NDUKWE NJOKU v. OBOLOBO JONATHAN & ANOR

NDUKWE NJOKU v. OBOLOBO JONATHAN & ANOR

final
 
In The Court of Appeal
Owerri Judicial Division
On Monday, the 18th day of April, 2011
Suit No: CA/PH/363/05
 
Before Their Lordships
 
ABUBAKAR JEGA ABDULKADIR    ……. Justice, Court of Appeal
HELEN MORONKEJI OGUNWUMIJU    ……. Justice, Court of Appeal
MOJEED ADEKUNLE OWOADE    ……. Justice, Court of Appeal
    
 
 Between

NDUKWE NJOKU    -Appellant
            
 
      And
                   
1. OBOLOBO JONATHAN
2. NDUKWE UGBAJA    -Respondents
        
 
                  
     

COUNSEL:
                              
Dr. I. N. Ijiomah for the Appellant with him E. K. Oji Esq.   – For the Appellant

                              
Ike Inegbu   -For the Respondents

 

JUDGMENT:         
   

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Abia State delivered on 27th day of July, 2004 by Hon. Justice K. O. Amah C.J.

The facts that led to this appeal are as follows:

The Plaintiffs' claim against the Defendant in this suit commenced at the High Court Umuahia is as follows:

(a) Declaration of title to all that piece or parcel of land known as and called "NKPAKWUNTA" (valued   5 pounds) situate at Bende in the Umuahia Judicial Division.       

(b) 200 Pound being general damages for trespass.

(c) Perpetual injunction to restrain the Defendant, agent, servants and workmen from further entering NKPAWUNTA or in any other way interfering with the Plaintiffs' possession or ownership thereof.

On the 17th of April, 1972 the Honourable Court ordered pleadings in the suit. The Plaintiffs filed their statement of claim on the 23rd of February 1973 while the Defendant filed his statement of defence on the 6th September 1973. (pages 6-10 and 16-21 of the record).

The action commenced with the 1st Plaintiff who substituted the original 1st Plaintiff Obolobo Kalu who died in the course of the proceedings, testifying as PW1. The 2nd Plaintiff testified as PW2. The Plaintiffs called two witnesses PW3 and PW4 in support of their case. The Defendant testified in his own defence as DW1 and called one witness DW2 (pages 31-77 of the record).

After submission of written address by counsel on both sides, the learned trial judge on 27th July, 2004 delivered his judgment, which he gave in favour of the Plaintiffs and granted all the reliefs claimed by the Plaintiffs (pages 118-136 of the record).

It is against this judgment that the Defendant has appealed to this Honourable Court praying this Honourable Court to set aside the judgment of the learned trial judge and to dismiss the Plaintiffs' suit. (the Notice and Grounds of Appeal are at pages 137-150 of the Records).

Briefs were filed in this court and issues joined. The appellant's brief is dated 12/12/05 and filed on 14/12/05. The appellant also filed a Reply Brief dated 26/1/11 on same say. The Respondent's brief is dated 23/5/09 filed on 15/6/09 and deemed filed on 10/1/11.

Learned Appellant's counsel distilled five issues for determination. I have re-couched them for clarity and they are set out below:

1. Whether having regard to the totality of the evidence the learned trial judge was justified in concluding that the evidence of DW1 and DW2 are manifestly contradictory, inconsistent and vague.

2. Whether the learned trial judge was justified in relying on the evidence of PW3 and PW4 in granting the Respondent claim.

3. Whether the learned trial judge made a proper finding on the evidence of traditional history adduced by the parties.

4. Whether the trial court properly evaluated the evidence before granting right of occupancy of the land in dispute.

5. Whether the 1st Plaintiff – that is 1st Respondent proved the representative nature of the claim.

The learned Respondent's counsel submitted two issues for determination stated as follows:  

"1. Whether the learned trial judge below properly evaluated the evidence before him before arriving at his decision in this case wherein he awarded the Plaintiffs the right of occupancy in this case.

