HELD:

"A ground of appeal is the complaint the appellant has on the decision of the lower Court.

HELD:

HELD:

"A trial Court before which parties to a dispute have led evidence has the duty to determine which of the versions to accept of the evidence called. Obviously, it does this based on the advantage which it has of seeing and hearing the witnesses testify. An appellate Court has not that advantage. This explains why an appellate court does not and should not readily disturb the findings of fact made by the Court of trial." See DAGACI OF DERE & ORS v. DAGACI OF EBWA & ORS (2006) LPELR-911(SC)

FACTS:

DAGACI OF DERE & ORS v. DAGACI OF EBWA & ORS (2006) (SC)

In the Supreme Court

On Friday, January 27, 2006

SC.188/2001

Before our Lordships

sylvester umaru onuJustice of the Supreme Court of Nigeria

aloysius iyorgyer katsina-aluJustice of the Supreme Court of Nigeria

niki tobiJustice of the Supreme Court of Nigeria

george adesola oguntadeJustice of the Supreme Court of Nigeria

mahmud mohammedJustice of the Supreme Court of Nigeria

Between

1. THE DAGACI OF DERE (Alhaji Musa Abdulkadir) 2. ALHAJI ABDULRAHMAN BENU DERE 3. ZHITSU OF ESHI (Mallam Ibrahim Abdullahi) 4. MALLAM ABDULLAHI ABUBAKAR (Wambai of Eshi) 5. USMAN ABUBAKAR ESHI 6. WAIBI MUSA KUCHI 7. IBRAHIM MUSA ("FOTO") ESHI 8. MALLAM IDRISU BENU KUCHI 9. CHIEF IDRISU APATAKU 10. LUKPAYA ABUBAKAR, APATAKU (Suing as Accredited Representatives of DERE/ESHI/KUCHI/APATAKU COMMUNITIES - for themselves and on behalf of the said Communities) - APPELANT(S)

And

1. THE DAGACI OF EBWA (Alh. Idirisu) 2. ALHAJI SHUAIBU ABWA 3. ALHAJI WALl EBWA 4. YAKUBU MADAMI EBWA 5. SHA'BA NDACE 6. GIMBA GOMNATI EBWA 7. SHABA GININ EBWA 8. NDATSU SAID EBWA 9. YAKUBU TSADA EBWA 10. AHMADU KPOKPODANKIN (Sued as Accredited Representatives of EBWA COMMUNITY) - RESPONDENT(S)

Judgement Summary

INTRODUCTION:

This appeal borders on civil procedure.

FACTS:

The appeal emanated from the Niger State High Court, Minna, presided over by Zukogi J.

Appellants as the representatives of the Dere and Eshi Communities, claimed against the respondents and the representatives of the Ebwa community, for the following reliefs:
"(a) A Court declaration that the Dere community is at all material times hereto the lawful occupier/possessor of ALL THAT piece or parcel of vast land lying, being and situate at Dere/her immediate environs and its adjoining waters/fish-ponds known as Epemi-Dere (Egbokongbo)/Emmatsa-Aba and is therefore entitled to customary right of occupancy thereto;
(b) A Court declaration that the Eshi community is at all material times hereto the lawful occupier/possessor of ALL THAT piece or parcel of vast land lying, being and situate at Eshi/her immediate environs and its adjoining waters/fish-ponds known as Emmatsa and Ebora, and is therefore entitled to customary right of occupancy thereto;
(c) A Court declaration that the people of Dere ward as presently constituted are the people entitled to rights of occupancy over ALL THOSE lands and waters situate at Dere/Eshi/Kuchi /Apataku and their immediate environs bounded in the North by Edonni; in the South by River Niger; in the East by Gurara River and in the West by
Jamma all these boundaries being natural boundaries;
(d) A court declaration that the Kuchi community is at all material times hereto the lawful occupier/possessor of ALL THAT piece or parcel of vast land lying, being and situate at Kuchi/her immediate environs, and its adjourning waters
known as Epemi-Kuchi, and is therefore entitled to customary right of occupancy thereto;
(e) A court declaration that Apataku community is at all material times hereto the lawful occupier/possessor of ALL THAT piece or parcel of vast land lying, being and situate at Apataku/her immediate environs, and its adjoining waters
known as Epemi-Kuchi, and is therefore entitled to customary right of occupancy thereto;
(f) A court declaration that the defendants' entry into and or invasion of Dere ward's afore-mentioned lands and waters in recent times, especially in 1995 and May 1996, amounted to trespass as it was wrongful, unauthorized and
unconstitutional and that such acts of trespass ought to be abated forthwith;
(g) A court order compelling the defendants, their servants, agents, assigns, privies etc to vacate the said plaintiffs' lands and waters and allow the plaintiffs to remain in exclusive possession thereof forthwith and henceforth;
(h) An order of Interlocutory Injunction restraining the defendants, their servants, assigns, agents, privies and or any person(s) claiming by or through them in any other manner howsoever from committing further acts of trespass on the said Dere/Eshi/Kuchi/ Apataku 's lands and waters pending the final determination of this suit and a perpetual injunction in the same terms after delivery of judgment. The plaintiffs also seek such other relief(s) as the justice of this case may demand;
(i) An order awarding the sum of N280,000.00 against the defendants as damages for the said assault, trespass acts, wrongful seizure cum detention of plaintiffs' fishing nets and boats.

Respondents filed a defence to which was sub-joined a counter-claim.

After the pleadings had been settled, the suit was heard and the trial Judge concluded that appellants were in possession of the land in dispute when respondents invaded it and unlawfully detained appellants' properties. Appellants were awarded the sum of N50,000.00 as damages for the injuries which respondents inflicted on them. Other heads of damages were awarded.

Nevertheless, counterclaim of the respondents was granted by the trial Court. Dissatisfied with the judgment of the trial court the appellants lodged an appeal before the Court of Appeal, Abuja Division. Respondents cross-appealed. Appellants' appeal was dismissed while the cross-appeal was struck out. They appealed to the Supreme Court.

ISSUES:

In their appellants' brief, which was adopted by this court they have raised five issues which read thus: 
"3.1 Whether the Court of appeal was right when it confirmed the decision of the trial court admitting Exhibits 7, 10 and other relevant exhibits?
3.2 Whether the appellants were under a legal duty to prove or establish more than one root of title or a specific root of title to succeed?
3.3 Whether the decision of the trial court dismissing the appellants' claim for declaration and granting the respondents' counter-claim which was affirmed by the Court of appeal was against the weight of evidence adduced at the trial?
3.4 Whether or not the issue of the admissibility of Exhibits 8(a) - (g) was a fresh point for which the leave of court was required as held by the Court of Appeal?
3.5 Whether the Court of Appeal was correct when it held that Exhibits 8 (a) - (g) were evidence of the respondents' ownership of the waters against the appellants?"

DECISION/HELD:

In conclusion, the Supreme Court found no merit in the appeal and was accordingly dismissed and the cross appeal struck out.

 

GEORGE ADESOLA OGUNTADE, J.S.C.:

(Delivering the Leading Judgment):
The appellants were the
plaintiffs at the Minna High Court of Niger State, where
as the representatives of the Dere and Eshi Communities,

they claimed against the respondents and the

representatives of the Ebwa community, for the

following reliefs:

"(a) A Court declaration that the Dere community

is at all material times hereto the lawful

occupier/possessor of ALL THAT piece or parcel of

vast land lying, being and situate at Dere/her

immediate environs and its adjoining

waters/fish-ponds known as Epemi-Dere

(Egbokongbo)/Emmatsa-Aba and is therefore

entitled to customary right of occupancy thereto;

(b) A Court declaration that the Eshi community is

at all material times hereto the lawful

occupier/possessor of ALL THAT piece or parcel of

vast land lying, being and situate at Eshi/her

immediate environs and its adjoining

waters/fish-ponds known as Emmatsa and Ebora,

and is therefore entitled to customary right of

occupancy thereto;

(c) A Court declaration that the people of Dere
ward as presently constituted are the people

entitled to rights of occupancy over ALL THOSE

lands and waters situate at Dere/Eshi/Kuchi

/Apataku and their immediate environs bounded in

the North by Edonni; in the South by River Niger;

in the East by Gurara River and in the West by

Jamma all these boundaries being natural

boundaries;

(d) A court declaration that the Kuchi community

is at all material times hereto the lawful

occupier/possessor of ALL THAT piece or parcel of

vast land lying, being and situate at Kuchi/her

immediate environs, and its adjourning waters

known as Epemi-Kuchi, and is therefore entitled to

customary right of occupancy thereto;

(e) A court declaration that Apataku community is

at all material times hereto the lawful

occupier/possessor of ALL THAT piece or parcel of

vast land lying, being and situate at Apataku/her

immediate environs, and its adjoining waters

known as Epemi-Kuchi, and is therefore entitled to

customary right of occupancy thereto;

(f) A court declaration that the defendants' entry

into and or invasion of Dere ward's afore-

mentioned lands and waters in recent times,

especially in 1995 and May 1996, amounted to

trespass as it was wrongful, unauthorized and

unconstitutional and that such acts of trespass

ought to be abated forthwith;

(g) A court order compelling the defendants, their

servants, agents, assigns, privies etc to vacate the

said plaintiffs' lands and waters and allow the

plaintiffs to remain in exclusive possession thereof

forthwith and henceforth;

(h) An order of Interlocutory Injunction restraining

the defendants, their servants, assigns, agents,

privies and or any person(s) claiming by or through

them in any other manner howsoever from

committing further acts of trespass on the said

Dere/Eshi/Kuchi/ Apataku 's lands and waters

pending the final determination of this suit and a

perpetual injunction in the same terms after

delivery of judgment. The plaintiffs also seek such

other relief(s) as the justice of this case may

demand;

(i) An order awarding the sum of N280,000.00

against the defendants as damages for the said

assault, trespass acts, wrongful seizure cum

detention of plaintiffs' fishing nets and boats.

Particulars of damages

(i) Eshi's 2 fishing boats wrongfully seized and

currently being unlawfully detained by the

defendants. Each boat costs at least N30,000.00

(Such moneys are to be paid to Eshi community)

=N60,000.00

(ii) Eshi's 4 fishing nets wrongfully seized and

currently being unlawfully detained by the

defendants. Each fishing net costs at least

N12,000.00 -(Such moneys are to be paid to Eshi)

=N48,000.00

(iii) Eshi's 2 fishing nets destroyed by the

defendants/their agents. Each fishing net costs at

least N12,000.00 - (Such moneys are to be paid to

Eshi community) = N24,000.00

(iv) Damages to farm crops e.g. maize worth

N25,000.00 (i.e. N 12,500.00 is to be paid to Eshi

and N12,500.00 is also payable to Dere

community) =N25,000.00

(v) Physical assault to plaintiffs' people resulting in

serious bodily injuries. Some of the victims of the

said assault were hospitalised for a considerable

period of time. (N50,000.00 is payable to Eshi on

this) =N50,000.00

(vi) Damages to plaintiffs' buildings, anguish,

psychological distress and feeling of insecurity now

meted to the plaintiffs' peoples. (Dere community

claims N26,500.00; Eshi community claims

N26,500.00; Kuchi community claims N10,000.00

whilst Akpata community also claims N10,000.00

under this head of damages.) = N73,000.00 Grand

Total of Damages =N280,000.00

The respondents, who were the defendants filed a

statement of defence to which was sub-joined a

counter-claim which reads:

"3. The defendants claim:

(i) a declaration that the waters Gbokomgbo;

Emmatsa and Emmatsa-Aba; Eboro; Egogyali and

Epemi-Kuchi together with those admitted in

paragraph 8 of the statement of claim are owned by

Ebwa community.

(ii) a declaration that all the lands around the said

waters bounded in the North of Cigbaga and Ceku

villages; in the South by River Niger; in the East by

River Gurara and Azo (Kagbodo) and Muye village;

in the North-East by Egba village; in the West by

River Niger and Arah village; and in the

North-West by Achiba and Sokun

villages traditionally belong to Ebwa community

and who are entitled to the customary rights. And

Specifically that the lands called Fokpo lying

between Mambe and Obade (to the East), Nku

(to the South), Elogi (to the North) and Lugwa (to

the West); the Fadama Areas of Batazi Zowu, Che

Pan, Ekowasa. Chikangi and Zabe; and the uplands

of Ningi, Langbata and Lukongogun belong to Ebwa.

(iii) an order of injunction restraining any further

use by the plaintiffs (either by themselves or their

agents or any so how) from the use of all the

waters and lands without prior consent of Ebwa

community through the Etsu Ebwa.

(iv) N280,000.00 as general damages from

psychological distress, blocking of pond and

unconventional fishing practice."

After the pleadings had been settled, the suit was

heard by Zukogi J. On 4-3-98, the trial Judge gave

judgment. At page 136 of the record, the trial

Judge in the judgment concluded that the plaintiffs

were in possession of the land in dispute when the

defendants invaded it and unlawfully detained

plaintiffs' properties. The court said:

"The evidence available before the court all make

out convincing and clear case for award of trespass

and assault; wrongful seizure and detention of

plaintiffs' properties. There is ample evidence

before the court that the defendants invaded the

plaintiffs' communities and beat up their people and

one had a miscarriage."

On the basis of the above finding, the

plaintiffs were awarded the sum of N50,000.00 as

damages for the injuries which the defendants

inflicted on them. Under various other heads, the

plaintiffs were awarded additional damages totalling

N104,000.00.

On the defendants' counter-claim, the trial Judge

concluded:

"Finally, I find on the preponderance of evidence

before the court the defendants have established

ownership of the waters of Gbokongbo, Emmatsa,

Egoyari, Epemikuehi and all lands around the said

waters, bounded to North by Cigbaga and Ceku

villages, to the East by River Gurara and as well as

Azo (Kagbogo) and Muye villages, to the West by

River Niger and Arah village to the North-East by

Egba village and to the North-West by Achiba and

Soku villages are owned by the defendants'

community and the court hereby order any further

use of the waters and lands should be with the

defendants' consent."

?Dissatisfied with the judgment of the trial court the

plaintiffs brought an appeal before the Court of

Appeal, Abuja Division (hereinafter referred to as

'the court below'). The defendants were equally

dissatisfied. They brought a cross-appeal. On

16-10-2000, the court below dismissed the

plaintiffs' appeal and struck out the defendants'

cross-appeal. The plaintiffs were dissatisfied with

the judgment of the court below. They have come

on a further appeal before this court. In their

appellants' brief, they have raised five issues which

read thus:

"3.1 Whether the court below was right when it

confirmed the decision of the trial court admitting

Exhibits 7, 10 and other relevant exhibits?

3.2 Whether the appellants were under a legal

duty to prove or establish more than one root of

title or a specific root of title to succeed?

3.3 Whether the decision of the trial court

dismissing the appellants' claim for declaration and

granting the respondents' counter-claim which was

affirmed by the court below was against the weight

of evidence adduced at the trial?

3.4 Whether or not the issue of the admissibility

of Exhibits 8(a) - (g) was a fresh point for which

the leave of court was required as held by the

Court of Appeal?

3.5 Whether the Court of Appeal was correct

when it held that Exhibits 8 (a) - (g) were evidence

of the respondents' ownership of the waters against

the appellants?"

The issues which the respondents formulated for

determination were:

"1. Whether Exhibits 7 and 10 were wrongly

admitted in evidence (Grounds 1 and 4).

