Dr. David Chukwuemeka Obiefuna Okoye V Christopher N. Obiaso (2010)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C.

The appellants were plaintiffs at the High Court of Anambra State,holden at Onitsha in Suit No. 0/40/76 in which they claimed the following reliefs against the respondents who were then the defendants:

“(a) A declaration that the plaintiffs are entitled to customary right of occupancy of the land hereinbefore described as the land in dispute, the annual valued of which is N40.00

(b) An order of court for the 1st and 2nd defendants to accept the redemption fee paid by them to the said pledged land delineated on the plaintiffs. Plan No. NG/AN 180/99 and therein hatched blue.

(c) An order of court for forfeiture against the 2nd, 3rd and 4th defendants in respect of the areas on customary tribute hatched red on the plaintiffs’ plan.

(d) N400.00 General Damages for trespass and wanton destruction of the plaintiffs’ economic crops on the land in dispute outside the area pledged to the 1st and 2nd defendants as aforesaid.

(e) Perpetual injunction to restrain the defendants, their servants, agents, representatives and each and everyone of them from any further acts of trespass upon the said land or from interfering in any way whatsoever with the plaintiffs’ enjoyment of the said land.”

Parties to the action field and exchanged their pleadings. The action was instituted and prosecuted in a representative capacity. The land in dispute is called “Ana Abogwugwu” by the appellants and is said to situate at Okpuno Aborji village in Oba which the appellants’ claim was pledged in 1968 to 1st and 2nd defendants which the family sought to redeem.

At the conclusion of trial, the learned trial judge dismissed the case of the plaintiffs/appellants who consequently appealed to the Court of Appeal, which found no merit in the appeal and dismissed same. The present appeal is a further appeal by the appellants against the judgment.

Both parties are natives of Oba town, in Anambra State, which town was founded by their common ancestor, OBA. It is agreed by the parties that the said OBA had nine (9) sons. Apart from the above two basic facts, the traditional history/evidence as to who came to own the land in dispute conflicts with each party pleading its own version. However, both parties rely on acts of recent possession over the land in dispute in addition to their version of traditional history as to how they came to own the land in question. Both parties also pleaded a customary arbitration, which took place between the parties in 1975 and conducted by the elders of Oba town/community who rendered a decision thereon, though the verdict varied between the parties.

It is not disputed that sometimes in 1968, two pieces of land were pledged by one ONYEUKE

AGUSIOKWU to the 1st and 2nd defendants/respondents respectively, which transaction was evidenced exhibits B and B1, tendered by the plaintiffs/appellants. It is the contention of the appellants that the said pieces of land situate, and/or are contained within the land in dispute, which extent is delineated in exhibit A – a survey plan also tendered by the appellants. On the other hand, the defendants/appellants concede the pledge of the two pieces of land in dispute but contend that they do not only fall outside the disputed land but were the personal property of the pledgor as against the claim of family ownership put forward by the plaintiffs/appellants. To prove that the two pieces of pledged land fall within exhibit A, the appellants tendered exhibit A1, which is a composite plan or a superimposed plan resulting from the superimposition of appellant’s plan, exhibit A, on the defendants/respondents’ plan, exhibit G.

However, the learned trial judge, after reviewing the evidence before the court held that the traditional history of the parties were in conflict thereby necessitating his application of the principles in Kojo vs. Bonsie by having recourse to acts of ownership and possession by the parties on the land in dispute extending over a period of time in resolving the issue of the ownership of the said land and come to the conclusion that the evidence of the defendants/appellants; that the pieces of land in dispute do not belong to the family of the plaintiffs/appellants but was the personal property of the pledgor and that they fall outside the land claimed by the plaintiffs/appellants in exhibit A.

On the question of customary arbitration pledged by both parties, the court found that the plaintiffs/appellants abandoned their pleadings in that respect as they adduced no evidence to establish their version of the outcome or decision of the arbitration which they had pleaded was for the defendants to swear to a juju oath but which the defendants failed/or neglected to do; that the defendants/respondents, on the other party testified and established the fact of the customary arbitration and the decision of the arbitrators as evidenced in exhibit J, to be in their favour. The trial court therefore held that exhibit J is binding on the parties as the same satisfied all requirements of traditional/customary arbitration and that the plaintiffs/appellants are consequently estopped from relitigating the issue of ownership of the disputed land.