  2. Whether the learned trial judge was right when he declared right of occupancy over the land in dispute in favour of the Plaintiffs."

I will utilize the issues distilled by the learned Appellant's counsel in the determination of this appeal.

ISSUE ONE

Counsel submitted that the learned trial judge was not justified or supported by the evidence before him in coming to the conclusion that "the evidence of the entire defence witnesses DW1 and DW2 is manifestly contradictory, inconsistent and vague". Appellant's counsel submitted that the learned trial judge was wrong in the factual evaluation of the evidence given by the Appellant and this led to his arriving at a wrong decision. He argued that the court erroneously said that the Appellant gave the different versions of how he came into procession of the land. He also argued that the court erroneously found that D.W.2 referred to the land in dispute known as Nkpakwunta as Okawinta. He argued that the trial judge deliberately chose to accept the evidence that the Appellant got to the land in 1971 rather than 1965. Counsel also argued that the trial court gave no iota of detail to support his perverse conclusion that the evidence of the Appellant and his witness was inconsistent and vague.

In reply, learned Respondent counsel argued that the learned trial judge rightly found the evidence of the defence witness vague, contradictory and inconsistent.

He argued that the Appellant had initially told the Respondent that one Ilueje Kalu Ezelu sold the land to him, but turned around to claim that the land was inherited by him from Ekeke Mayi. In respect of DW2 he told the court that he had the same boundary with the land in dispute but later said a stream separated his land from the land in dispute. Counsel submitted that the learned trial judge satisfactorily performed the function of evaluating the evidence led at the trial and ascribing probative value to them. He urged this court not to disturb the findings and observations of the trial court. He cited AWOPEJO v. THE STATE (2001) 18 NWLR Pt. 745 Pg. 430.

The most important point being made by the Appellant's counsel is that the learned trial judge's conclusion that the evidence of the Appellant and his witness were manifestly inconsistent and vague is erroneous.

Let us take a glimpse at the trial judge's review of the evidence. At page 132-133 of the record the trial judge held as follows:

"The Defendant's only witness and boundary neighbour, Onyemuwa Iroha, DW2, admitted that after their father's death, his senior brother Kalu Iroha, PW4, became their family head and refused to share their father's property. He DW2 also referred to the land in dispute where he is allegedly a boundary neighbor to Okawinta……………………."

"The Defendant called DW2, Onyemuwa Iroha to support him but that witness performed very poorly at the witness box and I had no doubt that it was an act of desperation on the part of the Defendant to bring DW2 to give evidence. Anyone who had the opportunity of watching DW2 give evidence would easily know that he knows little or nothing of the land in dispute. I am not surprise (sic) that he could not mention any person whose land shares boundary with the land in dispute apart from his own alleged land. I accept PW4's, Kalu Iroha (senior brother to DW2) evidence that the land in dispute belongs to 1st Plaintiff and that the Defendant and his people have no land in Nkpakwunta area."

His Lordship concluded his evaluation and ascription of probative value to the evidence of the defence witnesses by finding at page 135 of the records as follows:

"The evidence of the entire defence witnesses, DW1 and DW2, is manifestly contradictory, inconsistent and vague. The Defendant, DW1 told the court that he planted cocoa trees in 1971 and the Plaintiffs sued him to court. He said that the land in dispute was sold to him by Ibeabuchi of Agbomiri and later reprobated and said he inherited it from his father. DW2 referred to the land in dispute, Nkpakwunta where he is allegedly a boundary neighbor as "Okawinta".

Appellant's counsel argued that the trial judge deliberately went out of his way to pick holes in the evidence of the Defence in order to discredit same. I have read the record. On page 65 of the record, the Appellant gave evidence as follows:

"In 1971 I planted coca trees on the land in dispute. I planted cocoa trees on the land before Nigerian Civil War. In 1965 Obolobo Kalu, the father of 1st Plaintiff sued me before the Customary Court."