2. Whether the Court of Appeal was right when it

upheld the decision of the trial court that:

(i) the plaintiffs failed to prove how and through

whom title devolved to them; and

(ii) that the defendants/respondents had proved

better title (Grounds 2 and 3).

3. Whether the Court of Appeal was right when it

held:

 (1) that the complaint that exhibits 8(a) - (g) were

registrable instruments raised a fresh issue; and

(2) that exhibits 8(a) - (g) supported the

defendants/respondents' counter-claim for

ownership of the disputed waters (Grounds 5 and 6)."

As the issues formulated by the respondents could

be amply accommodated under appellants' issues, I

shall be guided in this judgment by the said

appellants' issues. It needs be said here that the

parties in their pleadings conveyed that what was

in dispute between them were "waters and land". I

have always understood that parties often dispute

the ownership of land. I am not familiar with

disputes about ownership of 'waters'. It is even

more difficult to understand, as the parties have

not given a description of the 'waters' in dispute.

Were they disputing ownership of lakes, rivers or

ponds? Were these waters man made or natural?

The position was not made clear on the pleadings.

But as the parties have not made an issue of the

matter in this appeal, I should allow the matter to

rest. See Attorney General of Anambra State v. C.

1. Onuselogu Enterprises Ltd. (1987) 4 NWLR

(Pt.66) 547, (1987) All NLR 579 at 595; Chief Ebba

1. Chief Ogodo & Anor (1984) 1 SCNLR 372,

(1984) 4 SC 84; Ejowhomu v. Edok-Eter Mandilas

Ltd. (1986) 5 NWLR (Pt. 39) 1 at 3; Overseas

Construction Ltd. v. Creek Enterprises Ltd. & Ors

(1985) 3 NWLR (Pt. 13) 407. It suffices here to say

that my approach to the matter is to treat

reference to 'waters' as a reference to land. Before

a discussion of the issues, it is necessary to

examine carefully the case of the parties as put

across in their respective pleadings before the trial

court.

?The plaintiffs in paragraphs 5, 6, 7, 8,

9,10,11,12,13,14, 21 and 22 of their statement of

claim pleaded thus.

"5. The plaintiffs aver that prior to 1993, the

Dagaci of Dere was administering and exercising

control over all the communities in Dere ward,

including their lands and waters.

Customarily/traditionally also, all the Zhitsus of all

communities in Dere ward were being ordained by

the Dagaci of Dere until 1993 when Ebwa

community was granted her own ward and hence

had a Dagaci of her own since then. Up to now, the

Zhitsus of the remaining communities under Dere

ward are still accountable to, and being ordained by

the Dagaci of Dere.

6. The plaintiffs assert that in those ancient days

when the palace of Dagaci of Dere had a thatched

roof, the Ebwa community used to send

representatives to Dere to re-roof or repair the

palace of Dagaci of Dere as and when the need

arose.

7. From time immemorial, the Dagaci of Dere used

to delegate any of his agents (including Ebwas) to

fish in all waters under Dere ward annually and

whenever the need arose and nobody would cross

all such waters to the other side without the prior

approval/permission of the Dagaci of Dere.

8. Upon the excision of Ebwa community from

Dere ward in 1993, Ebwa ward had (and still has)

the following 18 waters surrounding/adjoining her

lands to her exclusive possession and use, to wit:

(1) Tsakanabi; (2) Eperebu; (3) Edeh;

(4) Edoni-Mi-Fubo (5) Edoni-Mi-Egeku;

(6) Edogbayin (7) Eparabu; (8) Enwere;

(9) Akah; (10) Epala; (11) Epashe;

(12) Egboh; (13) Irimi-Alhaji Saidu;

(14) Egbarah; (15) Emu-Aba;

(16) Ozereh; (17) Iwugi and

(18) Epeze.

9. On the other hand, with effect from 1993, Dere

ward was left with the following waters for her own

exclusive possession and use, viz:-

(i) Egbokongbo/Emmatsa-Aba;

(ii) Emmatsa; (iii) Eboro; (iv) Egogyari and 13

Epemi-Kuchi.

10. The plaintiffs also aver that the Dere

community naturally and lawfully possesses the

following waters/ fishponds, namely- Egbokongbo

(Epemidere) Emmatsa-Aba. Whilst Eshi community

naturally and lawfully possesses the following

waters/fish-ponds, i.e.

(i) Emmatsa and (ii) Eboro. Kuchi community

naturally and lawfully possesses Epemi-Kuchi

waters whilst Apataku community naturally and

lawfully possesses Egogymi waters. All these 4

communities are now under Dere ward being

administered by the 1st plaintiff.

11. With effect from 1993 when Ebwa was excised

from Dere ward, the natural boundaries of

Dere/Eshi/Kuchi/ Apataku can now be described

thus: all those lands and waters situate at

Dere/Eshi/Kuchi /Apataku and their immediate

environs bounded in the North by Edonni; in the

South by River Niger; in the East by Gurara River

and in the West by Jamma.

12. The plaintiffs further state that Eshi is about 3

Kilometres away from Dere/Kuchi/Apataku whilst

Ebwa is over 20 Kilometres away from Dere. Both

Dere and Ebwa wards are now accountable locally

to Lapai as their Local Government Headquarters

and not to each other. Hence, traditionally the

Dagaci of Dere has never paid any tribute or

traditional dues to Ebwa and nothing of such has

ever been requested from Dere.

13. The plaintiffs equally state that the recent

tortuous acts of the Ebwa community which now

culminate into this legal action are traceable to

1995 and especially May 1996 when some

servants/agents/indigenes of Ebwa invaded

Dere/Eshi/Kuchi/Apataku and viciously

attacked/damaged/injured some persons and

properties belonging to the latter communities. The

defendants' main bone of contention being that all

lands and waters (afore-said) now remaining under

Dere ward, are still vested in Ebwa.

14. The plaintiffs aver that both at law and in

equity, in truth and logic, the lands and waters

(subject-matter of this action) naturally belong to

Dere ward and cannot by any stretch of human

imagination be claimed by Ebwa. For instance,

Egbokongbo River runs across or passes in front of

Dere community, Emmatsa River runs across or

passes in front of Eshi community and River Gurara

runs into River Niger just a few metres behind

Eshi/Dere communities. Likewise Epemi-Kuchi and

Egogyari waters are naturally attached to Kuchi

and Apataku communities respectively. A visit to

the locus-in-quo will further elucidate matters. (The

relevant map or sketch-diagram is hereby pleaded

and the plaintiffs will found on same at the trial).

21. The plaintiffs will contend at the trial that in so far

as all lands and waters (subject-matter of this suit)

are situate in non-urban areas of Lapai Local

Government Area of Niger State, any instrument

which purports to transfer the said lands and

waters from the plaintiffs' communities (the natural

occupiers/possessors) to the defendants (Ebwa

community) without any compensation and without

the prior consent and or approval of Lapai Local

Government Council in accordance to the due

process of law, shall be null and void 'ab initio' and

of no legal effect howsoever/ whatsoever.

22. It is part of the plaintiffs' story that during the

colonial period, the plaintiffs improved the lands

and waters (subject-matter of this action)

tremendously, E.g. (a) by cultivating the lands and

planting crops such as rice/ maize thereon up to

this date;(b) by constructing roads to make the

plaintiffs' communities accessible to motor vehicles;

(c) by charting a canal round the plaintiffs'

communities through the natural course thus

cutting a hole through the afore-said plaintiffs'

lands and waters/ fish-ponds so as to form artificial

fence/boundaries ('Ebban') and forestall incessant

invasions by the war-lords. The plaintiffs will

contend that all their afore-said efforts in this

paragraph constitute improvement of the said lands

and waters within the purview of the Land Use Act,

1978. The plaintiffs also plead and will rely on the

principle of "Quic quid Plantatur solo, solo cedit" ...

The defendants in paragraphs 4, 5, 6, 7, 8 and 9 of

their joint statement of defence pleaded thus:

"4. In further answer to the paragraphs denied, the

defendants aver that:

(a) the people of Ebwa from time immemorial, and

before the arrival of all other communities,

occupied 5 different areas, namely -

1. Nza
2. Gyatufo

iii. Kpokpomedi

1. Atekpabma
2. Equmibwa.

They owned all the lands and fish ponds around the

areas.

(b) These areas are located at the South-Eastern

end of Niger State and bounded to the North by

Cigbaga

And Ceku villages; to the South by River Niger; to

the East by River Gurara, Azo (Kagbodo) and

Muye;

to the North-East by Egba; to the West by River

Niger and Arah village; and to the North-West by

Achiba and Sokun.

(c) The Ebwa people were later joined by other

people who arrived in the following order-

(i) Reba

 (ii) Kuchi

(iii) Apataku

(iv) Gbokungbo (who later moved to present day Eshi)

(v) Eshi

(vi) Dere (who arrived from Adabuke In Kogi State)

all of whom were accepted by Ebwa people and

given land. They have at all times recognised Ebwa

as their landlords. Oral tradition relates Dere to

Ebwa through intermarriage.

(d) All the settlers paid annual tributes to Ebwa in

the form of allowing a fish to be taken from each

canoe on the first fishing day (but this was later

changed to payment of N50.00). In respect of

produce farmers a bag of rice was paid per farmer.

In respect of Reba, only non-indigenes of Reba paid

tributes.

5. The defendants aver that the Egbokongbo

(variously referred to as Gbokongbo or Bokonbo or

Gbongbo or Gbogbongbo or Gbokongbo or

Epemidere) had been declared for Ebwa in the

following cases:

1. a) Kwatun Ebwa v. Zhitsun Dere (decided on 7/3/

50 before the court of Etsu Lapai). This suit upheld

the decision of the same on 1/10/37 which it held

as amounting to res judicata. Same is pleaded.

(b) Lapai Native Authority letter of 15/5/56

confirming the owner of Bokomgbo on Ebwa. Same

is pleaded.

(c) Idrisu Etsu-Ebwa v. Musa Etsu-Dere. (Suit No.

22/CV/72 decided on 16/3/72 before the Area

Court and confirming Bokonbo. Same is pleaded.

6. The defendants aver that the Lapai Local

Authority and emirate council severally wrote

letters confirming inter alia the following waters for

Ebwa and appointing their overseers -

(i) Gbongbon

(ii) Amatsa (also called Ematsa or Emmatsa or

Amatso)

(iii) Aboro (also called Eboro)

(iv) Kpatan Kuchi (also called Epemi Kuchi)

(v) Gogyari (also called Egogyari)

and also directing the number of times the waters

shall be entered. Defendants plead the said letters

dated 11/ 4/72, 13/2/96 and 28/5/96.

7. The defendants also aver that they have been

paying to the government, and receiving receipts

therefore, rates in respect of among others the

following waters-

(a) Gbokomgbo

(b) Amatso (including Amatsa-Aba)

(c) Eboro

(d) Egogyari

(e) Epemi-Kuchi

All the receipts are hereby pleaded and shall be

relied upon.

8. (a) During the reign of Etsu Saba of Ebwa there

was a pond dispute over Emmatsa which came

before the Divisional Officer at Bara. The people of

Dere and Kuchi swore on the Holy Qur'an that the

pond belonged to Ebwa while Apataku and

Gbokungbo swore on chain.

(b) In the 1970s a dispute that ensued between

Dere and Eshi communities went before the

Divisional Secretary who invited the Sarkin Ebwa.

The latter settled the two communities by showing

the portion Ebwa borrowed to both sides.

9. The defendants shall contend that the plaintiffs

are not entitled to reliefs claimed and that the suit

be dismissed with substantial costs."

The plaintiffs filed a reply and defence to the

counter-claim wherein they denied that there had

been any previous cases between parties which

decided the ownership of the "waters and lands" in

dispute between parties. They also denied that they

were ever tenants to the defendants.

It is appropriate that I make some comments

on the pleadings of parties. The plaintiffs' case on

the pleadings is in essence that they were entitled

to the certificate of a right of occupancy and that

they had been the lawful occupier/possessor of land

and waters in dispute. They relied on the eminence

and paramountcy of the Dagaci of Dere and the fact

that the said Dagaci was "administering and

exercising authority" over all the communities in

Dere ward which before 1993 included the

defendants' Ebwa community. It was further

pleaded that before 1993, the said Dagaci of Dere

delegated his agents to fish in all the waters under

Dere ward, which included the Ebwa community. It

was also pleaded by the plaintiffs that following the

excision of Ebwa community from Dere ward, Ebwa

had under its control 18 waters surrounding her

land area whereas Dere (after the excision) had six

of such waters.

?It would appear from plaintiffs' pleadings that

25

the plank or cornerstone of their case was the fact

that the administrative order or fiat by which the

defendants' Ebwa community was excised from the

old Dere ward left the lands and waters now in

dispute in the hands of the plaintiffs. An extension

of this approach is the reliance placed by the

plaintiffs on the fact that the waters in dispute fell

within the area apportioned to them under the

administrative order, which excised Ebwa

community from the old Dere ward. It is to be

stressed here that the plaintiffs even on their

pleadings did not rely on any traditional history in

the form that they were the first settlers on the

waters and land in dispute. It is necessary to stress

this aspect of plaintiffs' pleadings as the plaintiffs

were on their pleadings seeking a judgment in their

favour on the fact that the Dagaci of Dere had once

wielded administrative authority over the old Dere

ward. It was not pleaded how the authority

exercised by the Dagaci of Dere derived from the

history concerning who first settled on the waters

and land in dispute.

?The defendants on the other hand pleaded that

their Ebwa community was the first to settle on the

waters and land in dispute and that other people

including the plaintiffs who were said to have

migrated from Adabuke in Kogi State later became

their tenants and paid to them annual tributes. The

defendants also relied on two judgments, which

upheld their title and also a letter from Lapai

Native Authority confirming their ownership of the

land.

The suit was heard on this state of pleadings.

The plaintiffs called six witnesses and tendered

Exhibits 1 - 4. The defendants called nine witnesses

and tendered fifteen exhibits marked 5(a) - (c), 6,

6a, 7, 8(a) - (g), 9 and 10. Parties testified in

substantial conformity with the averments on their

respective pleadings.

The plaintiffs/appellants under their first

issue argued that the court below was wrong to

have confirmed the decision of the trial court

admitting in evidence Exhibits 6, 6A and 7. It was

argued that the said exhibits were inadmissible as

they purported to be court judgments. They were

not certified as they should be as required by

Sections 109(a)(n), 111(1) and 112 of the Evidence

Act. Counsel relied on Minister of Lands, Western

Nigeria v. Azikiwe & Ors (1969) NSCC (vol.6) 31 at

38, Anatogu v. Iweka II (1995) 8 NWLR (Pt.415)

547 at 571. It was further argued that as Exhibit

10 was not pleaded, it ought not have been

admitted in evidence. Woluchem v. Gudi (1981) 5

SC 291 at 319 - 320; Ajide v. Kelani (1985) 3

NWLR (Pt.l2) 248 - 261; Adimora v. Ajufo (1988) 3

NWLR (Pt.80) 1 at 4; N.I.P.C. v. Thomson

Organisation Ltd. (1969) NMLR 104 and Ipinlaiye II

167. Olukotun (1996) 6 NWLR (Pt.453) 148 at 167.

The respondents' Counsel in his reply on issue 1

argued that the plaintiffs/appellants had not raised

any issue at the trial court and the court below as

to the admissibility of Exhibits 6 and 6A and that

arguments on the documents could not be raised in

this court unless leave was first sought and

obtained to raise the issue. Oforkire v. Madiuke

(2003) 5 NWLR (Pt.812) 166 at 182. With respect

to the admissibility of Exhibit 7, it was Counsel's

argument that as the plaintiffs did not in their

pleading deny that there had been three previous

court decisions in favour of the defendants

concerning Egbokongbo water, the fact was to be

deemed as admitted and therefore not an issue in

the current case. Counsel relied on Broadline

Enterprises Ltd. v. Monterey (1995) 9 NWLR

(Pt.417) 1 at 29; Lewis & Peat v. Akhimen (1976) 1

All NLR 460 at 465. It was submitted that the

plaintiffs having admitted the existence of the said

judgment had thereby relieved the defendants the

burden of proving them Yesuf v. Oyetunde (1998)

12 NWLR (Pt.579) 483 at 497. It was finally

submitted that the plaintiffs bore the burden of

proving that the court decisions were not binding

on them. Ajao v. Alao (1986) 5 NWLR (Pt.45) 802

at 822; Onobruchere v. Esegine (1986) 1 NWLR

(Pt. 19) 799 at 806 - 807; Tsokwa & Sons Co. Ltd.