From summary so far, it is very clear that it does not matter, which version of traditional history was accepted by the learned trial judge and affirmed by the lower court particularly as exhibits B and B1 , which have not been denied by the respondents clearly, show that two pieces of land belong to the pledgor were pledged by him to the 1st and 2nd defendants/respondents. However, the issues relevant to the determination of the dispute are:

(a) Whether the land in exhibits B and B1 are the personal property of the pledgor or his family property as contended by the appellants.

If the pledged lands are the personal property of the pledgor they cannot be part of the disputed land, which is said to be the communal/family property of the plaintiffs/appellants as both modes of ownership cannot co-exist in relation to the same property. That will be so irrespective of exhibit A1 which purports to put the pledged lands within the land in dispute.

On the other hand, if the pledged lands form part of the communal/family land of the

plaintiffs/appellants then the established fact of pledge of the pieces of land is sufficient to establish the claim of ownership put forward by the plaintiffs/appellants vis-a-vis the defendants/respondents particularly as it is settled law that a pledge does not ripen into ownership because once a pledge, always a pledge. That party, by the operation of section 46 of the Evidence Act, acts of possession and enjoyment of land may be evidence of ownership or right of occupancy not only of the particular piece of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality that what is true as to the one piece of land.

(b) The other issue is whether the pledged lands fall within the disputed land being claimed by the plaintiffs/appellants, and

(c) Whether the customary arbitration was proved if so what is the legal consequences flowing therefrom.

As stated earlier in this judgment, the trial court dismissed the case of the plaintiffs and their appeal to the lower court was also dismissed.

In the appellants brief deemed field on the 11th day of June, 2009, learned counsel for the appellants, ANTHONY I, ANI ESQ, submitted the following two issues for the determination of the appeal. The issues are as follows-

“1. Whether the court below directed itself properly and correctly on the evidence of acts of possession and the location of the lands under pledge as per exhibits B, B1 and A1 in relation to the land in

dispute (distilled from grounds 1 and 3 of the grounds of appeal).

2. Whether exhibit J was admissible and lightly admitted as a record in proof of the customary arbitration between the appellants and the respondents (distilled from ground 2).”

In arguing issue 1, learned counsel for the appellants submitted that the lower court failed to give adequate and deserved consideration to the conclusion of the trial court that the pledged land, as evidenced in exhibits B and B1 were located outside the disputed land and thereby resulted in a serious miscarriage of justice; that the pleadings and evidence from the plaintiffs/appertains particularly, exhibits A and A1 show clearly that the pledged land fall within the disputed land; that the lower court was in error in affirming the finding of the trial court that the pledged land do not fall within the land in dispute; that exhibit A1 clearly places the pledged land within the disputed land and as the same is documentary, the court ought to have relied on same as a hanger from which to assess the truth or otherwise of the oral testimony to the effect that the land was outside the disputed land, relying on Ashanu vs. Adekoya (1974) 1 All NLR 35 at 41-42; that the evidence of the surveyor who prepared and tendered exhibit A1, PW1, was not challenged either under cross examination or by any other document and that the said exhibit ought to have been used to test the oral evidence as to the location of the pledged land; that in exhibit H, the Court of Appeal came to the conclusion that the pieces of land in exhibits B and B1 fall within the disputed land; that a survey plan is the best evidence of the location of any piece of land, relying on Briggs vs. Brigs (1992) 2 NWLR (Pt. 228) 128; Awofolaju vs. Adedoyin (1992) 8 NWLR (Pt. 260) 492; that the lower court went outside the record to make findings on exhibit A1 not supported by the evidence; that the fact that the pledged land forms part of the disputed land had been found by the trial court in an earlier trial, and by the Court of Appeal upon an appeal on that judgment as evidenced in exhibit H and that the learned trial judge in the instant case has no power to set aside the said findings of facts; that the lower courts were in error in regarding all the evidence of acts of possession by the defendants/respondents as conclusive evidence of acts of ownership particularly in view of the fact of the pledge of the two pieces of land, thereby making such acts, the acts of pledges that will not ripen to ownership, that the lower courts were in error when they held that the two pieces of land pledged were the personal property of the pledgor.

On the other hand, learned counsel for the respondents G.E. EZEUKO (JNR) in the amended respondents’ brief filed on the 7th day of July, 2009 formulated three issues for determination. The issues are as follows:-

“1. Whether the two parcels of land pledged per Exhibits B and B1 are outside or within the land in dispute – GROUND ONE

2. Whether the court below was right when they found that the arbitration of Oba elders admitted as Exhibit J was admissible and acts as estoppels against the appellants – GROUND TWO
3. Whether the court below was right in relying on the principle in the case of Kojo II vs. Bonsie to resolve the conflicting and inconclusive traditional histories of the parties – GROUND THREE.”

