Communal Ownership

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ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the judgment of Abia State High Court in Suit No. HS/01/05, delivered on 17/10/2011 by Hon. Justice Obisike Oji, wherein the learned trial Judge struck out the claims of the Plaintiffs (now Appellants) and also struck out the Counter-claim by the Defendants (now Respondents and Cross Appellants).
The claims of the Plaintiffs at the trial Court was for:
(a) A declaration that the portion of land where the Post Office, Mission Hill (Methodist Church Nigeria Diocese of Isuikwuato Headquarters), Girls Secondary (Model School), Saint Cyprian Anglican Church, Efik Quarters, Ibibio Quarters, Trinity Methodist Church, Yoruba Quarters and the Area where the Railway Station is located, moving further into the area where Amaba Daily Market is situate, belongs to the Amaba people of Isiala Isuamawu, Isiukwuato.
(b) A declaration that the invasion of the Plaintiffs land and vandalization of the Plaintiffs properties by the Defendants and other members of Ovim Community, on the 3rd day of May, 2004 amounts to trespass and consequently wrongful and illegal.
(c) Five Million Naira damages (N5,000,000.00) for trespass against the Defendants, jointly and severally for trespass committed on the Plaintiffs land.
(d) Special Damages in the sum of N801, 500. (Eight Hundred and One Thousand, Five Hundred Naira) being damages for the Plaintiffs properties on the 3rd day of May, 2004 as particularized in paragraph 43 of the Plaintiffs Statement of Claim.
(e) An Order of Perpetual injunction, restraining the Defendants, whether by themselves, their servants, agents or privies form further acts trespass on the Plaintiff’s land. See pages 1 – 9 of the Records of Appeal.

The Defendants Counter-Claimed, thus:
(a) A declaration that by refusing to abide by the terms of Customary tenancy between the Plaintiffs and the Defendants and by challenging the Defendants/overlords title, the Plaintiffs are guilty of misconduct and liable to an order of forfeiture in relation to all that parcel of land granted to the Plaintiffs verged black in the Defendants Survey Plan No. ASA/ABD4/2005, filed with the Statement of Defence/Counter-claim.
(b) An Order of forfeiture against the claimants in respect of the said land. See the Statement of Defence/Counter-claim on pages 163 -174 of the Records of Appeal.
After hearing the case, the trial Court held that the main Suit was academic because the actual persons in lawful occupation of the lands, were not joined and made parties to the Suit, and as such a declaration of title could not, in the circumstances, be made. And with regards to the Counter-claim, the trial Court refused to grant the relief sought, despite the judgment in Exhibit X allegedly acknowledging the status of Plaintiffs as Customary tenants of Defendants.
On page 465 to 467 of the Records of Appeal, the Trial Court said:
As can be seen from a review of the evidence and address (sic) of Counsel this Suit has been long drawn and hotly contested, it involves land with established institutions or infrastructure and facilities on them. I have not seen the parties disagreeing on the features on the land. The features that are agreed to be on the land are Post Office, Methodist Church, Schools, Anglican Church, Efik Quarters, Ibibio Quarters, Yoruba Quarters, Railway Station, Market. These are functional facilities and structures which the owners are enjoying.
A remarkable feature of this case in that both sides agree that those persons and institutions on the land in dispute are lawfully there. None of the parties is contending for instance, that the Methodist Church, are illegally on the land and should be thrown out. Instead, the parties have tumbled over themselves to demonstrate that these persons and institutions are not only occupying this land but are there by well documented legal documents. The Claimants have evidence and tendered documents to show that the Methodist Church is lawfully occupying where they are on the land; the Anglican Church are lawful occupiers; the Nigerian Railway Station is located where it is by proper legal instruments. The same with the Secondary School, Post Office, the Quarters etc.
Defendants have also led evidence and tendered documents to the same effect with each of these institutions and facilities. Yet the Claimants have brought this Suit praying me to declare them the owners of the

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land where these institutions and facilities are. The Defendants have come to Court to resist that, and to urge me to find instead that they are the owners. While all these are going on, these institutions and persons, who are lawfully on these lands and enjoying them, have not been made parties to the Suit. It may very well be said that the Nigeria Railways is in comatose; but it cannot be said to have died, for the living to be scrambling (over) her property. If Nigeria Railways is in comatose, that cannot be said of the Methodist Church nor of the Anglican Church or even the State Education Board. None of the parties have contended that any of these institutions or persons on the land has run foul of the terms of its title. Without deciding which of the parties has presented better document of title in this Suit, it is clear that none of the parties has brought any dispute against these institutions and persons on the land in dispute.
It does appear that the Suit of the Claimants here is academic
Turning to the Counter-claim of the Defendants, they are praying Court for the forfeiture order of the Court against the claimants. In the address of Counsel he referred in extenso to the judgment in Exhibit X and urged me to hold that the Claimants are in this Suit re-litigating issues decided on in that judgment. I must say that the defendants in their Counter-claim are guilty of the same misdemeanor.
In the judgment in Exhibit X, rightly or wrongly, the issue of customary tenancy of the Claimants, are raised. It was the Counter-claimants who were joined as parties in that Suit, that raised it. They cannot again be raising the same issue here.
I have looked at the other aspects of the reliefs of the Claimants the claim for damages for the property destroyed; the cross examination of PW2 revealed that the things said to have been destroyed are not communally owned property that can be litigated as presented here. They belong to individuals and associations that are not parties to this Suit. See pages 465 to 467 of the Records of Appeal.
That is the judgment Appellants appealed against, and the Respondents also cross appealed. Appellants Notice of Appeal is on pages 430 to 441 of the Records, while the Notice of Cross-Appeal was filed on 28/12/11, with the leave of this Court. (See the Additional Records of Appeal transmitted to this Court and regularized on 24/2/16).
Appellants filed their brief on 2/10/14 and distilled three (3) Issues for the determination of the Appeal, as follows:
(1) Whether the Appellants case before the trial Court was academic (Ground A).
(2) Whether the learned Trial Judge was right in granting ownership status to institutions and persons who were tenants, lessees and grantees on the portions of the disputed land and holding that the said institutions and persons ought to have been made parties in the Suit. (Grounds B, C & D).
(3) Whether it was appropriate for the learned Trial Judge not to have evaluated evidence led by the parties before the trial Court and make specific findings of facts thereon as it pertained to ownership of the portions of land in dispute. (Ground E).
The Respondents filed their Brief on 19/7/16, and in it, raised a preliminary objection, seeking to strike out the Appeal for incompetence. And for the main appeal, they distilled a lone Issue for the determination of the Appeal, namely:
Whether the Court below was rightly to have denied the Appellants the reliefs they sought in the Suit ??? (Grounds A, B, C, D & E).
(The Cross Appeal and the briefs thereof will be treated separately later).
When the appeal came up for hearing on 22/3/18, the Respondents Counsel told us that they raised the Preliminary Objection on pages 4 and 5 of the Respondents brief, but that did not canvass argument on it.
On page 5 of the Respondents brief, Counsel O.A. Obianwu Esq., SAN (who settled the brief) simply said that Grounds A, B, C and D (of the appeal) deal with the same complaint and tantamount to repetition, apart from being prolix, argumentative and narrative; that Grounds E and F deal with the same complaint, to wit, evaluation of evidence and making findings on the evidence, and are prolix, argumentative and narrative in nature; that the grounds ought to be struck out as well as the appeal.
Having stated, at the hearing of the appeal, that they did not canvass arguments on the preliminary objection, it appears even that little attempted argument on page 5 of the Brief was abandoned, as the Respondents did not pursue the

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said preliminary objection at the hearing of the appeal. The said preliminary objection is hereby struck out for being abandoned. See Agboroh Vs WAEC (2016) LPELR 40974 (CA); Registered Trustees of Airline Operators of Nigeria Vs Nigeria Airspace Management Agency (2014) LPELR 22372 (SC).

Arguing the appeal, Tude Akinrimisi Esq., who settled the brief for the Appellants, on Issue One, contended that the case was not an academic issue, and relied on the case of Agbakoba Vs INEC (2008) 18 NWLR (Pt.1119) 489 at 546 -547, where it was held:
An academic question is an issue which does not require answer or adjudication by the Court, because it is not necessary to the case. It is hypothetical or a moot question. An action becomes hypothetical or raises a mere academic point when there is no live matter in it to be adjudicated upon or when its determination hold no practical or tangible value for making a pronouncement upon it. It is otherwise an exercise in futility
Counsel said that, going by the Appellants pleadings and the evidence adduced by Appellants to prove their ownership by way of traditional history; and the fact that the Respondents had also pleaded and led evidence to contest the Appellant’s claims, and that there was evidence of constant and continuous bloody clashes over ownership of the land by the parties, the definition of academic question, as in the above cited case, would not fit into this case by the parties, as the claim before the Court, and questions therein, required some answers and the issue of ownership was not a moot question but live issues that required adjudication. He submitted that the question as to which of the parties owned the disputed portions of land the waring communities were contesting, remained an essential and fundamental question, and not merely an academic question. He argued that the trial Court was wrong to conclude that the disputed portions of the land belong to institutions and persons occupying them; he (Counsel) said that the said institutions and persons occupy their said portions as tenants, lessees or grantees, but not as owners.
Counsel said it is trite law that where a party does not have absolute ownership of land, and is tenant or lessee or where the grant is for a specific period of time, reversionary rights go back to the original owners and as such, by treating the occupier institutions or persons as owners, the trial Court had extinguished the reversionary rights of the owners. Counsel urged us to note that there was evidence that some of the institutions and persons, referred by the trial Court, had acknowledged, to be rent paying tenants to either one or both of the contending communities. He relied on Exhibit ZD, where he said, the Methodist Church conceded that they were paying rent to the Appellants, but stopped due to the crises between the parties and needed proper determination of the true owners of the land to enable them know who to continue to pay rent to.
Counsel relied on the case of Shettima Vs Goni (2011) 18 NWLR (Pt. 1279) 413 at 479, to say that the Supreme Court defined an academic Suit as one that is purely theoretical and of no practical utilitarian value to the Plaintiff, even if judgment is given in his favour, and where the Suit is not related to practical situation of human nature and humanity; he said that that was not the situation in this case.
On Issue 2, Counsel answered in the negative, and restated the arguments in Issue one, relating to his claim that the trial Court granted ownership of the land to the institutions and persons occupying the land, such as Methodist Church, Amaba Daily Market, Methodist Girls Secondary School, Ovim Post Office, Railway Station, Ovim Girls Secondary School. Counsel said the above institutions were merely used to define the scope (area spread) of the Appellants land, but the trial Court misconstrued the same. He argued that Appellants land even went beyond where the above institutions occupy and that there was evidence that some of the institutions, like Methodist Church, Anglican Church and the Girls Secondary School, were aware of the competing claims of the parties over the disputed land; that the said institutions did not contest ownership of the said land.
He argued further that the said Institutions and persons did not need to be joined as parties in the Suit; that they were not necessary parties to the Suit; that neither the Appellant’s claims nor Respondents Counter-claim had any direct bearing on them (Institutions) in respect of their respective

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tenancies, leases or grants and the said institutions were not contesting original ownership of the land against either of the parties. Counsel relied on the case of Green Vs Green (1987) NWLR (Pt. 61) 480 and Yusuf Vs Adeyemi (2009) 15 NWLR (Pt. 616) on who is a necessary party that such a party would be bound by the result of the action and there must be a question which cannot be effectively and completely settled unless such a person is a party.
On Issue 3, on how the trial Court evaluated the evidence, and whether it failed to make specific findings of fact as pertained to ownership of the portions of land, Counsel referred us to many cases on what evaluation of evidence connote, and the duty of the trial Court to evaluate such evidence. See Eze Vs Okoloagu (2010) 3 NWLR (Pt. 1180) 183; Ameyo Vs Oyewole (2009) 8 NWLR (Pt. 1142) 1; Oyadiji Vs Olaniyi (2005) NWLR (Pt. 919) 561.

Counsel said that the trial Court, in this case, reproduced and summarized the evidence adduced by the witnesses but failed to place the evidence of the parties on the imaginary scale of justice, to determine where the pendulum tilted. He relied on Lamurde Local Govt Vs Karka (2010) 10 NWLR (Pt.1203) 574; Oduwole Vs Aina (2001) 17 NWLR (Pt.741) 1 at 45.

He, again, submitted that the trial Court was wrong in his findings, to attribute ownership of the land to the Institution and person that occupied them, not to parties to the Suit; that the trial Court therefore misapplied the case of Jinadu Vs Esurombi (2009) 4 – 5 SC (Pt. 2) 65.
He urged us to resolve the issues for Appellants.
The Respondents Counsel, O.A. Obianwu Esq., SAN, arguing the lone Issue, referred us to the reliefs sought by Appellants – Declaration of title to the lands in dispute, special and general damages and injunction. Counsel said Appellants complaint in this appeal relate only to the refusal of the trial Court to make the declaration of title, sought. Counsel said that the trial Court was right to refuse to grant the declaration sought by the Appellants; that as the trial Court rightly observed, both parties had claimed to have been responsible for the presence of the institutions and facilities on the land in dispute, but the said institutions and persons, which are legal personalities, were however not joined and made parties to the Suit; that it cannot be seriously disputed, that any pronouncement of the Court on the question of ownership of the portions of the land, which they were occupying, would have directly affected them. Counsel agreed that the Court could not therefore, in the absence of the said Institutions and persons occupying the land, make a decision which would prejudice them. He relied on the case of Ngwu Vs Onuigbo (1999) 13 NWLR (Pt. 636) Pt. 525 – 526. Counsel said the Churches, Schools, Railways and other Institutions, which had built up the areas they were occupying in the land, cannot be said not to be necessary parties to the Suit, in the light of the reasoning in the above case of Ngwu Vs Onuigbo (supra).

Counsel also relied on Okwu Vs Umeh (2016) 4 NWLR (Pt. 1501) 120, where it was held:
A Plaintiff is not bound to sue a particular party. However, where the outcome of the Suit will affect that party one way or the other, it will be foolhardy not to join him in the Suit. In fact it would amount to an exercise in futility as the said party will not be bound by the outcome of the case.

Counsel added that, that was what the trial Court in this case also said. He argued that it can be seen that the relief sought by Appellants, to the effect that the named portions of land belong to the Amaba people of Isiala Isuamawu Isuikwuato, was most misconceived; he said that they did not seek a declaration of entitlement to statutory or customary certificate of occupancy in respect of the lands in issue, which is the only relief a Court is permitted to make in the light of the Land Use Act; that Appellants prayed the Court, seeking ownership, oblivious of the position of the law in the case of R.O. Nkwocha Vs Gov. of Anambra State (1984) 6 SC Pt.326 that
The tenor of the act as a simple piece of legislation is the nationalization of all lands in the country by the vesting of its ownership in the state, leaving the private individual with an interest in land which is mere right of occupancy.

Counsel further said that Appellants arguments were misdirected, he said that it was not a question of granting ownership status to institutions and persons in physical occupation of the disputed land, as the Court never granted

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any relief in favour of the institutions and persons in occupation in its judgment; that the Court only reacted to the evidence placed before it by both sides. Counsel said Appellants argument predicated on their alleged reversionary interest was also misconceived, as Appellant did not plead that they were bringing the action on the basis of their reversionary interest! He said that a party must be consistent in stating his case, and cannot pursue a different case on appeal. Counsel relied on Ngwu Vs Onuigbo (1999) 13 NWLR (Pt. 636) 512; Akuneziri Vs Okenwa (2000) 15 NWLR (Pt. 691) 526.

He urged us to resolve the issue against Appellants and dismiss the appeal.
RESOLUTION OF THE ISSUES
I think the lone Issue distilled by the Respondents Counsel aptly summarized the three Issues by the Appellants, and I adopt the same to determine this appeal, with some modifications.
Was the trial Court right to refuse the Appellants reliefs sought in the Suit, in the light of the evidence adduced?”

As the learned Senior Counsel for the Respondents’ rightly argued, I think the learned Counsel for Appellants greatly misconstrued the decision of the trial Court when it held on pages 465 to 466 as follows:
As can be seen from a review of the evidence and address (sic) of Counsel this Suit has been long drawn and hotly contested, it involves land with established institutions or infrastructure and facilities on them. I have not seen the parties disagreeing on the features on the land. The features that are agreed to be on the land are Post Office, Methodist Church, Schools, Anglican Church, Efik Quarters, Ibibio Quarters, Yoruba Quarters, Railway Station, Market. These are functional facilities and structures which the owners are enjoying.
A remarkable feature of this case in that both sides agree that those persons and institutions on the land in dispute are lawfully there. None of the parties is contending for instance, that the Methodist Church, are illegally on the land and should be thrown out. Instead, the parties have tumbled over themselves to demonstrate that these persons and institutions are not only occupying this land but are there by well documented legal documents. The Claimants have evidence and tendered documents to show that the Methodist Church is lawfully occupying where they are on the land; the Anglican Church are Lawfully occupiers; the Nigerian Railway Station is located where it is by proper legal instruments. The same with the Secondary School, Post Office, the Quarters etc.
Defendants have also led evidence and tendered documents to the same effect with each of these institutions and facilities. Yet the Claimants have brought this Suit praying me to declare them the owners of the land where these institutions and facilities are. The Defendants have come to Court to resist that and to urge me to find instead that they are the owners. While all these are going, these institutions and persons who are lawful on these lands and enjoying them have not been made parties to the Suit. It may very well be said that the Nigeria Railways is in comatose, but it cannot be said to have died, for the living to be scrambling (over) her property. If Nigeria Railways is in comatose that cannot be said of the Methodist Church nor of the Anglican Church or even the State Education Board. None of the parties have contended that any of these institutions or persons on the land has run foul of the terms of its title.
Without deciding which of the parties has presented better document of title in this Suit, it is clear that none of the parties has brought any dispute against these institutions and persons on the land in dispute.
It does appear that the Suit of the Claimants here is academic
There is nothing in the above decision to suggest that the trial Court granted the said institutions and persons, in lawful occupation of the land ownership of the portions of the land in dispute at the expense of any of the parties in this case. The trial Court merely stated, and rightly, in my view, that having acknowledged the said Institutions and persons, including Methodist Church, Anglican Church, Nigeria Railways, Post Office, Schools, Market and various Quarters – Efik, Ibibio, Yoruba Quarters as lawfully occupying their respective portions of the land, whereof they have developed, and built functional structures and facilities, which they were/are enjoying, the Appellants (or parties by extension) cannot bring this action seeking:
A declaration that the portions of land where Post Office, Mission Hill (Methodist Church, Nigeria

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Diocese of Isuikwuato Headquarters), Girls Secondary School (Model School), Saint Cyprian Anglican Church, Efik Quarters, Ibibio Quarters, Trinity Methodist Church, Yoruba Quarters, and the area where the Railway Station is located, moving further into the area where the Amaba Daily Market is situate belongs to (them) the Amaba people of Isiala Isuamawu, Isuikwuato.
Thus, having acknowledged that the various institutions and persons were/are lawfully occupying their said portions, Appellants cannot lawfully seek an order to declare them (Appellants) owners of such portions of land, without joining the said Institutions and Persons as parties to the Suit, as making such order(s) would certainly affect the proprietary or possessionary or occupationary interests of the said Institutions/Parties!
That, I think, is an elementary principle of law, which Appellants Counsel is expected to know, and if he did not know, should be thankful to the trial Judge for calling his attention to this fact/law, and the Court being kind/mild enough to just strike out the claims of Appellants (instead of dismissing it), after taking evidence.
There are myriads of decided authorities on the need to join necessary parties to an action, to enable the Court to effectively and finally determine the rights of the parties in the Suit. And where a Suit cannot be effectively disposed of, without a given party, who stands to be affected by the orders of the Court, or whose joinder or presence/evidence is needed to vest jurisdiction on the Court to pronounce on the matter, the Court would be wasting its precious judicial time to entertain the same. See the case of Green Vs Green (1987) 3 NWLR (Pt. 61) 480; Ngwu Vs Onuigbo (1999) 13 NWLR (Pt. 636) 526. See also Okwu Vs Umeh (2016) 4 NWLR (Pt. 1501) 120, where it was held:
A Plaintiff is not bound to sue a particular party. However, where the outcome of the Suit will affect that party one way or the other, it will be foolhardy not to join him in the Suit. In fact, it would amount to an exercise in futility as the said party will not be bound by the outcome of the case.
The Supreme Court re-stated who is a necessary party in the case of Poroye & Ors Vs Makarfi & Ors (2017) LPELR 42738 SC, when it said:
It is settled law that a necessary party is a person whose presence in an action is essential for the effectual and complete determination of the claim before the Court. See Re. Yesufu Faleki (Mogaji) 1986 2 SC 431 at 499; (1986) 1 NWLR (Pt. 19) 759; Ige Vs Farinde (1994) 7 -8 SCNJ 284.”
It is easy, in my opinion, to see and understand how hearing and pronouncing on this Suit, meant to establish the ownership of the Appellants over portions and parcels of land, which land is in effective occupation of third parties, (as stated by the Appellants), but not made parties to the Suit, would amount to exercise in futility, and as such an academic exercise, that would not bring any benefit to the parties, as the same cannot be enforced against the said 3rd parties, if pronounced. It would of course enure no benefit to the Claimants, in the circumstances. In the case of Agbakoba Vs INEC & Ors (2008) 18 NWLR (Pt. 1119) 489, relied upon by the Appellants, the Supreme Court stated when a Suit amounts to academic question:An academic question is an issue which does not require answer or adjudication by the Court, because it is not necessary to the case.
It is a hypothetical or a moot question. An action becomes hypothetical or raises a mere academic point where there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement upon it.
It is strange, in my view, that the Institutions and Persons (3rd Parties) which are occupying the property and are presented by Appellants to be enjoying the property, are not those complaining against the Respondents (or any party) for trespass and seeking reliefs thereon, but Appellants are those asserting rights over the lands they (3rd Parties) occupy, lawfully! I do not think Appellants have the locus standi to bring the action, or that such action requires any adjudication, as the trial Court right held.
In the case of Dibiagwu Vs Uzonwanne & Ors (2017) LPELR 43074 CA, this Court said:
A Case or Appeal is said to be an academic exercise, when it would bring no benefit to any party, except, perhaps, the sensual/mental satisfaction to the party who brought it, where there is no live issue in the litigation/Claim; that is, where what is presented to the