1. U.B.N Ltd. (1996) 10 NWLR (Pt.478) 281 at 299;

and Nigerian Maritime Services Ltd. v. Afolabi

(1978) 2 SC 79.

It seems to me that the plaintiffs/appellants not

having raised objection to the tendering in

evidence of Exhibits 6 and 6A before the court of

trial and not having appealed against the same

before the court below could not raise the matter

before this court unless leave was first sought and

obtained to raise it as a fresh matter on appeal.

See Uor v. Loko (1988) 2 NWLR (Pt.77) 430.

Exhibits 6 and 6A were tendered in evidence by

DW.7 and the relevant proceedings for 6/11/97

read:

"At the settlement in 1950, the water in question

Egbokongbo was given back to us. In 1956, it was

the same Egbokongbo and the same river was

given us and this was when we put overseers there.

For the settlement of 1950 and 1956, I have

documents of settlement which are with my lawyer.

If I see them, I can identify them from the stamp

and signature of the Etsu. These are the two

documents of 1950 and 1956."

Mr. Isyaku: The documents are identified and I

seek to tender them in evidence but they are in

Hausa and my colleague might not be able to read

them. We undertake to translate them into English

language .

Mr. Olushola: No objection.

Court: Mark the 1950 document as exhibit 6 and

the 1956 one as Exhibit 6A"

It is apparent that the Counsel who appeared for

the plaintiffs/ appellants at the trial court had not

opposed the tendering in evidence of Exhibits 6 and

6A. Further, in their appeal before the court below,

the plaintiffs had not complained about the

admission in evidence of the exhibits. The

plaintiffs/appellants are disabled from raising the

matter which is a fresh one before this court

without first seeking and obtaining the requisite

leave.

The tendering in evidence of Exhibit 7 is a different

matter. Plaintiffs' Counsel opposed the tendering of

Exhibit 7 on the ground that only a certified copy of

it was receivable in evidence since it was purported

to be a court record. The trial court notwithstanding

the objection received it in evidence. Before the

court below, the plaintiffs/appellants raised the

issue and the court below at page 255 of the record

said:

"Learned Counsel referred to the arguments of the

appellants' Counsel in paragraph 6.1 of his brief

and conceded that Exhibit 7 (supra) is a public

document but submits that since the facts that the

case was decided between the present parties (or

their privies) and that the decision over title was in

defendants' favour were both not in dispute before

the trial court, Exhibit 7 was therefore not tendered

in proof of its existence or condition under Section

97(1) of the Evidence Act . Rather what was sought

to be established was that the parties (or their

privies); the issues; and the subject matter had

been decided upon previously and not appealed

against. Indeed appellants are not denying that the

trial took place. The trial High Court also confirmed

that in his findings at p.13 lines 17 - 27 of the

record. It was clear as held by the trial court that

Eghokongbo is therefore caught up by the doctrine

of res judicata. Again, learned Counsel for the

respondents further contended, the above decision

of the trial court did not deal with the admissibility

or not of exhibit 7 because that was not the issue

as the fact of the decision of Ebbo Area Court was

never disputed. The appellants did not appeal

against the findings of the trial High Court and

particularly against the finding that the plaintiffs

claim over Egbokongbo water is res judicata. This

court cannot interfere with the decision of the trial

court vis-a-vis Exhibit 7. It cannot be taken as an

inadmissible exhibit as there was no cause for so

holding."

I think, with respect to their Lordships of the court

below that they were in palpable error in their

conclusion that Exhibit 7 was receivable in

evidence. Exhibit 7 was tendered to support the

plea of estoppel per res judicata, which the

defendants raised. The plaintiffs pleaded in

paragraph 1 of their reply and defence to the

counter-claim that there were no binding cases

previously decided between parties which settled

the ownership of the waters and lands in dispute.

In Ihenacho Nwaneri & Ors v. Oriuwa & Ors

(1959) 4 FSC 132, (1959) SCNLR 316, the court

considering the nature of the doctrine of estoppel

per rem judicatam observed:

"It is well known that before this doctrine can

operate,  it  must  be  shown  that  the  parties,

issues and subject-matter were the same in the

previous case as those in the action in which the

plea of res judicata is raised."

In New Brunswick Rail Co. v. British and French

Trust Corporation Ltd. (1939) AC at pp. 19 - 20,

the court said:

"The doctrine of estoppel (per rem judicatam) is

only founded on considerations of justice and good

sense. If an issue, has been distinctly raised and

decided in any action in which the parties are

represented, it is unjust and unreasonable to permit

the same issue to be litigated afresh between the

same parties or persons claiming under them."

In Dzungwe v. Gbishe (1985) 2 NWLR (Pt.8) 528 at

539, this court per Aniagolu JSC observed:

"The principle of res judicata decided in (1843)

Henderson v. Henderson (1843) 67 ER 313 at 319

was adopted in this country in Fabunmi v. Delegan

(1965) NMLR 369 at 373 and was amplified by the

pronouncement of Diplock, LJ, in Mills v. Cooper

(1967) 2 All ER 100 at 104 who said:

"The doctrine of issue estoppel in civil proceedings

is of fairly recent and sporadic development,

though non the worse for that. Although Hoystead

1. Taxation Commissioner did not purport to break

new ground, it can be regarded as the starting

point of the modern common law doctrine, the

application of which to different kinds of civil

actions is currently being worked out in the courts.

This doctrine, so far as it affects civil proceedings,

may be stated thus: a party to civil proceedings is

not entitled to make, as against the other party, an

assertion, whether of fact or of the legal

consequences of facts, the correctness of which is

an essential element in his previous cause of action

or defense, if the same assertion was an essential

element in his cause of action or defense in

previous civil proceedings between the same

parties or their predecessors in title and was found

by a court of competent jurisdiction in such

previous civil proceeding to be incorrect, unless

further material which is relevant to the

correctness or incorrectness of the assertion and

could not by reasonable diligence have been

adduced by that party in the previous proceedings

has since become available to him.

The sound reasoning behind this principle is that a

litigant is not permitted to nibble at his claims,

breaking them down and taking them piecemeal.

He is expected to bring all his claims, belonging to

the same subject matter, at one and the same

time. If he chooses to bring them piecemeal he may

be met by the doctrine of res judicata or where

appropriate, issue estoppel, as happened in

Fidelitals Shipping Co. Ltd. v. V/O Exportchleb

(1966) 1 QB 630 and also recently McIlkenny v.

Chief Constable of The West Midlands & Anor

(1980) 2 WLR 689. This court in Lawal v. Chief

Dawodu & Anor adopted the reasoning in Fidelitals

Shipping Co. Ltd."

The defendants pleaded and relied on previous

cases as having finally decided the ownership of the

waters and land in dispute as between them and

the plaintiffs. The plaintiffs denied that there were

any such binding cases. Since estoppel per rem

judicatam would only apply when parties, issues

and subject-matter in the previous and the current

case are the same, it is incontestible that a party

who pleaded that there were no such binding case

was in fact disputing the applicability of the

doctrine. The doctrine is like a package. It is

sufficient for a person resisting the applicability of

the doctrine to raise the absence of just one of the

ingredients; and the person raising it must in that

event bear the burden that such a judgment in far

existed. It is my firm view that the plaintiffs having

denied the existence of any binding judgment

between them and the defendants had sufficiently

raised a distinct issue as to the existence of such

judgment. The defendants who raised the plea

therefore bore the burden of tendering judgments

wherein the issue of ownership of the water and

land in dispute had been decided between the

parties by a court of competent jurisdiction. This

then brings into consideration the question whether

or not Exhibit 7 in the form it was could be

tendered in proof of a plea of estoppel per res

judicata.

Sections 54, 111(1) & (2) and 112 of the Evidence

Act provide:

"54. Every judgment is conclusive proof as against

parties and privies, of facts directly in issue in the

case, actually decided by the court and appearing

from the judgment itself to be the ground on which

it was based; unless evidence was admitted in the

action in which the judgment was delivered which

is excluded in the action in which that judgment is

intended to be proved."

111 (1) Every public officer having the custody of a

public document which any person has a right to

inspect shall give that person on demand a copy of

it on payment of the legal fees therefore, together

with a certificate written at the foot of such copy

that it is a true copy of such document or part

thereof, as the case may be, and such certificate

shall be dated and subscribed by such officer with

his name and his official title, and shall be sealed,

whenever such officer is authorised by law to make

use of a seal, and such copies so certified shall be

called certified copies.

(2) Any officer who, by the ordinary course of

official duty, is authorised to deliver such copies,

shall be deemed to have the custody of such

documents within the meaning of this section.

112. Such certified copies maybe produced in proof

of the contents of the public documents or parts of

the public documents of which they purport to be

copies."

Exhibit 7, not being a certified copy ought not have

been received in evidence. In Ipinlaiye II v.

Olukotun (1996) 6 NWLR (Pt.453) 148 , this court

per Iguh JSC at 167 said:

"If a document is unlawfully received in evidence in

the trial court, an appellate court has inherent

jurisdiction to exclude and discountenance the

document even though learned Counsel at the trial

court did not object to its going into evidence. See

Mallam Yaya v. Mogoga (1947) 12 WACA 132 at

133."

I must in the consideration of evidence in this

appeal discountenance Exhibit 7 which was wrongly

received in evidence.

I now consider the

admissibility in evidence of Exhibit 10. This was

tendered in evidence on 12-12-97 by DW9. The

evidence relevant to the tendering of Exhibit 10 is

to be found on page 99 of the record and reads:

"The Zitsu of Ebwa was never turbaned in Dere. I

am 41 years old and since I was born I have

witnessed the turbaning of one Zitsu which took

place at Muye and he was Etsu Isdris Cerba. The

evidence I have of this turbaning of the Zitsu at

Muye we have some documents on that from Muye

and one paper too from case treated by former CJ.

Muazu and those papers are with my Counsel. If I

see the decision of High Court 1 on that issue I can

identify it.

Mr. Isyaku - We seek to tender the judgment of

High Court 1 in evidence.

Mr. Olushola - We wish to observe on record that

this document is nowhere pleaded but if document

is deemed material, then we have no objection.

Mr. Isyaku - An issue has been made that the

people of Ebwa are virtually subjects of Dere as

their Zitsus were also turbaned in Dere. This issue

we have denied in paragraph 3 of our joint

statement of defence and in furtherance of the

denial we are tendering the judgment of High Court

which found that the Zitsus of Ebwa were never

turbaned in Dere. On question of not having

pleaded the judgment, the S.C. (Supreme Court)

has ruled in Monier Construction Company v.

Azubuike (1990) 3 NWLR 74 that documents are

evidence and evidences are not to be pleaded in

pleadings as long as they are tendered in proof of

issues in controversy. Since this is an issue, we are

tendering the document and we say the court

should overrule the objection more so the Counsel

has said the court can admit if it's material to the

case.

Court -The document no doubt is material to the

case at hand and since the plaintiffs' Counsel has

said they were not objection if it was material to

the case at hand, the objection is hereby over-ruled

and that document is accepted in evidence

and should be marked as Exhibit 10.

Exhibit 10 taken as read."

In this court, plaintiffs/appellants' Counsel has

argued that the fact in support of which Exhibit 10

was tendered was not pleaded and that therefore

the exhibit was inadmissible. Respondents' Counsel

has argued that although the fact in support of

which Exhibit 10 was tendered was not pleaded by

the defendants, the exhibit was tendered to counter

the averment in plaintiffs' statement of claim that

the turbaning of the Chiefs from the Ebwa

community i.e. the Zitsus was always done by the

Dagaci of Dere. Respondents' Counsel relied on

Monier Construction Co. Ltd. v. Azubuike (1990) 3

NWLR (Pt.136) 74 at 88.

In paragraph 5 of their amended statement of

claim, the plaintiffs pleaded:

"The plaintiffs aver that prior to 1993, the Degaci

of Dere was administering and exercising control

over all the communities in Dere ward, including

their lands and waters. Customarily/traditionally

also, all the Zhitsus of all communities in Dere

were being ordained by the Degaci of Dere until

1993 when Egba Community was granted her own

ward and hence had a Dagaci of her own since

then. Up to now, the Zhitsus of the remaining

communities under Dere ward are still accourttable

to, and being ordained by the Dagaci of Dere."

There is no doubt that the defendants had the right

to call evidence in order to deny the fact pleaded by

plaintiffs in paragraph 5 of their amended

statement of claim. Viewed from this perspective

one readily sees that, Exhibit 10 if it possessed the

requisite quality as required by law, was

admissible. However, Exhibit 10, which purported

to be a court judgment, was not certified as it

should be. It is by law inadmissible. In Olukade v.

Alade (1976) 1 All NLR 67 this court said:

"2. It is however the duty of the opposite party or

his Counsel to object immediately to the

admissibility of such evidence but if the opposite

party fails to object:

(a) the trial court in civil cases may (and in

criminal cases must) reject such evidence ex

proprio motu; but

(b) On appeal, and provided the evidence is one

which is, by law, admissible under certain

conditions, then since the opposite party failed to

object to its admissibility at the court of trial or by

implication consented to its admissibility (although

the conditions precedent have not been shown to

have occurred) he cannot be allowed to raise the

objection in the appeal court.

(c) Where, however, evidence is by law

inadmissible in any event, it ought never to be

acted upon in court (whether of first instance or of

appeal), and it is immaterial that its admission

evidence was as a result of consent of the opposite

party or that party's default (in failing to make

objection at the proper time.)"

I am satisfied that Exhibits 7 and 10 ought not

have been received in evidence by the trial court

and that the court below was wrong not to have

rejected them in evidence. In this court, the two

must and will be discountenanced.

I now consider together issues 2 and 3 raised by

the plaintiffs/ appellants. These issues boil down to

whether or not there was enough reason for the

decision by the court below to uphold the

conclusion on the evidence of the court of trial. The

trial court at page 133 of the record expressed

views on the evidence called thus:

"The plaintiffs rest their claim on possession of

these waters and use by proximity of the waters to

their respective villages but could not state how

they came into possession especially in view of

paragraphs 4(a) (c) (d), 6 and 6 of statement of

claim and counter-claim which states as Mr. Isyaku

stated, that the defendants owned waters and

allowed them use of the same in return for tribute.