I can see the perspective of the trial judge. In one breath the Appellant claimed to have planted cocoa trees after the civil war and in another breath before the civil war.

It is the duty of the learned trial judge to ascribe probative value and to adjudge the credibility of witnesses. He had the opportunity to watch their demeanour in the witness box and to arrive at an opinion regarding their credibility.  There is a rebuttable presumption that the findings of a trial court are correct. When a trial court evaluates evidence and appraises the fact, it is not the business of the appellate court to its views. See AWOYOOLU v. ARO (2006) 2 SCNJ 44. When such evaluation relates to demeanour of witnesses and ascribing weight to their evidence, it is within the exclusive preserve of the trial court and the appellant court cannot interfere. See OWIE v. IGHIWI (2005) 1 SCNJ 181 I cannot fault the opinion of the learned trial judge on the credibility of the Defence witnesses. I must concede that indeed while scouring the record in one particular instance the learned trial judge appeared to have mixed up the evidence of the Appellant regarding the fact that he had another piece of land within Nkpakwunta apart from the land in dispute. Even if it is conceded that the learned trial judge made an error in that regard, in my humble view that error was not in the circumstances of this case substantial enough and has not caused miscarriage of justice to warrant this court setting aside the judgment on that ground alone. An innocuous mistake cannot lead to reversal of the judgment. See SOLOLA v. THE STATE (2005) 5 SCNJ 139. I do not think the mistake of the court in mixing up a minor single fact has led to a miscarriage of justice warranting a reversal of the judgment. See AMAYO v. ERINMWINGBOVO (2006) 5 SCNJ 1. In the circumstances, this issue is resolved against the Appellant.

 

ISSUES 2 AND 4

I will take issues 2 and 4 together because they both deal with evaluation of evidence. Both issues are based on a challenge of the finding of fact by the learned trial judge and his reasoning in ascribing high probative value to the evidence of PW3 and PW4. Learned Appellant's counsel urged the view that the learned trial judge was wrong to believe the evidence of PW4 who had no boundary with the land in dispute as against the evidence of DW2 who shared a boundary with the land in dispute. Counsel also argued that the evidence of PW3 lacks credibility on many grounds chief among which is that the witness did not show how he came to own the land. Counsel also argued that the contradictions between the evidence of PW3 and PW1 is that whereas PW3 said cocoa trees were planted on the land in dispute by the 2nd Plaintiff and the Defendant in their said trespassory activity, the PW1 said the land was cleared for hearing. Counsel argued that this was material contradiction in the evidence of both witnesses and that the trial court should not have believed the evidence.      

Learned Respondents' counsel argued that the learned trial judge assessed the credibility and veracity of PW3 and PW4 based on their demeanour in the witness box. He argued that the court was obliged to believe their uncontradicted evidence. He cited EJIOGU v. NDIC (2001) 3 NWLR Pt. 699 Pg. 1; OLUJINLE v. ADEAGBO (1988) 2 NWLR Pt. 75 Pg. 2387.

It is true that the court is not obliged to believe evidence of witnesses of the same party that contradict each other on material particulars as the court cannot pick and chose who to believe. See CHIEF OKOKO v. MARK DAKOLO (2006) 7 SCNJ 284. However discrepancy in evidence is different from contradiction in evidence. The minor area of discrepancy between the evidence of the PW1 and PW3 cannot in my humble view amount to a reason for the trial court or this court to question the credibility of any of the witnesses. Given the time when the incidents related took place, it would have been unusual indeed not to have minor discrepancies in the evidence of the witnesses. In OWIE v. IGHIWI (2005) 5 NWLR Pt. 917 Pg. 184, the Supreme Court had this to say at page 218:

"There could be little differences when witnesses give evidence on the same subject matter. This is because human beings not being machines do not act with the automation of machines. If witnesses give evidence on the same subject matter or event to the exact minute detail, a trial court should seriously suspect such evidence because of a possibility of tutoring or rehearsal, developing into a recitation before the date of giving evidence. Thus where there are immaterial differences in evidence of witnesses here and there that in itself shows their truthful testimonies."