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Court for a decision (and if decided) cannot affect the parties thereto in anyway, either because the fundamental nature of the reliefs sought has changed or there is a changed circumstance, since after the litigation, such that in the end, the case or the appeal has become academic at the time it is due for hearing. See Labour Party Vs Bello & Ors (2016) LPELR 40848 CA; Eric Uchegbu & Anor. Vs Pastor Mgbeahuroike & Ors(2017) LPELR 41683 CA; A.G. Federation Vs ANPP (2004) LRCN 2671; Odedo Vs INEC (2008) 17 NWLR (Pt.1117) 554.”
In an era where by the operation of law (the Land Use Act, 1978), which has been incorporated in the 1999 Constitution, as amended, land in each State is vested in the Governor of the State, it sounds self defeating for a party to bring a Suit, seeking declaration of ownership of land (in effective and lawful occupation of a 3rd Party) to himself, without any recourse to who is entitled to the Statutory or Customary right of occupancy over the land. In the case of Nkwocha Vs Gov. Anambra State (1984) 6 SC 326; (1984) LPELR 2052 (SC), the Supreme Court said:
The tenor of the Act (Land Use Act) as a simple piece of legislation is the nationalization of all lands in the country by the vesting of its ownership in the State, leaving the private individual with an interest in the land which is a mere right of occupancy.
I think the Suit was a misadventure and ill-advised. I resolve the Issue against the Appellants and hold that the appeal lacks merit. I dismiss it with cost, assessed at Fifty Thousand Naira, in favour of the Respondents.
CROSS APPEAL
The Cross Appellants filed their brief on 19/3/18, and distilled two (2) Issues for determination of the Cross Appeal, namely:
(1) Whether the Court below was right to strike out the Counter-Claim of the Cross-Appellants. (Ground F (sic) of the Cross Appeal).
(2) Whether the Court below was right not to have dismissed the Appellants Suit Grounds 2, 3 and 4 of the Cross Appeal.
The Cross-Respondents filed their Cross Respondents brief on 20/3/18, and appeared to have adopted the Issues as distilled by the Cross-Appellants, for the determination of the Appeal.
The Cross-Appellants filed a Reply to the Cross-Respondents brief.
Arguing the Cross-Appeal, Learned Senior Counsel, O.A. Obianwu S.A.N. (who settled the Cross-Appeal) on Issue one, (which derived from the ground one of the Cross Appeal, not ground F) simply exchanged position with the Appellants Counsel as regards the argument of the main appeal, with regards to the reasons for the decision to strike out the Suit.
He referred us to the Counter-claim, which sought:
(1) A declaration that by refusing to abide by the terms of the Customary tenancy between the Plaintiffs and the Defendants, and by challenging the Defendants/overlords title, the Plaintiffs are guilty of misconduct and liable to an order of forfeiture in relation to all that parcel of land granted to the Plaintiffs, verged black in the Defendants Survey Plan No. ASA/ABD4/2005, filed along with this Statement of Defence/Counter-claim.
(2) An order of forfeiture against the Plaintiffs in respect of the said land.
Counsel referred us to the evidence they led to prove the said customary tenancy, on pages 258 to 259 and 269 to 270 of the Records of Appeal, as well as Exhibit X (the judgment of the High Court in Suit No. HO/49/83). Counsel said the evidence led by them at the trial Court on the point was not challenged by the Appellant and so the trial Court was wrong to hold that they (Cross Appellants) were guilty of the same misdemeanor as the opponents (Cross Respondents), and struck out the Counter-claim; Counsel said that was a travesty of justice as the customary tenancy was established by Exhibit X.
Unfortunately, the Cross Respondents arguments on this Issue, appears to confuse it with a Reply Brief, or a resort to further argue the main appeal, as the Cross-Respondents rather reargued the main appeal on pages 2 to 5 of their Respondent’s Brief to Cross Appellants Brief of Argument, wherein he re-argued that the trial Court was wrong to strike out Appellants claim, because of the failure to join the institutions and facilities on the land, as parties, whereas they (Appellants) had proved that the Institutions and persons where their (Appellants) tenants on the land!
I think the failure of the Cross Respondents to challenge that issue notwithstanding the Cross Appellants cannot argue

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against the decision of the trial Court, striking out their Counter-claim (just as it did the main claim) for the same reason the trial Court gave, namely that:
Both from the claimants and defendants, there is evidence here that the ownership of the land in dispute is in persons who are not parties to this Suit. Turning to the Counter-claim of the defendants, they are praying Court for the forfeiture order of the Court against the Claimants I must say that the defendants in their Counter-claim are guilty of the same misdemeanor. In the judgment in Exhibit X, rightly or wrongly, the issue of Customary tenancy of the Claimants was raised. It was the Counter-claimants, who were joined as parties in that Suit that raised it. They cannot again be raising the same issue here.See page 467 of the Records).
Of course, Cross Appellants Counsel had defended that decision of the trial Court in the main appeal, that striking out the main appeal was proper, for the reasons given, that the Institutions and Persons on the land, lawfully enjoying occupation of the land were not joined as parties, and so the Court cannot take the case and make orders that will bind them – Institutions and Persons not joined as parties.
In paragraphs 5.5 to 5.8 (page 6) of the Respondents Brief filed on 19/7/2016, the Learned Senior Counsel for the Respondents had argued:
The reasoning of the trial Court in relation to the claim of ownership of the portions of the land in dispute can be seen from pages 425 line 25 -428 line 4 of the Records. It is respectfully submitted that the conclusion of the Court that in the circumstances of the case it was not possible to grant a declaration of title in the Appellants favour, is correct. As rightly observed by the trial Court, both parties claimed to have been responsible for the presence of the institutions and facilities on the land in dispute. The institutions and facilities which were legal personalities were, however, not made parties to the Suit. It cannot be seriously disputed that any pronouncement on the question of ownership of the portions of land, which they were occupying, would have directly affected them. The Court could not therefore, in their absence, take a decision which might prejudicially affect them, one way or the other.
I think above arguments, rightly made by Learned Senior Counsel, in the same case/Appeal, placed a moral burden on him to stick to the truth/law on the issue. He cannot be allowed to prevaricate, to approbate and reprobate, to suit his dangerous conflict positions in the same case. See the case of Nyako Vs Adamawa State House of Assembly & Ors (2016) LPELR 41822 SC, where the Supreme Court held that Counsel cannot blow hot and cold, at the same time, or approbate and reprobate on the same issue just as one cannot eat his cake and have it. See also Suberu Vs State (2010) LPELR 3120 SC; (2010) 8 NWLR (Pt. 1197) 586; Olubeko Vs Awolaja & Anor (2017) 41854 CA.

Thus, the Counter-claim by the Cross Appellants, could not be resolved on the merits, and stood to be struck out, too because of the same circumstances and reasons given by the trial Court, and accepted by the Respondents Counsel for the striking out of the main Suit. I therefore resolve this issue against the Cross Appellants.
Was the trial Court right in striking out the Appellants claim, instead of dismissing it?
The Cross-Appellants had answered the 2nd Issue in the Cross-Appeal in the negative, saying the trial Court erred in striking out the Suit, rather than dismissing the same. He argued that Appellants had sought to rely on devolution of the property, by customary inheritance, or simply put, by traditional history; that they failed to establish their case by that method and so the case should have been dismissed; that it is settled law that where the line of succession is not satisfactorily traced, the claim must fail. He relied on many decided authorities, including Ishie Vs Mowanso & Anor. (2001) FWLR (pt. 43) 338; Chukwu Vs Nnaji (1990) 6 NWLR (Pt. 156) 363; Eze Vs Atasie (2000) 10 NWLR (Pt. 675) 479; Mogaji Vs Cadbury (1985) 2 NWLR (Pt. 7) 393.
Counsel also stated that the Statement of Claim, on which Appellants grounded their claim, did not satisfy the legal requirements of pleading the:
(1) Founding of the land;
(2) The name and history of the founder;
(3) Names, particulars and histories of the persons through when (sic) the land devolved before getting to the claimants.
He argued that on the pleadings alone, the case of the Appellants had broken down, and ought to have been dismissed.

………………..I………………..

The Cross Respondents again in my view, also failed to address this issue in their 2nd Issue and rather argued whether the Court below was right to strike out the Counter-claim of the Cross-Appellants, which he answered in the negative, saying the trial Court ought to have dismissed the Respondents/Cross Appellants Counter-claim, instead of striking same out.

Of course, the Cross Appellants 2nd Issue, rather focused on Appellants Claim, not on the Counter-claim that the trial Court should have dismissed the Appellants claim and not striking it out.
The Cross Respondents had answered the Issue in the affirmative whether the lower Court was right not to have dismissed the Appellants case.
He argued as follows:
The Trial Court struck out the Appellants case, despite reviewing evidence led at the trial, specifically upon the fact that the trial Court held that the Appellants case was an academic exercise due to the failure of the Appellants to join institutions/facilities as parties to the Suit.
The trial Court did not find that the Appellants case was proved or not proved, as the trial Court did not arrive at a finding in relation thereto, but struck out the Appellants case on other grounds than that relating to proof of ownership.
Consequently, I humbly submit that it would have amounted to injustice to have dismissed the Appellants case under the circumstances, particularly as the Appellants case was struck out on technical grounds See paragraphs 3.7, 3.8 and 3.9 of the Cross Respondents Brief.

The above submission in my opinion, represents the correct state of the facts and the law, in this appeal and Cross appeal. I think the Cross-Appellants were merely acting, or grandstanding on the issue, having already acknowledged that the reasons or reasoning of the trial Court for striking out the Suit had to do with failure to join occupiers of the land, acknowledged by both sides, as enjoying lawful occupation of the land(s) in dispute. The Lower Court’s decision was therefore not founded on the merits of the case, and so could not have been an order of dismissal.
The law is trite that where a case is not heard and determined on the merits, the appropriate order to make is to strike it out, if it cannot be determined on the merits. See Kayode & Ors Vs Abdulfatai & Ors (2012) LPELR 7874 CA; Alsthom S.A. Vs Saraki (2005) 3 NWLR (Pt. 911) 208; Ogwuowere & Ors Vs Udeh & Ors (2016) LPELR 41028 (CA).
It is rather surprising to note that, by arguments of Counsel on both sides, they would have preferred the dismissal of their claims and Counter-claims by the trial Court, which obviously would have ultimately worked hardship and injuries on them in the circumstances. Counsel should always avoid grandstanding on issues, and rather act to protect the overall interests of their clients and uphold the tenets of the Court and justice.
I see no merit in the Cross-Appeal and hereby dismiss it with Fifty Thousand Naira (N50,000.00) against the Cross-Appellants, payable to the Cross-Respondents.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother, Justice Ita George Mbaba, JCA. I am in complete agreement with the reasoning and conclusions reached therein. I also agree with the orders made in respect thereof, inclusive of the order made in connection with costs.
TUNDE OYEBANJIÂ AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother ITA G. MBABA JCA. I agree entirely with the reasoning and conclusion therein.
I just have the following by way of addition.
It is trite law that proper parties must be before a Court for a Court to have competence and jurisdiction to determine a matter. See COTECNA INTERNATIONAL LTD v. CHURCH GATE NIG LTD ANOR (2010) 18 NWLR PT. 1225 p. 346 where Adekeye J.S.C. had this to say on this point:
“It is trite law that for a Court to be competent and have jurisdiction over a matter, proper parties must be identified. Before an action can succeed, the parties to it must be shown to proper parties to whom rights and obligation arising from the cause of action attach. The question of proper parties is very important issue which would affect the jurisdiction of the Court as it goes to the foundation of the suit in limine. Where the proper parties are not before the Court, then the

………………..J………………..

Court lacks the jurisdiction to hear the suit. BEST VISION CENTPE LTD v. UAC. NPC PLC (2003) 13 NWLR (PT. 838) PG. 594; IKENE v. ANAKWE (2000) 8 NWLR (PT. 669) p. 484; PEENOK LTD v. HOTEL PRESIDENTIAL (1983) 4 NCL 122; EHIDIMHEN v. MUSA (2000) 8 NWLR (PT. 669) p. 540.”
Of their own showing, the Plaintiffs in their claims claimed that the portion of land where Post Office Mission Hill (Methodist Church Nigeria Diocese of Isuikwuato Headquarters) Girls Secondary (Model School) Saint Cyprian Anglican Church, Efik Quarters Ibibio Quarter, Trinity Methodist Church Yoruba Quarters and the Area where the Railway Station was located belonged to them yet Methodist Church Nigeria, Anglican Church members of Ibibio Quarters Yoruba Quarters, Efik Quarters who definitely would be affected were not joined as parties. The presence of all these was necessary for the just determination of this case. Indeed they are necessary parties. See GREEN v. GREEN (1987) 3 NWLR PT. 61 p. 480. Failure to join necessary parties in an action vitiates such action. It renders it incompetent. See HON. JUSTICE F. O. AYOOLA (NEE AKANBI) v. ALHAJI B. A. BARUWA ORS (1999) 11 NWLR (PT. 628) 595; OKONTA v. PHILIPS (2010) 15 NWLR (PT. 1225) 320.

The same virus of incompetence also infected the cross-appeal.
I agree the lower Court lacked jurisdiction to entertain the action and rightly struck out both the appeal and the cross-appeal.
The appeal and the cross-appeal lack merit. I abide by the order as to cost in the lead judgment.

The suit No. COK/83/91 was between Chief Joseph Ozoemena and another of Umulo village, Amuro Okigwe, as Plaintiffs, and Samson Eze and Another of Amaikpa village, Amuro okigwe. The Plaintiffs of Umulo village claimed against the Defendants of Amaikpa village seeking a declaration of customary right of occupancy of over a piece of land, perpetual injunction and the sum of N1,400.00 value of 400 heads of palm fruits allegedly harvested at Ulu-Okporikpo by the Defendants of Amaikpa village.
In the suit No. COK/99/91 – Chief Joseph Ozoemena and another, on behalf of Umulo village of Amuro Okigwe sued Timothy Chukwu of Okpala village, Amuro Okigwe.
The Plaintiffs of Umulo village were in the said suit claiming against the Defendant of Okpala village a declaration that the Plaintiffs were entitled to the customary right of occupancy to the piece or parcel of land known as UHU-OKPORIKPO lying and suitate at Umulo, Amuro Okigwe. They also claimed perpetual injunction restraining the Defendant from further entering and/or interfering howsoever with the said Uhu-Okporikpo land.
Chief Joseph Nwokoro and another representing Amaikpa village, Amurookigwe, were the Plaintiffs in COK/126/91. They had sued Chief Joseph Ozoemena and two others including Timonthy Chukwu (Plaintiff in COK/92/91, and the Defendant in COK/99/91), claiming to be declared as persons entitled to the customary right of occupancy to the piece or parcel of land known and called UHU-OKPORIKPO situate at Amaikpa village Amuro Okigwe. They also sought N250.00 as damages for trespass and perpetual injunction restraining the Defendants from further acts of trespass into the said land.
In all the three suits – COK/83/91, COK/99/91, and COK/126/91, the core dispute was over the customary ownership of the right of occupancy to the piece of land known as and called UHU-OKPORIKPO.
In COK/83/91 and COKl99/91, the Plaintiffs were the Umulo people while Amaikpa people were the Defendants. In COK/126/91, the Amaikpa people were the Plaintiffs while the Defendants were Umulo people.
The Customary Court at Abo Umulolo entered final judgment in the consolidated suits in favour of the Amaikpa people (Defendants in COK/83/91 and COK/99/91, but plaintiffs in COK/126/91) against the Umulo people (the plaintiffs in COK/83/91 and COK/99/91 but Defendants in COK/126/91). On Appeal of the Umulo people (Defendants in COK/126/91 to the Customary Court of Appeal in Appeal No. CCA/OW/A/54/200L, the Customary Court of Appeal allowed the Appeal, set aside the judgment of the Customary Court and entered judgment for the Umulo people (the Plaintiffs in COK/83/91 and COK/99/91 and Defendants in COK/126/911).
The Amaikpa people further Appealed to the Court of Appeal. Their Appeal No. CA/PH/290/2003 was allowed on 24th November, 2003, and the decision of the Customary Court of Appeal (CCA/OW/A/54/200I) was set aside, on facts, and the decision of the Customary Court was restored.
This further Appeal to this Court, brought upon leave of the Court of Appeal (hereinafter called the “Lower Court”) granted on 14th February, 2006, is at the instance of Chief Joseph Ozeomena and another for themselves and representing Umulo village, Amuro Okigwe, as the Appellants. The first set of Respondents are Chief Nwokoro and another (for themselves and as representing Amaikpa village, Amuro, Okigwe). Timothy Chukwu of Okpala village, Amuro Okigwe is the second set of the Respondents.
This Appeal is premised on three grounds of Appeal that complain against the handling of 3 named grounds of Appeal (that is grounds, 2, 3 and 6) at the lower Court. The 3 grounds of Appeal, shown of their particulars are as follows:
1. The Court of Appeal erred in law when it held that ground 2 of the Respondents’ ground of Appeal was competent in that it raised issues of customary law and proceeded to entertain their on the same among others i.e grounds 3 and 5 and allowed the same.
2. The Court of Appeal erred in law when it held that ground 3 of the grounds of Appeal in the said Court was competent and that the same raised question(s) of customary law and thereby proceeded to determine the Appeal on the same among other grounds i.e grounds 2 and 6.

…………………….B…………………….

3. The Court of Appeal erred in law when it held that ground 6 of the Respondents’ ground of Appeal was competent and that the same raised question(s) of customary law.

The 3 grounds of Appeal at the lower Court (i.e grounds 2, 3, and 6) the subject of attack in this Court were introduced and or brought in, by way of amendment, upon leave of the lower Court granted for them inter alia to substitute the original grounds 2, 3, and 4. The lower Court, on 21st September, 2004, granted leave to the Appellants before it (now the 1st set of Respondents) inter alia;
to amend the notice of Appeal by deleting grounds 2, 3 and 4 of the Notice of Appeal and substituting therewith new grounds 2, 3, 4, 5, 6 and 7 as shown in EXHIBIT A annexed to this motion.

In all, the 1st of Respondents, as the Appellants at the lower Court, canvassed a total of seven (7) grounds of Appeal, from which they raised and argued four issues for the determination of that Appeal. Only grounds 2, 3 and 6 survived the preliminary objection of the present Appellants.
Grounds 1, 4, 5 and 7 were struck out by the lower Court “for being incompetent” (page 336 of the Record). The Appeal was eventually determined on the following three issues, adjudged competent, by the lower Court:
B.1(a) Whether from the evidence tendered at the trial the Plaintiffs/Respondents discharged the burden of proof in law to entitle them to their claim?
(b) lf the answer is in the negative, did the Appellants prove their entitlement to the land-in-dispute as per their claim?
B.2 Whether the lower Court properly evaluated the evidence tendered before the trial Court by the parties?
B.3 Whether the specific finding made by the trial Court on the local arbitration which was a live and material issue between the parties was proper?