DW Nos. 3, 4, 5 and 6 from the neighbouring

villages of Achiba, Egba, Azo and Arah said the

Ebwas owned the waters and that they usually

invited them to fish in them and remove 2 fish from

them as tribute and this form of tribute was later

changed to N50.00. These witnesses were not

discredited. DW.7 corroborated these testimonies

and tendered Exhibits 8A - Q and Exhibit 9 which

are receipts and permits paid to government by

Ebwa over the Gbokongbo,

Emmatsa, Emmatsa-Aba, Eboro, Egoyari, Kuchi

waters. An Exhibit 9 is a list of waters and its

overseers. From that exhibit, waters in dispute are

overseen by Ebwa and those not in dispute are

overseen by its owners. That exhibit which is in

Hausa language is translated to read 'Land area of

the village Head of Dere' and it opens with 'these

are the names of Zitsu Ebwa's waters and their

respective caretakers, etc.' From the list, it shows

that the Ebwa own the first five waters in dispute

on that list. These are Gbokoingbo, Amatsa,

Aboro, Kpatan-Kuchi, Gogyari. From the bits of

evidence shown above it's clear therefore that

these waters all belong to the Ebwas with the

exception of Emmatsa-Aba, which they did not lead

any evidence on."

?And in respect of the evidence

called by the defendants in support of the

defendants' counterclaim the trial court said at

page 138:

"Finally, I find on the preponderance of evidence

before the court the defendants have established

ownership of the waters of Gbokongbo, Emmatsa,

Egoyari, Epemikuchi and all lands around the said

waters, bounded to the North by Cigbaga and Ceku

villages, to the East by River Gurara and as well

Azo (Kagbogo) and Muye villages, to the West by

River Niger and Arah village to the North-East by

Egba village and to the North-West by Achiba and

Soku villages, are owned by the defendants'

community and the court hereby order any further

use of the waters and lands should be with

defendants' consent."

The court below in affirming the judgment of the

trial court said at pages 253 to 254:

"Having considered the submissions of both Counsel

on this issue together with reply brief I am of the

view that the findings and the position taken by the

trial court cannot be faulted. The findings are never

perverse and we cannot disturb the said findings.

The evidence adduced was in line with the

pleadings in the counter claim the issue is hereby

answered negatively."

Earlier in this judgment, I held that Exhibits 7 and

10 should not have been admitted in evidence.

When evidence, which is inherently inadmissible, is

improperly let into the proceedings, an appellate

court will discountenanced the evidence wrongly let

into the proceedings. See Olukade v. Alade (supra).

In the instant case however, there was sufficient

evidence on record to sustain the conclusions on

evidence of the trial Court and the court below

even when Exhibits 7 and 10 are discountenanced

by this court. The two courts below did not rely on

Exhibits 7 and 10 to arrive at their conclusion on

the evidence. The result is that the judgments of

the two courts will remain unaffected even when

Exhibits 7 and 10 are discountenanced, as they

should be. In this court, I am confronted by the

concurrent findings of fact by the two courts below.

In Enang v. Adu (1981) 11-12 SC 25 at pp. 41 -

42, this court per Nnamani JSC said concerning

concurrent findings of fact:

The task of the appellants on this ground of appeal

is made more difficult by the fact that there are

before us concurrent findings of fact by both the

learned trial Chief Judge and the learned Justices of

the Court of Appeal. It is settled law that such

concurrent  findings  where  there  is  sufficient

evidence to support them should not be disturbed.

Kofi v. Kofi 1 WACA 284."

This rule of practice can only be obviated if there is

some miscarriage of justice and violation of some

principle of law or procedure. The Privy Council in

The Stool of Abinabina v. Chief Kojo Enyimadu

(1953) 12 WACA 171 at 173 quoted with approval

a definition of the miscarriage of justice necessary

for such a purpose previously given by Lord

Thankerton in Srimatti Devi v. Kumar Ramendre

Narayan Roy 62 FLR 549 . This is that:

"The violation of some principle of law or procedure

must be such an erroneous proposition of law that

if that proposition be corrected the findings cannot

stand or it may be the neglect of some principle of

law or procedure, whose application will have the

same effect."

See also Chief Kweku Serbeh v. Ohene Kobina

Karikari (1938) 5 WACA 34; Chinwedu v. Mbamali

(1980) 3-4 SC 31 and Ibodo v. Enarofia (1980) 5/7

SC 42.

A close examination of the record and judgment

of the court of trial abundantly reveals that it

unquestionably evaluated the evidence and

appraised the facts. The court below did the right

thing by affirming such findings of the trial court.

See Fabumiyi & Anor v. Obaji & Anor (1968)

NMLR 242 at 247; Akinola v. Fatoyinbo Oluwo &

Ors (1962) 1 All NLR 224 and Lawal Braimoh

Fatoyinbo & Ors v. Atake Williams (1956) SCNLR

274, (1956) 1 FSC 67. Before us in this Court, we

are confronted with two concurrent findings by the

two courts below. The plaintiffs/appellants have not

directed my attention to any erroneous proposition

of law or neglect of some principle of law by the

two courts below which would lead me to disturb

their concurrent findings.

I shall now consider the appellants issue 4. The

Court below at pages 256 - 257 of the record held

that trial court did not rely in its judgment on

Exhibits 8(a) - (g) and that the attempt by the

plaintiffs/appellants to raise an issue on the

exhibits amounted to raising a fresh issue on

appeal. The court below refused to consider the

issue relying on Akpene v. Barclays Bank of Nigeria

(1977) 1 SC 47; Ejiofodomi v. Okonkwo (1982) 11

SC 74 and Attorney General of Oyo State v.

Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt.92) 1 at
I think with respect to the plaintiffs/appellants'

Counsel that he did not sufficiently bear in mind

that the trial court did not place any reliance on

Exhibits 8(a) to (g) in its judgment. The record of

court at pages 91 - 92 on 6/11/97 where DW7

tendered Exhibits 8(a) to (g) read:

"Witness - I also referred to license and receipt. If I

see the same I can identify them. There are the 17

papers.

Mr. Isyaku - We seek to tender the 17 papers in

evidence.

Mr. Olushola - We are raising the following

objection to the admissibility of these documents -

First on the license - the licenses have

not been duly signed and stamped by the officer

deemed to have made them but rather somebody

just inserted a signature for the officer supposed to

have been signed. The person failed to write his

name, his position and no stamp. The date the

document was signed was not indicated. The

witness not being the maker cannot explain how

the document was made. A careful perusal shows

various persons signing for the officer without the

person's name. We say all these discrepancies of

the documents render them valueless and of no

evidential value and that being the case, it's of no

use in the case. We urge the court to reject the

document in evidence. On the receipts, we are not

seriously objecting but will address the court as to

weight.

Mr. Isyaku -I am surprised that the Counsel is

talking of witness not being a maker. When the

learned friend sought to tender Exhibits 1 and 2,

we raised the issue of witness not being a maker

and he argued and the court sustained him but that

objection on that ground will not hold water. In

respect of all objection, they all go to the weight to

be attached and not to the admissibility of the

document. We urge the court to disregard the

objection.

Court - The objections are baseless as they deal

with weight and not admissibility. So, the

documents are all accepted in evidence and should

be marked as Exhibits 8A - G."

Plaintiffs/appellants Counsel objected to tendering

of the licences. Form F which formed parts of

Exhibits 8(a) to (g). Counsel did not however object

to the tendering of the receipts which were a part

of Exhibits 8(a) to (g). All that the trial Judge said

concerning the exhibits is to be seen at pages 134 -

135 of the record. The court said:

"In addition to the above fact the defendants had

licence and permit to fish in those waters (even

though permit is not sufficient as evidence of

ownership). They had Exhibit 9 too which was a

document on their right to oversee waters. It

sounds more logical for the owner of property to be

asked to oversee it as others might not really have

the interest of that property at heart."

A trial court before which parties to a dispute

have led evidence has the duty to determine which

of the versions to accept of the evidence called.

Obviously, it does this based on the advantage

which it has of seeing and hearing the witnesses

testify. An appellate court has not that advantage.

This explains why an appellate court does not and

should not readily disturb the findings of fact made

by the court of trial .

The plaintiffs/appellants and their Counsel are

justifiably displeased with the fact that the court of

trial preferred the defendants case to theirs. But

that is in the nature of all adjudications whether

formal or informal. It is immaterial in this case

whether or not the trial court had been wrong in

receiving in evidence Exhibits 8(a) - (g). This is

because, the final judgment of the court of trial was

not based on the said exhibits. The court below

made the same point explicitly when it reproduced

the statement by Iguh JSC in Okoro v. The State

(1998) 14 NWLR (Pt.584) 181 at 219 that:

"The law is well settled that the wrongful admission

of evidence shall not of itself be a ground for the

reversal of a decision where it appears on appeal

that such evidence cannot reasonably be held to

have affected the decision and that such decision

would have been the same if such evidence had not

been admitted. See Ezeoke v. Nwagbo (1990) 1

NWLR (Pt.72) 616 at 630; Umeojiako v. Ezenamuo

(1988) 1 NWLR (Pt. 126) 253 at 270 and Monier

Construction Company Ltd. v. Azubuike (1990) 3

NWLR (Pt.136) 74 at 88."

The reasoning of Iguh JSC above flows from the

provisions of Section 227( 1) of the Evidence Act ,

which reads:

"The wrongful admission of evidence shall not of

itself be a ground for the reversal of any decision in

any case where it shall appear to the court on

appeal  that  the  evidence  so admitted cannot

reasonably be held to have affected the decision

and that such decision would have been the same if

such evidence had not been admitted."

The conclusion I arrive at is that Exhibits 8(a) to

(g) played no part in the conclusion arrived by the

trial court. It is therefore immaterial that the court

below had not considered whether or not Exhibits

8(a) to (g) was wrongly received in evidence.

Under issue No.5 appellants' Counsel argued that

the court below was in error to have said at page

255 of the record as follows:

"On the issue of Exhibit 8(a) - (g) the fact was that

the defendants therein tendered through DW7

yearly fishing licenses issued to them by the Niger

State Government upon payment of fees. The

licences not only gave them right over the waters

specified therein but supported their claim of

ownership."

Counsel argued that at common law, a licensee has

no estate in a property and that in a licence the

owner does not part with possession of the property

but merely allows the licensee the use of same for

a certain purpose. Counsel relied on Akpiri v.

W.A.A.C. (1952) 14 WACA 195 and Chukwumah v.

Shell Pet. Dev. Co. Nig. Ltd. (1993) 4 NWLR

(Pt.289) 512.

I think that the court below was in error to have

said that the licences supported the defendants'

claim of ownership of the land in dispute. The trial

court knew enough to state at page 134 of the

record that "permit is not sufficient as evidence of

ownership."

The error of the court below on the point however

is not enough a reason to reverse its conclusion in

the case. I am satisfied that there was sufficient

evidence before the court other than Exhibits 8(a)

to (g) which could sustain the conclusion arrived at.

The respondents/cross-appellants did not put

across any argument in support of their cross-

appeal. At page 25 of the respondents/cross-

appellants' brief, Counsel stated:

"The question whether or not appellants'Counsel

had been served with the respondents cross-appeal

had been laid to rest following the order of the

lower court that he should be so served as

evidenced by the fact that the said Counsel

thereafter filed his brief of argument in respect of

the cross-appeal. At pp. 195 - 199 is

respondents/cross-appellants brief and at pp. 204 -

208 is the appellants/cross-respondents' brief. The

later brief displaced their earlier brief at pp. 200 -

203."

Now at page 268 of the record of proceedings, the

court below in its lead judgment concluded thus:

"It is surprising for this court to observe that the

record of this court filed contains pages 1-3 as

addendum. It is correct that the last page of the

record is p. 149. None of the Counsel in court not

even the appellants' Counsel, raised this issue when

the appeal was being argued on 30/5/2000 and last

on 18/7/2000 when this court heard the Counsel

on issue of jurisdiction of the trial court.

When I searched the courts file there was no

indication that the notice of cross-appeal has been

duly served on the appellants or their Counsel. The

Index does not contain or refer to the said notice of

cross-appeal. Since the appellants Counsel was not

duly served with the said notice of cross-appeal he

cannot be blamed for not responding to it. The said

notice stands struck out. On the whole the appeal is

dismissed. The decision of the trial court is

affirmed. The respondents are entitled to costs

which I assessed at N5,000.00 (Five Thousand

Naira) against the appellants."

The court below struck out the cross-appeal in the

belief that it was not served on the

plaintiffs/appellants. The respondents/cross-

appellants' Counsel has argued that the cross-appeal

was duly served on the plaintiffs and that briefs

were filed. That may well be so. It seems to me

that since by a mistake of the court below, the

cross-appeal instead of being heard was struck out,

it is open to the respondents/cross-appellants to

bring before the court below an application that the

cross-appeal erroneously struck out be re-listed for

hearing. As the cross-appeal was never heard by

the court below, it is not a right course to bring the

cross-appeal before this court.

The said cross-appeal is accordingly struck out.

In the final conclusion, this appeal fails. It is

dismissed with N10,000.0 costs in favour of the

defendants/ respondents.

SYLEVESTER UMARU ONU, J.S.C.:

I have had the opportunity to read in

draft the judgment of my learned brother

Oguntade, JSC just delivered. I am in entire

agreement with him that the decisions of the two

courts below constitute concurrent findings of facts

with which I will decline to disturb.

This is the more so, as there has not been

shown some miscarriage of justice or a violation of

some principles of law or procedure in these

conclusions they have arrived at. See Alhaji K.O. S.

Are & Anor v. Raji Ipaye & Ors (1990) 2 NWLR

 (Pt.132) 298 at 317; Enang v. Adu (1983) SCNLR

25 at 42; Ojomu v. Ajao (1983) 9 SC 22 at 53;

(1983) 2 SCNLR 156; Western Steel Works v. Iron

& Steel Workers Union (1987) 1 NWLR (Pt.49) 284

and Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67)

718 , to mention but a few.

In consequence, I too dismiss this appeal and

strike out the cross - appeal (both of which fail). I

make similar consequential orders inclusive of

those as to costs contained therein.

ALOYSIUS IYIORGER KATSINA-ALU,J.S.C.:

I have had the advantage

of reading in draft the judgment delivered by my

learned brother Oguntade JSC. I agree with it and,

for the reasons he has given I, too, dismiss the

appeal with N10,000.00 costs to the respondents.

NIKI TOBI, J.S.C.: This appeal concerns some

communities in Niger State. The first set of

communities number four: Dere, Eshi, Kuchi and

Apataku. They are together, represented by ten

persons. The second community is Ebwa. It stands

alone but also represented by ten persons. And so

both parties have in common ten representatives

each, making a score in the case representing the

two sets of communities. They seem to love the

number, ten. That is about all they seem to love

together. They were living together peacefully until

the year, 1993 when things started falling apart.

The quarrel has to do with waters and lands.

The appellants were the plaintiffs. Their case is that

they, having settled and been in possession of the

land and waters in dispute; from time immemorial

are entitled to customary rights. It is their case

that prior to 1993, the Dagaci of Dere was the

person who exercised control over all communities

in Dere ward, which included the respondents who

were the defendants in the High Court. It was not

until 1993 that the Ebwa community was granted

their own ward. It is their case that upon the

excision of Ebwa community from Dere ward in

1993, the respondents had and still have eighteen

waters surrounding/adjoining her lands to her

exclusive possession.