It is not every discrepancy that gives rise to a question of credibility of witnesses. It must be substantial and material enough to amount to contradiction which would make their evidence irreconcilable. They are immaterial unless contradictions affect live issues in a suit. See USIBAIFO v. USIBAIFOR (2005) 1 SCNJ 226. In this case the facts being waved as contradictory if viewed in the context of the evidence led was not contradictory at all. There is no point for counsel to take a phrase or evidence out of context. Counsel argued that P.W.1 said P.W.2 and the Appellant had cleared the farm prior to planting whereas P.W.2 said he and the Appellant had actually planted cocoa before they were accosted by the Respondent.

Learned Appellant's counsel also argued that the court erroneously held that PW3 and PW4 were boundary men to the land in dispute and that the court failed to consider their evidence along other evidence in the case. Proper probative value must be ascribed to their evidence by considering other pieces of evidence. He cited OJOKOLOBO v. ALAMU (1988) 7 SCNJ Pg. 14 at Pg. 22.

Learned Respondents' counsel argued that the trial judge based his conclusions and findings regarding the credibility of PW3 and PW4 on his observation and evidence led at the trial. He argued that the evidence of PW3 and PW4 regarding their knowledge of the ownership of the land and the fact that they were boundary men was not challenged successfully during cross-examination. Counsel submitted that on the issue of credibility of witnesses the trial court is always in the best position to assess, as the appellate court has limited scope of interference. He cited AKINOLA v. OLUWA (1962) 1 SCNLR 352; OLONADE v. SOWEMIMO (2006) 2 NWLR Pt. 963 Pg. 30.

On the evidence of PW3 and PW4 the learned trial judge at page 132 of the record had this to say:

"I watch Nwosu Obunta, PW3 and Kalu Iroha, PW4 gave evidence and they struck me as very sincere men and they spoke the truth. I believe their evidence and fide (sic) as a fact that indeed their lands share boundary with the land in dispute and that the Defendant is not their neighbor. They have been the traditional neighbours of the 1st Plaintiff's family in the area in dispute."

In cross-examination the PW3 maintained that his land shares common boundary with the land in dispute and that his land and the land in dispute are large pieces of land. PW4 on his part stated clearly that he knows the land in dispute and that the land in dispute belongs to the 1st Plaintiff. He was also emphatic when he said that the land in dispute does not belong to the Defendant. I have read the record and their evidence was not successfully challenged under cross-examination.

I have to agree with learned Respondents' counsel that the question of evaluation of evidence at the trial in this case involves the credibility of witnesses. Also I agree that the trial judge performed his function of evaluating the evidence of the witnesses and ascribing probative value to them in a very thorough manner. His Lordship took time to state and evaluate the significance of the evidence of the witnesses. I find it difficult to fault the conclusions. In any event this duty of evaluating and giving probative value to the oral evidence of witnesses and judging their credibility is the exclusive preserve of the trial court. The Appellate court without strong reason cannot interfere. See OWIE v. IGHIWI supra. I see no reason to interfere in this case.

Appellant's counsel also argued in issue 4 canvassed in the brief that the learned trial judge did not understand the purport of the evidence of DW2 and considered out of context and misunderstood same. Most of the arguments canvassed under issue 4 by the learned Appellant's counsel have been canvassed in issues 1 and 2 and this court has given the opinion that it is the duty of the trial court to evaluate evidence and give opinion on the credibility of witnesses who he had the opportunity to see.   Both issues are resolved in favour of the Respondents.

