and properly carried out that primary duty of assessment of the material and relevant evidence in a case. Ejilemele v. Opara (2003) FWLR (pt. 167) 821 (SC), Uzor v. Araba (2006) 2 FWLR (pt. 314) 2793, Okoye v. Obiaso (2010) 8 NWLR (pt. 1195) 145 SC, Kayili v. Yilbuk (2015) 7 NWLR (pt. 1457) 26 (SC), Emeka v. Okoroafor (2017) NWLR (pt. 1577) 410 (SC), Fredrick v. Ibekwe (2019) 17 NWLR (pt. 1702) 467 (SC), Eyiboh v. Abia (2012) 16 NWLR (pt. 1325) 51 (SC), MTN Nig. Comm. Ltd. v. Corporate Comm. Ltd. (2019) 9 NWLR (pt. 1678) 427 (SC).

In addition, the Appellants have not been able to demonstrate that the concurrent findings by the two (2) lower Courts, on the traditional history evidence adduced by

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the Respondents are either wrong in law, perverse or have occasioned real, but not imaginary, miscarriage of justice in the case to warrant interference therewith by this Court. It is only when this Court is satisfied that concurrent findings by both the trial and the Court below are not reasonably justified and supported by the evidence on the record and therefore perverse to have occasioned a genuine miscarriage of justice in the peculiar circumstances of a case, that would warrant an interference with such the findings. A decision is termed as perverse where a Court takes into account matters which it ought not to have taken into account or the Court ignores, overlooks or shuts its eyes or attention to the obvious or proved facts or evidence so as to tilt the scale of justice in favour of one of the parties. See Atolagbe v. Shorun (1985) 1 NWLR (pt. 2) 360 (SC), Odiba v. Azege (1998) 9 NWLR (pt. 566) 370 (SC), SC, CSS. Bookshop Ltd. v. The Reg. Trustees of Muslim Comm., Rivers State (2006) 11 NWLR (pt. 992) 530 (SC), Nobis Elendu v. INEC (2015) 16 NWLR (pt. 1485) 197 (SC), Edilcon Nig. Ltd., v. UBA, Plc. (2017) 18 NWLR (pt. 1596) 74 (SC).
The law is

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firmly settled that where and when this Court is satisfied that concurrent findings by the two (2) lower Courts, either of fact, mixed law and facts or even of pure law alone are perverse, the Court would not only be entitled to intervene, but owes, the appellate duty and obligation to interfere with such findings in order to avoid and correct the miscarriage of justice occasioned thereby. See R-Benkay Nig. Ltd. v. Cadbury Nig. Plc. (2012) 9 NWLR (pt. 1325) 94 (SC), Matanmi v. Dada (2013) All FWLR (pt. 682) 1638 (SC), State v. Sani (2018) 9 NWLR (pt. 1624) 278 (SC), Hamza v. Kure (2019) 10 NWLR (pt. 1203) 630 (SC).
Like I pointed above, the Appellants have not demonstrated the justification for interference by this Court with the concurrent findings by the two (2) lower Courts.

In the result, the issues are resolved against the Appellants.

Finally, with the solution of all the issues raised by the Appellants against them, the appeal stands without merit and fails.

It is dismissed accordingly and in consequence, the decision by the Court below delivered on the 10th December, 2009 is hereby affirmed.

I enter an order that the parties

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shall bear their respective costs of prosecuting the appeal.