After the excision of Ebwa community from

Dere ward the appellants claimed that they left

with the lands and waters in dispute. This is

because from time immemorial, their communities

have always been in possession of the lands and

waters. They claimed that they have always lived

on the lands and cultivated same and the waters

have always been their source of livelihood, fishing,

bathing, cooking and drinking among other things.

The appellants also relied on their proximity to the

lands and waters in dispute as another basis for

their claim as against the respondents who are far

from them. The appellants made several allegations

against the respondents of violent attacks on their

many properties and persons, thus causing

damages to their properties and injuries to their

persons.

The respondents, as expected, have quite a

different story to tell. They denied the case of the

appellants and claimed that they have been

occupying the area in dispute from time

immemorial and in consequence owned all the

lands and fishing ponds around the area. It is their

claim that all the people in the area accepted the

overlordship of the Ebwas by paying tribute on the

first fishing day. The respondents also relied on

certain decisions in their favour and pleaded that

they have been paying money to the government

in respect of the disputed lands and waters.

The appellants filed an action seeking for nine

reliefs. The respondents filed a counter-claim

seeking for four reliefs. After hearing the evidence

of witnesses from both sides and address of their

Counsel, the learned trial Judge held that the

appellants did not prove their case in respect of

title and dismissed the case. The learned trial Judge

however awarded the sum of N154,000.00 to the

appellants as damages in respect of two boats, two

nets, injury and psychological distress. The appeal

to the Court of Appeal was dismissed.

Dissatisfied, the appellants have come to the

Supreme Court. Briefs were filed and duly

exchanged. The appellants formulated the following

issues for determination:

"3.1 Whether the court below was right when it

confirmed the decision of the trial court admitting

Exhibits 7, 10 and other relevant exhibits?

3.2 Whether the appellants were under a legal

duty to prove or establish more than one root of

title or a specific root of title to succeed?

3.3 Whether the decision of the trial court

dismissing the appellants' claim for declarations and

granting the respondents counter-claim which was

affirmed by the court below was against the weight

of evidence adduced at the trial?

3.4 Whether or not the issue of the admissibility of

Exhibits 8(a) - (g) was a fresh point for which the

leave of court was required as held by the Court of

Appeal?

3.5 Whether the Court of Appeal was correct when

it held that Exhibits 8(a) - (g) were evidence of the

respondents' ownership of the waters against the

appellants?"

The respondents formulated the following issues for

determination:

"1. Whether Exhibits 7 and 10 were wrongly

admitted in evidence. (Grounds 1 and 4)

2. Whether the Court of Appeal was right when it

upheld the decision of the trial court that

(i) The plaintiffs/appellants failed to prove how and

through whom title devolved to them; and that the

defendants/respondents had proved better title.

(Grounds 2 and 3)

3. Whether the Court of Appeal was right when it

held:

(1) That the complaint that Exhibits 8(a) - (g) were

registrable instruments raised a fresh issue; and

(2) That Exhibits 8(a) - (g) supported the

defendants/ respondents' counterclaim for

ownership of the disputed waters. (Grounds 5 and 6)."

Learned Counsel for the appellants, Mrs. O. O.

Soyebo, submitted on issue No. 1 that the Court of

Appeal was wrong when it confirmed the decision of

the trial court in admitting Exhibits 6, 6A and 7.

She contended that the documents being public

documents ought to have been certified under

Sections 111(1) and 112 of the Evidence Act. She

relied on Minister of Lands, Western Nigeria v.

Azikiwe (1969) NSCC (Vol. 6) 31 and Anatogu v.

lweka II (1995) 8 NWLR (Pt.415) 547 and 571 and

Taking Exhibit 10, the judgment of the High Court

of Justice No. 1, Minna, learned Counsel pointed

out that the exhibit was not pleaded and therefore

inadvertently admitted by the trial Judge. She

relied on Woluchem v. Gudi (1981) 5 SC 291 at

319 and 320; Ajide v. Kelani (1985) 3 NWLR

(Pt.12) 248 at 261; Adimora v.Ajufo (1988) 3

NWLR (Pt.80) 1 at 14 and NIPC v. Thompson Org.

Ltd. (1969) NMLR 104.

Learned Counsel submitted that a trial court must

act on admissible evidence only. She relied on

Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt.453)

148; and Minister of Lands, Western Nigeria v.

Azikiwe (supra). Relating Exhibits 6, 6A and 7 to

the finding of res judicata by the trial Judge,

learned Counsel argued that as the exhibits were

inadmissible, the finding of res judicata

automatically collapses. She called in aid Section

227(1) of the Evidence Act .

On issue No.2, learned Counsel submitted that on

the of Idundun v. Okumagba (1976) 1O NSCC 445,

both the trial court and the Court of Appeal were

wrong in coming to the conclusion that in proving

title to land, possession and traditional history

must of necessity, go together. To learned

Counsel, a party can rely or base his case on one or

more of the ways of proving title as given by this

court in Idundun v. Okumagba (supra) and he is

not bound to plead and prove more than one root

of title to succeed. She relied on Balogun v. Akanji

(1988) 1 NWLR (Pt.70) 301; Nwosu v. Udeaja

(1990) 1 NWLR (Pt.125) 188 at 218; Ige v. Akoju

(1994) 4 NWLR (Pt.340) 535 at 545 and Biariko v.

Edeh-Ogwuile (2001) 4 SC (Pt.111) 96 at 114;

(2001) 12 NWLR (Pt.721) 235.

Learned Counsel submitted on issue No.3 that the

decision of the trial Judge which was affirmed by

the Court of Appeal dismissing the appellants claim

and granting the respondents counter-claim is

against the weight of evidence adduced at the trial.

Counsel took pains to go through part of the

evidence of PW 1, which she said was corroborated

by PW2, PW3, PW4, DW2, DW3 and DW6. She laid

emphasis on the evidence of facts of proximity of

the appellants of the disputed lands and waters.

She described the evidence led by the respondents

as "vague and bogus traditional evidence." She

reinforced her earlier argument on Exhibits 6, 6A

and 7 and cited Nwosu v. Udeaja (supra) and

Adomba v. Odiese (1990) 1 NWLR (Pt.125) 165 at

181, 184 and 186. It was the submission of learned

Counsel that the exhibits were basically one-paged

documents, extremely brief in content and could

not properly or adequately ground a plea of res

judicata.

On the evaluation of the evidence of the

appellants, learned Counsel submitted that the

learned trial Judge did not properly evaluate their

evidence and the Court of Appeal was in error to

have endorsed the findings of the trial Judge. While

conceding that this Court does not normally disturb

the concurrent findings of facts of the High Court

and the Court of Appeal, Counsel urged us to do

just that on the ground that the findings are

perverse. She referred to Incar (Nig.) Ltd. v.

Adegboye (1985) 2 NWLR (Pt.8) 453 at 455;

Alakija v. Abdulai (1998) 6 NWLR (Pt.552) 1 at

385, Odiba v. Azege (1998) 9 NWLR (Pt.566) 370

at 385 and Agbomeji v. Bakare (1998) 9 NWLR

(Pt.564) 1 at 19.

Taking issue No. 4, learned Counsel submitted that

the point whether Exhibits 8(a) - (g) are registrable

instruments which were not registered and

consequently inadmissible cannot be regarded as

new issue for which leave of court is required

before it can be properly raised. In the

circumstances, the Court of Appeal was wrong to

hold that the said point is a new issue for which the

appellants required the leave of the court to raise.

Learned Counsel submitted that the Court of Appeal

was wrong in holding that Exhibits 8(a) -(g) were

evidence of the respondents ownership of the

waters, as the exhibits were licences purportedly

issued by the respondents o which allowed them

use of water for a specified period. Relying on

Akpiri v. WAAC 14 (1952) WACA 195 and

Chukwumah v. Shell Pet.Dev. Co. Nig. Ltd. (1993) 4

NWLR (Pt.289) 512, Counsel submitted that at

common law, a licensee has no estate in a property

as in a licence, the owner does not part with

possession of the property but merely allows

licensee use of same for a certain purpose. She

urged the court to allow the appeal.

Learned Counsel for the respondents, Ibrahim

Isiyaku, Esq. submitted on issue No.1 that as there

was no ground of appeal on the admissibility of

Exhibits 6 and 6A, this court should discountenance

the complaint and arguments contained in the

brief. He contended that the complaint against

Exhibits 6 and 6A is a fresh one not having been

raised in the Court of Appeal and no prior leave

was sought to raise same in this court. He referred

to Oforkire v. Maduike (2003) 5 NWLR (Pt.812) 166

at 182.

Although Counsel conceded that Exhibits 6 and

6A are admissible subject to certification, he

submitted that the appellants cannot raise the issue

now as the appellants made no objection at the

trial court when they were tendered. He referred to

Etim v. Ekpe (1983) 1 SCNLR 120 at 132; ULFIC

Ltd. v. IBWA (2001) 7 NWLR (Pt.713) 610 at 626

and 627; Oguma v. IBWA Ltd. (1988) 1 NWLR

(Pt.73) 658 at 669 - 671.

Dealing with Exhibit 7, learned Counsel

referred to paragraph 1 of the reply and defence to

counter-claim and submitted that the averment did

not amount to a denial of the existence of three

previous decisions over the Egbokongbo water.

Accordingly, the fact that the three previous cases

decided ownership in favour of the defendants was

no longer the issue, Counsel argued. He referred to

Broadline. Ent. Ltd. v. Monterey (1995) 9 NWLR

(Pt.417) 29 and Lewis and Peat v. Akhimien (1976)

All NLR 365 at 369 .

Learned Counsel further argued that since the

plaintiffs were the persons that averred that the

three decisions were not binding, the burden of

proving the assertion was on them, He referred to

Sections 135, 136 and 137(1) and (2) of the

Evidence Act and the following cases: Ajao v. Alao

(1986) 5 NWLR (Pt.45) 802 at 822; Onobruchere v.

Esegine (1986) 1 NWLR (Pt.19) 799 at 806 and

807; Tsokwa and Sons Co, Ltd. v.UBN Ltd. (1996)

10 NWLR (Pt.478) 281 at 299; Nigeria Maritime

Services Ltd. v. Afolabi (1978) 11 NSCC 80 at 83

and Broadline Ent. Ltd. v. Monterey (1995) 9 NWLR

(Pt.417) 1 and 47, citing Yesuf v. Oyetunde (1998)

12 NWLR (Pt.579) 483 at 497, learned Counsel

submitted that what has been admitted no longer

requires proof.

Even if Exhibits 6, 6A and 7 (all relating to only

Agokongbo water) are discountenanced, Exhibit 9

was clearly in favour of the fact that the property

belonged to the respondents, Counsel argued.

He relied on relevant findings of the trial Judge on

the exhibit and said that the findings were not

challenged by the plaintiffs in the Court of Appeal.

He submitted that the findings of the learned trial

Judge and the Court of Appeal which were not

challenged by the plaintiffs can sustain the decision

of the two courts in respect of the ownership of

Egbokongbo water. He referred to Monier 

Construction Co. Ltd. v. Azubuike (1990) 3 NWLR

(Pt.136) 74 at 88; Umeojiako v. Ezenamuo (1990)

1 NWLR (Pt.126) 253 at 270; Ezeoke v Nwagbo

(1988) 1 NWLR (Pt.72) 616 at 630 and Section

227(1) of the Evidence Act.

On Exhibit 10, learned Counsel conceded that

the exhibit was not pleaded but facts in proof of

which the exhibit was tendered by the defendants

and admitted in evidence were pleaded by the

plaintiffs in their amended statement of claim.

Counsel referred to paragraphs 4, 5 and 7 of the

amended statement of claim. Calling in aid the case

of Dokubo v. Omoni (1999) 8 NWLR (Pt.616) 647

at 664 and 665, learned Counsel submitted that

although the rule is that a party may not lead

evidence outside his pleadings, he can do so on a

point raised in the pleadings of the other party.

Counsel also said that Exhibit 10 was not objected

to when it was tendered and was properly admitted.

On issue No.2, learned Counsel submitted that

the plaintiffs' claim that they owned the waters in

dispute from time immemorial as basis of

ownership by their ancestors was not pleaded nor

was evidence led in proof thereof. Learned Counsel

dealt in some detail from pages 13 to 18 of the

respondents brief the case of each of the four

communities, including the evidence led by the

witnesses and submitted that the courts correctly

came to the conclusion that they did not prove

ownership of the properties. He specifically dealt

with some aspects of the evidence of PW 1 to PW6.

Relying on Ugochukwu v. Unipetrol (2002) 7 NWLR

 (Pt.765) 1 at 16 and Okhauarobo v. Aigbe (2002) 9

NWLR (Pt.771) 29 at 47, 60 and 62, learned

Counsel submitted that the evidence of PW 1 on

the payment of tribute to the Dagaci of Dere was

not pleaded and therefore go to no Issue.

Taking the case of the plaintiffs on

administrative control or arrangement as basis of

ownership, learned Counsel submitted that it is not

one of the ways of proving title. He referred to

Morenikeji v. Adegbosin (2003) 8 NWLR (Pt.823)

612 at 661 and 662; Atanda v. Ajani (1989) 3

NWLR (Pt.111) 511 and Alli v. Alesinloye (2000) 6

NWLR (Pt.660) 177. Learned Counsel also

submitted that the plaintiffs spent time giving

evidence on the fracas between them and the

defendants and failed to prove how their possession

was derived. Referring to the case of Atanda v.

Ajani (1989) 3 NWLR (Pt.111) 511 at 548 and 549,

learned Counsel submitted that possession

can only be relied on as a shield not a sword; it is

not a weapon of attack but of defence to a claim for

title.

Counsel took the case of the defendants from

pages 17 to 19, examining the evidence of almost

all the witnesses. Counsel submitted that the

plaintiffs who relied on ownership from time

immemorial could not show how their ancestors

derived title and person or persons through whom

title devolved to them. He referred to Ezewusim v.

Okoro (1993) 5 NWLR (Pt.294) 478 at 499; Kalio v.

Woluchem (1985) 1 NWLR (Pt.4) 610 at 620;

Idundun v. Okumagba (supra) and Are v. lpaye

 (1986) 3 NWLR (Pt.29) 416 at 425.

On issue No. 3, learned Counsel submitted that

the Court of Appeal was right when it held that the

complaint that Exhibits 8(a)-(g) were registrable

instruments raised a fresh issue and that the

exhibits supported the defendants' counter-claim of

ownership of the disputed waters. He referred to

paragraph 7 of the statement of defence, the

evidence of DW 7 and the following cases: Oforkire

1. Maduike (supra); Salami v. Mohammed (2000) 9

NWLR (Pt.673) 469 at 478 and 479 and Okenwa v.

Military Governor Imo State (1996) 6 NWLR

(Pt.455) 394 and 407.

On the cross-appeal, learned Counsel submitted

that the refusal to hear the cross-appeal in view of

the earlier order of the Court of Appeal dated 12th

April, 2000 and to consider the appellants' reply on

respondents' argument on issues 6 and 7 was a

breach of fair hearing in respect of the cross-

appeal. He requested that the court remit the

cross-appeal to the Court of Appeal for a hearing.

Counsel finally urged the court to dismiss the appeal.