The present Appeal turns on whether the lower Court was right in holding, upon partly allowing the preliminary objection, that grounds 2, 3 and 6 of the grounds of Appeal before it were competent. Though the judgment of the lower Court based on issues formulated from the disputed grounds 2, 3 and 6 before it decided the merits, upon evaluation of the facts before it, this Appeal, questioning only the competence of those 3 grounds of Appeal, will not in actuality decide directly the question as between the parties herein: who is the person actually entitled to the ownership of the customary right of occupancy over the piece of land known as and called UHU-OKPORIKPO.
The disputed grounds 2, 3 and 6 at the lower Court read thus
2. The Customary Court of Appeal erred in law by holding that the Plaintiffs (Respondents proved their entitlement to the land-in-dispute known as and called UHU-OKPORIKKPO.
PARTICULARS
a. The Plaintiffs/Respondents failed to prove any grant of portion of the entire UHU-OKPORIKPO to the Appellants or their forebears.
b. The Plaintiffs/Respondents did not trace or Proffer any traditional evidence of ownership of the land or any acts of possession numerous and Positive.
c. PW.1’s evidence of his title dating from Ukaegbu had serious gaps, mysterious linkage or nexus.
d. The Plaintiffs/Appellants admitted that “Okporikpo” was a human being and made no effort to connect or link their ownership to him.
e. The assertion that Defendants/Appellants were their tenants was not proved.

f. The lower Court finding at page 230 lines 10 – 14 that Plaintiffs successfully proved by traditional history their root of title was not borne out of the records.
3. The lower Court erred in law in dismissing Appellants suit against the Plaintiffs/Respondents when the evidence led in proof of their case was cogent consistent and unshaken.
PARTICULARS
a. Plaintiffs/Respondents admitted that the Appellants live on part of the land in dispute.
b. Plaintiffs/Respondents failed to prove by cogent evidence as found by the trial Court that Appellants were their tenants or any grant thereof was made to them: S.137 Evidence Act.
c. The area the Appellant live and the disputed area are one piece or parcel of land known as and called Uhu-Okporikpo and both parties called it the same name.
d. There is evidence that Appellants are in possession of the land called Uhu-Okporikpo and the Plaintiffs/Respondents came to the land only in 1991.
e. Onus is on Plaintiffs/Respondents to show that Appellants established to be in possession of the land are not owners: S.146 Evidence Act.

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f. Acts of Possession and enjoyment of land is (sic) evidence (in this case) of ownership not only of the particular area of residence of Appellants but also of the remaining portion of Uhu-Okporikpo: S.46 Evidence Act.
b. Traditional evidence of Appellants was not faulted as they traced how the land devolved from their ancestors to them.
6. The lower Court erred in law in holding that the trial Court relied heavily on the local arbitration to justify its dismissal of the plaintiffs/Respondents case, when the trial Court in discharge of its duty made specific finding of fact on the issue of arbitration which was a material issue in controversy between the parties.
PARTICULARS
a. The decision of the trial Court was not based on the findings of the local arbitration.
b. The trial Court commented on the custom of Amuro Okigwe on oath-taking and came to the conclusion that the custom prescribes that the man in possession of the land swears the oath and not the challenger. In this case, Appellants as found by the local arbitration should swear for the Plaintiffs/Respondents.
c. In the verdict of the trial Court at page 142 lines 10 – 23 of the record, it only said that a Court of Justice should support a good decision by local arbitration.
d. The case of Plaintiffs/Respondents failed woefully with or without the arbitration panel judgment.
e. The parties Appeared and participated fully at the arbitration, each side claiming that the arbitration decided in their favour.
f. The trial Court had a bounden duty in making a finding on the issue of whether the arbitration reached a decision, published it to the parties and what was the finding of the arbitrators.
The sole issue formulated by the Appellants in this Appeal is:
Whether the Court of Appeal had the jurisdiction to entertain the Respondents’ Appeal from the judgment of the Customary Court of Appeal.
The Respondents, on the other hand, also formulated a sole issue but differently thus:
Whether grounds 2, 3 and 5 as contained in the notice of Appeal of the Respondents at the lower Court raised question or questions of customary law as to make the Appeal competent before the Court.
I prefer the Respondents’ issue to the Appellants’ sole issue. Clearly, the Appellants’ sole issue does not capture and bring out the graveman of the Appellants’ grouse reflected by their grounds of Appeal to this Court. The three grounds of Appeal brought to this Court, which I earlier reproduced (shorn of their particulars) do cumulatively complain that grounds 2, 3 and 6, held by the Court of Appeal to be competent and on which the said Court based its decision (the subject of this further Appeal), are not competent and that the Court of Appeal erred in so holding.
The Appellants relying on USMAN v. UMARU (1992) 7 S.C.N.J. (Pt. 2) 388; GOLOK v. DIYALPWAN (1990) 3 S.C.N.J. (Pt. 139) 411, and OGOLO v. OGOLO (2003) 18 N.W.L.R. (Pt. 852) 494 submit that the said grounds 2, 3, and 6, not raising any issue of customary law, are not competent. They submit also, citing HIRNOR v. YONGO (2003) 9 S.C.N.J. (Pt. 824) 77, OKEREKE v. NWANKWO (2003) 4 S.C. (Pt. 1) 16 and PAM v. GWOM (2000) 1 S.C.N.J. 36; (2000) 2 N.W.L.R. (Pt. 644) 322 that where the decision of the Customary Court of Appeal turns purely on facts, or on question of procedure, such decision is not a question of customary law. They rely, for these submissions, on Section 245(1) of the Constitution of the Federal Republic of Nigeria (C.F.R.N.), 1999, as amended.
In TIZA v. BEGHA (2005) 5 S.C.N.J. 168, the Appellants further submit, this Court pointed out that there is not yet any Act of the National Assembly, pursuant to Section 245 of the C.F.R.N. extending the jurisdiction of the court of Appeal to entertain an Appeal from the Customary Court of Appeal on any ground, other than grounds raising issues of customary law.

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In response, the Respondents’ Counsel submit that grounds 2 and 3 before the lower Court raise complaints of traditional ownership of land and customary grant. Ground 6, Counsel submits, raise the issue whether the customary arbitration relied upon by the trial Customary Court was an arbitration in conformity with the customary laws of the parties. Counsel further submits that the parties are ad idem that oath-taking, being one of the methods of determining ownership of land in Amuro, is a matter within the customary law of the area the disputed land is situated. PAM v. GWOM (supra) relied on by the Appellants, Respondents Counsel submits, was decided by this Court on grounds of Appeal similar to grounds 2, 3 and 6 now in dispute. Accordingly, Respondents’ Counsel reasons that by virtue of Section 245(1) of the C.F.R.N., 1999, the Court of Appeal can competently exercise jurisdiction to entertain grounds 2, 3 and 6 before it.
Grounds 2, 3 and 6 before the Court of Appeal in the notice of Appeal against the decision of the Customary Court of Appeal of Imo State are very clear and unambiguous. I reproduced them earlier.
When the said grounds 2, 3 and 5 (including their particulars) are read together and related to the reliefs the parties claimed in their various suits consolidated at the trial Customary Court – the obvious issue therefrom raises questions as to whether the Plaintiffs/Respondents proved their title to the customary right of occupancy over the disputed UHU OKPORIKPO land, under the rules of customary law (including traditional history and evidence, resort to oath-taking as a means of resolving disputes or establishing title, and customary arbitration) prevailing in Amuro area of Okigwe. The grounds raising, as they do, “any question of customary law” are in my view competent grounds of Appeal which the Plaintiffs/Respondents, as the Appellants the Court of Appeal aggrieved by the decision of the Customary Court of Appeal of lmo State, are entitled to Appeal “as of right” on those grounds of Appeal to the Court of Appeal under Section 245(1) of the Constitution.
The learned Counsel for the Respondents submit relying on PAM v. GWOM (supra) that the instant grounds 2, 3, and 6 are on all fours with the grounds of Appeal adjudged competent in PAM v. GWOM (supra), and further, and I agree that proof of ownership of land in accordance with the principles of customary law is an incidence of customary law. Any ground of Appeal to the Court of Appeal from the decision of Customary Court of Appeal raising such question of customary law is Appealable “as of right” under Section 245(1) of the Constitution. This point was correctly appreciated by the Court of Appeal when at pages 334 – 335 it stated-
In GOLOK v. DIYALPWAN (supra) at pp. 419, 420, 421 and 424 the Supreme Court unequivocally pronounced that the proof of a case is undoubtedly a matter of law and since Area Courts administered customary law, failure to prove a case therein means failure to prove it in accordance with customary law. Any ground of Appeal encapsulating the like of traditional inheritance of land or customary grant of same will be competent.
Borrowing of land or customary grant and traditional inheritance of land are obviously issues of customary law complaints in such realm will, no doubt, be competent.
The learned Counsel to the Appellants appears to me not to properly appreciate the tenor of Section 245(1) of the Constitution viz-a-viz the disputed grounds 2, 3 and 6 and ‘thereby misdirected himself in the submission that “an Appeal from the decision of the Customary Court of Appeal, Owerri, to the Court of Appeal must per force be limited to a complaint with respect to a question of customary law, and in the absence of complaint by a ground or grounds of Appeal as in the instant case, raising any issue or issues of customary, the Appeal will be incompetent, and the Court of Appeal will have no jurisdiction to adjudicate on Appeal.” I have demonstrated sufficiently, that in the instant Appeal, grounds 2, 3 and 6 at the Court of Appeal were competent and Appealable “as of right” under Section 245(1) of the Constitution.
The learned Appellants’ Counsel seems to have mixed up the right to Appeal as of right under Section 245(1) of the Constitution with the right guaranteed under Section 240 of the same Constitution to any person aggrieved by the decision of the Customary Court of Appeal to Appeal to the Court of Appeal. Section 240 provides inter alia:
240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear, determine appeals from the Customary Court of Appeal of a State.
The substantive right of Appeal, or the exclusive jurisdiction vested in the Court of Appeal to hear and determine Appeals from the Customary Court of Appeal, vested by Section 240 of Constitution and the procedure laid out in Section 245 of the same Constitution for the exercise of the right of Appeal vested by Section 240, are, no doubt, two different rights. The former (Section 240) is a substantive right, while the latter right (Section 245) is procedural. Having reproduced Section 240 of the Constitution, it is necessary that I also reproduce Section 245 of the Constitution for proper appreciation of this point. Section 245 provides thus:
245(1) An Appeal shall lie from decisions of Customary Court of Appeal to the Court of Appeal as of

…………………….E…………………….

right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.
(2) Any right of Appeal to the Court of Appeal from the decision of a Customary Court of Appeal conferred by this Section shall be –
(a) exercisable at the instance of a party thereto or, with leave of the Customary Court of Appeal or of the Court of Appeal, at the instance of any other party having an interest in the matter;
(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in forceregulating the powers, practice and procedure of the Court of Appeal.
The Court of Appeal Act, 2004 is one such Act of the National Assembly that Section 245(2)(b) makes reference to. Section 24 of the Court of Appeal Act is in Part V there of dealing with procedure of exercising the right of Appeal to the Court of Appeal from the decisions of Courts from which Appeals against lie to the Court of Appeal. The Customary Court of Appeal is one of such Courts.
For the present discourse Section 24 of the Court of Appeal is most germane and it provides thus in Sub-Sections (1) and (3)-
24(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of Appeal or notice of his application for leave of Appeal in such manner as may be directed by the rules of Court within the Period; prescribed by the provisions of Sub-section (2) of this Section that is applicable to the case.
(2)
(3) Where the application for leave to appeal is made in the first instance to the Court below, a person making the application shall, in addition to the period prescribed by Sub-Section (2) of this Section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.
Order 6, Rules 2 and 7 of the Court Appeal Rules also make provisions for the procedure the person applying for leave to Appeal to the Court of Appeal from any decision of the Courts below the Court of Appeal, including the Customary Court of Appeal, to follow. The party Appealing “as of right in any civil proceedings before the Customary Court of Appeal” to the Court of Appeal from any decision of “the Customary Court of Appeal with respect to any question law” is spared the ordeal of applying, either to the Customary Court of Appeal or the Court of Appeal for leave to Appeal Court of Appeal on any question other than “any question of customary law.” The clear intent of the Constitution, as manifested in Section 245 thereof, is that:
i. The person complaining, by his ground(s) of appeal that raise(s) “any question of customary law” against the decision of the Customary Court of Appeal in any civil proceedings, to the Court of Appeal is vested imbued with the right “to Appeal as of right “against decision of the Customary Court of Appeal to the Court of Appeal. He does not need to seek leave to Appeal to the Court of Appeal against the decision of the Customary Court of Appeal.
ii. A party or person aggrieved with the decision of the Customary Court of Appeal on any question other than “any question of customary law” and who intends to Appeal to the Court of Appeal must seek leave of either the Customary Court of Appeal or the Court of Appeal, to appeal to the Court of Appeal.
The right of Appeal, or right to Appeal, to the Court of Appeal from the decision of the Customary Court of Appeal is guaranteed in general terms, by Section 240 of C.F.R.N. 1999 as amended. The right under Section 240, I repeat, is a substantive right as against the procedural right under Section 245 of the same Constitution. Put the other way, Section 245 merely provides for the means or procedure for exercising the right of Appeal guaranteed by Section 240- Accordingly, Sections 240 and 245 must be read together in order that anything meaningful be made of or out of Section 245 of the Constitution.
The Constitution does not intend the absurdity of denying any right of Appeal, or the right to Appeal, to the Court of Appeal, to a party aggrieved with the decision of the Customary of Appeal on any question, including matters of procedure, other than questions of customary law. It is clear from provisions of the Constitution above highlighted, particularly Section 240 thereof, that any party aggrieved with the decision of the Customary Court of Appeal on any question has a right to Appeal to the Court of Appeal for redress.
He appeals “as of right,” by dint of Section 245(1) of the Constitution, if his ground(s) of Appeal raise(s) “any question of customary law or such other matters as may be prescribed by an Act of the National Assembly.”
I agree, as submitted by the learned Appellants’ on authority of TIZA v. BEGHA (supra) that there has not been any Act of the National Assembly, yet vesting on any person the right to Appeal, as of right to the Court of Appeal

…………………….F…………………….

from the decision of the Customary Court of Appeal on any “other matters” than “any question of customary law.” The absence of such an Act of the National Assembly, in regards to Section 245(1) of the Constitution does not however foreclose or put in abeyance the right of Appeal from the decision of the Customary Court of Appeal, in any civil proceedings to the Court of Appeal under Section 240 of the Constitution.
All I have been trying to say is that there is no substance in this Appeal and it is accordingly hereby dismissed. The Court of Appeal was right in holding that grounds 2, 3 and 6 brought before it were competent. I find nothing wrong with the procedure the Plaintiffs/Respondents, as Appellants at the Court of Appeal, adopted to ventilate their grievance or dissatisfaction with the decision of the Customary Court of Appeal of Imo State, sitting in Owerri, in the Appeal No. CCA/OW/A/54/2001.
Appeal dismissed. Parties shall bear their respective costs.
OLABODE RHODES-VIVOUR, J.S.C.: I read a draft of the leading judgment delivered by my learned brother, Eko JSC, I agree with his Lordships reasoning and conclusions that this appeal should be dismissed.
I too dismiss the appeal.
JOHN INYANG OKORO, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother, Ejembi Eko, JSC just delivered. I agree with the reasoning therein and the conclusion arrived thereat. The appeal is devoid of merit and lacking in substance. Accordingly, I too will dismiss this appeal.
Appeal is dismissed and I affirm the judgment of the Court below. I abide by other consequential orders in the lead judgment. I agree that parties do bear their respective costs.
AMIRU SANUSI, J.S.C.: The Judgment just delivered by my learned brother Ejembi Eko JSC was served on me before now.
On perusing same, I find myself in total agreement with his reasoning and conclusion that this appeal is devoid of any merit. I too accordingly hereby dismiss the appeal for want of merit.
I abide by the consequential order made therein including one on costs.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Ejembi Eko, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal is without merit and it is hereby dismissed.

By Writ of Summons, accompanied by a 21 paragraph statement of claim the respondents, as plaintiffs prayed for the following:
(a) A declaration that going by the Gwoza Resettlement Scheme, Kurana Bassa and the 1st Defendant have been resettled of Kwatara Area, along Gwoza – Mubi Road.
(b) A declaration that by deliberately Changing the name of the Ville Primary School and Health Centre to Kurana Bassa Primary School and Health Centre respectively is illegal null and void and is capable of causing breakdown of law and order and should be changed to their former name bearing Ville.
(c) A declaration that the continuous presence of the 1st Defendant and his subjects in the present abode which is within Ville as illegal and should therefore vacate Ville immediately to Kwatara for peace to reign.
(d) An order on the 2nd and 3rd Defendants to enforce letter dated 30th January, 1986 and 1st January, 1987 respectively.
(e) An injunction restraining the 1st Defendant and his subjects from further interfering directly or indirectly with the activities of the plaintiffs.
(f) An injunction restraining the 2nd and 3rd Defendants from further recognizing dealing with and addressing the primary School and Health Centre of Ville as those situated at Kurana Bassa.

Six witnesses gave evidence for the plaintiffs, while two witnesses gave evidence for the defendants. Five documents were admitted in evidence as exhibits.

Dismissing the plaintiffs’ case the learned trial judge said:
“……..I am satisfied from the evidence adduced before me and the documents tendered that none of the reliefs has been proved against defendant and his subjects. I also hold that none of the reliefs has been proved against the 2nd and 3rd defendants respectively.

This judgment was upset by the Court of Appeal (Jos Division). The Court of Appeal said:
“……..I resolve the supra issues in favour of the appellants, and so all the grounds of appeal to which the issue is married succeed. The end result is that the appeal succeeds in its entirety. I therefore allow the appeal and set aside the decision of the lower court. Judgment is hereby given to the plaintiffs as per their Statement of claim….”

The defendants/appellants were dissatisfied with the judgment of the Court of Appeal and so filed a Notice of Appeal to this court on 25th September 2001 containing seven grounds of appeal. Briefs of argument were subsequently filed and exchanged. The appellants filed an appellants brief on 14/2/03 and an amended reply brief on 2/4/14.

The respondents filed on amended respondents brief on 4/3/14.
Learned counsel for the appellants formulated four issues for determination. They are:
ISSUE 1
Whether a document tendered but not marked as exhibit has ceased to be produced before the court.
ISSUE 2
Whether the plaintiff proved their case on preponderance of evidence.
ISSUE 3
Whether serious contradiction was an issue before the court below and if the answer is in the negative, whether the court was right is setting aside the judgment of the trial court based on the contradictions.
ISSUE 4
Whether the court below was right when it gave judgment as per the statement of claim, when some aspects of the claim were not proved and had been abandoned.

On the other side of the fence learned counsel for the respondents formulated two issues for determination. They are:
ISSUE 1
Whether the learned justices of the Court of Appeal were right in law and on the facts in holding that the respondents had proved their entitlement to the reliefs sought as per their statement of claim.
ISSUE 2
Whether the learned justices of the Court of Appeal were right on the law and on the facts in holding that facts relating to documents not in evidence ought to be discountenanced in evaluating evidence proffered of trial.

After examining the issues formulated by both sides it becomes clear that the appellants issue 1 and the respondents issue 2 question the reliance by the trial court on documents that were not admitted in evidence.
I am satisfied that the respondents’ issue 2 alone would be considered for the determination of this appeal. At the hearing of the appeal on the 22nd of September 2014, learned counsel for the respondents adopted the respondents amended respondents brief filed on the 4th of March, 2014. Learned counsel informed the court that he argued a Preliminary Objection in his brief, observing that grounds 5 and 6 in the Preliminary Objection are abandoned. He urged this court to uphold the Preliminary Objection, dismiss the appeal and affirm the judgment of the lower court.

…………………….B…………………….

Learned counsel for the appellant adopted the appellants brief filed on the 14th of February 2003 and an amended reply brief filed on the 2nd of April, 2014. He urged this court to dismiss the Preliminary Objection and allow the appeal.

The issue for determination is:
1. Whether the learned Justices of the Court of Appeal were right on the law and on the facts in holding that facts relating to documents not in evidence ought to be discountenanced in evaluating evidence proffered of trial.

I shall now consider the Preliminary Objection. Order 2 Rule 9 of the Supreme Court Rules provides for the filing of Preliminary Objections. It enjoins a respondent who intends to rely on a Preliminary Objection to give the appellant three clear days notice before the hearing setting out in clear terms the grounds of objection. The purpose is to give the appellant enough time to address the respondents objection.

It is also accepted practice for the respondent to argue his Preliminary Objection in his brief in which case the appellant would have to respond in a reply brief. In this appeal the respondents argued their Preliminary Objection in their brief. The procedure adopted by the respondents obviates the need to file a separate notice of preliminary objection.The appellants responded by filing an amended reply brief. The Preliminary Objection and the appellants response are thus properly before this court.

In the Preliminary Objection learned counsel for the respondents seeks an order of this court striking out grounds 1 and 3 in the Notice of Appeal. He observed that grounds 1 and 3 do not arise from the judgment of the Court of Appeal. Relying on Eya v. Olopade & anor (2001) 5 SC Pt.2 P.1
Oyadiran v. Alebiosu (1992) 2 NWLR Pt.249 P.550
He submitted that both grounds of appeal are incompetent and ought to be struck out.