ISSUE 3    

The Appellant's counsel is of the view that the learned trial judge did not make any finding on the evidence of traditional history placed before him by both parties before giving judgment to the Respondents. Appellant's counsel argued that the Respondents in para. 5 and 6 of their Statement of Claim pleaded their reliance on traditional history of the land in dispute whereas the Appellant pleaded in para 3 of the statement of Defence another set of traditional history of the same land. Counsel submitted that it is the duty of the trial judge before whom evidence of traditional history is given in a claim for declaration of title to land to determine which of the traditional evidence is most credible. Counsel argued that the learned trial judge simply recorded evidence of traditional history from the witnesses but did nothing with it in his evaluation of the evidence before him. The Appellant's counsel argued that the trial judge had no business with making reference to acts of possession and ownership thereby resorting to the rule in KOJO II v. BONSIE (1957) 1 WLR 1223.

Counsel argued that the findings of the trial judge concerning acts of possession ownership are wrong in law and must be set aside by this court. Appellant's counsel argued that the failure of the trial court to make a specific finding on an essential issue is fatal to the entire proceedings. He cited ANYANMELE v. IHEANACHO (1979) 1 NSLR 89 at 91; ANABARONYE v. NWAKAIHE (1997) 1 SCNJ 161 at 168. Counsel further submitted that the evidence of traditional history given by PW1 was not corroborated in any form by any other witness and the weakness of the appellant's case at the lower court is of no moment since the Respondents must prove his case. He cited LIPEDE v. SHONEKAN (1995) 1SCNJ 184 at 188; EGBO v. AGBARA (1997) 1 SCNJ 91 at 112 and ANABARONYE supra. Counsel submitted that the failure to make a finding on the traditional evidence by the learned trial judge has resulted in a wrong decision and led to a miscarriage of justice.

Learned Respondents' counsel on this issue argued that the Respondents gave evidence of traditional history sufficient to prove their case as the regards the 1st Respondent's ancestors' ownership of the land. They also called PW3 and PW4 as witnesses. Counsel argued that the evidence of PW1 regarding traditional history was corroborated by PW3 at page 56 of the record. Also PW4 corroborated the evidence on page 59 of the record. Both witnesses attested to the fact that they knew the PW1 – 1st Respondent's father as the owner of the land. PW4 even confirmed that 1st Respondent's father sued the Appellant and called him – PW4 as a witness. He submitted that the evidence of the Respondents and their witnesses was sufficient to support their claim of ownership and indeed there was no need for other evidence of possession. He cited ALADE v. AWO (1975) 4 SC 215; BALOGUN v. AKANJI (1988) 1 NWLR Pt. 70 Pg. 301; ADEMOLAJU v. ADENIPEKUN (1999) 1 NWLR Pt. 587 Pg. 440.

Learned counsel also argued that the Respondents as Plaintiffs went further to prove acts of ownership in and over the land in dispute extending over a sufficient length of time numerous and positive enough to warrant the inference that they are the owners of the land and acts of possession and enjoyment of the land.

Respondents' counsel argued that the Respondent is entitled to rely on one or more of the ways by which title to land may be proved. He submitted that the Respondents proved both traditional evidence and long possession.

It is the duty of a court to consider and determine all issues as a court of first instance and to make evaluations and conclusion on the facts adduced in evidence before the court. See OKONWKO OKONJI v. GEORGE NJOKANMA (1999) 12 SCNJ 259; OBA ADEBANJO MAFIMISEBI v. PRINCE MACAULAY EHUWA (2007) 1 5 SCNJ 258.  Where there is apparent on the record a failure of the trial judge to decide vital and relevant issues, the proper order to make in such a circumstance is to order a retrial and not to dismiss the suit. See AYISAT ASABI EWUOSO v. MR. RAUFU ADEOYE FAGBEMI (2002) 4 SCNJ 330.

   It is a much feted statement of the law that there are five different ways of establishing ownership of a land in dispute. In YUSUF v. ADEGOKE (2007) NWLR Pt. 1045 Pg..(2007) 4 SCNJ 77, they are stated as follows:

1. Proof by traditional evidence.

2. Proof by production of documents of title duly authenticated, unless they are twenty or more years old, produced from proper custody.

