Ummennadozie Ogbuokwelu & Ors v. James Umeanafunkwa & Anor

This appeal is from the decision of the Court of Appeal sitting in Enugu dated 16th January, 1992 and which upset the judgment of Obiesie,J., sitting at the Anambra State High Court holden in Onitsha and delivered on October 13,1989.
The reliefs sought by the plaintiffs, now respondents against the defendants, herein appellants in the trial Court were:-
(1) N100,000.00 special and general damages for trespass into a piece or parcel of land which the

P.2

respondents called Abubo Land, the particulars of special damages having been specified and calculated to amount to N11,820.00. It arose from an alleged destruction of economic and seasonal crops by the use of a bull-dozer and a carterpillar by the appellants and
(2) Perpetual injunction.
As both sides in their pleadings (which were ordered, duly filed and exchanged) asserted ownership of the land in dispute which the appellants for their part said went by the name Oheba, title was perforce put in issue.The trial Judge in a considered judgment held that the respondents failed to prove both title and exclusive possession. He therefore dismissed the suit. The respondents’ appeal from that decision to the Court of Appeal having succeeded, wherein an order of retrial was made, the appellants have appealed to this Court upon a Notice of Appeal containing four grounds.
The background facts of the case as presented by both parties in the two lower courts very ably set out by the Court of Appeal sitting in Enugu and upon which I can hardly improve, are as recapitulated briefly hereunder:-
The respondents as representatives of the people of Iruama Village in Unubi Town sued the appellants of Irueze (Urueze) Village in Ekwulumili, though in their individual capacities. However, by the nature of the defence, the appellants appears by and large to represent the alleged eight families which they say own the land in dispute.
The respondents’ case is that the land in dispute (Abubo Land) is in Iruama Village while the appellants who call it Oheba Land say that it is in Urueze Village. It is the

P.3

respondents’ assertion in paragraph 5 of their Statement of Claim that they share a common boundary on the west with the appellant’s Urueze Village and that this boundary is marked by “Abubo Stream and Njeaba Stream,” and a valley connecting these streams” while “Along that valley are Ukpaka tree, dried Edo tree, Cheleku tree, Ube Okpoko tree and Egbu tree.” The appellants first made some denials but in further answer in paragraph Sea) of their Further Amended Statement of Defence averred that their “Oheba land” now in dispute which forms part of a large portion of their land also called Oheba, is bounded to the North- West by Ubi Ada and Njeaba Streams across which is the land of defendants’ people, to the East by the land of Unubi people, the plaintiffs, to the South by the Uku-Umuojima Stream across which is the land of the plaintiffs and to the West by the other portions of Oheba land but not in dispute.” The two parties would by this seem to have clearly a common boundary between them.
The respondents relied on traditional history which goes thus:
The Unubi Village was founded by a hunter from Akuabuba Village in Ezinifite called Okweagu. That he settled in a farm hut from where he went hunting. That farm hut in their language is called “uno-ubi” and from it the name Unubi received its derivation. That Okweagu had five sons among whom was Nkwukwo, the eldest:Okweagu shared his land among his five sons and the land in dispute formed part of Nkwukwo’s share. Nkwukwo had two sons one of whom was Ezeobosi, the elder of the two. That Nkwukow shared his land between

P.4

the two sons, and Ezeobosi’s share which became known as Iruama Village encompasses the land in dispute. Ezeobosi had five sons, namely Ezeokana, Ezenobi, Onu, Ezeoha and Ezeanamelu. It is the descendants of these men who form Iruama Village today. Each of the men got a portion of Iruama Village where they inhabited but left some portion as communal land where they farm with the descendants of these families who now inhabit lruama Village. Evidence was led along this traditional history.
The appellants on the other hand, in their pleading, relied on traditional history thus:
Ekwulu, a sheep rearer (or shepherd) and a farmer came from Agukwu Nri in Njikoka in search of green pasture. He settled in a place where there were seven streams and a great pond. He had four sons, among whom was Urueze who was the third in seniority. Ekwulu shared his land among his four sons. Oheba land which they called the land now in dispute formed part of Urueze’s share. Urueze had eight children, namely, Nenugha, Umenwunne, Ezenwabachili, Umealor, Okpe, Umungwu, Ezengu and Amakom.
Urueze shared his land among his eight children each of whom got a share of Oheba land on which they have farmed from time immemorial and in respect of which each sub-family which sprang from each of those children exercised maximum acts of possession.
Each side led evidence in support of the traditional history pleaded and acts of possession. The learned trial Judge in a considered judgment dismissed the respondents’ claims in their entirety. The respondents appealed to the Court of Appeal which held (per Uwaifo, J.C.A., and