Learned counsel for the appellants argued that the Court of Appeal made a finding when it said:
“The letters were therefore not in evidence”
Learned counsel contended that the finding is a decision and so ground 1 is a competent ground of appeal.
On ground 3 he observed that the Court of Appeal held that:
“There were contradictions in the evidence of the defendants on the change of the name of the school and how it came about the name. This to my mind is a rather serious contradiction which should have been viewed and given consideration but the learned trial judge did not avert his mind to the contradiction. The evidence weakened the defendants’ case.”

Learned counsel observed that the above findings of fact formed the basis of the complaint in ground 3 of the appeal and so the ground of appeal is valid. He urged this court to dismiss the Preliminary Objection and hold that grounds 1 and 3 are competent and therefore valid grounds of appeal.

It is long settled that a ground of appeal must arise or relate to the judgment against which the appeal is filed. That is to say the ground of appeal should be a direct challenge to the decision of the lower court. Where this is not the case, the ground of appeal should be struck out. See
Kolawole v. Alberto (1989) 1 NWLR Pt.98 p.382
Alubankudi v. A.G. Federation (2002) 17 NWLR pt.796 p.360
Ground 1 without particulars reads:
“1. The learned Justices of the Court of Appeal erred in law when they held:
“The letter was sought to be tendered but learned counsel for the plaintiffs raised an objection the ruling on which the learned judge adjourned. Somehow he did not get to write a ruling on it because I cannot find the ruling in the printed record of proceedings or what is called the Judges file. The letters were therefore not in evidence.”

During trial the appellants sought to tender two letters. The learned trial judge heard arguments from counsel, then reserved Ruling on the admissibility of both letters. No Ruling was ever rendered by the learned trial Judge. The letters were neither admitted in evidence nor rejected yet the learned trial judge relied on them in his judgment to dismiss the plaintiff’s case. It is clear that the Court of Appeal ruled that the letters were not in evidence, and on that finding which is a decision found that the learned trial judge was wrong to rely on letters that were not in evidence. The ground of appeal arose from the judgment of the Court of Appeal. It is a competent ground of appeal.
Ground 3 without the particulars reads:
“3. The learned Justices of the Court of Appeal erred in law when they held:
“There were contradictions in the evidence of the defendants on the change of the name of the School and how it came about the name. This to my mind is a rather serious contradiction which should have been viewed and given consideration but the learned trial judge did not avert his mind to the contradiction. The evidence weakened the defendants’ case.”

The Court of Appeal came to the decision that there were contradictions in the evidence of the defendant’s testimony which the trial court did not avert its mind to. This finding formed the basis of ground 3. It is a ground of appeal that challenges the decision of the Court of Appeal. In view of the fact that grounds 1 and 3 are a direct challenge to the decision of the Court of Appeal, both grounds are competent. The Preliminary Objection is hereby dismissed.

…………………….C…………………….

THE MAIN APPEAL
The facts are these. The respondents/plaintiffs are representatives of the Ville Clan in the Gwoza Local Government Area of Borno State. The 1st appellant/defendant represents the Kurana Bassa people, a hill dwelling people. The Government pleaded with the Kurana Bassa people to come down from the hills and be integrated. They agreed. They came down and lived with the Ville Clan. They paid taxes. The Ville Clan and the Kurana Bassa people lived in an area that is under the control of the Gwoza Local Government Council. By a letter dated 30/1/86 the Gwoza Local Government ordered the Kurana Bassa people to relocate to Kwatara area along the Gwoza Mubi road. They refused to be relocated. By a letter dated 21/5/86 and 22/1/87 the Borno State Government ordered the Gwoza Local Government to withdraw its letter of 30/1/86. The Local Government complied. Both sides have lived happily ever since. The suit was filed because of the change of name of some public utilities in the area.

ISSUE 1
Whether the learned Justices of the Court of Appeal were right on the law and on the facts in holding that facts relating to documents not in evidence ought to be discountenanced in evaluating evidence proffered of trial.

If pleadings are to be of any use parties must be held bound by them. See
Akande v. Adisa & anor (2012) 5 SC (Pt.1) P.1
Ohochukwu v. A.G. Rivers State & 2 Ors. (2012) 2 SC (Pt.11) P.103

The plaintiff pleaded the following facts. That by letter dated 30/1/86 the Gwoza Local Government Council ordered the 1st defendant and his people to move from Ville to Kwatara area along Gwaza Mubi road.
In response the 1st defendant pleaded as follows:
“para.10. ….further by the 2nd defendant directing the 1st defendant to move to Kwatara was superceded by letter from the Secretary to the Military Government of Borno State Ref. No. SEC/6/VOL.III/434 dated 21/5/1986, Ministry of Local Government
RE: No. MLG/LGG/125/VOL.II/285
dated 22/1/1987.

The letter dated 30/1/86 relied on by the plaintiff showed that the 1st defendant and his people were ordered by the Gwoza Local Government to move from Ville to Kwatara. It was admitted in evidence as an exhibit. The two letters relied on by the 1st defendant in paragraph 10 of his pleadings showed that the contents of letter dated 30/1/86 were withdrawn. That is to say the 1st defendant and his people were no longer to relocate to Kwatara, but stay with and around the Ville Clan. Learned counsel for the 1st defendant sought to tender both letters. There was objection from learned counsel for the plaintiff on the admissibility of both letters. The learned trial judge heard arguments from both sides then said:
“The court will give o ruling on the objection later after this witness might have finished his evidence.”

The learned trial judge never delivered a Ruling but relied on both letters in his judgment to dismiss the plaintiffs’ case.
This issue asks the question.
“Whether documents tendered but not admitted/marked as an exhibit amounts to evidence that can be relied on by the court.”

Learned counsel for the appellant submitted that after the learned trial judge heard arguments for and against the admissibility of the documents, it is the duty of the trial court to mark the documents admitted or rejected. Reliance was placed on Ogbuanyinya v. Okudo (No.2) (1990) 4 NWLR Pt.146 P.551.

Concluding he submitted that by the powers conferred on the Court of Appeal by section 16 of the Court of Appeal Act 1976 the Court of Appeal ought to have remitted the case back to the trial court for retrial having regard to the crucial nature of the documents on which the trial court failed to deliver ruling on. He finally observed that this court is in a good position to decide the case rather than remit same for re-hearing de novo.

Learned counsel for the respondent observed that the Learned Justices of the Court of Appeal were right in law in holding that the learned trial judge erred in law in this regard. Reliance was placed on
Bamgbose v. Jiaza (1991) 3 NWLR Pt.177 p.64

The well laid down procedure for omitting documents in evidence is for the trial judge to hear arguments for and against the admissibility of the document, then render a Ruling. If the ruling is favourable to the document being admitted in evidence the document is admitted in evidence and marked as an exhibit. If on the other hand the Ruling is unfavourable the document is marked rejected. A document marked as an exhibit is good evidence that the judge is expected to rely on when preparing his judgment. A document tendered and marked rejected cannot be tendered again. Once a document is marked rejected it stays rejected for the purposes of the trial in which it was marked rejected and the defect cannot be cured during the said trail. See Agbaje v. Adigun & Ors (1993) 1 NWLR Pt.269 p.271
The fact that the trial court did not deliver a Ruling on the admissibility of the letters, and did not mark them as exhibits or as rejected is a fatal oversight by the learned trial judge. It means that the letters were not in evidence, and so the trial court was wrong to rely on letters that were not in evidence. The Court of Appeal was right to discountenance documents not in evidence in evaluating evidence proffered at trial. This issue is answered in the

…………………….D…………………….

affirmative.

Law is blind. It has no eyes. It cannot see. That explains why a statue of a woman with her eyes covered can be found in front of some High Courts. On the contrary justice is not blind. It has many eyes, it sees, and sees very well.
The aim of courts is to do substantial justice between the parties and any technicality that rears its ugly head to defeat the cause of justice will be rebuffed by the court. See
Bello v. A.G, Oyo State (1986) 12 SC P.1
Bello v. Ringim (1991) 7 NWLR Pt.206 P.675
When justice is done it brings joy to the Righteous. See Proverbs 21:15
What then would amount to justice in this appeal?
There are two options open to this court.
1. to remit the case to the trial court to be heard de novo by another judge, or
2. for this court to put itself in the shoes of the trial court and do what that court ought to have done after hearing arguments on the admissibility of both letters.

It would be wrong to make an order of retrial if such an order would give the party that lost an opportunity a second time to prove what he failed to prove. A retrial should not be made where the plaintiff fails to prove his case and there is no substantial irregularity apparent on the record. See
Thompson v. Arowolo (2003) 7 NWLR Pt.818 P.163
Solomon v. Magaji (1982) 11 SC. P.1
These are a few cases where a retrial order should not be made. If after examining the evidence, this court finds that it is in a position to do justice; this court should proceed to correct the decision and in such circumstances it would be wrong to order a retrial.

This case was filed in 1991. Over twenty-two years ago. Three of the original litigants and witnesses are dead. The other witnesses are well advanced in age. Ordering a retrial would not be in the interest of justice. It would be very cumbersome for the parties with the usual stress, expense a trial and appeal entails. Furthermore what is expected of the court in a retrial is for the two letters that are the basis of the appellants case to be properly admitted in evidence so that the judge can rely on them in his judgment. Ordering a retrial on these facts would be most inappropriate. This court can put itself in the shoes of the trial court and do what the trial court ought to have done. This is done by invoking section 22 of the Supreme Court Act. Under the section supra this court is empowered to make any order necessary for the determination of the real question in controversy in an appeal as if the matter is prosecuted in the Supreme Court as a court of first instance. See
Inakoju v. Adeleke (2007) 1 SC (Pt.1) P.128
Imonike v. A.G. Bendel State (1992) 7 SCNJ (Pt.1) p.197
Ucha v. Elechi (2012) ALL FWLR Pt.625 P.237
This section confers on this court the power to make orders that the court below ought to have made without remitting the case for retrial. It is only if the proceedings justify it can the section supra be invoked.

Relevant extracts from letter dated 21/5/86 from the Governor of Borno State reads:
“We have received a report that the Gwoza Traditional Council has issued a directive to the village head of Kurana Bassa Lawan Uba Wasa to migrate from where he is currently residing to Kwatara. ….from the
content of your letter this office cannot see the justification for the directives given since the area in question is under the jurisdiction of the said village Head. In light of the above facts, I am therefore directed to request the Gwoza Traditional Council to withdraw the letter issued to the village Head of Kurana Bassa.”

This letter was signed by the secretary to the Military Government and Head of Service.
Relevant extracts from letter dated 22/1/87 from the Permanent Secretary Ministry of Local Government confirms the contents of letter dated 21/5/86. It reads:
“With reference to Secretary to Military Government and Head of Services letter No. SEC/6/Vol.III/434 of 21/5/86. I am directed to inform you to suspend action of transferring Lawan Buba Wasa village Head of Kurana Bassa from his present station Kurana Bassa to Kwatara…………”

My lords, after examining the letters dated 21/5/86 and 22/1/87 from the Government of Borno State and after reading submissions of counsel for and against admissibility of the letters they are hereby admitted as exhibit E and F.

By letter dated 30/1/86 the Gwoza Local Government Council ordered the 1st defendant and his people to relocate from Ville to Kwatara area. Exhibits E and F directed the Gwoza Local Government Council to withdraw its letter. With the withdrawal of the letter the 1st defendant and his people were not resettled of Kwatara Area, along Gwoza – Mubi Road, rather their continuous presence in their present abode, i.e. within Ville is legal and in accordance with the Gwoza Resettlement Scheme. Both exhibits are compelling and decisive for making an order dismissing the plaintiffs case in the High Court.

In the circumstances the appeal is allowed.
The facts of this case reveals and rightly too, that it has always been the policy of Northern Nigeria as long ago as the 1950s’ to encourage hill dwellers to come down from the hills and be integrated. The Government provided amenities such as Schools, Health centres for such people. In this case the Government resettled the 1st defendants people, and proceeded to build a school and Health centre. The School was originally called Ville Primary School. To my mind the change of the name

…………………….E…………………….

of the School is not an issue as that is within the exclusive discretion of the Government of the day and in accordance with the resettlement scheme. The change of name was done over thirty years ago. There has been no breakdown of law and order, rather the people have been living in peace and so shall they continue to live in peace.

Once again the judgment of the Court of Appeal is set aside and the appeal allowed.
Parties shall bear their costs.

MAHMUD MOHAMMED, CJN, J.S.C: The Respondents who were the plaintiffs at the High Court of Justice of Borno State, in the Gwoza Judicial Division, filed their action against the Appellants, who were the Defendants, by a Writ of Summons in a representative capacity on behalf of the Plaintiffs’ and members of the Ville Clan. The Plaintiffs claim as endorsed on the Writ of Summons sought the following declaratory and injunctive reliefs against the Defendants –
“(a) A declaration that going by the Gwoza Resettlement Scheme, Kurana Bassa and the 1st Defendant have been resettled at Kwatara Area, along Gwoza – Mubi Road.
(b) A declaration that by deliberately changing the name of the Ville Primary School and Health Centre to Kurana Bassa Primary School and Health Centre respectively is illegal, null and void and is capable of causing breakdown of law and order and should be changed to their former (sic) name bearing Ville.
(c) A declaration that the continuous presence of the 1st Defendant and his subjects in the present abode which is within Ville as illegal and should therefore vacate Ville immediately to Kwatara for peace to reign.
(d) An order on the 2nd and 3rd Defendants to enforce letter dated 30th January, 1986 and 1st January, 1987 respectively.
(e) An injunction restraining the 1st Defendant and his subjects from further interfering directly or indirectly with the activities of the Plaintiffs.
(f) An injunction restraining the 2nd and 3rd Defendants from further recognizing dealing with and addressing the primary School and Health Centre at Ville as those situated at Kurana Bassa.”

After hearing the witnesses called by the parties and documents in form of official letters put in evidence by the Plaintiffs, the learned trial Judge found on the evidence that the Plaintiffs have failed to establish the claims and accordingly dismissed their case in the following words in his judgment delivered on 28th March, 1996 –
“The learned Counsel to the Plaintiffs said the Court has powers to grant all the reliefs sought by them. But the Court cannot grant any reliefs which the Claimant has not been able to prove. I am satisfied from the evidence adduced before me and the documents tendered that none of the reliefs has been proved against the Defendant and his subjects. I also hold that none of the reliefs has been proved against the 2nd and 3rd Defendants respectively.”

Although this judgment indicates that the learned trial Judge considered the evidence adduced by the parties including documents tendered before him, there is no indication that he also took into consideration the two letters dated 21st May, 1986 and 22nd January, 1987 tendered by the Defendants as the pivot of their defence to the case of the Plaintiffs against them, because the ruling accepting or rejecting these letters in evidence following the objection to the admission of the letters by the Plaintiffs, had not been ruled upon by the learned trial Judge. The Plaintiffs’ appeal to the Court of Appeal Jos Division was heard and allowed resulting in granting of all the reliefs sought by the plaintiffs principally on the absence of the ruling on the admission or otherwise of the two letters tendered by the Defendants which the Defendants considered very vital in their defence to the case of the Plaintiffs on appeal. The Defendants who are now the Appellants before this Court in their Appellants’ brief of argument and oral submission, are urging this Court to allow the appeal and to either remit the case to the trial court for hearing afresh or to use its powers to admit the two letters tendered at the trial Court and decide the case on the merit with the two relevant documents in evidence.

Considering the circumstances of this case which was commenced at the trial Court by a Writ of Summons dated 31st October 1991, remitting the case back to the trial court for hearing afresh may face the problem of witnesses, some whom are already dead. The law is trite that an appellate Court will order a retrial where there has been such an error in law or an irregularity in procedure which neither renders the trial a nullity nor makes it possible for the appellate Court to determine whether there has been no miscarriage of justice. See Duru v. Nwosu (1989) 7 S.C.N.J. 154 at 159 (1989) 4 N.W.L.R. (Pt.113) 24 and Okaduwa v. The State (1988) 2 N.W.L.R. (Pt.76) 333.

However having regard to the second prayer sought by the Appellants, it is necessary to examine the powers of this Court under the provisions of Order 8 Rule 2(1) of the Rules of this Court which provides among others that all appeals shall be by way of rehearing and the provisions of Section 22 of the Supreme Court Act, 1960, which provide among others that this Court shall have jurisdiction over the whole proceedings before it as if the proceedings had been instituted and prosecuted in the Supreme Court as a Court of first instance, to see if that prayer deserves the indulgence of this Court. This is because it is the Constitutional duties of this Court that it should only order a retrial of a case on ground of irregularity in the conduct of proceedings when that irregularity or the lapse complained of by an Appellant on the part of the lower Court, cannot be corrected in this Court consistent with a decision in the case on the merits in favour of either of the parties to it. See Onifade v. Olayiwola (1990) 7 N.W.L.R. (Pt.161) 130 at 167 where this Court saw the need to exercise its powers under Section 22 of the Supreme Court Act to determine the case on the merits but declined to do so in the absence of appropriate action on the part of the Appellant’s Counsel. In the present case therefore where the parties have been given a hearing on the issue, particularly when the merit of the case can easily be determined on the documentary evidence of the two letters of 21st May, 1986 and 22nd January, 1987 and the letter Exhibit ‘D’ tendered by the Plaintiffs and received in evidence, the prayer of the Appellants is certainly worth looking into.

It is quite clear from the record of appeal and the evidence on record that the case of plaintiffs/Respondents was hinged

…………………….F…………………….

essentially on the letter Exhibit ‘B; from the Gwoza Traditional Council which is the 2nd Appellant in this appeal ordering the 1st Appellant’s father and his Kurana Bassah Community who came down from the hills to move out of Ville area where they had been settled for many years. The case of the Appellants on the other hand is founded on the two letters dated 21st May, 1986 from the Governors office of Borno State and the letter from the Ministry for Local Government of Borno State dated 22nd January, 1987 both addressed to the Secretary Gwoza Traditional Council which were tendered in evidence by the Defendants, now Appellants but which the trial Court failed to rule upon following the objection to the admission of the letters by the Plaintiffs/Respondents. These two letters which are very relevant to the case at the trial Court, the absence of which in evidence resulted in the Court of Appeal allowing the Plaintiffs/Respondents appeal and granting all the reliefs sought by them, shall now be admitted in evidence by this Court under Order 8 Rule 2(1) of the Rules of this Court and Section 22 of the Supreme Court Act 1960 to decide this case on the merits in doing substantial justice in this appeal by looking into contents of the two letters relied upon by the Appellants at the trial Court but which that Court failed to take into consideration in its judgment which was set aside on appeal by the Court of Appeal. See Obiyan v. Governor of Mid-West (1972) 7 N.S.C.C . 209 at 295 – 296.

The crux of the Plaintiffs/Respondents’case was that the Gwoza Traditional Council had asked the Appellants to move out of Ville to Kwatara in its letter Exhibit B. However the 1st letter from the office of the Governor of Borno State dated 21st May, 1986, tendered by the Appellants, gave a counter order to the directive of Gwoza Traditional Council in Exhibit B. That letter stated in clear terms thus –
CHIEFTAINCY DISPUTE BETWEEN THE VILLAGE HEAD OF HAMBAGDA AND KURANA BASA
“We have received a report that the Gwoza Traditional Council has issued a directive to the Village Head of Kurana Basa Lawan Uba Wasa to migrate from where he is currently residing to Kwatara. In the same directives, it was stated that the area to be vacated by the village Head is still within his jurisdiction. From the content of your letter, this office cannot see the justification for the directives given since the area in question is under the jurisdiction of the said village Head.
In light of the above facts. I am therefore directed to request the Gwoza Traditional Council to withdraw the letter issued to the village Head of Kurana Basa. The said letter has only Succeeded in creating confusion between Heads of Kurana Basa and Hambagda. Furthermore, you are required to draw the attention of the village Heads of the area under dispute to desist from fomenting trouble where there is none.,’
This letter is copied to the Sole Administrator of Gwoza Local Government for this information.”

It is observed that the above counter-order or directive issued from the Office of the Governor of Borno State. have been virtually repeated in the second letter dated 22nd January, 1987 from the Ministry of Local Government of Borno State tendered by the Appellants. Part of this letter also reads –
“In the light of the above facts, I am therefore directed to request the Gwoza Traditional Council to withdraw the letter issued to the Village Head of Kurana Bassa.”

There is no doubt therefore having regard to the action of the Government of Borno State through these two letters to the Gwoza Traditional Council which issued the letter Exhibit ‘B’ directing the Appellants to move out of the disputed area between the parties in this case, the dispute between the parties had been effectively resolved by the Government of Borno state. In this respect, the judgment of the trial court dismissing all the claims of the Plaintiffs/Appellants, was quite in order on the face of the two letters which were tendered but for no reason whatsoever, were not received in evidence in support of the defence of the Appellants in the case against them by the Respondents at the trail Court.