In the reply brief, learned Counsel submitted

that there was sufficient denial of the existence of

the three previous decisions over Egbokongbo

water and reinforced his earlier argument that

there was no binding case which had previously

decided the issue of ownership of the waters and

lands subject matter of the suit between the

parties. Relying on the case of Otaru v. Idris

(1999) 6 NWLR (Pt.606) 330, (1999) 4 SC (Pt.11)

87 at 94, learned Counsel submitted that the

burden of proof remained on the respondents to

show that there were cases which had so decided.

On Exhibits 6 and 6A, learned Counsel contended

that even if there is no ground of appeal

challenging the exhibits, the courts have still,

always been cautious in relying on same. He

attacked Exhibit 9 on similar ground and dismissed

the exhibit as "merely a letter from Lapai Emirate

Council showing that it had appointed Ebwa to

oversee some waters ..."

Referring to paragraph 3 of the defendants joint

statement of defence, learned Counsel submitted

that the paragraph was a general denial which

cannot be regarded as a proper traverse. He

referred to Nwadike v. Ibekwe (1987) 4 NWLR

(Pt.67) 718 at 741 and Odiba v. Muemue (1999) 6

SC (Pt.1) 157 at 161; (1999) 10 NWLR (Pt.612)

42. Arising from paragraph 3, Counsel submitted

that issues were never joined by the parties, thus

the respondents led evidence outside their

pleadings which must be jettisoned as such

evidence goes to no issue. He referred to Nsirim v.

Nsirim (1990) 3 NWLR (Pt.138) 285 and 289;

George v. Dominion Flour Mills (1963) 1 All NLR 71

and NIPC v. Thomas Organisation (1981) 1 All NLR

Learned Counsel submitted that the respondents

totally misconstrued the case of the appellants

when they submitted that their case was predicated

on administrative control. He also pointed out that

the issuance of licences to the respondents cannot

62

constitute one of the five ways of establishing title.

He argued that a licence cannot convey any estate

in the land or area covered by the licence in the

licensee, it only at best, in some cases, allows the

licensee to carry away and dispose of products in

certain circumstances. He referred to Megarry and

Wade, The Law of Real Property, 4th Edition at

page 776.

Learned Counsel did not agree with the submission

in the respondent's brief that possession can only

be relied on as a shield and not a sword. He

referred to Idundun v. Okumagba (supra) and

Awara v. Alalibo (2002) 18 NWLR (Pt.799) 484,

(2002) 12 SC (Pt.1) 77.

Counsel also dealt with the submission of the

respondents that the appellants' failure to state

how their ancestors derived title and person

through whom title devolved to them was

prejudicial to their case. While not conceding to the

submission, Counsel argued that it also applied to

the counter-claim, which must fail. He referred to

Okhuarobo v. Egharevba (2002) 9 NWLR (Pt.771)

29, (2002) 5 SC (Pt.1) 141 at 153.

There are quite a number of issues to be sorted out

in this appeal. I do hope I am able to do that. I will

follow the trend provided in the appellants' brief,

with right to dislocate it in relevant aspects. So

much of the quarrel is on the admissibility of some

of the exhibits and so I will pick the appeal from

there.

The appellants started from Exhibit 7 and moved to

Exhibits 6 and 6A and 10 under issue No. 1. Let me

follow that trend. Exhibit 7 is the judgment of Area

court, Ebbo. Exhibit 6 is the decision of the Lapai

Native Court. Exhibit 6A is a decision of the Lapai

Native authority.

I entirely agree with the submission of learned

Counsel for the appellants that the above exhibits

are public documents within the meaning of Section

108 of the Evidence Act. As public documents, they

ought to have been certified within the meaning of

Section 111 before they could be produced in proof

of their original content, as required by Section 112

of the Act. See Ike v. Ibekundu (1985) HCNLR 522;

Minister of Lands, Western Nigeria v. Azikiwe (1969)

16 NSCC 31 at 38; Anatogu v. Iweka II (1995) 8

NWLR (Pt.415) 547 at 571 - 572; Oba Okiki II v.

Jagun (2000) 5 NWLR (Pt. 655) 19.

I should however recall here the submission of

learned Counsel for the respondents that nothing

was raised in the Court of Appeal on the

admissibility of Exhibits 6 and 6A and that this

court should discourtenance the complaint and

argument against their admissibility. To learned

Counsel, the complaint now made by the appellants

against Exhibits 6 and 6A is a fresh issue where no

prior leave was sought to raise it at this court.

What is the reply of learned Counsel for the

appellants? There is no specific reply to the above

by learned Counsel for the appellants. Did she

forget to respond to this important point? Why will

she ever forget to do so? Instead of replying to the

point, learned Counsel got to another aspect of the

exhibits which learned Counsel for the respondents

touched at page 7 of the respondents brief on lack

of ground of appeal challenging the admissibility of

the two exhibits.

In her response to the above, learned Counsel for

the appellants begged the very serious and

important issue when she said as follows:

"Finally, even if there is no ground of appeal

challenging Exhibits 6 and 6A which are decisions

of native courts, the court have, still, always been

cautions in relying on them."

With respect, this is a very strange submission

which is not backed by law, substantive or

procedural; and I think it concerns procedural law.

And what is more, Counsel did not cite any case to

substantiate the principle she introduced,

particularly when she credited to the courts that

they have been cautious in relying on decisions of

native courts. I must confess that I know of no such

adjectival law and I was prepared to learn but

Counsel did not release to me the benefit of her

knowledge on this issue.

?A ground of appeal is the complaint the appellant

has on the decision of the lower court. By the

ground of appeal, the appellant tells the appellate

court that he is not satisfied with the judgment of

the trial or lower court and he spells out clearly the

specific area he is not satisfied with. An issue raised

in an appeal affecting the decision of the lower

court must be backed by a ground of appeal. Where

there is no ground of appeal supporting the issue

raised, it will be discountenanced or rejected by the

appellate court. Grounds of appeal are the taproots

of the case on appeal as they lay the foundation

upon which the case grows in the appellate court to

fruition. As there is no ground of appeal supporting

or vindicating Exhibits 6 and 6A, the arguments on

the Exhibits by the appellants are to no issue and I

so treat them.

I am almost forgetting the first issue raised on

the two exhibits. Let me quickly return to it. It is

the submission of learned Counsel for the

respondents that the issue of admissibility of the

two exhibits was not raised at the Court of Appeal.

This is the one that learned Counsel for the

appellants kept mute; certainly not for malice. I will

speak or talk on it.

The appellants' brief at the Court of Appeal is at

pages 165 to 175 of the record. The issues for

determination are at page 166.

They are six, of the six issues, issue No. (c) seems

to be closest to the exhibits. Let me quickly read it:

"Whether the lower court erred in admitting and

relying on inadmissible evidence and whether such

error had occasioned a miscarriage of justice."

In my hurried reading of the arguments in the

11-page brief, I did not see any argument raised on

the admissibility of Exhibits 6 and 6A. If I did not

see any argument in the two exhibits because I was

in so much hurry, I cannot say that learned

Counsel for the respondents was in equal hurry. He

must have read the brief properly to come out with

the submission.

The law on raising fresh issue in an appellate court

is trite and cannot be basis of controversial

jurisprudence. A party to an appeal can raise a

fresh issue on appeal but only with leave of the

court. This is because the law does not want the party
to take unnecessary advantage against the adverse

party on appeal and that the party applying to raise

the new issue must satisfy the court that it is

proper to do so. Where the party fails to secure

the permission of the court, which is the whole

essence of the leave, he cannot raise the fresh

issue. See generally Abinabina v. Enyimadu 12

WACA 171; Ejiofodomi v. Okonkwo (1982) 11 SC

74; Dweye v. lyomahan (1983) 2 SCNLR 135,

(1983) 8 SC 76;Awote v. Owodunni (No. 1) (1986)

5 NWLR (Pt.46) 941; Uor v. Loko (1988) 2 NWLR

(Pt.77) 430.

And so in the twin submissions of learned

Counsel for the respondents, I agree that the

appellants cannot be heard to destroy the exhibits

in this court. It is rather late, too late in the day to

do so. I will not listen to the appellants because

there is no legal basis to listen to them. And so

Exhibits 6 and 6A stand and with all the strength in

the judgment of the Court of Appeal. I will return to

the two exhibits in the course of this judgment but

for now, let me take Exhibit 7 further. I had earlier

dealt with it. Let me say here at the expense of

prolixity that Exhibit 7, being a public document

ought to have been certified under Sections 111

and 112 of the Evidence Act. What did Counsel for

the respondents say on the exhibit? Although issue

No. 1 in the respondents' brief was on whether

Exhibits 7 and 10 were wrongly admitted in

evidence, the submissions of Counsel merely

danced around Exhibit 7 as they did not say much

on the real issue of wrongful admission of the

exhibit. There is not much beef, if there is any at

all, in the submission of learned Counsel on the

admissibility of Exhibit 7.

What did the learned trial Judge say about the

exhibit? She made use of it together with Exhibits 6

and 6A at page 131 of the record:

"DW7 also tendered Exhibits 6, 6A and 7 which are

decisions in favour of Ebwa as regards ownership of

river Gbokongbo."

What did the Court of Appeal say about the exhibit?

That court did not sec anything wrong in admitting

the exhibit. The court said at page 258 of the

record:

"Having thus analysed and treated the submissions

of both Counsel on this particular issue and I hold

that the lower court did not err in admitting Exhibit

7 and other relevant exhibits as there was no

admission by so doing of inadmissible document

and certainly by so doing no miscarriage of justice

had occurred."

With respect, I do not agree with the Court of

Appeal. Exhibit 7, being a public document, which

was not certified under Sections 111 and 112, was

clearly inadmissible and the learned trial Judge was

wrong in admitting it. This time around, Counsel

did not make the same case as he made in respect

of Exhibits 6 and 6A and so I cannot go that

distance as I did in respect of the two exhibits. The

Court of Appeal made a point and it in respect of

miscarriage of justice. To the court, there was no

miscarriage of justice by the admissibility of the

exhibit. I will examine this aspect later in the

judgment when I will take the three exhibits -

Exhibits 6, 6A and 7.

And that sequentially takes me to Exhibit 10. It is

the judgment of the High Court of Justice No.1,

Minna, which nullified the turbaning of Zisu of

Ebwa by the village head of Dere. The case of the

appellants is that the respondents did not plead any

fact or facts relating to the exhibit. The case of the

respondents is that the facts in proof of Exhibit 10

were pleaded by the appellants. He specifically

referred to paragraphs 4, 5 and 7 of the amended

statement of claim.

Let me read them:

'4. Since about 95 years ago up to 1993, the

following Communities formed Dere ward in Lapai

Local Government Area, that is

(a) Dere;

(b) Eshi;

(c) Ebwa;

(d) Kuchi; and

(e) Apataku.

5. The plaintiffs aver that prior to 1993, the Dagaci

of Dere was administering and exercising control

over all the communities in Dere ward, including

their lands and waters. Customarily/traditionally

also, all the Zhitsus of all communities in Dere

ward were being ordained by the Dagaci of Dere

until 1993 when Ebwa community was granted her

own ward and hence had a Dagaci of her own since

then. Up to now, the Zhitsus of the remaining

communities under Dere ward are still accountable

to, and being ordained by the Dagaci of Dere

7. From time immemorial, the Dagaei of Dere used

to delegate any of his agents (including Ebwas) to

fish in all waters under Dere ward annually and

whenever the need arose and nobody would cross

all such waters to the other side without the prior

approval/permission of the Dagaci of Dere."

I think learned Counsel for the respondents is

correct in submitting that the facts leading to

Exhibit 10 were pleaded by the appellants and it is

paragraph 5 of the amended statement of claim. In

the light of the above, the respondents could rely

on the appellants' pleadings and the trial Judge

rightly admitted Exhibit 10.

In Bamgboye v. Olanrewaju (1991) 4 NWLR

(Pt.184) 132, this court held that although the rule

is that a party may not be allowed to lead evidence

outside his pleadings, a plaintiff will be entitled to

lead evidence on a point raised in the defendant's

pleadings. See also Emegokwue v. Okadigbo (1973)

4 SC 113; Chief Dokubo v. Chief Omoni (1999) 8

NWLR (Pt.616) 647.

Here, the aphorism or cliche which says that what

is good for the goose is equally good for the gander

applies in respect of the case law as the position

relates to a defendant shopping from the plaintiff's

pleadings. I therefore hold that the learned trial

Judge correctly admitted Exhibit 10 which has

foundation in paragraph 5 of the amended

statement of claim. Again, I will return to Exhibit

10 later in this judgment.

I now move to Exhibits 8(a) to (g). These are the

licenses tendered through DW7. Counsel for the

appellants objected to their admissibility but the

Learned trial Judge overruled her objection. The

issue before this court is whether the exhibits are

registrable instruments which were not registered

and consequently inadmissible is a new issue for

which leave of court is required before it can be

properly raised.

I have carefully gone through the proceedings in

the High Court but I cannot see the issue raised on

Exhibits 8 (a) to (g) by the appellants that they are

registrable instruments which were not registered.

In particular, I have carefully gone through the

judgment of the learned trial Judge and I cannot

find any submission on the part of Counsel for the

appellants attacking the exhibits on the ground of

non-registration. At page 91 of the record, Mr.

Olushola, Counsel for the plaintiffs in the High

Court, who are the appellants here in his objection

to the admissibility of Exhibits 8 (a) to (g) said:

"We are raising the following objection to the

admissibility of these documents - First on the

license - the licenses have not been duly signed

and stamped by the officer deemed to have made

them but rather somebody just inserted a signature

for the officer supposed to have been signed. The

person failed to write his name, his position and no

stamp. The date the document was signed was not

indicated. The witness not being the maker cannot

explain how the document was made. A careful

perusal shows various persons signing for the

officer without the person's name. We say all these

discrepancies of the documents render them

valueless and of no evidential value and that being

the case, it's of no use in the case. We urge the

court to reject the document in evidence. On the

receipt, we are not seriously objecting but will

address the court as to weight."

Clearly, the objection was not on the registration of

the exhibits and so it becomes a fresh or new issue

which needed the leave of court. The Court of

Appeal was therefore correct when the court held

that licences were registrable issues as the issue of

registration of the licences was not raised in the

High Court, leave ought to have been obtained to

raise the issue in the Court of Appeal being a new

issue. Again, I will return to Exhibit 8 (a) to (g)

later in this judgment.

?Now that I have taken the exhibits that the

appellants complained about, I should go to the

issue of proof of ownership of the waters and the

lands. It is the case of the appellants that they

proved their ownership of the properties. It is the

case of the respondents that the appellants did not

prove ownership of the properties and that they the

respondents proved ownership. Who is correct? I

need not pose the opposite question because once I

come out with an answer to the first question, the

opposite question will be answered and that is, the

person who is not correct was not able to prove

ownership of the properties.

Let me start with first elementary but

important principles. The burden of proof is on the

party who alleges the affirmative. The burden of

proof is on the party who will fail if no evidence is

led in the case. And in most cases, he is the

plaintiff. And in this case they are certainly the

plaintiffs who are the appellants to prove the main

claim. Of course, the respondents as defendants

have the burden to prove the counter-claim.

Did the appellants prove their claim? They say

so but did they really prove their claim? Apart from

the common position that the parties were together

before 1993, the parties did not agree on most

other matters. Most of the evidence given by the

appellants was in respect of the fights and quarrels

between themselves and the respondents. They

gave evidence of how the respondents came to

attack them and how they invited the police to

effect arrests. They also gave evidence in respect of

the wounds they sustained and how they were

treated in the hospital. Perhaps, apart from the

evidence of PW1, which was more on ownership of

the properties than the fights and quarrels, most of

the evidence of the other witnesses tilted towards

the fights and quarrels.