3. Proof by acts of ownership in and over the land in dispute such as selling, leasing, making grants or farming on it or a portion thereof extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such proprietary acts are the true owners of the land.

4. Proof by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership not only of the particular piece of land with reference to which such acts are done but also of other lands so situated or connected therewith by locality or similarity that the presumptions under S.146 of the Evidence Act applies and the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land.

5. Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected land would in addition be the owner of the land in dispute.

To succeed it is enough for the Plaintiff to establish any one of the five ways and the Plaintiff may plead or prove anyone or more of them. See EBE EBE UKA v. CHIEF KALU OKORIE IROLO (2002) 7 SCNJ 137; CHIEF LASISI OYELAKIN BALOGUN v. ONAOLAPO AKANLI (2005) 4 SCNJ 101; AKINYULI v. EJIDIKE (1998) 4 SCNJ 249.

The learned trial judge held that pages 123-124 of the record as follows:

"In the light of the allegations from both sides in their pleadings on this question of ownership of the land, if there is nothing to choose between the allegations then the imaginary scale would not have tilted and for 1st Plaintiff to succeed, his allegation of positive and numerous acts of ownership and possession over a very long period of the time will be critically examined. I heard four witnesses for the Plaintiffs and two witnesses for the Defendant."

The learned trial judge believed that issues were joined primarily on evidence of long possession. He opined thus on page 131 of the record.

"If a Plaintiff relies on acts of possession which are near the date of action, there would not certainly qualify as extending over a long period of time. So that in making my findings of fact in this major issue, evidence of acts of ownership or possession extending over a long period of time will be the deciding factor. This is the Plaintiffs' case and the burden of proof lies on them. It is settled law that in discharging that burden they must rely on the strength of their own case and not on the weakness of the Defendant's case and also so long as there is nothing on the Defendant's case which supports the Plaintiffs' case. See ODUARAN & ORS. V. CHIEF JOHN ASARAH & ORS, (1872) 1 ALL NLR Pt. 2 Pg. 132; AGBEJE & ORS. v. AJIBOLA & ORS. (2202) 9 NSCOR 1."

The learned trial judge then went on to review the evidence of both parties in relation to proof of long possession and found that the Respondents and their witnesses were able to prove acts of long possession whereas the Appellant and his lone witness could not.

 

The parties pleaded traditional history see Paragraphs 5 and 6 of the Statement of Claim on page 7 of the record and Paragraph 3 of the Statement of Defence. The parties also pleaded acts of long possession. See Paragraphs 7-13, and 15 of the Statement of Claim and Paragraphs 5, 11 of the Statement of Defence. Both parties led evidence in varying degrees of detail regarding their right to the land by traditional history – that is through inheritance and by acts showing long possession of the land. The Respondents as Plaintiffs claimed that the ancestors of the 1st Respondent owned the land through Uche Udara from whom it devolved on the 1st Respondent. The Appellant claimed through his father Njoku Okoro.

In an action based on traditional history, when traditional histories proffered by both sides though plausible are in conflict then recent acts of possession or ownership are utilized in deciding which side's history is to be preferred. See COSMOS EZUKWU v. UKACHUKWU (2004) 7 SCNJ 189.  

The rule in KOJO II v. BONSIE applies when there is conflict in traditional evidence of parties to resolve the conflict by testing recent history concerning acts of ownership and possession in deciding whose traditional evidence is more plausible. See IWUORIE IHEANACHO v. CHIGERE (2004) 7 SCNJ 272.  The rule in KOJO II v. BONSIE decided (1957) 1 WLR 1223 as follows:

Witnesses of the utmost veracity may speak honestly but erroneously of what took place a hundred years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their 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. See Fabiyi JCA (as he then was) in DADA v. FALEYE (2007) ALL FWLR Pt. 349 Pt. 1134 at 1150.