In the result, I am at one with my learned brother Rhodes-Vivour, JSC in his lead judgment that this appeal has merit and ought to be allowed. Consequently, the judgment of the Court below now on appeal is hereby set aside and the judgment of the trial Court dismissing the claims of the Plaintiff/Respondent is restored and affirmed in exercise of the powers of this Court under Section 22 of the Supreme Court Act admitting the two letters tendered by the Appellants at the trial Court in evidence and relying on the evidence therein to affirm the judgment of the trial Court.
I am also not making any order on costs.

M.S. MUNTAKA-COOMASSIE, J.S.C.: I have an opportunity of reading in draft the lead judgment rendered by my learned brother Rhode-Vivour JSC. I agree with the reasoning and conclusion leading to the allowing of this appeal. I adopt the reasons and conclusion they actually tally with my understanding of the law on the subject. I too agree that the appeal is pregnant with a lot of merits. Same is hereby allowed.

NWALI SYLVESTER NGWUTA, J.S.C.: I read in draft the lead judgment just delivered by my learned brother, Rhodes-Vivour, JSC and I agree with the reasoning and conclusion reached.

The respondents, as plaintiffs, relied on a letter dated 30/1/86 by the Gwoza Local Government Council ordering the appellants to relocate from Ville to Kwatara. The letter was received in evidence.

On the other hand, the appellants, as defendants, relied on two letters pleaded in paragraph 10 of the Statement of Defence. The two letters showed that the letter relied on by the Respondents had been withdrawn and the status quo ante restored. An attempt to have the two letters admitted in evidence was resisted by learned Counsel for the Respondents (as plaintiff).

…………………….G…………………….

The learned trial Judge heard arguments of Counsel for the parties and adjourned for a ruling on the admission vel non of the two documents upon which the appellants relied in their defence. Unfortunately for the appellants and fortunately for the respondents as it appeared, the ruling for whatever reason was not delivered.

Obviously, a document tendered but not admitted as exhibit is not evidence upon which the Court can rely in its judgment. See Hausa v. State (1994) 6 NWLR (Pt.350) 281. It is on this ground that the Court below dismissed the appellants’ appeal and affirmed the decision of the trial Court in favour of the respondents. This will appear to accord with strict law but in order to do substantial, as opposed to technical justice, it is necessary to consider the reason why the documents were not admitted.

Learned Counsel for the appellants (the defendants) had tendered the documents and argued his case for their admission. That the trial Court failed or neglected to deliver its ruling cannot be blamed on the appellants who did all the law required of them. See Famfa Oil Ltd v. A-G of Federation (2003) 9-10 SC 31.

The facts of this case justify the invocation of the powers vested in the Court by Section 22 of the Supreme Court Act. This Court is enabled to do what the Court of Appeal ought to have done in respect of the two documents on which the trial Court neglected or failed to deliver a ruling.

The two letters dated 21/5/86 and 22/1/87 set aside the contents of the letter dated 3I/t/86 and without the said letter of 31/1./86, the respondents’ cases crumbles.

Based on the above and the fuller reasons in the lead judgment, I also allow the appeal and set aside the judgment of the lower Court and dismiss the respondents’ case. I also order that parties bear their respective costs.

JOHN INYANG OKORO, J.S.C.: I was obliged in advance a copy of the judgment of my learned brother, Bode Rhodes-Vivour, JSC just delivered. I agree entirely that this appeal is meritorious and ought to be allowed.

The 1st appellants were hill dwellers and were persuaded upon by government to come down in order to be integrated into the larger society. They came down between 1988 and 1989. They were resettled on a piece of land next to that of the respondents. They dwelt there and built a new homeland. The appellants named both their school and health centre after Kurana Bassah, the name they are called. The respondents were angry and urged them to name the institutions after Villa clan. The appellants refused. The Gwoza Traditional Rulers Council wrote to the appellants to relocate to a place called Kwatara. Two letters, one from the Military Governor of Borno State and the other from the Permanent Secretary, Ministry of Local Government were received by the appellants which letters are said to have countered the one written by the Gwoza Traditional Council.

At the High Court, whereas the respondents tendered their own letter, an application to tender the two letters by the appellants was opposed and the learned trial judge adjourned to rule on the admissibility of the two letters. This ruling of the learned trial judge is nowhere to be found in the record. However, the trial court relied on the two letters and dismissed the claim of the respondents as plaintiffs.

The plaintiffs appealed to the Court of Appeal which set aside the judgment of the trial court and entered judgment for the plaintiffs. The Court of Appeal however agreed that the letters alluded to by the learned trial judge but which were not admitted into evidence were the bedrock of the appellants’ case. The lower court however held that it was wrong for the learned trial judge to rely on documents not admitted in evidence.

Aggrieved by the decision of the court below, the appellants have appealed to this court. The appeal is predicated on the third notice of appeal filed on 25th September, 2001 with seven grounds of appeal. The earlier two notices of appeal filed on 5/7/2001, and 10/7/2001, having been withdrawn by the appellants, are hereby struck out.
Six issues were originally distilled by the appellants. However, at the hearing of the appeal, issues five and six were abandoned and are accordingly struck out including the grounds of appeal they were distilled from. This is so because any ground of appeal which no issue for determination is distilled from, is liable to be struck out.
The remaining four issues are as follows:-
1. Whether a document tendered but not marked as exhibit has ceased to be produced before the court.
2. Whether the plaintiffs proved their case on the preponderance of evidence.
3. Whether serious contradiction was an issue before the court below and if the answer is in the negative, whether the court was right in setting aside the judgment of the trial court based on the contradictions.
4. Whether the court below was right when it gave judgment as per the statement of claim, when some aspects of the claim were not proved and had been abandoned.
The respondents have however formulated two issues for the determination of this appeal. The two issues are:
1. Whether the learned Justices of the Court of Appeal were right in law and on the facts in holding that the respondents had proved their entitlement to the reliefs sought as per their statement of claim.
2. Whether the learned Justices of the Court of Appeal were right on the law and on the facts in holding that facts relating to documents not in evidence ought to be discountenanced in evaluating evidence proffered at trial.

…………………….H…………………….

I will like to comment on the second issue as formulated by the respondents in this appeal. The appellants also have it as issue number one. On page 103 to 104 of the record, part of the judgment of the court below states:
“It is a fact that the 2nd defendant testified that he did not move to Kwatara because his father did not move there, and that a letter was written by the Traditional Council Gwoza directing him not to move to Kwatara by the Governor’s Office. This letter was not tendered in evidence even though it had been pleaded. I cannot fathom why the letter was not produced by the defendants, when primarily the success of their case depended on the contents of the letter, which was supposed to demolish the case of the plaintiffs who have already tendered Exhibit “D”, the bedrock of their claim.
Having failed or refused to tender the letter they have themselves to blame, for the onus of proof that has shifted on them after the plaintiffs have proved their case has not been discharged. Although evidence was given on the alleged content of the letter which is a permanent and more reliable evidence, and it is trite that the content of a document ought to be proved by the production of the document as an exhibit, unless there is a satisfactory explanation in the inability of a party to produce it. In this case there was no such explanation.”
I agree with the court below that the two letters the appellants pleaded were the bedrock of their case which, according to the lower court, could have been able to demolish the respondents’ case. I also agree that a court is not allowed to act on any document not tendered and admitted in evidence before the court. In fact, no court is allowed to go outside the gamut of evidence before it to shop for materials upon which to use to decide a case before it. See Skye Bank Plc V. Chief Moses B. Akinpelu (2010) 9 NWLR (Pt. 1198)) 179, Oparaji V. Ohanu (1999) 9 NWLR (Pt.618) 290, Olagbemiro V. Ajagungbade II (1990) 3 NWLR (Pt.136) 37 at 63, Sommer & Ors V. Federal Housing Authority (1992) 1 NWLR (Pt. 219) 548 at 557 – 558.

Although the lower court held that the appellants failed to tender the two letters they pleaded, the court went further on page 108 lines 24 – 30 of the record to say that:
“The letter was sought to be tendered but learned counsel for the plaintiffs raised an objection, the ruling on which the learned judge adjourned. Somehow, he did not get to write a ruling on it, because I cannot find the ruling on the printed record of proceedings or what is called the judge’s file. The letter was therefore not in evidence.”

From the above extract from the judgment of the lower court, it is crystal clear that the appellants did not fail to tender the letters. On the contrary, they applied to the court to tender the letters but counsel for the plaintiffs (now respondents) objected to their admissibility which the learned trial judge adjourned for ruling. As was pointed out by the court below, the learned trial judge failed and/or neglected to write the ruling as none could be found in the record. But quite amazingly, the trial court relied on the content of those letters to dismiss the plaintiffs’ claim. Although I agree that the trial court was wrong to rely on those letters having not been properly admitted in evidence, I do not agree that the appellants should suffer for the mistake or ineptitude of the court. Or was it negligence? Definitely, it was not the duty of the appellants to write that ruling and they had no way of forcing the court to do so. It is my view that there would be a desecration of justice if we allow the appellants to suffer from the failure of the trial court to do its work properly. Where there is an obvious mistake by the court which has led to a miscarriage of justice, I think the court should be humble enough to accept its mistake and make amends appropriately. This court has held severally that the mistake of counsel or the court should not be visited on the party. See Ikenta Best Nig. Ltd. V. A-G. Rivers State (2008) 6 NWLR (Pt.1084) 612; Iroegbu V. Okwordu (1990) 6 NWLR (Pt.159) 643, Ibrahim V. JSC (1998) 14 NWLR (Pt.584) 1, Onajobi V. Olanipekun (1985) 4 SC (Pt. 2) 156, Anyanwu V. Mbara (1992) 5 NWLR (Pt.242) 386 at 400.

It is my view that since the two letters inadvertently excluded from evidence by the trial court were the “bedrock” of the appellants’ case, it would work injustice on the appellants to allow any judgment generated from such act of negligence to stand. That would amount to standing justice on its head and I need to quickly remind us that the days of technical justice are over. The attitude of this court has always been that cases should not be decided on the basis of technicalities. See Henry Odeh V. Federal Republic of Nigeria (2008) 3 – 4 SC 1147, Chief of Air Staff V. Iyen (2005) 1 NSCQR 645 at 653, Lagga V. Sarhuna (2008) 16 NWLR (Pt.1114) 427, Adereonmu V. Olowo (2000) 4 NWLR (Pt.652) 253.

In the circumstance of this case, it is my well considered opinion that the court below did not consider the fact that it was the trial court that failed to do its work and that failure was the basis which the court below used to set aside the judgment of the trial court. This, in my opinion has to be corrected in order to serve palatable justice on both parties. It is on this note that I agree that the judgment of the lower court be set aside. I so order.

Having set aside the judgment of the Court of Appeal, something has to be done to put paid to the litigation over this portion of land. It is in the interest of justice that this court step into the shoes of the learned trial judge and consider the two letters which were tendered by the appellants but which no ruling on their admissibility was made before being used to decide the case. This court has power to do so in view of the provision in Section 22 of the Supreme Court Act. The said section endows this court with power to make necessary orders for the determination of the real question in controversy in an appeal as if it was prosecuted in the Supreme Court in the first instance. I know that this court can also remit this matter back to the trial court to be tried de novo, but that will not serve the justice of this case. This matter was filed in the registry of the High Court of Borno State on 31st October, 1991, about 23 years ago. Should this matter be sent back I am not sure all the witnesses would still be alive. Also, the

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expenses which the parties would incur to prosecute this case again would be enormous. Thus, the invocation of section 22 of the Supreme Court Act is most appropriate. See Inakoiu V.Adeleke (2007) 1 SC (Pt.1) 128.

The two letters, admitted by this court as exhibits E and F in the lead judgment of my learned brother, Rhodes-Vivour, JSC are key to the determination of this case. Exhibit E which was written on 21/5/86 clearly cancels the letter for relocation written by the Gwoza Traditional Council and a directive that the said letter be withdrawn. It was written by the secretary to the Military Government of Borno State. Exhibit F was written by the Permanent Secretary, Ministry of Local Government, giving effect to Exhibit E.
For ease of reference, I shall reproduce the two letters as follows:-
EXHIBIT E
“We have received a report that the Gwoza Traditional Council has issued a directive to the village head of Kurana Bassa Lawan Uba Wasa to migrate from where he is currently residing to Kwatara … from the content of your letter this office cannot see the justification for the directives given since the area in question is under the jurisdiction of the said village head. In light of the above facts, I am therefore directed to request the Gwoza Traditional Council to withdraw the letter issued to the village head of Kurana Bassa.”

EXHIBIT F
“With reference to Secretary to Military Government and Head of Services letter No. SEC/6/Vol.III/434 of 21/5/86 ……….. I am directed to inform you to suspend action of transferring Lawan Buba Wasa village head of Kurana Bassa from his present station Kurana Bassa to Kwatara …………”
The combined effect of Exhibits E and F is that the letter ordering the appellants to relocate was effectively cancelled and rendered ineffective. Had the learned trial judge admitted the documents into evidence before relying on them, his judgment would have been unassailable. The two letters, have, in my opinion decided the case. By these two letters, the appellants cannot be driven away from this portion of land which was given to them by the state government after they came down from the hilts. I hold that it is too late in the day for anybody to try to pursue them from this land.

I agree, once again, that there is merit in this appeal and is hereby allowed. I shall make no order as to costs.

A. A declaration that the plaintiff as the head of Nwankwo Okonkwo family as well as the representative head of Obolua family in Anangwo (kindred) quarters of Ezi-Kwelle Ogidi is entitled to inherit under Ogidi Customary Rule of succession and customary right of occupancy at any time, at his will, ALL THAT PORTION OF LAND forming part of his ANCESTRAL HOME (PROPERTY) known as and called OWOKO ORURUIDE LAND valued N200.00 (Two Hundred Naira) lying, being and situate at Amangwu quarters of Ezikwell Nkwelle Ogidi in Idemili Local Government Area within the jurisdiction of this Honourable Court, the particulars of which will be furnished in a survey plan to be attached to the statement of claim to be attached to the statement of claim to be filed PRIOR OCCUPIED and used by this predecessors in the (occupation) of whom OKONKWO OBOLUA was his grandfather.
B. N5,000.00 damages for trespass in that on or about the month of June 1978 the defendants in collaboration with some hirelings each aiding and abetting the other did break and enter into the plaintiffs ancestral property (LAND) known as and called OWOKO ORURUIDE and therein cleared the bush, felled numerous economic trees including iroko and palm trees of the plaintiffs family, collected palm fruits therefrom, deposited sands, gravels and blocks and did divers manners of work therein without the leave or license of the plaintiff’s family. The defendants and their hirelings destroyed the plaintiffs blocks and demolished the plaintiffs foundation and have built and erected shops and constructed structures on portions of the land and have continued to ravage and commit several overt acts of trespass in aggravation on the said OWOKO ORURUIDE LAND.
C. A perpetual injunction restraining the defendants, their servants, agents and hirelings and privies from entering the land described or in any way dealing with or interfering with same without the permission of the plaintiff.

BACKGROUNDS FACTS

By a claim dated 13/7/81 but filed on 14/7/81 the respondent as plaintiff instituted this action at the High Court of Anambra State and filed a Statement of Claim. In answer the appellants as defendants filed their Statement of Defence. On the 14th day of June, 1988 the case proceeded to trial before Hon. Justice J. G. O. Aneke of the High Court of Anambra State and the case started ‘de novo’ before Chidozie Okike J. on the 9th day of June, 1993.
Before Chidozie Okike J. on 10th day of June, 1993 when the case came up for hearing the respondent’s counsel argued that from the state of pleadings that the defendants should start the case by calling their witnesses.
On the 9th July, 1993 the appellants’ counsel replied to the respondent’s argument stating that the onus of proof is on the plaintiff and never shifts in land matters and so the respondents should start first by calling their witnesses.
On the 23rd day of September, 1993, Okike J. started that the statement of defence being unequivocal that the plaintiff’s ancestor was the original owner of the land in dispute and the position is that with the defendants in their pleading admitting that the plaintiff was the original owner, the onus is on the defendants to prove an absolute grant to them.
The defendants dissatisfied appealed to the Enugu Division of the Court of Appeal Coram: Mahmud Mohammed, Sule Aremu Olagunju and Clara Bata Ogunbiyi and they affirmed the decision of Chidozie Okike J. and dismissed the appeal. Again dissatisfied the appellants have come before this court on appeal on a two ground Notice of Appeal. I shall restate the grounds without the particulars:

1. The learned Justice of the Court of Appeal erred in law by holding thus:
“Therefore having regard to the state of pleadings of the parties, it is quite clear that if no evidence at all had been forth coming from the defendants who have stated plainly in their statement of defence that the land in dispute originally belong to the plaintiff’s ancestor,… The defendants would definitely have failed. In other words by their own statement of defence, the defendants now appellants have divested the plaintiff now respondent of his right to begin…”
2. The learned Justice of the Court of Appeal erred in law by failing to consider other issues raised by the pleadings of the parties before coming to the decision that the defendants should begin to lead evidence.
On the 1st day of April, 2014 day of hearing, learned counsel for the appellants, Mr. Ogbuli adopted his Brief which he settled and filed on 20/9/13 in which he distilled a single issue, viz:
“Whether the Justices of the Court of Appeal were right in holding that from the totality of the facts of the case that the appellants ought to call their witnesses first.”
Chief Ikenna Egbuna of counsel for the respondent adopted his brief which he settled and filed on the 6th day of February 2014. He also adopted the issue as framed by the appellants.

SOLE ISSUE

The question here posed is whether or not the two courts below were right on the stand that the defendants ought to take the first slot with their witnesses.
Arguing against that position learned counsel for the appellants stated that in an action for declaration of title, damages for trespass and injunction such as the present case, the plaintiff must succeed or fail on the strength of his own case but not on the weakness of the defence. That the plaintiff is expected to prove his case on the preponderance of evidence and balance of probabilities. That in proving the case, the plaintiff must discharge the burden of proof placed on him by the issues joined on the pleadings, the evidential burden placed on him by the law and the burden of establishing the admissibility of evidence. He cited Longe v. FBN Plc (2006) 3 NWLR (Pt.967) 2 NWLR (Pt.538) 33; Kala v. Potiskun (1998) 3 NWLR (Pt.540) 1 at 17.
Mr. Ogbuli, went on to contend that upon the filing of pleadings by the parties, issues are joined and the state of the

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pleadings as joined by the parties will determine where the onus lies and who will first discharge the onus of proof. He said this also takes cognizance of the presumption of law imposed on the trial court by the Evidence Act and other statutes such as Section 131 – 140 of the Evidence Act, Laws of the Federation, 1990.
For the appellants was submitted that the court below erred in its judgment upholding the contention of the respondent that on the state of the pleadings, the onus is on the defendants to call their witnesses first. That the court failed to draw the distinction between the onus of proving one’s case and the duty to call witnesses first. That it is trite law that pleadings are not evidence and a party must lead credible evidence on his pleadings to succeed in a case. Mr. Ogbuli of counsel said by averment in a statement of claim which is not supported by evidence in court is deemed abandoned by the party. That a party can plead a veritable course of action but fail to lead evidence in support of same, such pleading is taken as abandoned. He stated that were there are admissions in the pleadings, the plaintiff is still duty bound to step into the witness box and give the bare bone of his case and his claim against the defendant especially as the defendant might decide not to testify in his defence despite the pleadings and admission thereat. Mr. Ogbuli, said the reason for the scenarios above stated is that the court is not duty bound to enter judgment on the admission of the parties in their pleadings without more, so it is the duty of the plaintiff to get into the witness box and tell the court his case and the fact that is admitted by the defendants. He referred to Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1; N.A.S. Ltd v. UBA Plc (2005) ALL FWLR (Pt.284) 275; ASHDC v. Emekwu (1996) 1 NWLR (Pt.910) 241; Yusuf v. Oyetunde (1998) 12 NWLR (Pt.579); Olorunfemi v. Asho (2000) 1 SC 15.
Mr. Ogbuli further stated for the appellants that the parties joined issues on their pleadings on several fronts such as
a. Arbitration of 1965 by Igwe in Council
b. How the defendants ancestors came into occupation of the land in dispute.
c. Identity of the land in dispute
d. The reason for the plaintiffs ancestors flight from Ogidi town to Nkwelle Ezunnaka etc.