P.5

concurred in by Awogu and Oguntade, J.J.C.A) that the way the trial Judge dealt with the issues and evidence before him was inadequate and erroneous, adding that while the respondents gave evidence strictly in accordance with their pleadings, the appellants’ left some holes to pick in the evidence of witnesses as well as in the consideration of the case by the trial Judge generally and specifically. The Court below therefore proceeded to allow the respondents’ appeal and accordingly ordered a retrial of the suit.
Aggrieved by this decision the appellants have appealed to this court on a Notice of Appeal (See pages 233 – 236 of the Record) containing four grounds. The respondents cross-appealed. Briefs of argument were filed and exchanged pursuant to the rules of Court. Two issues were submitted on behalf of the appellants as arising for determination, namely:
1. Was the Court of Appeal right in this case to embark on a fresh appraisal and re-evaluation of the evidence adduced at the trial?
2. Was the Court of Appeal right to set aside the judgment of the trial court in this case and to order a retrial of the case.
Only one issue was formulated on behalf of the respondents cross-appellants to wit:
“Was the Court of Appeal right in this case to embark on a fresh appraisal and re-evaluation of the evidence adduced at the trial.”
At the hearing of this appeal on 14th February, 1994, learned Senior Advocates who had pitched camps on either side adopted their respective briefs of argument.

P.6

They each further expatiated on them. Although a cross-appeal was filed at the instance of the respondents in relation to the retrial order made by the court below, I will first of all deal with the appellants’ appeal which deals with whether the Court of Appeal was right to embark on fresh appraisal or re-evaluation of the evidence adduced at the trial.
Mr. Egonu, S.A.N., after stating that in this appeal the defendants/appellants filed their brief dated 30th November, 1992 on 3rd December, 1992, pointed out that the same went for their respondents’ brief to the cross-appeal dated 30th November, 1992 and filed on 3rd December, 1992. He thereafter remarked that on 14 April, 1993 this court had granted to the appellants extension of time within which to file their brief and to deem same as duly filed. A similar extension having been granted to them as respondents to file their brief to the cross-appeal, learned Senior Advocate indicated that he adopted his arguments therein. The claim before the trial court being that for damages for trespass and injunction, learned Senior Advocate submitted, title was as a result put in issue, adding that it was therefore incumbent on the respondents to prove their exclusive possession. The respondents, he pointed out, based their claim on traditional history and acts of recent possession and at the end of the day, the learned trial Judge dismissed their case.
Upon their appeal to the court below, that court allowed the respondents’ appeal and ordered a retrial. After referring us to several passages in the Record of proceedings and how he dealt extensively with the issues

P.7

contained in his brief, learned Senior Advocate indicated how the learned trial Judge disbelieved the evidence of P.W.3 and P.W.5 in his findings of fact. After pointing out how there was no conflict in the evidence of D.W.7 and 1st defendant/appellant in relation to Oheba land and Ekwulu and as to his (Ekwulu’s) four sons to whom land was granted, he argued that these are brought out clearly in paragraph 3(a) and 3(b) of the Amended Statement of Defence at Page 30 of the Record. Hence, he contended, it was wrong of the court below to say that that piece of traditional evidence was not pleaded.
With regard to the cross-appeal, learned Senior Advocate after placing reliance on the brief of the respondents thereto, argued that the Court below could not and did not make findings of acts of recent possession. Here again, learned counsel submitted, that criticism by the court below that the evidence of witnesses was not properly evaluated by the trial court was wrong, moreso that such evaluation touched on matters of credibility over which an appellate court had no right to interfere. The criticism of the trial court by the court below for referring to the case Ekpo v. Ita (1932) 11 N.L.R. 68, he added, was misconceived in that there was no way the trial court should not have talked of acts of possession. Chief Williams, learned Senior Advocate for the respondents/cross-appellants who relied on their brief entirely, submitted that the first point to show that the court below was right to set aside the decision of the trial court, is to be found at Page 197, lines 18-26 and Page 128 lines 1-10 and line 15 to end of the page. After referring us to other passages to buttress his argument,