In arguing his issue 1, learned counsel referred the court to the testimonies of PW2 at pages 110 and 111 of the record; PW3 at page 118; DW2 at page 123 and the findings of the lower courts at pages 186 and 281 of the record and submitted that there is abundant evidence that the pledged lands are outside the land in dispute and that they were the personal lands of the pledgor; that the court cannot add to the words used in exhibits B and B1, an agreement signed by the parties thereto, relying on section 132 of the Evidence Act,

Korki vs. Magnusson (1993) of NWLR (pt. 317) 287; Agbareh vs Mimra (2008) All FWLR (pt. 409) 559; that the appellants cannot be heard to contradict what they pleaded; that this court should not interfere with the concurrent findings of fact by the lower courts as there is no reasons to do so; that the argument of counsel for the appellants that in exhibit H the Court of Appeal found that exhibits B and B1 were within the land in dispute is not borne out of the record and referred the court to page 186 of the record where the trial court reproduced the relevant part of exhibit H; that the said court actually came to the conclusion that the land in exhibits B and B1 were the personal lands of the pledgor and that they exist outside the disputed land.

Learned Counsel further submitted that where the evidence of traditional history by the parties conflict or is inconclusive, the court will have recourse to recent acts of possession and ownership, relying on Balogun vs. Akanji (1988) 1 NWLR (Pt. 70) 301; Onwugbufor vs. Okaye (1996) 1 NWLR (Pt.424) 252 at 281. Referring to the pleadings and evidence of traditional history, learned counsel submitted that since they conflict with each other, the lower courts were right in resorting to acts of possession and ownership exercised by the parties to determine ownership of the land in dispute; that the acts of possession and ownership of the respondents were numerous and positive enough to warrant the inference that they own the land in dispute; that though the plaintiffs/appellants pleaded that they had tenants on the disputed land, they called none to testify to that effect; that the trial court was right in its findings, which were rightly affirmed by the lower court and urged the court to disturb the concurrent findings of facts.

There is no doubt that the issue under consideration has to do with the concurrent findings if facts by the lower courts in relation to the issue as to whether the pledged land is the personal property of the pledgor and whether the said pieces of land fall within the land in dispute or outside it. I had earlier stated in this judgment that if the pledged fall within the land in dispute which is said to be family or communal land, and are not the personal lands of the pledgor, then the principle that once a pledge always a pledge or that a pledge does not ripen to ownership of the pledged property will apply to the facts of the case to weigh the evidence of acts of possession and ownership in favour of the appellants because the acts of possession exercised by a pledgee cannot be equated to the acts of the owner of the property.

In the instant case, the lower courts have found as a fact that the pledged lands were not the family property of the appellants but the personal property of the pledgor and that they fall outside the disputed land. It is in evidence that people do own land both individually and communally in Oba Community and that the pledgor owned personal land. This shows clearly that individual ownership of land in the community is not unknown. After evaluating the evidence on record, the trial court found as follows at pages 186 – 187 of the record:

“It is the finding of the court on the evidence and materials before it that the pledged lands are not only personally owned by Onyeuke Agusiokwu but outside the land said to be in dispute in the case.

The plaintiffs’ plan Exhibit A showing the pledged lands as being within the land in dispute appears to me tailored to suit the case of the plaintiffs. It is inacceptable. I prefer Exhibit G the Defendants’ plan.”

The above finding was by the judge whose duty it is to make them after listening to witness testify and watching their demeanor. It is settled law that it is the primary duty of a trial court to evaluate the evidence and ascribe probative value thereto.

When the matter came before the lower court, the court affirmed the above findings at page 281 of the record in the following terms:

“From what has been said earlier on, the learned trial judge’s findings above appear done to earth and pragmatic. The appellants tried to depict that their Exhibit A and Exhibit G are said to be on the same scale. And yet the situations of the pledged lands in Exhibit G outside the land in dispute have been transplanted and fixed within the land in dispute in Exhibit A1. In Exhibit G, the two pledged lends appear co-joined out of the land in dispute.

But in Exhibit A1, the two plots of pledged land are separated and placed at fairly opposite ends within the lands in dispute. And undiluted map reading clearly shows that the appellants tried to play pranks but at the end they were caught by their own web of deceit. They attempted to hide behind one finger to no avail.”