That these issues are live between the parties which the court shall be called upon to decide. That they, appellants admit that they got the land in dispute from the plaintiffs ancestors, yet the evidence act shifts the onus of proof from the plaintiff to the defendants but this onus can only shifts the onus of proof from the plaintiff to the defendants but this onus can only shift after the plaintiff had presented his case. That the onus on the appellants is to establish by credible evidence that the land validly came to them which is the shifting onus as distinct from the right to call witnesses.
In response, Chief Ikenna Egbuna submitted for the respondent that the applicable rules of the trial court at the time of the case at the High Court is the High Court Rules of Anambra State 1988, Order 24 Rules 17 (1) to 17(3) while relevant Evidence Act are sections 131 (1) and (2) and 132; Section 133(1) also. That from the provisions of those sections it is abundantly clear that the burden of proof is not static but oscillates according to the circumstances of the case. That it is abundantly clear that the burden of proof is twofold, the first being the ability of a plaintiff to establish and prove the entire case or reasonable portion of his case before a court of law can given judgment in his favour which burden is constantly on the plaintiff. He said the other types is related to particular facts or issues which a party claims exist which is a burden that oscillates from one party to the other. He said while the first type of burden of proof is called legal burden or the burden of establishing a case while the second one is called the evidential burden while the second burden is the one operating in the case at hand.
Chief Egbuna of counsel said the appellants as defendants having asserted in paragraph 3 of their statement of defence that the defendants land named OWOKO OMALACHA was originally the land of the plaintiff’s ancestors called AMANGWU brought the evidential burden at play. He cited Federal Mortgage Finance Ltd v. Hope Offiong Ekpo (2004) 2 NWLR (Pt.856) 100 at 122.
For the respondent it was also submitted in the pleading of the defendants, that by virtue of the custom of the parties community Ogidi known as IKWA NKWA OCHU the plaintiff’s ancestor to avoid the consequences of his conduct paid with his land by making a gift that is neither revocable nor redeemable. That the appellants having admitted that at one time the radical title was in the respondents the onus is therefore on them to prove that the radical title had been extinguished by the alleged irrevocable and irredeemable gift. A situation which accorded with Order 24 Rule 17 (2) of the High Court Rules of Anambra State, 1988 and Section 133(1) of the Evidence Act, 2011. He cited.
George Onobruchere & Ors v. Iveeeeeromoebo Esegine & Ors (1986) 1 NWLR (Pt.19) 799 at 807;
Sampson Ochonma v. Asirim Unosi (1965) NMLR 321 at 323;
Nigerian Maritime Service Services Ltd v. Afolabi (1978) 2 SC 79 at 84. That the onus to commence this suit at the trial court was on the appellants since they stood to lose if no further evidence is led. He relied on Aire v. Adisa (1967) 1 ALL NLR 148 at 151; Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.109 353 at 366.
Chief Egbuna further submitted for the respondents that the Court of Appeal and completely affirmed the findings of the learned trial judge and this court having the policy not to disturb concurrent finding of fact of two courts unless there is some miscarriage of justice or a violation of some principle of law or procedure which will justify such an interference. That since there was nothing negating the acceptance of those said concurrent findings this court should resolve the issue in favour of the respondents and dismiss the appeal. He relied on Nwobodo Ezeudu & Ors v. Isaac Obiagwu (1986) 2 NWLR (Pt.21) 208 at 215.
In summary the grouse of the appellant which he had ventilated from the trial court up to the Supreme Court is that the Court of Appeal failed to draw a distinction between the person that will call the first witness in a case and the onus of proof place on a party by the law taking into account the circumstances of this case which included the fact that several issues were joined on the pleadings and the fact that the plaintiff had opened his case and called several

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witnesses in the proof before the matter started de novo before a new judge.
Reacting to that stance of the appellant, the respondent said that by the provisions of Order 24 Rule 17(2) of the High Court Rules of Anambra State, 1988 and Section 131(1) of the Evidence Act, 2011 and a long line of judicial authorities, the burden of first proving the existence or non existence of fact depends on the state of pleadings of the parties. That with the defendants having pleaded in paragraph 5 of the statement of defence that the land in dispute originally belonged to the plaintiff’s ancestor who made an irrevocable and irredeemable gift to their ancestors, that set the stage for the defendants losing if no evidence was led and so they ought to take the first shot in proof.
The above briefly stated is what is being contested here and also what was disputed at the two courts below. The applicable Rules of court and the provisions of the Evidence Act would be quoted hereunder as guide for what this court should do.
Order 24 Rules 17(1) to 17 (3) of High Court Rules of Anambra State, 1988 provides as follows:
“17(1) The order of proceedings at the hearing of contested case shall be as prescribed in this rule.
17(2) The party on whom the burden of proof is thrown by the nature of the material issues or questions between the parties, according as the court may determine shall begin. He shall state his case.
17(3) He shall then produce his evidence and examine this witnesses-in-chief. They may be cross-examined and re-examined”
From the Evidence Act at Section 131(1) and (2) are prescribed as follows:
“1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
2. When a person is bound to prove the existence of any fact, it is said that burden of proof lies on that person who would fail if no evidence at all were given on either side”
In Section 132 is found “The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.”
Section 133(1) stipulates thus:
“In civil cases, the burden of first proving existence or non existence of a fact lies on the party against whom the judgment of court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”
It needs be said that Section 131-133 of the Evidence Act applicable at the time of the initiation of the cause of action have been replaced by Section 135 – 137 of the Evidence Act Laws of the Federation 1990 which was the law in place at the time of the judgments of the two courts below.
I shall recapture the salient parts of the judgment of the court below which was anchored in the lead judgment by Mahmud Mohammed JCA (as he then was) at pages 99 and 100 of the Record. I quote as follows:
“Therefore having regard to the state of pleadings of the parties, the relevant parts of which are fully quoted above, on the correct application of the provisions of the section 136 and 137(1) of the Evidence Act Cap 112 of the Law of the Federation of Nigeria 1990 and the cases earlier discussed in this judgment particularly the case of Adenle v. Oyegbade (supra), the onus of proof lies squarely with the defendants to start their case by calling the relevant evidence to show how the plaintiff’s ancestors made an absolute gift of their land to the defendants’ ancestors. Therefore having regard to the state of pleadings of the parties, it is quite clear that if no evidence at all had been forth coming from the defendants who have stated plainly in their statement of the defence that the land in dispute originally belonged to the plaintiff’s ancestors, they would have run foul of Section 136 of the Evidence Act and in the absence of evidence on the absolute grant of the land to them, the defendants would definitely have failed. In other words by their own statement of defence, the defendants now appellants have divested the plaintiff now respondent of his right to begin under normal circumstances if the claim of the plaintiff had been effectively traversed in the statement of defence as was the situation in the case of Are v. Adisa (1967) 1 ALL NLR 148 at 151. The learned trial judge was therefore right in his decision in his ruling of 23/9/93 now on appeal, in ordering the defendants now appellants to begin. This order no doubt is also in line with the decision of the Supreme Court in Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.109) 352 at 366 where Nnemeka-Agu, JSC (as he then was) explained the position of the law that in a case of claim for declaration of title to land as in the present case the onus of proof does not always lie in the plaintiff and concluded –
“Also in quite a number of cases the onus of proof is on the defendant. An example is where the defendant in his pleading admits that the plaintiff was the original owner. The onus is on the defendant to prove an absolute grant to him. See Ochonma v. Unosi (1965) NMLR 321.”
On the whole this appeal fails and the same is hereby dismissed. The ruling of Okike J. of 23/9/93 ordering the defendants appellants to being is hereby affirmed.
A lot of judicial authorities have been cited and I shall have recourse to them to see my way through.

The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be a burden of proof where there are no issues in dispute between the parties and to discover where the burden lies in any given case, the court has a bounden duty to critically look at the pleadings.

The general rule is that it is the plaintiff who seeks a decree of declaration of title that has the onus of proof. See
Onobruchere v.. Esegine (1986) 1 NWLR (Pt.19) 799;
Kwamina Kuma v. Kofi Kuma (1934) 2 WACA 178 at 179;
Kodilonye v. Mbanefo Odu (1935) 2 WACA 336 at 337;
Ayitey Cobblah v. Tettey Gbeke (1947) 12 WACA 294 at 295;
Anachuma Nwafor & Ors Nwankwo Udegbe & ors (1963) 1 All NLR 107;
Nwankwo Udegbe & Ors v. Anachuma Nwokafor & Ors (P.C) (1963) 1 ALL NLR P.417;
Mogaji & Ors v. Odofin & Anor (1978) 4 SC 91;
Bello v. Eweka (1981) 1 SC 101 at 117 – 120.

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The norm in civil cases is that the plaintiff starts the process of testimony first and his witnesses if any, thereafter the defendant proffers his evidence in defence.
In L. A. Are v. Adisa v. Anor (1967) 1 ALL NLR 148 held by the Supreme Court that in the light of Section 135 of the Evidence Act and of the pleadings, the onus was on the plaintiff to prove his averment that the necessary approval was not duly obtained.

In civil cases, proof is based on balance of probabilities and it rests on the party who asserts the affirmative, in this case the appellant and he failed to discharge the burden on him. Daodu v. NNPC (1998) 2 NWLR (Pt.538) 355 at 365 (SC); Lewis & Peat (N.R.I.) Ltd v. Akhimien (1976) 7 SC 157 at 169; Mogaji v. Odofin (1978) 4 SC 91; Elias v. Omobare (1982) 5 SC 25.

The point has to be made that it is not in all instances where the usual or the norm must play out. This is because certain peculiar features might present which will change the course of events like who takes the first shot at the evidence.
The courts and counsel should move away from discussing technical matters when the substantial matter in a case is the issue.
Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1 AT 297 per Parts-Acholonu JSC; Broad Bank (Nig.) Ltd v. S. Olayiwola & Sons Ltd (2005) 3 NWLR (Pt.912) 434.
In the matter of who testifies first, at the bottom of it is the pleadings of the parties.

The purpose of pleading is to afford the opponent the opportunity of knowing the case he would meet at the trial. It is for that reason that all facts relied upon by the party in a civil matter before a superior court of record must be clearly pleaded in numbered paragraphs. The reason for this principle of practice is that no party should take advantage of locking away facts from his pleadings and unleashing a surprise in court by evidence on a matter not pleaded. Buhari v. Obasanjo (2005) 13 NWLR (pt.941) 1 at 193, 200 – 201; Emegokwue v Okadigbo (1973) 4 SC 113; Pascutto v. Adecentro (Nig.) Ltd (1997) 11 NWLR (pt.529) 467.

Before a Court decides whether or not there is an admission or reply to a suit in respect of an averment in a statement of claim, it must consider the entire pleadings of the parties as whole. Buhari v Obasanjo (2005) 13 NWLR (pt.941) 1 at 193, 261; Lion of Africa Inc. Co. v. Fisayo (1986) 4 NWLR (Pt.37) 674; A.G. Anambra State v. Onuselogu Ent. Ltd (1987) 4 NWLR (Pt.66) 547: Titilayo v. Olupo (1991) 7 NWLR (Pt.295) 519: Ugochukwu v Co.operative Commerce Bank Co Ltd (1996) 6 NWLR (Pt.486) 524: Pan Asian African Co. Ltd. N.I.C.O.N. Ltd. (1982) 9 SC 1.

Burden of proof is two-fold. The first is the ability of a plaintiff to establish and prove the entire or reasonable portion of his case before a court of law that can give judgment in his favour. This is always constantly on the plaintiff. The other type is related to particular facts or issues which a party claims exist. It is this burden of proof that oscillates from one party to the other. While the first type of burden of proof is called legal burden or the burden of establishing a case, the second one is called evidential burden. Federal Mortgage Finance Ltd v. Ekpo (2004) 2 NWLR (Pt.856) 100 at 122; Ogule Ankpa Agatu Co-operative Group Farming Society v. Nigeria Agricultural and Co-operative Bank (1999) 2 NWLR (Pt.590) 234.

At this point I shall restate some of the relevant paragraphs of the pleadings so as to have them in context with the principles of law and the decided cases on the point. Paragraphs 4 and 5 of the statement of claim state:
“4. The land in dispute is known as Owoko Oruruide and is situate in Amangwu quarter of Ezi-kwelle and is more particularly known and delineated and verged pink on the plaintiff’s Plan No. plan No. ME/1007/81 filed with this statement of claim.
5. The land in dispute originally belonged to one Obolua, the ancestor of the plaintiff from time beyond human memory. The said Obolua got the land as his own share when the people from Amangwu shared their lands in the olden days. The said Obolua begat Okonkwo popularly known as Okpobalaku. Okonkwo begat Nwankwo popularly called Iruiliaku. The said Nwankwo alias Iruiliaku begat the plaintiff. The said Obolua during his life time exercised maximum acts of ownership and possession over the said land such as farming the same and living therein without any let or hindrance.”
Reacting to the pleadings of the plaintiff/respondent, the defendants/appellants in their statement of defence averred in paragraph 4, 5 and 6 as follows:-
“4. The defendants deny paragraph (4) of the Statement of Claim and in further answer thereto say that the land in dispute is called Owoko Omalacha. It is situate in Uruowelle Quarters of Nkwelle Ogidi. It belongs to the defendants’ family of Obiajulu as a community. The extent of the defendants’ Owoko OMALACHA land, part of which is in dispute in this case is shown verged blue on Survey Plan No. V.D/ASP/82 filed with this Statement of Defence. The plaintiffs survey plan No.MEC/1007/81 shows other pieces of land belonging to other families in Uruowelle Nkwelle-Ogidi.
5. Save and except that the plaintiff, Nwankwo and Okonkwo are descendants of Obolua the defendants deny emphatically paragraph (5) of the statement of claim. In further answer to paragraph (5) of the statement of claim the defendants state that the defendants’ OWOKO OMALACHA land was originally the land of the plaintiff s ancestor called Amangwu. Amangwu many years ago, and before the advent of British administration in Nigeria killed a descendant of the defendants’ ancestor, Obiajulu, called Okonkwo. Under the customary law of Ogidi, this incident would attract an attack by the aggrieved family of Obiajulu against the offending family of Amagwu and a seizure and loot of Amagwu’s chattels and lands. This in customary parlance is called IKWA NKWA OCHU. Under the same customary law of Ogidi two options were open to Amagwu via (a) to give a girl from his own family in replacement of the murdered Okokwo Obiajulu. (b) To give a parcel of land as compensation. In this way the wrath of the goods of the land and of the defendants’ family

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would be stemmed. Amagwu therefore gave the land shown verged blue on the defendants’ plan to the descendants” ancestor Obiajulu. The gift is called in local parlance “NRACHI OCHU” is neither revocable nor redeemable. It is absolute gift by the customary law of Nkwelle Ogidi.
6. From the time of the gift the defendants’ ancestor Obiajulu started to make use of the land, inter alia; by cultivating the land, planting and reaping economic fruits on the land, establishing and worshipping two juju shrines on the sane and prospecting timber trees. The descendants of Obiajulu referred to in Paragraph (2) herein inherited the land from their father by customary law of Ogidi, lived on the land and exercised maximum acts of ownership over the same as did their father before them, to the knowledge of the plaintiffs’ ancestors without let or hindrance from them or any person whatsoever. The defendants inherited the land from their ancestors and, have from time immemorial cultivated it and reaped economic fruits growing thereon, lived on it, cut timber trees and worship their juju thereon.”
From the pleadings of the defendants, particularly their paragraph 5, they averred that they agreed that the land in dispute belonging originally to the plaintiff’s ancestor called ‘AMANGWU and the said Amongwu had made an absolute gift to defendants’ ancestor hence the defendants assertion to the entitlement of the land in dispute and that since that gift, the defendants have been exercising powers of ownership.
At this juncture certain facts of a burden of proof need be taken into consideration in order that a court does not just operate in vacuo.

The burden of proof in civil cases has two distinct meanings, viz.
(a) The first is the burden of proof as a matter of law and the pleadings usually referred to as legal burden or the burden of establishing a case.;
(b) The second is the burden of proof in the sense of adducing evidence usually described as the evidential burden.
While the legal burden of proof is always stable or static the burden of proof in the second sense i.e. evidential burden of proof may oscillate constantly according as one scale of evidence or the other preponderates. In civil cases, while the burden of proof in the sense of establishing the case initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendants and vice-verso as the case progresses. Federal Mortage Finance Ltd v. Ekpo (2004) 2 NWLR (Pt.856) 100 at 130 per Olagunju JCA; Balogun v. Labiran (1988) 3 NWLR (pt.80) 66; Nwosu v Udeoja (1990) 1 NWLR (Pt.125) 188; Elemo v. Omolode (1968) NMLR 359; Chigwu v. Baptist Convention (1968) 2 ALL NLR 294: Adegoke v. Adibu (1992) 5 NWLR (pt.242) 410.

In Samson Ochonma v Asirim Unosi (1965) NMLR 321 the facts are thus:
The plaintiff in this case sued for a declaration of title to a piece of land, damages for trespass and on injunction. In his statement of claim, he pleaded that he was the owner of the land by right of inheritance, and the defendants admitted that he had at one time been the owner.
The defendant in statement of defence pleaded that the piece of land verged Red was the only piece of land which the defendant had ever obtained from the plaintiff, and that the plaintiff made an absolute grant of it in 1936. The parties were agreed that the transaction of 1936, whatever its nature, included the payment by the defendant, to the plaintiff of a sum of money which they both described as “kola”
The Federal Supreme Court pee Brett JSC held that the defendant having admitted that the plaintiff was the original owner of the land, the onus was on him to establish his plea that there had been an absolute grant to him. In Nwobodo Ezeudu & Ors v Isaac Obiagwu (1986) 2 NWLR (pt.21) 208 at 220 per Oputa JSC.
“We have in our Lower Courts almost tacitly accepted that it is a ritual in land cases for the plaintiff to prove the features before calling all boundary men before it can be held that he had established the identity of the land in dispute. This erroneous belief accounts for a good deal of the delays in land cases. The onus on the plaintiff is an onus to prove on issue. Where therefore the identity of the land is not an issue, there, I will make bold to say that the mere production and tendering of the plaintiff’s plan in evidence is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent. See Rowland Omoregie & 3 Ors v Oyiamwonyi Iduiemuanye & Ors (1985) 2 NWLR (pt.5) 41 at 60”.
By admitting that the respondent’s ancestors were and that the respondent is still in possession of the land in dispute or even part of it but on a pledge the onus of proof that those in admitted possession were not the owners of the land in dispute shifted to the defendants/appellants by the operation of Section 145 of the Evidence Law Cap 49 of the Laws of Eastern Nigerian 1963 in force in Imo State. The trial court should have called upon the defendants to begin, not the plaintiff who should not have been called upon to establish what the law presumes in their favour. Per Oputa JSC in Ezeudu v Obiagwu (1986) 2 NWLR (Pt.21) 208 at 221; Lawrence Onyekaonwu & Ors v Ekwubiri & Ors (1966) 1 ALL NLR 32 at 34.
The same principle differently stated in the words of Aniagolu JSC in Ezeudu v. Obiagwu (supra) at 216 are hereby recaptured thus:
“One important feature of this case on appeal is that the defendants have admitted that the plaintiff is in possession of the portion of the land in dispute, explaining that possession by contending that they pledged the land to the plaintiff’s ancestor – a pledge which the plaintiff stoutly denied. The plaintiff has asserted that he and his forebears have been in possession of the land by right of their ownership of the land. With this admission by the defendants that the plaintiff was in possession, the onus shifted on the defendants to prove the pledge which they alleged. If they failed to prove the pledge then the presumption of law, having regard to the provisions of Section 145 of the Evidence Act would be that the plaintiff was the owner of the land of which he is in possession. That section rightly states that when the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. See George Onobruchere & Anor v. Ivwromoebo Esegine (1986) 1 NWLR (Pt.19) 799 (SC)

Since the parties agreed and found as a fact by the trial judge that the plaintiff were the original owners of the land in

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dispute, the onus is on the defendants to establish a change of ownership by sale. There is no onus on the plaintiffs to establish a pledge. With that onus being on the defendants, it is their duty to begin to adduce evidence, for it is they who would lose if no more evidence is adduced having regard to the state of the pleadings. Another way of stating it is that when it is accepted by both sides and found as a fact by the trial court that the plaintiffs, ancestor was the “original founder” of the land in dispute, the presumption as their successors in title continued to be owners of the land in dispute until the contrary is proved.
It might seem strange or even radical and revolutionary for a trial court to call on a defendant to take the witness stand by himself or his witnesses before the plaintiff would be heard. But in truth there is nothing novel or out of the ordinary and so the two courts below were well guided by the applicable Rules of Court of the High Court of Anambra State, Order 24 Rule 17 and Sections 135 – 137 of the Evidence Act to decide that the appellant take the first slot of testimony before the respondent as plaintiff. These concurrent findings well founded, I see nothing upon which to base a departure from what they did or upset those earlier findings and conclusion. The case of Nwobodo Ezeudu & 2 Ors v Isaac Obiagwu (1986) 2 NWLR (Pt.21) 208 at 215 is helpful in that regard.
Section 135 of the Evidence Act will compel a defendant who admits that the plaintiff is in possession of the land in dispute to establish that such plaintiff is not the owner, a fortiori, a finding by a court that the plaintiff descended from the “original founder” of the land in dispute coupled with the defendant’s averment of sale to them by the plaintiffs will definitely shift the burden of proof on the defendants to show that the original owners had extinguished their title. To hold otherwise will be to “overlook the established rule that once it is proved (here it was admitted by the defendants and found by the trial court) that the original ownership of the property is in a party the burden of proving that the party has been divested of the ownership rests upon the other party.
It needs be said that when there has been a misapprehension as to the onus of proof and a misdirection casting such onus on the wrong party, there is therefore a likelihood of a miscarriage of justice. Also such misdirection can also affect the credibility of witnesses. See Onobruchere v Esegime (1986) 1 NWLR (pt.19) 799.
From what I have tried to put across above, it is clear that the two courts below were well grounded and sure footed when they concluded that being led by the pleadings of the defendants they should testify first at least to resolve the fundamental and crucial part of the evidence as to the historical background of the land in dispute which they claim resided originally in the plaintiff/respondent’s ancestor from which the appellants derived their title which they assert should not be questioned. The conclusion easily made is that the appeal lacks merit and I do not hesitate in dismissing it. I dismiss the appeal and uphold the decision of the Court of Appeal which affirmed the decision of the trial judge ordering that the defendants start their testimony first. Therefore I order that the trial court continues with the suit with the defendants starting their testimony first.
I make no order as to costs.