P.8

he maintained that as that Court (the trial court) was using the wrong approach, the court below was right to order a retrial. Elaborating, learned counsel stated that their criticism of the trial court’s decision stems from the western boundary stream called Abubo Stream, adding that the land in dispute is the land to the North edged red. Their case, he asserted, is whether the trial court made the finding as they claimed it to be or as they (respondents) claimed it to be. The court below, he submitted, referred to the evidence proffered by witnesses, adding that on the question of boundary, only the respondents/cross-appellants rendered unchallenged evidence, and that significantly while the respondents/cross appellants talked of “igbandu” – peaceful settlement, the appellants denied its existence though capitulating by admitting it during the course of the case. After referring us to the evidence of D.W.1 at Pages 107-110, learned counsel submitted that the conflict between the evidence of D.W.1 and D. W.7 appeared clear. Reference was in conclusion made to paragraph 5(a) of the Statement of Claim which learned Senior Advocate said amounted to some admission.
Learned Senior Advocate for the appellants in reply said in respect of paragraph 5(a)(ibid) that it and their plan along with his submission thereon, was also explicit.
By the nature of the two sets of issues submitted for the determination of this court by both parties, I deem the consideration of the two submitted at the instance of the appellants together to effectually dispose of the appeal.
Now, in the trial court, the respondents claimed damages for trespass and injunction against the appellants and

P.9

relied on their traditional history and acts of possession in proof of their case. In such a situation and even though the respondents did not claim declaration of title, they had put their title in issue and were bound to prove their title to the land in dispute. See Abotche Kponuglo v. Adja Kodadja (1934 – 35) 2 WACA. 24, Ogunde v. Ojomu (1972) 4 S.C. 105 at 106. It ought to be borne in mind from the onset that each of the five well-settled legal ways of proving title to land is independent of the other. See D.O. Idundun & Ors. v. Daniel Okumagba & Ors.(1976) 1 NMLR. 200; (1976) 10 S.C. 227; Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188 at 218 and Ladejobi v. Shodipe (1989) 1 NWLR (Pt. 99) 596 at 606.
The learned trial Judge, as transpired in the instant case, dealt with the issue of the traditional histories postulated by the parties in both their pleadings and evidence – for which see page 128, lines 5 to 31 and page 129, lines 1 to 26 of the Record of proceedings and resolved the same against the respondents. The learned trial Judge on the point had this to say, inter alia;
“Evidence given by the parties indicate that both relied on traditional history and acts of ownership, numerous and positive and extending over a long period of time.
Evidence of traditional history given by them have already been summarised at the early part of this judgment. There is conflict in the evidence given in this aspect. On the plaintiffs’ side, 1st plaintiff on record gave evidence of traditional history while on the defendants’ side, Chief G.O. Umeanodi the Obi of Ekwubumili i.e. D.W.7 and the 1st defendant on record aged 85 years put across their own version of traditional history. In considering the two

P.10

versions put across that of the defendants is lucid “straight as a pole” and very satisfactory while the plaintiffs’ story is disjoined (sic), incomprehensible and improbable. In this aspect one has to bear in mind that old men and traditional rulers are by their status in the community not only in a position to know the truth but also find it difficult to twist the truth. D.W.7 and 1st defendant were unshaken during cross-examination. Vide Nwawuba v. Enemuo (1988) 2 NWLR (Pt.78) 581, Page 595 per Nnaemeka-Agu, J.S.C. As stated by Lord Dening in Kojo II v. Bonsie (1957) 1 W.L.R. 1223, 1227:-
“The best way to test the traditional history is by reference to the facts in recent years as established by evidence and is by seeing which of the two competing histories is more probable.”
As observed by Aniagolu, J.S.C., in Ikpang v. Edoho (1978) 2 L.R.N. 29, 40.
“It is therefore for the trial court to determine,
(a) did his ancestors in fact tell him that story?
(b) is the story true?”
(italicised sentence above is mine)
In the italicised sentence, the learned trial Judge acknowledges that there was a conflict in that aspect of the case presented by both parties. What he should thereafter have proceeded to do was to apply the principle enunciated in Kojo II v. Bonsie (supra) to resolve it. That test or principle for which there was unfortunately non-application by him in the instant case but which I consider not fatal to the appellant’s case as I shall seek to show hereunder, does not simply consist of a straight forward resort to belief or disbelief of witnesses. Rather, where as