I should illustrate what I am saying by

referring to the ipse dixit of the witnesses. After

giving evidence of ownership of the properties in

his own way, PW1 zeroed on the fracas in his

evidence in-chief at page 48 of the record:

"Between 1995 to May 1996, the Dere and Ebwa

Communities fought themselves about a river. The

fight was about river of Kuchi called Epemi-Kuchi.

The alfa of Kuchi went to the river to catch fish and

the people of Ebwa village stopped and from there

fight broke out."

PW2 in his evidence in-chief at page 50 of the

record said:

"In May 1996 people from Ebwa came to fight us,

they came because of water and they said we

should not catch fish in that river anymore."

PW3, in his evidence in-chief at page 58 of the

record said:

"In May 1996 I went to Egogyeri river belonging to

Akpataku and we were many together with one Isa

and we noticed there was a strange net in the

river. So, Isa went to remove it and the people, the

defendants, started to beat Isa."

PW4, in his evidence in-chief at page 68 of the

record said:

"In May, 1996, we were sitting around 10 a.m.

when we heard people shouting and we came out to

see the Ebwas (defendants) and we asked them

what happened and they said they came in respect

of their water and we asked what water and they

said this water - the Egbokongbo river and we said

it was false. As we said so, they started beating us,

and one Idris Wali was the first person to beat us

and they came with more than 20 people. From

there, one Shabe Ndace came with a gun and he

wore his hunting gown; he started shooting in the

air and injured many people."

PW5, in his evidence in-chief at page 70 of the

record said:

In May, 1996 we were sitting in Kuchi when my son

went to ease himself and 2 Ebwa people met him

and held him and said my son went to steal. The

boy shouted and people at home heard and another

boy went out to meet them fighting. Then my son

and we went there and we begged them to please

forgive and the Ebwas went back to their village

and told their people; then more than 10 Ebwas

came out to our village and started fighting ... The

Ebwas arrested me and took me to Ebwa ..."

Finally PW6, in his evidence in-chief at page 78 of

the record, said:

"Sometime in May 1996, we started sitting at

home, we the Eshis, when the Ebwas came and met

1. The Ebwas started fighting us when they came.

They fought us because of our water."

It is clear from the above that May and 1996 are

the magic expressions. The impression is created

that all the fracas took place in one month and in

the year 1996. I will not go there because this

court has no jurisdiction to go there. After all, the

evidence on the fracas earned the appellants some

damages and both parties seem to be satisfied since

there is no appeal on the issue of damages. But I

ask, is the above really evidence of ownership of the

properties? Why the emphasis on the fracas as if it
was a criminal case? Certainly, a defendant fighting a

plaintiff is not one of the way of proving title within

the meaning of Idundun v. Okumagba (1976) 9-10

SC 227, and the appellants wasted so much of their

time in tendering receipts and other papers of

hospitalisation in the court, as if they are capable

of proving title. Am I really correct in saying that

the appellants wasted so much of their time by

tendering receipts? I do not think so. After all, they

got some damages in the bargain. I said so above.

See Exhibits 3 and 4. What is more, the appellants

devoted about six paragraphs of their pleadings to

the fracas. Why?

I do not want to give the impression by the above

extracts of the evidence of PW1 to PW6 that they

only gave evidence of the fracas and did not give

any evidence of ownership. The point I am making

is that perhaps, apart from PW1, the other

witnesses gave more evidence on the fracas than

ownership, which was the real issue before the

court.

The evidence on the fracas apart, there was some

token of evidence of traditional history. I call it

"token" because none of the witnesses was able to

give an approximate period of their stay there.

The learned trial Judge touched the point when she

said at page 135 of the record:

"The plaintiffs no doubt have settled in this area for

many many years and made a case of possession of

the waters from years of possession, but none could

actually state how long they have been there and

PW5 during cross-examination said they were first

to settle there and later on a further question

during cross-examination said only God knows who

first settled among the Ebwas, Dere and Kuchi in

the South of Lapai. They do not know how long ago

and they came and added to this. They were

interruptions of disputes in 1950, 1956 and 1972."

It is sufficient to note that PW5 in his evidence at

page 70 said that "only God knows who first settled

in the South of Lapai among the Ebwas, Dere and

Kuchis." Considering the fact that the Deres and

the Kuchis are part of the appellants, the evidence

of PW5 is not quite in their favour, putting the

position mildly. I will not go that far to say that it is

evidence against interest.

I think it is appropriate to take the issue of

possession here. The appellants relied on evidence

of possession as basis of ownership. It is their claim

that having settled and in possession of the lands

and waters in dispute from time immemorial, they

are entitled to customary rights thereof. It is one

thing to claim possession and quite another to

prove the possession claimed.

Acts of possession may be taken as acts of

ownership if the circumstances are such that the

person in possession ought to be regarded as

owner, but more is needed than is required to

support a claim for trespass. Where plaintiff proves

sufficient acts of possession, the burden is thrown

on the defendant under Section 146 of the Evidence

Act. In order to obtain judgment, the defendant has

the onus to rebut the evidence of the plaintiff. See

Onyekaonwu v. Ekwubiri (1966) 1 All NLR 32;

(1966) 1 SCNLR 55, Oyeyiola v. Adeoti (1973)

NNLR 10; Adegbola v. Obalaja (1978) 2 LRN 164 .

?The learned trial Judge did not see a case of

possession made by the appellants and made

reference to the shaky evidence of PW5 which we

have already dealt with. The Judge thereafter said

and correctly too for that matter:

"Mere possession of land of customary tenant

however long cannot mature to confer rights

envisaged in the Act."

The Court of Appeal was more blunt on the issue:

"It is clear that the appellants were claiming title

through possession and enjoyment. However, I

begin to part company with the appellants when it

was not stated by them as to how they themselves

managed to be in possession of the land and the

waters in dispute. It could be that their possession

was derived from ownership from time immemorial,

but then they must show how their ancestors

derived title, the person or persons who founded

the land and exercised original acts of possession,

and the person(s) through whom title devolved to

them."

In land matters, it is easy for a plaintiff to claim

that he owned the land from time immemorial. But

that is not the end of the story. The story must go

further and paint a genealogical tree of the family

ownership of the land. It is usually a long story of

the members of the family in ownership of the land

from the past to the present. The plaintiff paints a

picture of genealogical lines and names spreading

like the branches of a tree, telling a consistent and

flowing story of undisturbed ownership or

possession of the land. And the flowing story which

should first be told in the pleadings should mention

specific persons as ancestors before the witnesses

give evidence in court to vindicate the averments

in the pleadings.

I have carefully examined the

amended statement of claim and I did not see such

genealogical story. The story stopped mainly at the

communities. Of course, paragraph 7 averred that

"from time immemorial, the Dagaci of Dere used to

delegate any of his agents (including Ebwas) to fish

in all waters under Dere ward annually and

whenever the need arose and nobody would cross

all such waters to the other side without the prior

approval/permission of the Dagaci or Dere."

A few troubling issues arise from the above. What

is the name of the first Dagaci? What are the

names of the succeeding Dagacis until the title

came to the 1st appellant, Alhaji Musa Abdulkadir?

What were the periods of their reign? I think Ican

leave the issue of possession now and here, but

certainly not before I say that the claim of

possession is lame and unattractive. It is not proved.

Let me quickly pick one submission of learned

Counsel for the appellants here and it is that the

appellants did not base "their claim on traditional

history." This is fairly flabbergasting. I do not think

the submission of Counsel took into consideration

paragraphs 4,5,6 and 7 of the amended statement

of claim. In paragraph 4, the appellants said:

"Since about 95 years ago up to 1993 ..." In

paragraph 5, the appellants averred that "prior to

1993, the Dagaci of Dere was administering and

exercising control over all the communities in Dere

ward." In paragraph 6, the appellants averred that"

in those ancient days when the Palace of Dagaci of Dere
had a thatched roof the Ebwa community used to send

representatives to Dere to re-roofor repair the

Palace of Dagaci of Dere as and when the need arose."

And finally in paragraph 7, the appellants averred

that "From time immemorial ..."

Are the above paragraphs not on traditional

history? If they are not, what then are they? Are

they talking about English history?

Traditional history is history of the tradition of a

people. It is history of the customs, cultures, ethos

and way of life of a people with a settled native life

and nativity. The expressions "since about 95 years

ago"; "in those ancient days" and "from time

immemorial" have strong tie with traditional history

and are nostalgia of traditional history itself. In my

humble view, the appellants cannot run away from

a situation they created. PW 1, their star witness,

in his evidence in-chief also said: "since time

immemorial..."

One claim of ownership by the appellants is

their proximity to the waters and lands in dispute. I

think paragraph 14 of the amended statement of

claim is nearest to the claim of proximity. Learned

Counsel claimed that while the respondents are

about 15 miles away from the disputed

waters/lands, the appellants are about 1 1/2 mile

and 2 feet to the disputed water/land. It appears

that learned Counsel is like me. He is not quite

familiar with the modem metre system. But that is

not important. The important thing here is the law

on proximity vis-a-vis title to property.

In his evidence in-chief, PW1 said at page 47:

"Between Dere and Eshi is not up to 1/2 mile;

between Akpataku and Dere is about 1 1/2 mile.

And between Kuchi and Dere is about 2 miles.

Between Ebwa and Dere is 15 miles."

I do not see any clear cut evidence from the

above that the appellants are in close proximity

with the properties in dispute. The witness did not

indicate the distance between the communities

mentioned above and the properties in dispute. All

he did was to mention the proximity amongst the

appellants and understandably contrasted this with

the respondents' community. That does not, with

respect, make so much meaning to me. I take the

evidence of PW1 as one of convenience and that

underlines my use of the expression

understandably above.

There is yet another aspect to the matter.

Evidence of proximity per se does not vest

ownership of land to the party in proximity. The

party has to prove that the land belongs to him by

clear and unequivocal evidence. There could be

situations where proximity is an accident of history

which may not necessarily be of any use in

determining the ownership of the land in favour of

the party in proximity.

?Let me relate the issue to one of the ways this

court enumerated in Idundun v. Okumagba and it is

the fifth. It reads:

"Proof of possession of connected or adjacent land

in circumstances rendering it probable that the

owner of such connected or adjacent land would, in

addition, be the owner of the land in dispute."

I do not think the appellants went that far in their

evidence. Even if they gave such evidence, the court
has a duty to take it into consideration with relevant

evidence of the opposing party to arrive at a

conclusion one way or the other. The element of

probability in Idundun is important, but we are not

going there because there is no need to go there.

Now that I have touched Idundun, I should take it

in respect of the submission of learned Counsel for

the appellants on the way the learned trial Judge

interpreted the judgment in the context of the five

ways of proving title.

?The learned trial Judge, after setting out the five

ways of proving title to land in Idundun said at

page 134:

"Possession and proximity which are the weapons

of the plaintiffs will not come up for determination

yet till we have settled the issue of traditional

history, if there is any."

Learned Counsel for the appellants, after quoting

the above, also quoted the following dictum of the

Court of Appeal:

"It appears to me that in this matter the appellants

neither pleaded nor called evidence to show who

were their ancestors who first they derived their

title and through whom title devolved to them. The

appellants as plaintiffs should be able to state facts

and call evidence to support same, then leave

everything to the court to draw conclusions of law

from the facts pleaded."

To learned Counsel, by the above, the two courts

held that in proving title to land, possession and

traditional history must of necessity go together.

While I entirely agree with him that the learned

trial Judge, with the greatest respect, was wrong in

lumping the two together, I part ways with him as

the matter relates to the Court of Appeal. That

court did not fall into the same error as the learned

trial Judge. I do not see in the above dictum where

the Court of Appeal held that in proving title to

land, possession and traditional history must go

together. No.

Let me take the issue of payment of tribute from

the point of view of the case of the appellants. I will

deal with the issue from the point of view of the

respondents later. The only paragraph which

averred to payment of tribute is paragraph 12 of

the amended statement of claim. It reads in part:

" ...Hence, traditionally the Dagaci of Dere has

never paid any tribute or traditional dues to Ebwa

and nothing of such has ever been requested from

Dere."

?I should say at the expense of repetition that no

paragraph averred that the respondents paid

tribute to the appellants. PW 1, the star witness,

said in evidence in-chief at page 47 of the record:

"The people who used to fish in the river used to

pay tribute to the Dagaci of Dere. They used to

divide the fish they catch into 3 places: to the

person who catches the fish and to the Dagaci of

Dere."

Was the witness talking of dividing the fish into

three parts as payment of tribute? I am at a loss

knowing what he meant. Who got what in terms of

the person who caught the fish and the Dagaci of

Dere? But that is not important. I want to take the

important point and it is that the above evidence

was not pleaded. The only fact pleaded as seen

from paragraph 12 of the amended statement of

claim is that the Dagaci of Dere never paid any

tribute or traditional dues to Ebwa. Following the

most elementary but vital principle of law that

matters not pleaded go to no issue, I will

discountenance that piece of evidence of PW 1 on

the payment of tribute to the Dagaci of Dere.

Issue No.3 of the appellants is on the counter-claim

which necessitated taking the respondents'case. I

do so now. Unlike the amended statement of claim,

the joint statement of defence concentrated mainly

on the ownership of the waters and the lands and

not on the fracas between them and the appellants.

The respondents consistently averred to their

ownership of the waters and the lands in their joint

statement of defence.

?DW7, the 2nd respondent, lucidly and clearly gave

traditional evidence of how their forefathers came

to settle in Ebwa from Egypt. He also gave evidence

of how the appellants paid them tribute by way of

fish in the early times but now the Deres pay the

sum of N50.00. He also gave evidence that they

gave the name Dere to the people. I think I can

produce some extracts from the evidence of PW.7.

On how the respondents came to Ebwa, witness

who was 65 years when he gave evidence said at

page 90 of the record:

"I am from Ebwa and the Ebwa people came from

Egypt to come and settle in five towns, they were

five that came from Middle East then. They settled

at Nza, the second one at Gytuko, third at

Atekebum and the fourth at Eumipwa and the fifth

at Kpopomedi. They were fishermen and farmers."

Witness also gave evidence of the origin of the

Deres, what the appellants could not say in

evidence, and the 1st and 2nd appellants are

Deres. He said at page 90 of the record:

"And the Deres I cannot remember when they came

to settle there but there were other villages that

settled there before them. These are Riba, Kuchi,

Akpataku, Puku i and Eshi, these were the last

settlers. Dere people came from Atabuke in Kogi

State. Dere is Kakanda language and it means road

base and narrow end a triangle. We the Ebwas gave

them the name Dere. The Ebwa speak Kakanda

language. The Ebwas gave these five communities

land to settle when they came."

On the payment of tribute, witness said at page 90

of the record:

"At the time these people came if they catch fish

we use to collect two fish from them but now we

only collect money from them; N50.00k each. We

collect I bag of rice from each person that comes

there too."