I. T. MUHAMMAD, J.S.C.: A draft copy of the judgment just delivered by my learned brother, Peter-Odili, JSC, was made available to me earlier than today.
I am in agreement with his lordship that the appeal be dismissed for want of merit. The appellants in this appeal were the defendants. The respondent was the plaintiff before the High Court of Anambra State,
holden at Onitsha (the trial court). The reliefs and antecedents of the case were set out in the leading judgment and I find no reason to repeat same except where it is necessary, for elucidation. The only issue
formulated by the appellants and adopted by the respondent has to do with who, between the plaintiff and defendants, before the trial court, would call witness(es) first in proof of what they/he assert(s). This falls
squarely within the principle of BURDEN OF PROOF. Generally, the burden of establishing facts upon which legal rights and liability depends, in accordance with sections 135 and 136 of the Evidence Act , Cap.112, LFN, 1990 (now contained in Cap E14, LFN, 2004, sections 131-132), is on the person who asserts the fact(s). Section 131(1) of the Act provides that whoever desires any court to give judgment as to any legal right which liability is dependent on the existence of facts which he asserts must prove that those facts exist. Section 132 of the same Act provides further that the burden of proof in a suit in a proceeding lies on that person who will fail if no evidence at all were given on either side. While describing the phrase “BURDEN OF PROOF”, Dennis I. H; in his “The Law of Evidence,'(2nd ed; Sweet & Maxwell, London at p.369), stated, inter alia:
‘The Term ‘burden of proof’, also known as “onus of proof”, refers to the legal obligation on a party to satisfy the fact finders, to a specified standard of proof, that certain facts are true. The facts for this purpose are the facts in issue, the facts on which the legal rights and liabilities of the parties to the case depend….. There may be several facts m issue in a given case and the burden of proof of different issues may be differently allocated amongst the parties. For personal injuries caused by negligent diving, the claimant will bear the burden of proof of the defendants negligence and of the causation of the claimant’s injuries by the negligent driving. If the defendant alleges contributory negligence by the claimant, the defendant will bear the burden of proving it.”
Phipson, in his “Phipson on Evidence’, 2005, 6th ed. (Sweet and Maxwell p.125) stated that:
“The Phrase ‘burden of proof is used to describe the duty which lies on one or other of the parties, either to establish a case or to establish the facts upon a particular issue.”
In the case of Elemo v. Omolade (1968) NWLR 359, it was held that burden of proof has two distinct and frequent confusing meanings. It means:
i. The burden of proof as a matter of law and pleading i.e. the burden as it has been called of establishing a case whether by preponderance of evidence or beyond reasonable doubt, and
ii. The burden of proof in the sense of introducing evidence.
Where the burden is a matter of law and pleading, it is described by different names by legal authors. Phipson, for

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instance, quoting from Lord Denning, calls it “persuasive burden” “Legal burden”, “probate burden”, “ultimate burden”, “the burden of proof on the pleadings,” or, “the risk of non-persuation.” “(see Phipson, ibid, p.125). What this connotes is the obligation imposed on a party by a rule of law to prove (or disprove) a fact in issue to the requisite standard of proof. A party who fails to discharge a persuasive burden placed on him to the requisite standard of proof will lose on the issue in question. This burden rests upon a party whether plaintiff or defendant who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleading and it is settled as a question of law remaining unchanged throughout the trial exactly where the pleading places it. It never shifts and it is always stable.
The burden of proof in the second sense may shift constantly more as one scale of evidence or the other preponderates. In this sense, the onus rests on he who will fail if no evidence at all or no more evidence as the case may be, were given on either side. It rests before evidence is gone into upon the party asserting the affirmative of the issue. The burden of introducing evidence is thus, the obligation on a party to adduce evidence on a particular fact introduced.
Therefore, looking at the general principles of burden of proof or onus of proof, as others may call it, the onus of proof is normally fixed by the state of the pleading and is on the plaintiff, where the defendant denies, to establish the allegation in the statement of claim with a view to proving the whole case as put by him. In this situation, it is the plaintiff that will certainly lose, if no evidence is called at all. Phipson, again, while treating this general rule of burden of proof made references to some of such old cases to show, for instance, that in so far as the persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts the affirmative of the issue: Robins v. National Trust Co. (1927) A.C.315 at 520; Hayton-with-Roby U. D. C. v Hanter (1955) W.L.R.603. If, when all the evidence is adduced by all the parties, the party who has this burden has not discharged it, the decision must be against him. Pickup v. Thames Insu W. Railway (1886) 12 App. Cas. 41 at 45. The principle is an ancient rule founded on consideration of good sense and it is adopted principally because it is just that he who invokes the aid of the law should be the first to prove his case. The burden of proof, generally, is fixed at the beginning of the trial by the state of the pleadings. Constructive Line v. Imperial Smelting Corporation (1942) AC 154 at 174, per Lord Maughan. Further in deciding which party asserts the affirmative, regard must be had to the substance of the issue, where it forms an essential part of a party’s case, the proof of which, whether affirmative or negative, must rest on he who makes the assertion. Soward v. Leggatt (1936) 7 C & p.613. Abrath v North Eastern Railway (1983) 11 QB 440 at 457, per Bowen L. J; Doe v Johnson (1844) 7 M & Gr.1047, per Tindal, C.J.

However, as the case is with almost all general principles of the law, there may be some exceptions. The exceptions to this general rule of burden/onus of proof deduceable from the provisions of the Evidence Act and the state of the pleadings, may contain, but not be limited to the following:
i. The incidence of the burden placed on the plaintiff can be modified by the pleadings, particularly where the defendant introduces a new issue which will require him to lead evidence in establishing that new issue. This does not necessarily have to do with a counter-claim which is an independent claim of itself which necessitates evidence from the defendant/counter-claimant.
ii. When a rebuttable presumption of law exists in favour of a party, the onus is on the other side to rebut it.
iii. When any fact is especially within the knowledge of a defendant and upon which he would want rely, the burden of proving it is on him.

Now, coming back to the appeal on hand, it is pertinent, I think, to consider the state of the pleadings of the parties when the suit came before the trial court for hearing (i.e. 10-6-93). In his statement of claim, the plaintiff averred as follows:
“4. the land in dispute is known as OWOKO ORURUIDE and is situate in AMANGWU quarter of EZI-KWELLE and is more particularly known and delineated and verged pink on the plaintiff’s plan No.ME/1007/81 filed with this statement of claim.
5. The land in dispute originally belonged to one OBOLUA the ancestor of the plaintiff from time beyond human memory. The said OBOLUA got the land as his own share when the people of AMANGWA shared their lands in the olden days. The said OBOLUA begat OKONKWO popularly known as OKPOBALAKU. OKONKWO begat NWANKWO popularly called IRUILIAKU. The said NWANKWO alias IRUILIAKU. The said NWANKWO alias IRUILIAKU begat the plaintiff. The said OBOLUA during his life time exercised maximum acts of ownership and possession over the said land such as farming the same and living therein without any let or hinderance.”
At the end of the Statement of Claim, the plaintiff made me following claim from the defendants:
“18. Whereof the plaintiff claims from the Defendants as follows:
a. A declaration that the plaintiff as the head of Nwankwo Okonkwo family as well as the representative head of Obolua family in Anangwo (kindred) Quarters of Ezi-Kwelle Ogidi is entitled to inherit under Ogidi LAND forming part of his ANCESTRAL HOME (property) known as and called OWOKO ORURUIDE LAND valued N200.00 (Two Hundred Naira) lying, being and situate at Amangwu Quarters of Ezik-Nkwelle Ogidi in Idemili Local Government Area within the jurisdiction of this Honourable Court,
b. N5,000.00 Damages for Trespass in that in 1978 the defendants in collaboration with some hirelings each aiding and abetting the other did break and enter into the plaintiffs Family ANCESTRAL PROPERTY (Land) known as and called OWOKO ORURUIDE and therein cleared the bush, “felled numerous economic trees including Iroko and Palm Trees of the plaintiffs family, collected Palm fruits there from, deposited sands, gravels and blocks and did divers manners of work therein without the leave or license of the plaintiff’s family. The Defendants and their hirelings destroyed the plaintiffs blocks and demolished the plaintiffs foundation and have built and erected shops and constructed structures on portions of the land and have continued to ravage and commit several overt acts of trespass in aggravation on the said OWOKO ORURUIDE LAND.
C. A PERPETUAL INJUNCTION restraining the Defendants, their servants, agents and hirelings and privies from entering the land described or in any way dealing with or interfering with same without the permission of the plaintiff.”
In their reaction to the Statement of Claim, the defendants averred as follows:

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“6. The defendants inherited the land from their ancestors and, have from time immemorial cultivated it and reaped economic fruits growing thereon lived on it, cut timber trees and worship their jujus thereon.
16. The defendants deny that the plaintiff is entitled as claimed in paragraph (18) of the statement of claim or at all and will further plead ownership and long possession, estoppel, lapse of time acquiescence and other legal and equitable defence that are open to them.”
It will be recalled, my lords, that the plaintiff opened his case in 1988 before Hon. Justice J. G. O. Aneke. Seven (7) witnesses were called by the plaintiff, when upon the creation of Enugu State in 1991, Justice J. G. O. Aneke ceased to be a judge of the High Court of Anambra State as he was from the new Enugu State. The suit was then assigned to Hon. Justice Olike of the Onitsha Judicial Division for a trial de novo.
Upon the matter coming up for trial de novo, before Olike, J. on 10/6/93, the plaintiff’s counsel contended (orally) that on the state of the pleadings before the court, the defendants ought to be the first to lead evidence by calling and fielding their witnesses first before the plaintiff. In a ruling on that issue, the learned trial judge upheld the plaintiff’s contention and ordered the defendants to call their witnesses first.
The defendants were dissatisfied and they appealed to the Court of Appeal, Enugu Division which affirmed the decision of the trial court. In dismissing the appeal, Mohammed, JCA (as he then was), held, inter
“The onus of proof lies squarely with the defendants to start their case by calling the relevant evidence to show how the plaintiffs ancestors made an absolute gift of their land to the defendant’s ancestors.Therefore, having regard to the state of pleadings of the parties, it is quite clear that if no evidence at all had been forth coming from the defendants who have stated plainly in their statement of defence that the land in dispute originally belong (sic) to the plaintiff’s ancestors, they would have run foul of section 136 of the Evidence Act and in the absence of evidence on the absolute grant of the land to them, the defendants would denitely have failed. In other words by their awn statement of defence the defendants now appellants have divested the plaintiff now respondent of this right to begin under normal circumstances if the claim of the plaintiff had been effectively traversed in the statement of defence as was the situation in the case of Are v. Adisa (1967) 1 A NLR 148 at 151.The learned trial judge was therefore right in his decision in his ruling of 23-09-93 now on appeal, in ordering the defendants now appellants to begin.”
(underlining for emphasis)

I am in complete agreement with my learned brother, Mahmud Mohammed, JCA (as he then was), in his holding as quoted above. I would even go further to add that the principle of shifting of burden of proof in civil cases is not new. It is as old as the Law of Evidence itself (as seen above) and it is not as fixed on the plaintiff as it is on the prosecution in a criminal case.

Black, describes it “shifting the burden of proof’, which he defines as:-
“Transferring it (i.e. burden of proof) from one party to the other, or from one side of the case to the other, when he upon whom it rested originally has made out a PRIMA FACIE case or defence by evidence, of such a character that it then becomes incompetent upon the other to rebut it by contradictory or defensive evidence.”
(see: H. C. Black’s Law Dictionary 5th ed. P.1234).

My noble lords, nobody is disputing or denying the operation of the general principle of proof in civil matters by casting the burden of proof on the plaintiff where the averments contained in the statement of claim were traversed by the defendant. In such a situation, the defendant will have to wait for the plaintiff to lead evidence in proof of his averments. This is understandable. It is also elementary, It accords with common sense as he who invokes the aid of the law should be the first to prove his case.
But, where the situation presents a little difficulty is in a statement of defence where the defendant introduces a new issue which transforms his line of defence by transforming him now into an asserter of a fact which requires evidence to be led first in order to discharge the burden now cast on him and in order not to allow the suit to stagnate. By way of example: A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on B, although a defendant. It was B who introduced fraud. It was his duty to prove it in order to succeed. It is only by settling the issue of fraud, firstly, in one way or the other that a meaningful progress can be made by the court of trial towards the completion of the entire trial.
In their paragraphs 4, 5 and 6 of the Statement of Defence, the defendants/appellants averred as follows:
“4. The defendants deny paragraph (4) of the statement of claim and in further answer thereto say that the land in dispute is called OWOKO OMALACHA. It is situate in Uruowelle Quarter of Nkwelle Ogidi. It belongs to the defendants’ family of Obiajulu as a community. The extent of the defendants’ OWOKO OMALACHA land, part of which is in dispute in this case is shown verged blue on survey plan No. 7.D/AS2/82 filed with this statement of defence. The plaintiff’s survey plan No. MEC/1007/81 shows other pieces of land belonging to other families is Uruowelle Nkwelle-Ogidi.
5. Save and except that the plaintiff, Nwankwo and Okonkwo are descendents of Obolua the defendants deny emphatically paragraph (5) of the statement of claim. ln fufther answer to paragraph (5) of the statement of claim the defendants’ state that the defendants’ Owoko Omalacha land was originally the land of the plaintiff’s ancestor called AMANGWU. AMANGWU many ma ago, (sic) and before the advent of British administration in Nigeria killed a descendent of the defendants’ ancestor, Obiajulu, called Okonkwo. Under the customary law of Ogidi, this incident would attract an attack by the aggrieved family of Obiajulu against the offending family of Amangwu and a seizure and loot of Amangwu’s chattels and lands.
This in customary parlance is called IKWA NKWA OCHU.
Under the same customary law of Ogidi, two options were open to Amangwu viz: (a) to give a girl from his own family in replacement of the murdered Okonkwo or (b) to give a parcel of land as compensation. In this way the wrath of the gods of

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the land and of the defendant’s family would be stemmed. Amanawu therefore gave the land shown verged blue on the defendant’s plan to the defendant’s ancestor Obiaiulu. This gift is called in Local parlance ‘NRACHI OCHU’ and is neither revocable nor redeemable. It is absolute gift by the customary law of Nkwelle Ogidi.”
Three assertions stand very clear from the above averments:
a. the defendants claimed to have inherited from their ancestors who had been in occupation of the same land from time immemorial
b. that it was the plaintiff’s ancestors that made an absolute gift of the land in dispute to the defendants’ ancestors who since the time of the gift had been exercising acts of ownership over the land in dispute.
c. That the absolute gift of the land in dispute made by the plaintiff’s ancestors was neither redeemable nor revocable under customary law of Nwekwelle-Ogidi.
My lords, if I may ask: who made the above claims/assertions? Can these claims/assertions be traced to the plaintiff’s statement of claim? It is clear that it was the defendants who made such claims/assertions and are traceable to their Statement of Defence, Afotiori, by the operation of sections 135 – 136 of the Evidence Act, the burden lies squarely on the appellants as defendants. This is one of such occasions where the burden of proof in civil trial shifts, I find very solid support in the following Supreme Court cases:
i. Adenle v. Oyegbode (1967) NWLR 136. This was an action for declaration that a piece of land was family land. Both plaintiff and defendant were members of the family. It was common ground between them that the land originally belonged to their family but that the defendant had been in occupation for some years. The main question, therefore, was whether the defendant had been granted the land outright or had been given a limited possession. The trial judge held that the onus lay on the plaintiff in a claim for declaration of title to land and that he must succeed on the strength of his case particularly where, as in that case, the defendant had been in long possession. On appeal, the Supreme Court held that while the correct statement of the law in general in a claim for declaration of title to land is that the onus lies on the plaintiff who must succeed on the strength of his own case, that statement must be modified, however, where the dispute involves what was accepted by both sides as originally family land. In such circumstances the onus lies on the person who claims to be exclusively entitled to the family land to prove it. The court further held that the trial judge therefore had wrongfully placed the onus on the plaintiff, rather than as he would have done, on the defendant to establish his claim to exclusive grant of the property in dispute.
ii. Ajide v. Kelani (1985) 2 NSCC 1298. The respondent (as plaintiff) in the trial court sued the appellant and another (who later died) for a declaration that the plaintiff and the appellant were and remained co-owners of the property in dispute and for accounts. It was not in dispute that the appellant and the respondent (and the other who died in course of trial), once carried on business as partners under the business name and style of Four Brothers Stores. The property now in dispute was bought by the partnership and was, while the partnership lasted, partnership property. The partnership was dissolved from 3d September, 1968 and the partnership properties were shared out among the partners.
The appellant though he admitted in his pleadings that the property in dispute was originally partnership property sought by his testimony to prove that the property was never partnership property but his own personal property. He also, in the course of his defence, sought to tender a copy of the dissolution agreement of partnership signed by the respondent which showed how the partnership property had been shared but the trial judge rejected as it offended section 198 of the Evidence Act. Some other documents were sought to be tendered by the appellant which were all rejected. The plaintiffs’ claim was finally dismissed. On appeal to the Court of Appeal, the decision of the trial judge was set aside and respondent’s claim was allowed. On further appeal to the Supreme Court, the court held, inter alia, that in civil cases the onus of proof shifts from plaintiff to defendant and vice versa, from time to time, as the case progresses. Called the ONUS PROBANDI it rests on the party who would fail if no evidence at all, or no more evidence as the case may be, were given on the other side. It may shift constantly according as one side of evidence or the other preponderates. That, having admitted in his pleadings the building to be a partnership property, the onus was on the appellant to prove when it ceased to be a partnership property and became his own and this he failed to prove and in the circumstance the trial court was wrong in dismissing the respondent’s claim. Oputa, a former Justice of the Supreme court, in his contribution was very clear on the very point under consideration in this appeal when he said: –
“As a matter of fact, the proper thing to have been done in this case was for the trial court to ask the defendant on whom the onus lay at the close of pleadings to begin see sections 135 and 136 Evidence Act See also Lawrence Onyekaonwu & Ors v. Ekwubiri & Ors (1966) 1 A NLR 32 at p.35.”
iii. Onobruchere v. Esegine (1986) 1 NWLR (Pt.19) 799. The Supreme Court considered the application of section 137(1) of the Evidence Act regarding the placement of the burden of proof on the parties to a civil case having regard to the state of pleadings where the plaintiff pleaded possession as his root of title and the defendant admitted that possession. It was held that the defendant was to begin:
“In such a case it is the defendant who will begin and if at the close of his case he fails to prove that the plaintiff is not the owner, the plaintiff’s claim succeeds without even the plaintiff giving any further evidence.”
Per Oputa, JSC.
iv. Adegoke v. Adibi (1992) 5 NWLR (pt.242) 410 at p.423
Nnaemeka – Agu, a former Justice of the Supreme Court,
“Now it is the law that in a claim for entitlement to a right of occupancy based on title to the land in dispute before the promulgation of the Land Use Act, the onus is on the plaintiff to prove his entitlement to the title. But in civil cases, the onus of proof is not as fixed on a plaintiff as it is on the prosecution in a criminal case. In civil cases, while the general burden of proof in the sense of establishing his case lies on the plaintiff, such a burden is not static as in criminal case. Not only will there be instances in which on the state of pleadings, the burden of proof lies on the defendant but also, as the case progresses, it may become the duty of the defendant to call evidence in proof or rebuttal of some particular point which may arise in the case.”
(underlining for emphasis)

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v. The Federal Supreme Court, in 1965, held that the defendant having admitted that the plaintiff was the original owner of the land in dispute had the onus to establish his plea that there was an absolute grant of the said land to him. This case was like the appeal on hand, where the plaintiff sued for a declaration of title to a piece of land, damages for trespass and injunction. In the statement of claim, it was pleaded that the plaintiff was the owner of the land by right of inheritance. The defendant in his Statement of Defence pleaded that the piece of land verged red was the only piece of land which the defendant had ever obtained from the plaintiff and that the plaintiff made an absolute grant of it in 1936. See: Ochama v Unosi (1965) NMLR, 321,
In his contribution in the matter on appeal, Olagunju, JCA (of blessed memory) had this to say:
“At the first blush, it is tempting to be carried away by the general proposition of the law that in civil matters the burden of proof lies on the plaintiff. That may be so in generality of cases and, therefore, as a general burden of the overall of what is necessary for the plaintiff to prove to succeed where the defendant has joined issue with the plaintiff on all material points. But sometimes the burden of proof may be altered by ‘evidential burden, which as a doctrine of the Law of Evidence imports that where a given allegation, whether affirmative or negative, forms an essential Daft of a party s case the onus of proof of such allegation rests on him: See Alade v. Aborishade (1960) 5 FSC. 167, 170- 171; Elemo v. Omotade (1968) NMLR. 359, 361: and Motanya v. Etinwa (1994) 7 – 8 SCNJ (Part 1) 615, 621. It is immaterial that the evidential burden shifted on the pleadings at the onset of the trial as in this case since parties’ case can be settled on pleadings without calling evidence: see Onobruchere v. Esegine (1986) 17 NSCC. (Part 1) 343, 348; Adimora v. Aiufo (1988) 79 NSCC. (part 1) 1056.
It could well be that if the pre-trial Settlement of Issues Procedure as provided in rules 16 – 21 of Order 23 of the High Court Civil Procedure Rules of Anambra State, 1988, had been fallowed it would have obviated the misconception about making the issue to look like shifting the burden of proof on the plaintiff but on a critical view of the law involved the onus still rests on the defendant to first lead evidence. And on that score I cast my lot with the leading judgment.”
Ogunbiyi, JCA (as she then was) capped it all in few words:
“The burden on the appellants may sound unusual or abnormal in the normal course of procedure. However, by the provision of the statutes and also the numerous decided authorities laid down the procedure, abnormal it may seem, is proper and in accordance with the law.”
Finally, my lords, I think on matters of law and practice, our personal/individual view however strong we see it must give way once it is not in accord with the given law or laid down practice, except where we want to cause violence to the law and or the laid down practice. I agree with Peter-Odili, JSC; that this appeal is pregnant with incompetence. I, too, dismiss it. I affirm the decisions of the two Lower Courts. I make no order as to costs.