P.11

in the instant case, there is admittedly conflict of traditional histories and one side or the other must be mistaken, yet both may be honest in their belief, demeanour is little guide to the truth. The best way to test one traditional history against the other is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable.
The learned trial Judge after what I may call glossing over the principle, thereupon considered at Page 129 lines 27 – 31 and Page 130, lines 1 – 26 the case of the respondents in relation to acts of possession which he correctly, in my view, resolved against them and went on to hold:
“From the above analysis, the defendants have established to my utmost satisfaction that they have been on this land right from the time Ekwulu entered the land in dispute followed by his children and now current defendants. They have been in possession and have exercised all rights of ownership of the land they call Oheba. In such circumstances, there is nothing to convince me that the plaintiffs have been in possession of the land in dispute for any period of time. Evidence adduced by the defendants outweigh that of the plaintiffs and the defendants have established that they are true owners of the land in dispute …”
Thus, when the court below went on to hold, among others that –
“The learned judge was no doubt unfair to the plaintiffs. Having purported to prefer the traditional history of the defendants there was no basis upon which to apply the principle stated in Kojo II v. Bonsie (supra). He made a

P.12

very unimpressive effort to do this by resorting to Ekpo v. Ita II (1932) NLR. 68 contrary to what was observed by the Supreme Court in Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301 at 322 – 323 …”
Such observation cannot be said to be justified. It was while the learned trial Judge was considering the case of the respondents in relation to acts of possession vide Page 129, lines 31 and Page 130, lines 1 – 26 of the Record that he alluded to the case of Ekpo v. Ita (supra) and not as the court below says, in relation to their (respondents’) case based on traditional history.
That said and being of the firm view that there was a body of evidence upon which the trial court came to the view that the respondents failed to prove their case. This court sitting on appeal would appropriately apply the principle in Kojo II v. Bonsie (supra). The principle, properly stated is that whereas in the instant case, there are two competing histories relating to land in dispute and it is difficult to determine which is more probable, resort to the demeanour of the parties and their witnesses is not the best guide; the duty of court is to test the two stories by reference to acts in recent times. See Agedegudu v. Ajenifuja & Ors. (1963) 1 All NLR 109 at 115; (1963) 1 SCNLR 205 which is distinguishable from the case in hand in the sense that while in the Agedegudu case (supra)the trial Judge ran into difficulty about which story is worthy of credence and indeed confessed his inability to know which side to believe, in the instant case, the learned trial Judge having arrived at the view that there was a conflict in the two competing traditional histories proffered in evidence, failed or omitted to say which of

P.13

them in relation to the recent act of possession established from primary facts, was more probable. The court below having equally failed to do the latter act but rather proceeded to order a retrial, this court sitting on appeal would and indeed should correct the omitted or non-applied principle. This is because the learned trial Judge having had no difficulty in the instant case in finding against the respondents or to use words of Olatawura, J.S.C., in Oyiho Iriri v. Eseroraye Erhurhobara & Anor. (1991) 2 N.W.L.R. (Pt. 173) 252 that he (the learned trial Judge) not being “at cross-roads with conflicting traditional history,” his task of resolving whose story of the parties was more probable, became a foregone conclusion. Accordingly, I hold in substitution for the omission to apply the principle by the trial court, which the court below wrongly criticised and refused to correct, that the appellants’ history all told, is the more probable.
Furthermore, the learned trial Judge in what in my view amounted to his quest at testing the two stories (of traditional evidence) which one must realize constitute hearsay upon hearsay in not having the sanctity of truth although the witnesses may have been testifying truthfully about the information handed down to them, no doubt had at the forefront of his mind acts in recent times performed and adduced by these witnesses in relation to the land in dispute, when he arrived at the following inescapable findings of facts:-
Firstly, the learned trial Judge in his judgment at Page 128 of the Record disbelieved the evidence of the respondents’ witnesses to wit: P.W.4, P.W.5 and P.W.6 and he gave his reasons for so doing.

P.14

Secondly, P.W.4, Ezembanasor Obi, who was from Umudiniala, Amife, Osumenyi testified at Page 75 of the Record that the family in Osumenyi having boundary with the land in dispute was the Umuoman family and this showed clearly that he had no land sharing a common boundary with the land in dispute. The cross-examination of this witness at Pages 75 – 76 depicted a bundle of contradictions, thus proving him to be a liar.
Thirdly, P.W.5 Mark Okeke, a native of Akwa Ihere admitted under cross-examination at Page 77 of the Record that he had never been to another town in his life, forgetting that he had earlier in examination in chief said that he worked on the land in dispute as a labourer and that he lived in the house of one Ume Uzeogbu Ihemeje on that land.
Fourthly, P.W.6, Ignatius Unokaeje, a School Teacher, though a native of Iruama Village, Nkwukwo, Unubi, was at the time of the alleged trespass resident at Umunya. He testified at Page 78 of the Record as to how he returned to Unubi and was there on school days – Thursday and Friday the 25th and 26th September, 1981 respectively, because he was told his father’s house was to be destroyed. Then came his made up story at Page 80 of the Record of the discussion he allegedly had with the grantee of the Irueze family who was then preparing to erect a factory on the land in dispute.
On the printed record alone therefor, P.W. 4, P.W. 5 and P. W. 6 had been depicted as not being witnesses of truth; hence the learned trial Judge was justified in his conclusion as to their credibility. When therefore the court