The law on concurrent finding of facts is very settled. It is that this Court does not make a practice of interfering with the concurrent findings of fact by the lower courts except where there are special circumstances to warrant same, such as where the findings are perverse or not supported by the evidence or there is a wrongful application of substantive or procedural law etc, etc.

In the instant case, can it be said that the findings of the lower courts are perverse to warrant being set aside on any ground known to law A close examination of the record reveals that the findings are supported by the evidence on record. To begin with, it is the argument of learned counsel or the appellants that the Court of Appeal in exhibit H found that the lands evidenced in exhibits B and B1 are located within the land in dispute contrary to what the lower courts found it the instant case.

That, with respect, is not borne out by the record at all as what the Court of Appeal said in exhibit H, was reproduced in full by the lower court at page 186 of the record as follows:-

“With due respect to the learned judge, it seems to me he took a beclouded premise to arrive at an

inevitably wrong conclusion. Exhibits B and C (B – B1 in these proceedings) specifically say that the parcels of land pledged are owned by one Mr. Onyeuke Agusioku. In fact Exhibit B makes it clear

that he personally owned’ the parcels of land therein referred to. It cannot therefore be argued by the plaintiffs in support of their case that the said parcels of land pledged formed part of their family land. In other words, they cannot rely on those exhibits and alter what they say in clear words simply to support their case as to the ownership of the parcels of land therein pledged.

The evidence of PW8 Obiefo Ibeabuchi, who testified on behalf of the plaintiffs confirm a distinction

between the plaintiffs’ family land said to be in dispute and Agusioku land. He said under crossexamination

‘I know one Agusioku of Oliobi family. I have to go from Agusioku’s land to reach the land in dispute.’ That is what in effect the defendants have said all along. They aver that the lands pledged by Agusioku are not within the land in dispute but within his personal land. They said so in evidence. Their survey plan, which is identical with the plaintiff’s survey plan as regards the land in dispute puts the pledged lands outside the land in dispute.”

From the above passage from exhibit H, it is very clear that learned counsel or the appellants was very economical with the truth when he stated in his brief that the Court of Appeal found, in exhibit H , that the pieces of land pledged in exhibits B and B1 are within the land in dispute. That is very unfortunate, to put it very mildly. Apart from finding that the pieces of land pledged are outside the land in dispute, the Court of Appeal also found

in exhibit H, that the said pieces of pledged land are the personal property of the pledgor. So you have a situation of three courts making the same findings of fact not even two, in the instant case.

It is very important to note that the lower courts also concurrently found that exhibit A1 was tailored to meet the case of the appellants though they said so in different ways. Their conclusion on the matter clearly demonstrates their disbelief of exhibit A1 or lack of its credibility. I find not special circumstance to warrant this Court’s interference with the concurrent findings on fact by the lower courts as the same were not perverse or in any way unsupported by evidence on record. In fact the finding is supported by the testimony of PW.8 reproduced in Exhibit H to the effect that you have to pass through the pledged lands to reach the lad in dispute. PW.8 was called by and did testify on behalf of the plaintiffs, and his testimony clearly put the pledged lands outside the land in dispute contrary to exhibit A1 . PW.8’s evidence on the point also accords with exhibit G, the survey plan of the respondents, which the trial court accepts as being the true representation of the extent of the land in dispute vis-a-vis the pledged lands.

It follows clearly that with the finding that the pledged lands fall outside the disputed land, the acts of possession and ownership by the respondents over the piece of land in dispute

cannot be said to be the acts of possession exercised by a pledgee of land, which not, in law, ripen to ownership of the land in question. It is therefore clear and I also hold, that the lower courts were right in holding that the numerous acts of possession exercised by the respondents on the land in dispute in recent times constitute conclusive evidence of ownership of the land in question particularly as the traditional history relied upon by the parties in attempt to establish their title to the land proved inconclusive. The case of the appellants with regards to acts of possession and ownership of the land is made worse by the fact that though the appellants pleaded that in the exercise of their right of ownership of the said disputed land they let out portions thereof to tenants, the appellants called no tenant to testify to that very important facts, thereby abandoning their pleading in that

respect.