M. S. MUNTAKA-COOMASSIE, J.S.C.: I read before now the dissenting judgment rendered by my lord Sylvester Ngwuta JSC. There is an evidence of research work displayed in this strong judgment. However I remain adamant that the appeal deserves to be dismissed notwithstanding the position taken by my Lord Sylvester Ngwuta JSC.

NWALI SYLVESTER NGWUTA, J.S.C.: I read with admiration the lead judgment just delivered by my learned brother, Peter-Odili, JSC with whom my other learned brothers on the panel concurred.
I regret to say that I cannot, in good conscience, agree with the opinion of the majority. My feeble attempts to persuade my learned brother jurists in the majority to go with me was abortive, hence my dissent.
Endorsed on the Writ of Summons issued on 14/7/87 in the High court of Anambra State are the following reliefs claimed by the Respondent as Plaintiff against the Appellants as Defendants:
“A. A declaration that the plaintiff as the head of Nwankwo Okoronkwo family as well as the representative head of the Obolua family in Amangwu (kindred) quarters of Ezi-Kwelle Ogidi is entitled to inherit under Ogidi Customary Rule of succession and customary right of occupancy at any time at his will, ALL THAT PORTION OF LAND forming part of his ANCESTRAL HOME (PROPERTY) known and called OWOKO ORURUIDE LAND valued N200.00 (Two hundred naira) lying, being and situate at Amangwu quarters of Ezi-Kwelle Ogidi in Idemili Local Government Area within the jurisdiction of this Honourable Court, the particulars of which will be furnished in a survey plan to be attached to the statement of claim to be filed PRIOR OCCUPIED and used by his predecessors in title (occupation) of whom OKONKWO OBOLUA was his grandfather.
B. N5,000.00 damages for trespass in that on or about the month of June 1978 the defendants in collaboration with some hirelings each aiding and abetting the other did break and enter into the plaintiffs ancestral property (LAND) known as and called OWOKO ORURUIDE and therein cleared the bush, felled numerous economic trees including iroko and palm trees of the plaintiffs family, collected palm fruits therefrom, deposited sands, gravels and blocks and did divers manners of work therein without the leave or licence of the plaintiff’s family. The defendants and their hirelings destroyed the plaintiff’s blocks and demolished the plaintiff’s foundation and have built and erected shops and constructed structures on
portions of the land and have continued to ravage and commit several overt acts of trespass in aggravation on the said OWOKO ORURUIDE LAND.
C. A PERPETUAL INJUNCTION restraining the defendants, their servants, agents and hirelings and privies from entering the land described or in any way dealing with or interfering with the same without the permission of the plaintiff.”
Parties filed and exchanged pleadings. Plaintiff opened his case and called seven (7) witnesses before Aneke, J. However, upon creation of Enugu State from Anambra State in 1991, Aneke, J. returned to his home State (Enugu) and Olike, J. of Anambra State High Court, Onitsha Judicial Division, assumed jurisdiction to try the case de novo.
Upon the matter coming up for trial de novo on 10rh June, 1993, learned Counsel for the plaintiff, relying on the state of pleadings, contended that the defendants ought to be the first to open their case and lead evidence. Learned Counsel for the defendants arguing to the contrary, insisted that the plaintiff ought to start leading evidence first. Olike, J. on 23/9/93 ruled in favour of the plaintiff and ordered the defendants to open their case first.
Aggrieved by the ruling, the defendants (now appellants), with the leave of the trial Court, appealed to the Court of Appeal Enugu-Judicial Division. The said Court dismissed the appeal on 23/1/2002. The appellants have appealed to this

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Court on two grounds from which they isolated a lone issue for determination in their brief deemed filed on 15/1/2014. The sole issue reads:
“Whether the Justices of the Court of Appeal were right in holding that from the totality of the facts of this case that the appellants ought to call their witnesses first.”
In his brief of argument also deemed filed on 15/1/2014, the Respondent adopted the lone issue framed by the appellants. At the hearing of the appeal on 1st April, 2014, learned Counsel for the parties, Ogbuli, Esq. for the appellants and Egbuna, Esq. for the respondent – adopted and relied on their respective briefs each urging the Court to decide in favour of his client.
Arguing the lone issue in his brief, learned Counsel for the appellant relied on Longe v. FBN Plc (2006) 3 NWLR (pt.967) 228; Daodu v. NNPC (1998) 2 NWLR (Pt. 538) 355 in support of his contention that in an action for declaration of title, damages for trespass and injunction, the plaintiff must succeed or fail on the strength of his own case but not on the weakness of the defence. He added that the plaintiff is expected to prove his case on the preponderance of evidence.
Learned Counsel argued that the plaintiff must satisfy the burden placed on him by the issue joined in the pleadings, the evidential burden on him as well as the burden of establishing the admissibility of evidence. He relied on Kala vs. Potiskum (1998) 3 NWLR (Pt.540) at 17.
Learned Counsel stated that in order to determine where the onus of proof lies and who will start first, the Court will consider the state of pleadings with respect to issues joined in the pleadings, the presumption of the Evidence Act in Sections 131-140, 135-150 of the Evidence Act 2011 Laws of the Federation 1990.
On the three different meanings of the phrase “burden of proof”, he relied on Phipson on Evidence, 14th Edition; cited with approval and relied on by this Court in Kala v. Potiskum (supra). Learned Counsel argued that on its judgment that the onus is on the defendant to call evidence first, the Court of Appeal failed to draw the distinction between the onus of proving a case and the duty to call witnesses first.
He relied on Phipson on Evidence 13th edition at page 770 where the learned author expressed the opinion that:
“… the plaintiff begins, for without an exception the pleadings are opened by him and not by the defendant.”
He relied on Halsbury’s Laws of England 3rd Edition Vol. 15 at page 271 for the learned author/s opinion that the question as to the right to begin is to be settled upon what justice to the parties require. He added that having called seven (7) witnesses before Aneke, J., the plaintiff ought to call his evidence first. He said it would be inequitable and unjust for the Court to call on the appellants, as defendants, to field their witnesses before those of the plaintiff.
In conclusion, he urged the Court to allow the appeal for the reason that the Court of Appeal failed to draw a distinction between the party to call his witness first and the onus of proof placed on a party by law and facts of the case, the several issues joined and the fact that the respondent had first opened his case and called seven (7) witnesses before another Judge assumed jurisdiction to hear the case de novo.
In dealing with the lone issue in his brief, learned Counsel for the respondent referred to and relied on Order 24 Rules 17 (1) to 17 (3) of the High Court Rules of Anambra State, 1988 applicable to the case. He relied also on sections 131 (1) and (2), 132 and 133 (1) of the Evidence Act 2011 and argued that the burden of proof is not static but oscillates according to the circumstances of the case. He said that the burden of proof is two-fold.
First, the ability of the plaintiff to establish his entire case or reasonable portion thereof before he can get judgment called legal burden or the burden of proving a case and burden of proof of related facts or issues which a party claims exist called evidential burden. He relied on Federal Mortgage Finance Ltd v. Hope Offiong Ekoo (2004) 2 NWLR (Pt.856) page 100 at 122 para. C-E. He referred to paragraph 5 of the Statement of Defence for the admission made by the appellants as defendants.
He argued that the appellants having admitted radical title at one time in the respondent had the burden to prove that the radical title had been extinguished by the alleged irrevocable and irredeemable gift alleged made to them. He relied on Order 24 Rule 17 (2) of the High Court Rules of Anambra State 1988 as well as Section 133 (1) of the Evidence Act, 2011. He argued that the onus to commence leading evidence was on the appellants as they would have lost if no evidence was led at the trial Court.
He referred to paragraph 5 of the Statement of Defence and argued that on the strength of the admission therein, the appellants ought to begin. He referred to the decision of the trial Court on the issue of who to begin and said that the decision of the trial Court was affirmed by the Court of Appeal. He urged the Court not to disturb the concurrent findings of the two Courts below. He cited the case of Nwobodo Ezeudu & 2 Ors v. Isaac Obiagwu (1986) 2 NWLR (pt.21) p. 208 at 215. He urged the Court to dismiss the appeal.
The sole issue calling for resolution is whether or not, from the state of pleadings, the appellants ought to call their witnesses first as decided by the trial Court and affirmed by the Court below.
I propose to examine the relevant paragraphs of the pleadings and case law applicable to the issue in contention. Paragraphs 4 and 5 of both the statement of claim and the statement of defence respectively, are hereunder reproduced:
Statement of Claim:
“4. The land in dispute is known as OWOKO ORURUIDE and is situate in Amangwu quarters of Ezi-Kwelle and is more particularly known and delineated and verged Pink on plaintiff’s plan No. MED/1007/87 filed with this statement of claim.
5. The land in dispute originally belonged to one Obolua, the ancestor of the plaintiff from time beyond human memory. The said Obolua got the land as his own share when the people from Amangwu shared their lands in the olden days. The said Obolua begat Okonkwo popularly known as Okpobalaku. Okonkwo begat Nwankwo popularly called Iruiliaku. The said Nwankwo alias Iruiliaku. The said Nwankwo alias Iruiliaku begat the plaintiff. The said Obolua during his life time exercised maximum acts of ownership and possession over the said land such as farming the same and living therein without any let or hindrance.”
Statement of Defence:
“4. The defendants deny paragraph (4) of the statement of claim and in further answer thereto say that the land in dispute is called Owoko Omalacha. It is situate in Uruowelle Quarters of Nkwelle Ogidi. It belongs to the defendants’ family of

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Obiajulu as a community. The extent of the defendants’ Owoko Omalacha land, part of which is in dispute in this case is shown verged blue on survey plan No. V.D/AS2/82 filed with this statement of defence. The plaintiffs survey plan No.MEC/1007/81 shows other pieces of land belonging to other families in Uruowelle Nkwelle-Ogidi.
5. Save and except that the plaintiff, Nwankwo and Okonkwo are descendants of Obolua the defendants deny emphatically paragraph (5) of the statement of claim. In further answer to paragraph (5) of the statement of claim the defendants state that the defendants’ Owoko Omalacha land was originally the land of the plaintiff s ancestor called Amangwu. Amangwu many years ago, and before the advent of British administration in Nigeria killed a descendant of the defendants’ ancestor, Obiajulu, called OkonkwoR#8230;”
It is based on the above portions of the pleading that the trial Court came to the conclusion that:
“I therefore hold on the strength of the pleadings that the defendants ought to begin. I so order.”
And this decision was affirmed by the Court below.
With profound respect, the fallacy in the concurrent findings of the two Courts below lies in the wrong interpretation of the pleadings relied on and the failure to distinguish between general principles and principles restricted to particular cases.
I intend to resolve the lone issue in the appeal on the two points stated above.
1. Could it be said that the pleading of the parties relate to the same piece of land? The plaintiff, in paragraph 4 of the statement of claim called the land “OWOKO ORURUIDE” situate in Amangwu Quarters of Ezi-Kwelle. On the contrary, the defendants, in paragraph 4 of their statement of defence, called the land in dispute “OWOKO OMALACHA” situate in Uruowelle Quarter of Nkwelle Ogidi. The name and location of the land in paragraphs 4 and 5 of the statement of claim is different from the name and location of the land in paragraphs 4 and 5 of the statement of defence.
Without evidence to that effect, the Court cannot resort to speculation that the parties referred to the same piece of land. The admission made by the defendants in their paragraph 5 of the statement of defence does not relate to the land claimed by the plaintiff in paragraph 5 of the statement of claim.
In my view, the parties did not join issue OWOKE ORURUIDE situate in Amangwu Quarter of Ezi-Kwelle or on OWOKO OMALACHA situate in Uruowelle Quarters of Nkwelle Ogidi nor has the admission in paragraph 5 of the statement of defence any bearing to the land referred to in paragraphs 4 and 5 of the statement of claim.
In my view, the identity and location of the land in dispute are not settled as between the parties and it is idle to speculate on the outcome of the case if no evidence is led as the evidence, if led, will not relate to any fact in contention between the parties. In fact, there is no issue in contention between the parties based on their pleadings which are based on different pieces of land in different locations.
There is no evidence to show directly or by implication that the land called OWOKO ORURUIDE situate in Amangwu quarters of Ezi-Kwelle in paragraph 4 of the statement of claim is the same as the land referred to in paragraph 4 of the statement of defence as OWOKO OMALACHA situate at Uruowelle Quarters of Nkwelle Ogidi. Without more, the pleadings do not raise any issue between the parties in relation to the land claimed by the plaintiff now respondent.
From the state of pleadings, it can hardly be determined who will lose if no evidence is led and, ipso facto, who should start calling evidence even on the general principle that what is admitted need not be proved.
2. Secondly, and perhaps this is more important than the pleadings from which no issue between the parties can be isolated, is the question whether the general principle that what is admitted requires no proof is applicable to action for declaration of a right.

The success or failure of a declaratory relief is dependent on the judicial and judicious exercise of discretion by the Court. It is a discretionary remedy which can be granted by the Court but subject to certain conditions. See Sunday Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1 at 30 (SC); Egbunike & Anor v. Muonweoku (1961) 1 SCNLR 91/1961 NSCC 40. What is discretional is not compulsory. It is left to the discretion of the Court.
“Discretion, when applied to a Court of justice, means good discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful, but legal and regular.”
Per Lord Mansfield in Case of John Wilkes (1763) 4 Burr (Pt.IV 2539).
Declaration means equitable decision of what is just and proper under the circumstances or a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of a case, guided by the principles of law. See Antra Industries Nigeria Ltd v. The Nigerian Bank for Commerce and Industries (1988) 4 NWLR (Pt.546) at 381 SC; Doherty v. Doherty (1964) 1 A NLR 299.
In an action seeking a declaratory relief, the Court can grant the relief but subject to certain conditions. See Sunday Eguamwense v. Amashizemwen (1993) 9 NWLR (Pt.315) 1 at 30 SC; Egbunike & Anor v. Muonweoku (1961) 1 SCNLR 97/(1961) NSCC 40.

Faced with a declaratory relief, the Court draws inspiration from consecrated principles one of which is that the party seeking the relief must lead evidence upon which the relief is granted or denied, notwithstanding any admission in the defendant’s pleading.
The Court has to be satisfied, on the evidence led by the plaintiff, that he is entitled to the relief he seeks. See Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90. This Court has held, in plethora of decided cases, that a declaration of title or right cannot legally be based on admission in the statement of defence. See Umesie & Ors v. Onuaguluchi & Ors (1995) LPELR-3368 SC.
In Bello v. Eweka (1981) 1 SC 101 at 102 this Court held, inter alia:
“… the law is that a declaration of title or right cannot legally be based on admission in the pleading of a defendant.”

In the same case, this Court, while appreciating the general principle of law that what is admitted needs no proof, stated that the general principle does not apply in a claim for declaration of title or right. The Court held, inter alia:

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“It is true as was contended before us by the appellant’s Counsel, that the rules of Court and evidence relieve a party of the need to prove what is admitted but where the Court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleadings of the defendant, that he is entitled. The necessity for this arises from the fact that the Court has a discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence.” (Underlining mine).
In Obawole v. Williams (1996) 10 NWLR (pt.477) 146 or (1996) LPELR-2158 (SC), the Court, per Ogundare, JSC, at page 33 paras A-B of the report said:
“Now, the law is that where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence not by admission in the pleadings of the defendant, that he is entitled.”
(Underlining mine).
See also CPC v. INEC (2012) 2-3 SC 1; Dumez Nig. Ltd v. Nwokeabia & Ors (2008) 12 SC (Pt.111) 142; A-G Rivers State v. A-G Akwa Ibom State & Anor (2011) 3 SC 1.
It would follow from case law that in a claim for declaration of title or right, the plaintiff will lose if no evidence is led irrespective of any admission in the statement of defence.
In my view, based on decided cases of this Court, the plaintiff who seeks a declaration of right or title, a discretionary relief, has to open his case and lead evidence first notwithstanding any admission in the pleading of the defendant.

It is an established principle that concurrent findings of fact by the trial Court and the appeal Court should not be disturbed by the Supreme Court. See Njoku & Ors v. Eme & Ors (1973) 5 SC 293 at 306; Kale v. Coker (1982) 12 SC 252 at 271. However, the time-honoured principle is not cast in stone. It is subject to exceptions.
A concurrent finding of Court by the two Courts below, as in this case, can be disturbed by this Court where the finding is perverse, or there is substantial error either in substantive or procedural law which, if uncorrected, will lead to miscarriage of justice. See Lokoyi & Anor v. Olojo (1983) 8 SC 61 at 68; Akinsanya v. UBA Ltd (1986) 4 NWLR (pt.35) 273; Dibiamaka v. Osakwe (1989) 3 NWLR (pt.107) 101.

This is an appropriate case for this Court to disturb concurrent findings by the trial Court and the Court of Appeal.
The decisions of this Court relied on in the majority decision are inapplicable to the facts of this case. The authorities dealt with the Rules of Court and Evidence Law that what is admitted requires no proof, This case is an exception to the general rule and provisions of the Evidence Act for a declaration of right or title, a discretionary relief, cannot be based on admission governed by the Evidence Act and Rules of Court.
This is so because whether there is an admission of the claim in the statement of defence or there is no statement of defence, the declaration can only be granted on the quality of the evidence based on the pleading. It cannot be granted in default of pleading or admission in the pleading of the defendant. It is the plaintiff who will lose if no evidence is led and therefore he has to start.
In conclusion, I resolve the sole issue in favour of the appellant.
I set aside the decision of the trial Court as affirmed by the Court of Appeal and order the plaintiff to lead evidence first. Appeal allowed with N100,000.00 costs in favour of the appellant.

OLUKAYODE ARIWOOLA, J.S.C.: I have had the advantage of a preview of the judgment which has just been delivered by my learned brother Peter-Odili, JSC. I am in agreement with the said judgment which dealt with the sole issue for determination of the appeal beautifully that I have nothing more to add.
The appeal is devoid of any merit hence it deserves to be dismissed. Accordingly, it is dismissed by me.
I abide by the consequential orders in the lead judgment that the defendants are to start at the trial court by calling evidence first as held by the court and affirmed by the Lower Court.
I also make no order as to costs.