P.15

below in its judgment held at Page 205 of the Record that the learned trial Judge failed to evaluate the evidence of acts of possession given on behalf of the respondents, it is with utmost due respect wrong.
Fifthly, 1st respondent who was 46 years old in November, 1986, testified as to the setting up of the western boundary of the land in dispute between the respondents and the appellants in 1926. Having been born in 1940 he could not possibly give evidence on the setting up of any purported boundary of the land in dispute in 1926. His evidence on the matter amounted to hearsay and so proved nothing. The admission by P.W.2, Nwaokafor Okoli, that there was no dispute between the respondents and the appellants in 1926 also showed that the story about the setting up of the alleged western boundary was not true.
On the other side of the coin is the consideration of the appellants’ case. The evidence of traditional history as given by the 1st appellant can be gleaned at Pages 102 and 103 of the Record. The passages of traditional history quoted by the court below at Pages 194 and 195 respectively are partly incorrect whereas portions of the traditional history given in evidence by D.W.7, Chief George Okoli Umeanodie, and the 1st appellant were also omitted. The court below at Pages 195 to 196 of its judgment set out what it described as deficiencies whereas there are no such deficiencies. For instance, it was not the evidence of D.W.7 that Ekwulu first came to Oheba. The sum total of his evidence showed that Ekwulu founded Ekwulu town -later called Ekwulu-Atulu and now Ekwulimili and that Oheba land is part of the said town.

P.16

Paragraph 3, 3(a) and 3(e) of the Further Amended Statement of Defence constituting pleadings along which lines the appellants have evidence are explicit enough to invoke any doubt. They state:-
“3. The defendants expressly deny paragraphs 3 and 4 of the Statement of Claim and further aver that the area the plaintiffs are laying claim to is known as and called by the defendants from time immemorial Oheba in Urueze Village, Ekwulimili and had ever since been occupied by the defendants’ ancestors and their successors in title as residential and farm lands and the ruines of these residential houses are still visible on the land and particularly shown in the Survey Plan No. NLS/AN/99/8e attached and filed with the Statement of Defence.
3(a) The defendants’ Oheba land now in dispute originally belonged to Ekwulu,the ancestor of the defendants who was a renowned Shepherd and farmer from Agukwu Nri in Njikoka and from whom the defendants inherited the land …………
3(e) Before his death, Ekwulu shared his lands among his four sons. The Oheba land now in dispute forms part of Urueze’s share of Ekwulu’s land.”
D.W.7 testified that Ekwulu shared his land amongst his children who no doubt were his four sons referred to in the pleadings above. 1st appellant so testified, leaving no room for any discrepancy.
The Court below then went on to criticise the evidence of D.W.4 and 5 and the method the trial Judge adopted in its evaluation. It is pertinent to point out that Exhibit ‘D’, the appellants’ plan which lends support to the evidence of D.W. 4, shows the ruins of the two houses erected by her

P.17

husband, Onyeachu Ezeagu; the latter and his first wife, were living in their house on the Western boundary of the land in dispute. D.W. 4 had said she lived in her mud house to the east for 12 years and after the death of her father-in-law moved from that house with her husband to live in her father-in-Iaw’s compound. This was long before the Nigerian Civil War (1967 – 70) since her husband died during the Civil War.
It is pertinent to note that D.W.4 gave evidence in the trial court on 26th February, 1988 while Exhibit D was made on 20th January, 1983. It would naturally not call for explanation why a mud house that had been occupied for 12 years and left vacant for more than 11 years will go into ruins. If D.W.4’s husband had lived in his house on the western boundary of the land in dispute as depicted on Exhibit D long before he married her and the house built on the eastern boundary for D.W.4 was built more than 21 years before the institution of the Suit giving rise to this appeal, clearly the two houses constitute evidence of ownership of the land in dispute by the appellants. Moreover, it was shown that it was Nkwukwo’s portion to his eldest son, Ezeobosi’ s that is the land in dispute.
Furthermore, it was common ground between the parties that the Army farmed on the land in dispute during the Nigerian Civil War. The only point disputed was who donated the land to the Army. P.W.5 Edmund Ifeoku provided the answer when in his testimony he said inter alia thus:
“As the war progressed we concentrated on Land Army. It means mobilisation of the town people to farm on any piece of land donated by the natives themselves ………