The rule in KOJO II v. BONSIE is not applicable where traditional evidence led by one side is self – contradictory and unreliable. See SHITTU ONIGBEDE v. BALOGUN (2002) 2 SCNJ 219. The court has a duty where there is a conflict in traditional history proffered by the parties to accept or reject one version or the other fully as a package. See LASISI MORENIKEJI v. LALEKE ADEGBOSIN (2003) 4 SCNJ 105.

The point being made here is that the learned trial judge must have made a specific finding of fact on the evidence of traditional history which he finds conflicting. If he chose to accept one side the rule in KOJO does not apply. The need to resolve them by evidence of acts of recent possession or ownership arises when the judge thinks that both of them are credible. If he cannot decide because both evidence appear plausible then he can also resort to the rule in KOJO II v. BONSIE. See OYADARE v. CHIEF OLAJIRE KEJI (2005) 1 SCNJ 35.

It is my humble view that the learned trial judge was indeed right to hold that the parties relied principally on evidence of long possession and to use that as the basis of his conclusion and judgment.

Learned Appellant's counsel argued that the trial court referred only to the pleadings of the parties and not their evidence and since pleadings were not evidence, he didn't evaluate same or make any finding on same. It is my humble view that the trial judge was quite right in his direction to himself notwithstanding that in his judgment he used the word "pleading" rather than "pleading and evidence". It is obvious that having taken the evidence, he was referring to both the pleading and evidence in relation to traditional history proffered by both sides.

In the light of the above conclusion of the learned trial judge, it appears that his Lordship found both evidence of the opposing parties on traditional history plausible and had to resort to the rule in KOJO II v. BONSIE. I therefore cannot agree with learned Appellant's counsel that not only did the trial court not make a finding between the conflicting traditional evidence, but he had no need to resort to the rule in KOJO II v. BONSIE. This is because if both histories from both sides are credible but conflicting and he cannot know which is the truth, then he must have another yardstick – which is proof of long possession by which to choose.

The argument of learned Appellant's counsel in my view that the failure of the trial judge to make a finding on the evidence of traditional history has caused miscarriage of justice is misconceived. Indeed the learned trial judge had no other choice than to apply KOJO II v. BONSIE. This issue is resolved against the Appellant.

ISSUE 5

Learned Appellant's counsel argued that the 1st Respondent was given leave to substitute his father in the suit in a representative capacity. Counsel argued that the final order made is vague and inconsistent with the claim as 1st Respondent was ordered to be given the land in his personal rather than representative capacity. He argued that such order is untenable and must be set aside.

  Learned Respondents' counsel in reply argued that flexible rules governing representative action can be described as a tool of convenience. Counsel argued that failure to reflect the capacity in which the 1st Respondent sued does not render the action incompetent.

Let us look at the declaratory order made by the court which is set out below:

"I declare in favour of the Plaintiffs' title to the land in dispute, Statutory or Customary as the case may be of all that parcel of land known as and called "NKPAKWUNTA" which lies at Bende within jurisdiction and particulars shown and delineated in Plaintiffs' Plan No. SE/ECA19/72 received as Exh.A in these proceedings and verged PINK therein."   

The law in my humble view is that once pleadings show representative capacity even if no amendment to the writ was made, judgment may be entered to reflect that capacity. See MBA NTA v. ANIGBO (1972) 5 SC.156, 174-175; AYENI v. SOWEMIMO (1982) 5 SC 60; AFOLABI v. ADEKUNLE (1083) 8 SC 98 at 102.

On the 11/5/93, the 1st Respondent was given leave to substitute his father as a representative of the Obolobo family, then it stands to reason that the reference made to "Plaintiffs" in the court order includes the 1st Respondent and his family and the 2nd Respondent. I find no merit in this issue which is an attempt to grasp at straws. It is resolved in favour of the Respondents.

This appeal is totally unmeritorious and it is hereby dismissed. I award N30,000.00 costs tot eh Respondents against the Appellant.

 

 

ABUBAKAR JEGA ABDULKADIR, J.C.A.: I agree

 

MOJEED ADEKUNLE OWOADE , J.C.A.: I agree