On issue 2, learned counsel for the appellants submitted that exhibit J was inadmissible and that the trial court wrongly overruled the objection of learned counsel for the appellants on admissibility of the said exhibit J as the same did not satisfy the two conditions stated in section 91(1)(a) and (b) of the Evidence Act; that the maker of exhibit J was not called to tender same, relying on Etiko vs. Aroyewum (1959) 4 FSC 129 at 131; Atolabi vs Shorun (1985) 1 NWLR (Pt. 2) 360; Olufosoye vs. Olorunfemi (1989) 1 NWLR (Pt. 95) 26; that the lower court was in error in not holding that exhibit J was wrongly admitted in evidence; that the circumstances mentioned in subsection (2) of section 91(1) which would have made exhibit J otherwise admissible were never adverted to nor found to exist before admitting same; that the court has no power to admit a copy before admitting same; that the court has no power to admit a copy of a document, which was not certified neither was the signature of the maker, Mr. Ejliogu proved; that it was not proved that the parties to the arbitration voluntarily submitted to the customary arbitration; etc, etc, relying on Agu vs. Ikwewibe (1991) 3 NWLR (Pt. 180) 385; Ohaeri vs. Akabueze (1992) 2 NWLR (Pt. 221) 1.

Learned counsel urged the court to resolved the issue in favour of the appellants and allow the appeal.

On his part, learned counsel for the respondents referred to the case of Okonji vs. Njokonina (1999) 14 NWLR (Pt. 638) 250 and submitted that three main criteria govern admissibility of documents, namely:

(a) whether the document is pleaded

(b) Whether it is relevant to the inquiry by the court, and

(c) Whether it is admissible in law; that exhibit J satisfies the three condition as the same was pleaded by both parties, it is relevant to the facts of the case and there is no law against its admissibility that a document can be admitted in the absence of the maker, the key to its admissibility being relevance, relying on Omega Bank (Nig.) Plc. Vs. O.B.C. Ltd. (2005) All FWLR (Pt.249) 1964; Igbodin vs. Obianke (1976) 9 – 10

S.C. 179; that exhibit J was the copy given to the respondent by the arbitrators and that there is no requirement that the signature of the secretary of the arbitrators must be proved as issues were never joined on it; that the appellants are bound by exhibit J haven’t voluntarily submitted to the arbitration etc and urged the court to dismiss the appeal.

It must be pointed out that the argument of learned counsel for the appellants on issue 2 is limited to the issue of admissibility of exhibit J and does not extend to the consequences of the decision of the arbitration panel evidenced in exhibit J .

The question therefore remains whether exhibit J is admissible in evidence. Learned counsel for the appellants has submitted that it was inadmissible while counsel or the respondents contends that it is admissible.

It is settled law that the issue of admissibility of any documentary evidence is governed by the principle as to whether or not the document is pleaded by the party(ies) to the proceedings; whether it is relevant to the subject matter of inquiry by the court or tribunal and whether it is admissible in law.

In making the submission under issue 2, learned counsel for the appellants relied on the provisions of section 91(i)(a) and (b) of the Evidence Act, which provides as follows: –

“91(1) in any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document, and tending to establish that fact shall on production of the original document be admissible as evidence of that fact if the following conditions are satisfied.

(a) If the maker of the statement

Either

(i) had personal knowledge of the matters dealt with by the statement

Or

(b) if the maker of the statement is called as witness in the proceedings. Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness or if he is beyond

the seas and it not reasonably practicable to secure the attendance, or if all reasonable efforts to find him have been made without success.”

Before one can decide on the relevance or applicability of section 91(a) and (b) supra, it is necessary to look at the pleadings of the parties, the evidence the objection and ruling thereon.

In paragraph 40 of the further, Further Amended Statement of Claim, the plaintiffs/appellants pleaded as follows:-

“40 Before that date, the defendant’s planted beacons beyond the three portion of land over which they were expected to take oath. The elders saw the beacons, which enclosed other lands of the plaintiffs and other people’ lands and then insisted that the defendant should confine their oaths taking to the three portions, which the plaintiffs said were let on customary tribute to them but the defendants refused. By a letter dated 29th June, 1975 hereby pleaded by Mr. Jerry Ejeleogu, the then secretary to Oba elders meeting communicated to the 1st plaintiff the said decision of the elders. The plaintiffs will found on the said letter.”

Emphasis supplied by me. On the other hand, the defendants/respondents pleaded in paragraph 23 of their Further, Further Amended Statement of Defence as follows:-

“23 The parties voluntarily submitted to the customary arbitration of the meeting of Oba Elders and agreed to be bound by their findings and award. The arbitrators heard both parties during several sittings and inspected the land. On 5/5/75, the arbitrators published their award and positively informed the plaintiffs that the land in dispute does not belong to them and that the land belongs to the defendants. The defendants will found and rely on their own copy of the recorded decision of the said Oba Elders Arbitration signed and delivered to them by the Secretary of the said Oba Elders meeting,

Mr. Jerry Ejeleogu, as estoppels against the plaintiffs.”

In his evidence in chief, DW5 stated at pages 138 – 139 of the record, inter alia:

“In February 1975 Isaac Okoye without leave broke into the land at an area being farmed by the 4th defendant and started cutting down some of the economic bees on the land… We reported the matter to the meeting of Oba elders who are charged to look into civil disputed in Oba. The body is composed of elders from each of nine villages that compose Oba. The elders invited both parties to their meeting. We answered their summons. The elders demanded to know from the parties if they would submit to their arbitration and if we would accept their decision as final. We all consented.

Before the elder went into the matter a fowl was killed and parties partook of it as a sign of covenant to be bound by the decision (Igbandu)… After visiting the land, heard from the parties questions asked, they decided that the land belongs to Umuokpagu and that it situate in Umuogati.

The arbitration of the elders was recorded by their secretary Jerry Eje Liagu from Isu village.

We later demanded and obtained a copy of the proceedings and decision of the arbitration

committee of the elders (minutes of minutes identified). Seeks to tender…”

The tendering of the document was objected to by learned counsel to the appellants in the following terms:

Chief Mogbo objects say it does not accord with what the defendants pleaded in paragraph 23 of their further, further amended Statement of Defence. If it was the copy given to the defendants, it has to be certified. The writer has got to come and show that it was a copy of the record he kept.

No proof of the signature of the Secretary and no evidence that Jerry Ejeliogu made the copy…..”

After the reply by learned counsel for the defendants, the trial court ruled as follows:-

“The defendants pleaded the document sought to be tendered in paragraph 23 of their further, further amended statement of defence. The witness led evidence in accordance with what they pleaded in the paragraph. The document is relevant and admissible. The objection is overruled. Documents admitted and marked exhibit J.”

It should be noted that learned counsel for the appellants did not revisit the issue of admissibility of exhibit J in his address nor in the issues submitted by him to the trial judge for resolution as reproduced in the judgment of the trial court at pages 183 – 184 of the record – there were 11 issues in all. Secondly, the relevant issue submitted by learned counsel for the appellants to the lower court for determination is issue 1, which posited

thus:-

“1. Whether the respondents pleaded and established a customary arbitration according to

law, which could operate as estoppels against the appellants.”

I have gone through the argument of counsel on the above issue and can conclusively say that it does not include a challenge to the admissibility of exhibit J. I have equally gone through the judgment of the lower court; which also confirms the fact that the issue of admissibility of exhibit J was never considered by that court. The issue, as presently constituted is therefore a fresh issue being raised for the first time I the appeal before

this Court.

In any event it is very clear from the pleadings that both parties pleaded the customary arbitration by Oba elders in relation to the disputed land and indicated intention to rely on the decision reached by that body. However, while the appellants” pleaded that the decision was in their favour, the respondents pleaded the contrary. The appellants’ were therefore, under the circumstances not taken by surprise by the respondents. Surprisingly, however, the appellants who pleaded reliance on the decision of Oba elders refused and or neglected to tender same in evidence. As I had earlier found/held, which is also the same by the lower

courts, exhibit J was pleaded in paragraph 23 of the further, further amended statement of defence. It is relevant to the inquiry being undertaken or conducted by the court and is admissible in law.

Exhibit J therefore satisfies the conditions for admissibility laid down by this Court in Okonji vs. Njokanma (1999) 14 NWLR (Pt.638) 250 . Exhibit J touches on the same land earlier death with by Oba elders under customary arbitration and therefore very relevant to the case, it was a copy given to the respondents by the secretary to the Oba elders who handled the arbitration as testified to by DW5 who can legally tender exhibit J as the document

given to them I the circumstances described. It does not need the secretary of Oba elders to tender it before it can be admissible in evidence neither does it requires prove of the signature of the said secretary particularly when the appellants never challenged by way of reply, the fact pleaded in paragraphs 2 and 23 of the further, further

amended statement of defence so as to join issues on the authenticity of exhibits J. exhibit J is also not a public document to require certification. I therefore resolve issue 2 against the appellants.

In conclusion, I find no merit whatsoever in this appeal which is hereby dismissed by me with N50,000 costs against e appellants. The judgment of the lower court is hereby affirmed by me.

Appeal dismissed.

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SC.232/2003