P.18

We had farms at Nnewi proper, Akpaukwu, Ekwulumili and Amechi. The Ekwulumili farm was at Oheba land donated by Urueme family. I know the names of two of them called Umenadozie and Umeorumili. These people are here in court. 1st defendant on record identified as U. Ogbuokwelu.”
While Exhibit A, the respondents’ plan shows ruins of wall fencing where late Onyeachu Ezeagwu allegedly was about to build a house but stopped because he went beyond the boundary on the west, to the east what one sees are three spots called “Positions of Plaintffs Farm Hut Scrapped out by (Defendants) (Cause of Action)”.
As for the Ngwu Shrine, only Exhibit D depicting the Ngwu tree close to ruins of D.W.4’s husband’s mud wall fence to the east is clearly shown. There is besides, no dispute in the two lower courts as the identity of the land in dispute. See Ibuluya v. Dikibo (1976) 6 S.C. 97 at 107; Akpagbue v. Ogu (1976) 6 S.C. 63 at 80 and MathewAkubueze & Ors. v. Ozonwanne Nwakuche (1959) 4 FSC 262. There was therefore no need for the learned trial Judge to make specific findings as to the boundary which is explicit on Exhibit D.
What should be borne in mind in this case is that the onus was throughout on the respondents to prove their case. This they failed to do and their case was, rightly in my view, dismissed. The court below as is evident from its judgment, in my respectful view, approached the appeal before it as if the onus was on the appellants to prove their defence. There was no basis for the court below to have embarked on a re-evaluation or re-appraisal of the

P.19

evidence adduced at the trial or for disturbing the findings and conclusions of the learned trial court, short of what I have said on the misapplication of the principle in Kojo II v. Bonsie (supra). The learned trial Judge saw and heard the witnesses testify in the case and had the primary duty to make primary findings of fact on the evidence adduced before him. See Asani Balogun & Ors. v. Alimi Agboola (1974) 1 All NLR (Pt. 2) 66 at 73 and Oyibo Iriri & Ors. v. Eseroraye Erhurhobara & Anor (supra). In the latter case, where the situation considered is similar to the one in the instant case, my learned brother Belgore. J.S.C., cautioned at Page 273 of the Report as follows:-
“The line of authorities in this court on all this important point is inexhaustible and all tend to emphasise that an appellate court should be wary of interfering with the findings of fact by the trial court. This is in accord with common sense and common sense and justice must be inseparable partners, in that the trial court has too many advantages that an appellate court does not have. The trial court hears the evidence of the parties and their witnesses. This opportunity allows the trial court to assess the witnesses whose evidence-in-chief, answer to cross-examination and re-examination give the court the opportunity to assess each witness for demeanour, truthfulness, credibility and reliability. No appellate court has this opportunity as that court sees only the written record. The appellate court can therefore not substitute its eyes, ears and mind for that of the trial court in assessing the evidence. Therefore, believing or disbelieving a witness or a piece of evidence is in the exclusive competence of the trial court and where such belief and

P.20

disbelief is clearly supported by evidence on record, the appellate court should not interfere in such a finding. See Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299.”It is settled law that it is where a trial court has made improper use of the opportunity of seeing and hearing the witnesses i.e., where the finding of the lower court is not supported by the printed record or the finding is not the proper conclusion or inference to be drawn from the evidence, that the Court of Appeal will and must in the interest of justice, interfere by altering, reversing or setting aside such perverse findings of the lower court. See Kuforiji & Anor. v. V.Y.B. (Nig.) Ltd. (1981) 6- 7 S.C. 40 at 85; Chief Frank Ebba v. Chief Warri Ogodo (1984) 1 SCNLR 372; (1984) 4 S.C. 84 at 98 – 112 and Fabunmi v. Agbe (supra). Furtherstill, the learned trial Judge in his judgment had held at Page 128 of the Record and in accordance with the evidence adduced before him that P.W. 4, P.W. 5 and P.W 6 were not witnesses of truth. This is a finding touching on the credibility of these witnesses and yet the court below interfered with it. This, it was not justified in doing in view of the warning this court has given in Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90 to the effect that –
“In matters of credibility based on demeanour of witnesses, a Court of Appeal cannot and ought not interfere – as it did not have the advantage of seeing such witnesses testify. If what is involved are findings based on inferences which the learned trial Judge has drawn from the evidence, the Court of Appeal is in as good a position as the trial court and can make its own findings if in its view the findings made by the learned trial Judge are

P.21

wrong.” See also Nnajiofor & 5 Ors. v. L.Ukonu & 2 Ors.(1985) 2 NWLR (Pt.9) 686 at 688.
As what arose in the instant case did not involve findings based on inferences the court below was wrong to embark on re-evaluation or re-appraisal of the evidence adduced at the trial. Hence, it was in error to have set aside the judgment of the learned trial Judge and to have ordered a retrial of the case. In the premises, this appeal must perforce succeed and it is allowed by me with costs assessed at N1,000.00 to the appellants.
I will now proceed to consider the cross-appeal of the respondents in which the sole issue submitted by learned Senior Advocate, Chief Williams, on their behalf for our determination, is:
“Was the Order ‘for a retrial’ by the Court of Appeal the proper Order to make having regard to its findings on the facts and circumstances of this case?”
Only one issue for determination too was formulated on behalf of the appellants by Mr. Egonu, S.A.N. It states:
“Even if the Court of Appeal was right in its criticism of the findings and conclusions of the learned trial Judge, could it on the facts and circumstances of this case have entered judgment for the plaintiffs/appellants in this case?”
The Claims of the respondents against the appellants were for damages for trespass and injunction as hereinbefore stated. The learned Senior Advocate, Chief Williams on respondents’ behalf has adopted the reasoning and conclusion arrived at by the court below with regard to evidence led at the trial of this case. After adverting our attention to the passage in the judgment of

P.22

the court below at Pages 205 and 206 and that the court below properly relied on the case of Lawal v. Dawodu (1972) 1 All NLR (Pt. 2) 270 at 286, where it was held inter alia–
“Nevertheless, the area is one in which the Court of Appeal is at least equally qualified and competent and indeed is often required to exercise jurisdiction in certain, albeit exceptional, circumstances.
A trial judge, however learned, may draw mistaken conclusions from indisputable primary facts and may indeed wrongly arrange or present the facts on which the foundations of the case rest. In those circumstances, it would be completely inviduous to suggest that a Court of Appeal should not intervene and do what justice requires but should abdicate its own responsibility and rubber stamp an error however glaring”. (italic is mine for emphasis).
It is therefore learned Senior Advocate’s submission that the respondents’ case does contain “exceptional circumstances” which, in the instant case, impose on the court below the duty to intervene and make its own inferences from the evidence led at the trial. In support of this proposition learned counsel relied on the following portion of the judgment of the court below, to wit;
“The learned Judge in the present case failed to adopt this approach when he was faced with two conflicting traditional histories. He regarded the history narrated by the defendants as lucid and ‘straight’ as a pole’ to recall his very words which he himself put in quotes and that it described the plaintiffs’ story as disjointed, incomprehensible and most improbable. There was

P.23

absolutely nothing to support these views. If anything, the defendants’ story as given by D.W.7 and 1st defendant lacked that straightness of a pole assigned to it by the learned Judge in at least three aspects ….” The court then went on to hold inter alia that:
“In contrast, one cannot find any such deficiencies or any other in the plaintiffs’ traditional history. The learned Judge was no doubt unfair to the plaintiffs. Having purported to prefer the traditional history of the defendants there was no basis upon which to apply the principle stated in Kojo II v. Bonsie (supra). He made a very unimpressive effort to do this by resorting to Ekpo v. Ita II (1932) NLR 68 contrary to what was observed by the Supreme Court in Balogun v. Akanji.”
After demonstrating from the passage where the court below held that it was:
“satisfied that the learned Judge approached this case and the evidence adduced in a most erroneous and unsatisfactory manner. He failed to ascertain the common boundary between the two villages, an issue clearly apparent from the pleadings and evidence.”
The case of Omoregbe v. Edo (1971) 1 All NLR 282 at 289 – 290 was called in aid and we were urged to allow the appeal, the retrial order appealed from set aside and on order entering judgment for the respondents substituted therefor.
Now, the court below has held that the learned trial Judge, faced with two conflicting traditional histories, had failed to apply the test or principle enunciated in Kojo II v. Bonsie (supra) in order to determine as between the two conflicting traditional histories which was more probable.

P.24

As pointed out elsewhere in this judgment, the leaned trial Judge who saw and heard the witnesses for both parties testify, disbelieved the respondents. And as I went on to say, but for the omission by the learned trial Judge to apply the principle in Kojo II v. Bonsie (supra)and which I showed could be rectified by this court sitting on appeal, there was ample evidence adduced before the learned trial Judge from which to arrive at the view that of the two conflicting histories, one was more probable in fulfillment of the said principle. The law is that it is where evidence of traditional history is inconclusive that the trial court is estopped from accepting one set of evidence against other conflicting set of evidence. If the evidence of traditional history is conclusive, a trial judge is entitled to accept it as against evidence of traditional history which is in conflict and which is not supported by evidence of recent acts of possession. See Olujebu of Ijebu v. Oso the Eleda of Eda (1972) 5 SC. 143 at 151 and F. M. Alade v. Lawrence Awo (1975) 4 SC. 215 at 228. Indeed a trial court is entitled to reject evidence of traditional history which is ex facie incredible. See Iriri v. Erhurhobara (supra) at Page 269. Where, as in the instant case, there was admittedly conflict of traditional histories, one side or the other must be mistaken, yet both may be honest in its belief. In such a case, demeanour is little guide to the truth. The best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable. The principle having been hereinbefore stated and put in proper perspective, one is left to consider such facts in recent years as established

P.25

by evidence and seeing which of the two competing histories is more probable. The court below held that the appellants led evidence on acts of possession but that “the learned trial Judge brushed all these aside unevaluated.” With utmost due respect this observation of the court below cannot be correct and a few instances, at the risk of repetition, will do to exemplify my stand on this.
P.W.4, who hailed from Umudiniala, Amife, Osumenyi testified at Page 75 that the family in Osumenyi having boundary with the land is dispute was the Umuomam family and this showed clearly that he had no land sharing a common boundary with the land in dispute. The ensuing cross-examination of this witness at Pages 75 and 76 showed a bundle of contradictions. Hence, he was a proven liar.
P.W.5, a native of Akwa Ihere, testified when cross-examined at Page 77 of the Record, that he had never been to another town in his life, forgetting that earlier in examination-in-chief, he stated that he worked on the land in dispute as a labourer and that he lived in the house of one Ume Uzoegbu Ihemeje on the land.
P.W.6, a School Teacher, though a native of Iruama Village Nkwukwo, Unubi, was at the time of the alleged trespass resident at Umunya. He testified at page 78 of the Record that he returned to Unubi and was there on School days, Thursday and Friday 25th and 26th September, 1981 because he was told his father’s house was to be destroyed. Then came his made-up story at Page 80 of the Record of the discussion he allegedly had with the grantee of the Irueze family who was preparing to

P.26

erect a factory on the land in dispute. Surely all these could not establish acts of possession in support of the respondents. Hence their case only merited to be dismissed and not a retrial order which can only be made where the trial court fails to resolve the conflict or contradiction in evidence. See Jude Ezeoke & Sons v. Moses Nwagbo & Anor. (1988) 2 NWLR (Pt. 72) 616 at 629 following R. G. Okuwobi v. Jimoh Ishola (1973) 3 S.C. 43 at 47 – 48 and Total Nigeria Ltd. v. Wilfred Nwako (1978) 5 S.C. 1 at 14. See also Idika v. Erisi (1988) 2 NWLR (Pt.78) 563 at 576,
While Exhibit D, the appellants’ plan depicts clearly the two ruins of Onyeachu Ezeagwu’s houses to the east and west respectively of the disputed land’s boundary indicating exercise of ownership thereof, Exhibit A, the respondents’ plan, is devoid of such features excepting that in two portions on the eastern part it depicts that appellants once had huts thereon though they (respondents) had established their farms in those places after scrapping the huts, thus symbolizing their act of trespass.
Despite the criticisms of the learned trial Judge set out elsewhere in this judgment by the court below, that court could not justifiably enter judgment for the appellants nor can the order for a retrial as set out in their sale issue for determination be acceded to. This is because a retrial is ordered inter alia where a trial Judge fails to take advantage of this seeing and hearing the witnesses, notwithstanding that the record showed there to be ample evidence before him. See Chief James Okpiri v. Chief Igoni Jonah & 4 Ors.(1961) 1 All NLR 102 at 105

P.27

and Chief J.S. Ekpere & Ors. v. Chief Odaka Aforije & Ors. (1972) 1 all NLR. (Pt.1) 220. In the instant case, the respondents cannot be said to have adduced such ample evidence through their witnesses to warrant a retrial order being made for failure to appraise the evidence of their witnesses. Hence their case failed.
In result, the cross-appeal of the respondents fails and it is accordingly dismissed with costs assessed at N1,000 in favour of the appellants.