This is a clear evidence of payment of tribute, and I

so hold, 
Of the five communities that DW.7 gave

evidence on, three are represented in the action as

3rd to 10th plaintiffs/appellants. These are the

communities that DW.7 said they gave land to and

who in turn paid them tribute. The evidence of

DW.7 also dealt with the 1st and

2nd plaintiffs/appellants, who are the Deres. He

said in evidence that he could not remember when

the Deres came to settle where they are but all he

remembered is that they are from the Atabuke in

the present Kogi State and that the respondents

gave them the name of Dere, meaning road base

and narrow end - a triangle in Kakanda language of

Ebwa. Witness said in evidence that although he

could not remember when the Deres came to settle,

he was clear that the five communities first settled

before the Deres.

I go to some of the other witnesses, who gave

evidence of the ownership of the properties by the

respondents. It must be pointed out that apart from

DW7, DW3, DW4, DW5 and DW6 seem to be

independent witnesses who share common

boundaries with the respondents.

Let us hear what they said in evidence. DW3,

a native of Achibe, gave evidence on the disputed

waters claimed by the appellants in paragraph 9 of

the amended statement of claim. He said at page

84 of the record:

"I know the parties in the case. And I also know

Eshi, Akpataku and Kuchi. Achibe is North-West of

Ebwa and we share boundary with Ebwa. I know

Emmatsa, Egbokongbo and Egogyari villages. Eshi

village is near Emmatsa. Egbokongbo is near Dere

village. Egogyari is near Akpataku village. The

people of Ebwa, the defendants own these rivers. I

know Ebwa own the rivers because we share

boundary with Ebwa and when I was a child my

father carried me in a boat to Emmatse,

Egbokongbo and Egogyari. If Ebwa people invite

people to come and catch fish I use to go to witness

the fish catching and after catching from night to

morning I use to see them remove fish; the Ebwas

use to remove fishes from boats of Reba, Kuchi,

Mpataku, Dere and Eshi but they do not use to

remove fish from my father's boat."

Under cross-examination, witness said at page 85

of the record.

"I was born to see these communities existing. I

know the plaintiffs very well. We are not living in

the same district with the plaintiffs. We are not in

the same district with the Ebwas."

I want to believe that what DW3 means by the

expression "the Ebwas use to remove fishes from

boats of Reba, Kuchi, Akpataku, Dere and Eshi", is

giving the fishes to the respondents by way of tribute.

DW.4 from Egba community, in his evidence

in-chief said at page 86 of the record:

"Egba is to the east of Ebwa. I know the rivers

called Emmatsa, Egbokongbo, Egogyari. The village

near Emmatsa is Eshi. And near Egbokongbo is

Dere and near Egogyari is Akpataku. These 3

waters belong to Ebwa people because it's the

Ebwas that normally invite us to come and fish

there. After fishing the Ebwas normally take 2 fish

from each person but Ebwas do not take from us

Egbas. They do this because we do have our own

river and we do not take from them, so they do not

take ours too."

DW5 from Azo community, said in his evidence

in-chief at page 87:

"I know the villages called Eshi, Dere and

Akpataku. I know the waters called Emmatsa and

Eshi village is A near Emmatsa. I know Egbokongbo

... These waters belong to Ebwa people. I know

Ebwa own the waters as we share boundary with

the Ebwas and Ebwas invite us when they are

having their fishing festival. As we share boundary

Ebwa people pick two fish but now they collect

N50.00k from them."

DW6, from Arah village, said in his evidence

in-chief at page 88 of the record:

"I know Dere, Apatatu, Eshi and Ebwa. Arah is to

the West of Ebwa. I know the water called

Emmatsa. It is near Eshi. Egbokongbo is near Dere

and Egogyari is near Akpataku. These waters are

owned by the Ebwas. I know when I was of tender

age when we use to attend a fishing festival at

Emmatsa and during that time after fishing they

use to collect fish from the non-indigenous people

but they do not take any from my father. The Ebwa

people are the ones collecting the fish. Between

Arah and Ebwa there is no village between us; we

share common boundaries."

It is clear from the above that DW3, DW4, DW5

and DW6 share common boundaries with the

respondents. The witnesses confirmed the evidence

of PW7 as follows: (1) The waters in dispute belong

to the respondents. (2) Tributes either by way of

fish, rice or money was paid by the appellants to

the respondents whenever the appellants fished in

the waters of the respondents.

Unlike the appellants, the respondents duly pleaded

the payment of tributes in their joint statement of

defence in paragraph 4(d).

And what is the status of the payment of tribute in

customary land law? Under customary land law, the

payment of tribute by the tenant is a recognition of

the title of the overlord to the property. In other

words, the tenant fully recognises that the overlord

he pays the tribute is the owner of the property

and that he holds the property for a definite period

at the pleasure of the owner. In ancient days,

tribute was regarded as protection money as it was

paid by the tenant for the sole purpose of

protecting the tenancy. It is my view that the

payment of tribute by the appellants to the

respondents is evidence of the recognition of

ownership of the waters and the lands by the

respondents, and I so hold. It cannot be otherwise.

There is yet another act of ownership by the

respondents. It is Exhibit 9, a letter DW8 wrote as

Secretary in Lapai Local Authority under the

authority of Emir of Lapai, following a complaint by

Ebwa Community,

In his evidence in-chief, DW8 said at page 96 of the

record:

"I live at Lapai and I was the Secretary of the Emir

of Lapai; but I am now the district head, Hakimi of

Para. know exhibit 9, It was signed by me, The

exhibit is titled 'Kasan Dagachi Dere.' I wrote the

Exhibit 9 because the people of Ebwa brought a

complaint to the Emir of Lapai in respect of river

and the Emir settled them as follows for

peacefulness and the Emir asked me to sign the

exhibit on his behalf. From the exhibit all the

overseers of the water are from Ebwa, Those

overseers selected from Ebwa because they are the

owners of the waters; that was why they were

selected from there,"

Can there be any evidence of ownership more than

the evidence of DW8, an independent witness, the

district head of Hakimi of Para? What did the

appellants say about Exhibit 9?

In his reply brief, learned Counsel for the

appellants submitted at paragraph 2.1,3 as follows:

"Same applied to Exhibit 9 which is merely a letter

from Lapai emirate council showing that it had

appointed Ebwa to oversee some water, but still

under the land area of the village head of Dere,"

With the greatest respect to Counsel, the above

submission does not make any meaning in the light

of the evidence of DW8 and Exhibit 9, I do not

think it is available to learned Counsel to describe

Exhibit 9 as "merely a letter", when as a matter of

fact, it conveys much more than that, particularly

when taken along with the unchallenged evidence

of DW8. The witness said in evidence, and I quote

him once again at the expense of prolixity:

"From the exhibit all the overseers of the water are

from Ebwa, Those overseers were selected

from Ebwa because they are the owners of the

waters; that was why they were selected from

there."

Learned Counsel tried to give a twist to the above

very clear evidence when she introduced the

following words: "still under the land area of the

village head of Dere," Certainly, DW8 did not say

that and it will be unfair to credit the witness with

that statement.

I promised returning to Exhibits 6, 6A, 7, 8(a) - (g)

and 10 and I do so now by way of an alternative

position. Assuming (without conceding) that I am

wrong in the position I have taken above on the

exhibits, what will be their legal effect on the

decision of the trial Judge which was affirmed by

the Court of Appeal?

Exhibits 6, 6A and 7 relate only to the Egokongbo

waters, a point conceded by Counsel for the

appellants, in paragraph 5.1.2 of the brief. Even if

they are expunged or discountenanced, it will only

have effect or impact on the Egokongbo waters, all

other things being equal. But they are not; and in

virtue of Exhibit 9, the 1972 letter from DW8

clearly drowns Exhibits 6, 6A and 7 which were

1956 or earlier decisions and judgments, vis-a-vis

Exhibit 9. The relevance here are the years 1972

and 1956; 1972 later in time.

I take Exhibits 8(a) - (g). Even if I am wrong in my

conclusion on the exhibits, I can still fall back on

Exhibit 9 on the ownership of the waters and lands

by the respondents. That takes me to Exhibit 10,

which is the last bus stop, so to say. The exhibit is

the judgment of the High Court of Justice No.1

Minna which nullified the act of turbaning of Zitsu

of Ebwa by the village head of Dere. On the exhibit,

the learned trial Judge said at page 135 of the

record:

"The issue of turbaning of Zitsu of Ebwa by the

village head of Dere was put to rest by Exhibit 10

where the High Court 1 nullified that act."

I ask: Is Exhibit 10 really necessary in the

determination of the main issue of ownership in

this appeal? I think not. In my humble view,

turbaning of a person without more does not prove

ownership of the waters and lands the person

turbaned lives, as property of the person who

performs the turbaning ceremony. I do not think I

have made myself clear. Perhaps I should make

myself clearer by giving an example in modern

practice of chieftaincy in Nigeria. In Nigeria where

there is so much craze for chieftaincy titles,

recipients of such titles from the South are

turbaned in the Northern chieftaincy institutions

and vice versa. Can any of the turbaning traditional

rulers, either from the North or from the South

legitimately claim ownership of the waters and

lands of the persons they turban? This is theissue

placed or put nakedly. In other words, Exhibit 10

did not make any meaning to the issue of

ownership and the learned trial Judge had no

business to deal with it in the way she did.

I am inclined to invoking Section 227(1 ) of the

Evidence Act in respect of the exhibits I have just

examined, in the event that I am wrong in my

earlier examination of the exhibits. The subsection

provides:

"The wrongful admission of evidence shall not of

itself be a ground for the reversal of any decision in

any case where it shall appear to the court on

appeal that the evidence so admitted cannot

reasonably be held to have affected the decision

and that such decision would have been the same if

such evidence had not been admitted."

As I have taken each of the exhibits in turn, I need

not repeat myself here.

There is a cross-appeal. I should take it now and very

briefly. Learned Counsel for the respondents submitted

that the respondents were denied fair hearing. The

Court of Appeal took pains to explain the circumstances

which led the court to strike out the cross-appeal.

I can hardly improve on the position of the Court of

Appeal. The appellants were not served with the

cross-appeal and this clearly deprived the Court of

Appeal of jurisdiction to hear it. In the circumstances,

the appeal on the cross-appeal fails. I strike out the

cross-appeal.

And that takes me finally to our adjectival law

on concurrent findings of two courts. In this appeal,

both the High Court and the Court of Appeal came

to virtually the same findings. Although learned

Counsel for the appellants submitted that the

Learned trial Judge did not properly evaluate the

evidence before the court and that the Court of

Appeal by accepting the findings fell into the same

error, I am of the firm view that the Learned trial

Judge did a good job, which I cannot fault. So too

the Court of Appeal.

It is the law that this court has not the jurisdiction

to reverse concurrent findings of two courts, unless

they are perverse and not borne out from the

evidence before the trial court. I do not see any

perversity or perverseness.

It is in the light of the

above and the more detailed reasons given by my

Learned brother, Oguntade, JSC, that I too dismiss

the appeal. I abide by the costs awarded in the lead

judgment.

 

MAHMUD MOHAMMED, J.S.C.: I have had the

advantage of reading in advance the judgment just
delivered by my Learned brother, Oguntade JSC,
and I entirely agree with the opinions expressed therein
on all the issues raised in this appeal for determination

and that the appeal be dismissed. However, I wish

to make the following contribution for emphasis.

From the complaints of the appellants arising from

the grounds of appeal filed by them or on their

behalf, the following five issues were distilled in the

appellants' brief of argument for determination.

"1. Whether the court below was right when it

confirmed the decision of the trial court admitting

Exhibits 7 and 10 and other relevant exhibits?

2. Whether the appellants were under a legal duty

to prove or establish more than one root of title or

a specific root of title to succeed?

3. Whether the decision of the trial court dismissing

the appellants' counter-claim which was affirmed by

the court below was against the weight of evidence

adduced at the trial?

4. Whether or not the issue of admissibility of

Exhibits 8(a) - (g) was a fresh point for which the

leave of court was required as held by the Court of

Appeal?

5. Whether the Court of Appeal was correct when it

held that Exhibits 8( a) - (g) were evidence of the

respondents' ownership, of the waters against the

appellants?"

The complaints of the appellants on the first

issue for determination relate to the admission in

evidence of Exhibits 7 and 10 respectively. Learned

Counsel to the appellants had argued that Exhibit 7

being the judgment of the Area Court Ebbo is a

public document by virtue of Section 109(a)(ii) of

the Evidence Act. The document must therefore

satisfy the requirements of Section 111(1) and 112

of the Evidence Act before it could be admitted in

evidence. The principal requirement of the law in

this respect is that such document must be a

certified copy. Since Exhibit 7 is not a certified copy

of the Area Court judgment, the court below was

indeed in error in confirming the decision of the

trial court admitting the document in evidence. See

Ogbunyinya v. Okudo (1979) 6 - 9 SC 32 at 43. For

the same reasons applicable to exhibit 7, and in

addition to the fact that the facts in its support

have not been pleaded, I find Exhibit 10, a

judgment of the High Court of Justice of Niger State

not duly certified, also inadmissible. The lower

court was in error in affirming the decision of the

trial High Court admitting the document in

evidence not having satisfied the requirements of

the law for its admission in evidence.

However, the success of the appellants in the

determination of issue No.1, will have no bearing or

effect whatsoever on the outcome of this appeal.

This is because even in the absence of the evidence

contained in Exhibits 7 and 10, there is still ample

evidence on record to comfortably support the

judgment of the trial court in favour of the

respondents which was affirmed by the court below.

Furthermore, this appeal being one against

concurrent findings of facts by the trial Niger State

High Court of Justice and the Court of Appeal, this

court is loath to interfere or depart from such

concurrent findings of facts except where it can be

demonstrated in unequivocal terms that there has

been any error of law or procedure perpetrated or

in anyway that there had been any perverse

findings occasioning a miscarriage of justice by

those courts below to warrant such interference.

See Ezendu v. Obiagwu (1986) 2 NWLR (Pt.21) 208

at 212; Onobruchere v. Esegine (1986) 1 NWLR

(Pt.19) 799 at 804; Chukwuogor v. Obuora (1987) 3

NWLR (Pt.61) 454 at 457; Atuyeye v.

Ashamu(1987) 1 NWLR (Pt.49) 267 and Ude v.

Ojechemi (1995) 8 NWLR (Pt.412) 152 at 175. As

the appellants have failed to show why this court

should interfere in the concurrent findings of facts

by the two lower courts in this appeal, I agree that

this appeal must fail. Accordingly, I also dismiss

the appeal with N10,000.00 costs to the

respondents against the appellants.

Appeal dismissed.

 

 

Appearances:

1. O. Soyebo [Mrs.]
   Rotimi Olumeso, Esq.,
   A. I. Aderagba, Esq.
   For Appellant(s)

Ibrahim Isiyaku, Esq. For Respondent(s)

HELD:

"The law on raising fresh issue in an appellate Court is trite and cannot be basis of controversial jurisprudence.

HELD:

HELD:

"In this Court, I am confronted by the concurrent findings of fact by the two Courts below.

HELD:

"... Exhibit 10, which purported to be a court judgment, was not certified as it should be.

HELD:

"In Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt.453) 148 , this Court per Iguh JSC at 167 said:

HELD:

"In Dzungwe v. Gbishe (1985) 2 NWLR (Pt.8) 528 at 539, this court per Aniagolu JSC observed: "The principle of res judicata decided in (1843) Henderson v. Henderson (1843) 67 ER 313 at 319 was adopted in this country in Fabunmi v. Delegan (1965) NMLR 369 at 373 and was amplified by the pronouncement of Diplock, LJ, in Mills v. Cooper (1967) 2 All ER 100 at 104 who said:

HELD: