Nwafor Nwawuba & Ors. V. Jereome Enemuo & Ors. (1988) LLJR-SC

Nwafor Nwawuba & Ors. V. Jereome Enemuo & Ors. (1988)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

For a proper appreciation of the real issues that arise for determination in this appeal, it is necessary to state the facts in some detail.

In the present suit, which was commenced in Amawbia/Awka Judicial Division of Anambra State, the Plaintiffs (i.e. the present Respondents) claimed for themselves and on behalf of Umubelonwu of Amanuke against the Defendants (Appellants) for themselves and on behalf of Ifiteora in Urum for a declaration of title to Akpu-Ovu land and perpetual injunction against the Defendants, their servants or agents over the land. The case went to trial on an amended Statement of Claim dated the 27th day of September, 1978.

The Defendants, for reasons not clear from the records, while not disputing that they sued “for themselves and on behalf of Ifiteora in Urum”, split themselves into two for their defence, namely: 1st and 2nd Defendants hereinafter called 1st set of Defendants, and 3rd to the 6th Defendants (hereinafter called 2nd set of Defendants), each represented by a separate counsel. The case went to trial on an amended Statement of Defence dated November, 1978, and filed on 27/11/78 (for the 1st set of Defendants) and another one dated 24th November, 1978, for the 2nd set of Defendants.

The Plaintiffs’ case before the Court was that they were owners of the land in dispute from time immemorial and had been exercising diverse acts of ownership and possession thereon. They installed a water pump in it; have been farming the land by themselves and letting portions of the land for farming to Defendants’ people and others on payment of tribute.

They have been fetching water and reaping fruit crops and tapping raffia palms on the land; worshipping the juju shrine in the land – all without let or hinderance from anyone till 1966 when the Defendants refused to pay any further tribute and started claiming the land as their own. Despite intervention by neighbours who advised the Defendants to withdraw from their false position they refused and persisted, because they outnumbered the Plaintiffs. In furtherance of their claim to the land in dispute the Defendants almost simultaneously filed three separate suits – O/60/66, O/202/66 and O/14/67. For this purpose they called different portions of the Plaintiff’s Akpo-Ovu land different names, namely:

(i) Iyi-Ngwe claimed by Akanabo family of Ifiteora Urum, in suit No.0/60/66 as per their plan No. PO/E85/55;

(ii) Ukpokolo claimed by Akanato, Umuokpala, and Umuerike quarters of Ifiteora, Urum, in suit No. 0/202/66 as per their plan No. PO/E63/67; and

(iii) Iyi-Agu claimed by Akanato Umuokpala and Umuerike quarters of Ifiteora, Urum, in suit No. 0114/67 as per their plan No.PO/E131/67.

It is rather striking that although the Plaintiffs in suits Nos. 0/202/66 and 0/14/67 appear to be the same against the same Defendants (now Plaintiffs in the present suit) the then Plaintiffs found it necessary to split their cases. What is more interesting is that the Defendants, now Plaintiffs were all asserting that the subject-matter of the three suits was one piece of land.

They, in fact, filed only one plan – Plan No. MEC/285A/66 for the three cases. In the end, according to the Plaintiffs, the results of the three suits were unfavourable to the Plaintiffs therein (now Defendants/Appellants). Suit No. 0/60/66 was dismissed in the High Court which went further to find that the whole land was property of the Defendants, who, however, did not file a counter claim. Suits Nos. 0/202/66 and 0/14/67 had been consolidated and adjourned to await the result of the appeal to the Supreme Court in 0/60/66. When the Supreme Court appeal (SC.139/73) was dismissed, parties returned to the High Court for the consolidated suits. The then Defendants pressed for a dismissal; but the High Court merely struck out the suits.

The Plaintiffs in this suit also pleaded two other cases which were in respect of parts of the land in dispute outside the area of suit No. 0/60/66. They averred that in an Mbanese Native Court, criminal case No. 20 of 1945, one Madubufo Ikibe of Plaintiffs’ community was charged for going against fire control by setting fire on his Akpuovu land (part of the land in dispute) which fire damaged the Native Authority Road shade trees. One Chief Okafor Nweke of the Defendants’ Ifiteora community stated the case for the Court against Ikibe who was convicted.

They showed the stumps of these trees in their plan, No. MEC/2740/78 (Exhibit A) which they said is a replica of their plan No.MEC/285/66 used in the three 1966-67 suits. They also pleaded suit No.AA/88/73 in which the present Defendants sued the present Plaintiffs for trespass over ‘Akpokolo’ land. The Plaintiffs counter-claimed for title. The claim for title was struck out whereas the claim in trespass was remitted to the Magistrate’s Court. The Defendants trespassed on the land, they averred.

The first set of Defendants joined issues with the Plaintiffs on most of the above facts. They claimed on behalf of Akanabo Family to be owners of, and exercising various acts of possession over, the land in dispute. They denied the existence of a pump in the land in dispute. They could not admit or deny the consolidated suits (0/202/66 and 0/14/67) or the Native Court suit pleaded. They only admitted that they lost in the High Court in suit No. 0/60/66 and Sc. 139/73 in the Supreme Court. In paragraphs 16 and 17 of their Statement of Defence they stated as follows:

“16. In further reply to the Amended Statement of Claim, the 1st and 2nd Defendants aver that the Iyingwe land of the 1st and 2nd Defendants’ family originally belonged to Okpaleke and Igwezuoke, Okpaleke begat Umu Okpaleke while Igwezuoke begat Akpulugede. The Umu Okpaleke and Akpulugede jointly make up Akanabo family which inherited the Iyingwe land.

17. The 1st and 2nd Defendants deny that the Plaintiffs have any common boundary with the Defendants and their land is far away from the Iyingwe land.”

They denied trespass and pleaded acquiescence and equitable defences.

The 2nd set of Defendants also joined issues with the Plaintiffs on various facts pleaded in the Statement of Claim. The area claimed by the Plaintiffs includes “Iyingwe” land belonging to the 2nd set of Defendants, “Okpolo” land which is the traditional homestead of all the Defendants, “Iyiagu” land of Akanato, and “Ofia Oji” land of Umuokpalaoke Akanabo. As for their root of title, they pleaded as follows about Akpuovu land:

“It originally belonged to Evumagha people, who were expelled by the people of Okpoleke and Obialonwu. After the expulsion of Evumagha people the said land became the communal property of Okpaloko and Obialonwu families.”

In striking contrast to the above facts, the 2nd set of Defendants pleaded in paragraph 7 of their amended Statement of Defence thus:

“7. In further answer to paragraph 4 of the Statement of Claim, the Defendants aver that Urum and Mgbakwu who are of the same parents, are the original inhabitants of the area. They have never moved out of their traditional homestead. The Plaintiffs are of Igbariam extraction. They are the descendants of one Anuke who came from Igbariam and settled behind Evumagha people.”

They admitted the averments on suit No. 0/60/66 but, unlike the 1st set of Defendants, they admitted the consolidated suits, 0/202/66 and 0/14/67 but stated that they were withdrawn by their counsel for reasons they did not know. They also admitted knowledge of the Native Court criminal proceedings (suit No. 20 of 1945) but stated that anyone could set fire to any land, not necessarily his own. They denied being trespassers in the land and pleaded “all legal and equitable defences”.

After hearing evidence called by both sides, the learned trial Judge, Umezinwa, J., made a number of findings of fact. I shall confine myself to those I consider material to the issues for determination in this appeal.

(i) On suit No. O/60/66 (and Supreme Court appeal No. SC.139/73) he noted that the 1st set of Defendants in this suit were representatives of Akanabo as Plaintiffs in that suit. They lost. Although the present Plaintiffs did not have title awarded to them because they claimed none, the decision in that case raises an estoppel against the present 1st set of Defendants with respect to “Iyingwe” land edged pink in the Plaintiffs’ plan Exh. A. The learned Judge added that in addition, from the evidence before him the Plaintiffs case is stronger than that of the 1st set of Defendants with respect to Iyingwe land, which he found belonged to the Plaintiffs.

(ii) On the consolidated suits, 0/202/66 and 0/14/67, the learned Judge commented as follows.

“I now deal with Suits 0/202/66 and 0/14/67 consolidated. In these two consolidated eases three plaintiffs representing Akanato, Umuokpala and Umuerike quarters of Ifiteora claim for title against the present Plaintiffs in respect of two portions of land called Ukpololo land and Iyiagu land respectively.

The two portions of land are within the land in dispute and are shown verged Green and Blue respectively in Exhibit A and also verged Orange and Blue respectively in Exhibit K. It is significant to note that whereas in Suits 0/202/66 and 0114/67 those who claim to be the owners of the lands in dispute were Akanaro, Umuokpala and Umuerika families of Ifiteora, Urum in the present action Okpokolo land the subject matter of Suit 0/202/66 is now being claimed by Umuokpala family alone as the exclusive owners while Iyiagu land the subject matter of Suit 01/4/67 is now claimed exclusively by Akanato family alone as shown on the Defendants’ plan Exhibit K.

I am of the view that these inconsistencies can only be explained by the fact that the Defendants do not know what they are talking about and that the two portions of land which are within the extensive area of land which Plaintiffs call Akpovu land belong to the Plaintiffs. Exhibits G and H are the Plans of Okpokolo land as claimed by the Defendants.”

(iii) He also found that in 1952 the Plaintiffs built a water pump in part of Akpuovu land, outside the area which was the subject of suit No. 0/60/66.

(iv) On the Native Court Suit No. 20 of 1945, i.e., Exhibit B, he found as follows:

…..”In 1945 at the Mbanasa Native Court, Mabufo Okibe, the head of Umuobialonwu family, was charged to Court for failure to control setting fire on his Akpovu land’ and allowing it to spread and burn the oil bean trees planted on Awka – Urum – Amanuke Native Authority Road. The prosecutor was Chief Okafor Nweke, the father of the present CHIEF OF URUM, who gave evidence for the Defendants in this case as D.W.2. In that proceeding, Exhibit B, his father recognised that Akpovu land belongs to Umuobialonwu family, the Plaintiffs. I accept as shown on the Plaintiffs’ plan Exhibit A the stumps of the burnt oil bean trees as the trees burnt which gave rise to the proceedings in Exhibit B.”

(v) As against the Defendants’ claim that they have been living on the land in dispute as of right from time immemorial, he found that two of the Defendants’ kith and kin, that is P.W.3 and P.W.4, spoke the truth and made an admission against interest when they admitted that they were on the land by permission of the Plaintiffs.

(vi) As to whether the land was called Akpu-ovu or other names given to it by the Defendants, he found that it was Akpuovu land. His comment on the evidence of D.W.2 is useful. He stated:

The Plaintiffs have consistently stated that the land in dispute is called Akpovu land. When this was put to D.W.2 the RECOGNISED TRADITIONAL RULER OF URUM he gave an answer which indeed puzzled me. According to him the real name of the land in dispute is Akpuevumagha which belongs to Umuokpaleke sub-family of Akanabo Urum and Plaintiffs’ family of Umubelonwu in Amanuke. Nothing could be more amusing than this ridiculous piece of evidence that two family units from two different towns would jointly own in common an extensive area of land as the land in dispute. This type of evidence occasionally drops out on unguarded moments when people just brazenly embark to put forward a false claim over a piece of land which they know in their heart of hearts does not belong to them. Plaintiffs in this action have to succeed on the strength of their own case and not on the weakness of the Defendants. Where, however, an important defence witness as a recognised traditional ruler gives evidence which supports Plaintiffs’ case, Plaintiffs could rely on it.”

He then found that the Plaintiffs proved their case and were entitled to judgment for title, N400.00 damages for trespass and an order of perpetual injunction.

The Defendants appealed to the Court of Appeal, Enugu Division. In the lead judgment of S.M.A. Belgore, J.C.A. (as he then was) to which Phile-Ebosie and Olatawura, JJ.C.A. concurred, he carefully adverted to the above findings of fact and the law involved and dismissed the appeal. The Defendants (hereinafter called the Appellants) have, with leave of the Court of Appeal, appealed further to this Court. The Plaintiffs shall hereinafter be referred to as the Respondents.

I must pause here to observe that from the record, I do not see why leave to appeal should have been granted by the Court of Appeal, per Phil-Ebosie. Aseme and Aikawa, JJ.C.A., save, perhaps, that the application for leave was not opposed. In my opinion, even where such an application for leave to appeal is not opposed, the Court of Appeal or, indeed, this Court is still in duty bound to satisfy itself in a case like this in which there have been far-reaching and concurrent findings of fact by two lower Courts, that there are special circumstances to warrant a grant of leave to appeal. The attitude of this Court to such matters has already been made clear in very many case, including:

Chikwendu v. Mbamali (1980) 3-4 S.C. 31;

Lamai v. Orbih (1980) 5-7 S.C. 28;

Chief Kweku Serbeh v. Ohene Kohina Karikari (1938) 5 W.AC.A. 34;

Ibodo v. Enarofia (1980) 5-7 S.C. 42.

However, as the Court below has granted leave. I am making this point rather as a guide for the future.

The issues for determination in the appeal, as set out in the Appellants’ brief, are as follows:

(i) Whether there was any decision in Suits 0/202/66 and 0/14/67.

(ii) Whether the present Defendants/Appellants are estopped by the said suits 0/202/66 and 0/14/67 from claiming by way of defence title to the land in dispute.

(iii) Whether the said present Defendants/Appellants could not contest title to the land in dispute.

(iv) Whether the order of injunction granted against the Defendants/Appellants was justified and/or whether the terms of the order of injunction granted against the Defendants/Appellants can be upheld.”

The gist of the submission by Mr. Onyiuke on behalf of the Appellants on the first three issues is that as Akanato, Umuokpala, and Umuerike, who were Plaintiffs in 01202166and 0/14/67, were not parties in 0/60/66, of which Akanabo people were Plaintiffs, nothing decided in the concluded and lost case of 0/60/66 could affect the 2nd set of Appellants. No estoppel could be raised against them on the basis of that concluded decision (0/60/66). This is more so because there was evidence that Urum lands were owned in families. He also pointed out that the two suits, 0/202/66 and 0/14/67 in which these families, represented by 2nd set of Appellants were parties were merely struck out and not dismissed, as shown Exhibit E and that the striking out order decided nothing and could not be relied upon as estoppel, he submitted. He also submitted that the Court of Appeal was wrong to have said that the Appellant, after some time, decided to split their defence, whereas that was not the case, as the 1st set of Appellants from the beginning filed a separate defence from the 2nd set of Appellants. Further, he submitted that the Court below was wrong to have assumed that it was the whole of the land now in dispute that was in dispute in suit No. 0/60/66, whereas it was not. That Court, he submitted, was wrong to have held that the Appellants had, with respect to parties to the suits, put up conflicting claims in this suit as against the previous suits. It failed to appreciate that the 1st set of Appellants defended the case as representatives of Akanabo. On the other hand, the 2nd set of Appellants represent Akanato, Umuokpala, and Umuerike. So it was wrong to conclude that there were inconsistencies in the representation which showed that the Appellants did not know what they were talking about. Finally, he submitted that suit No.0/6O/66 could not raise issue estoppel as between the 1st set of Appellants and the Respondents because the Respondents did not counter-claim and so there was no decision that the land belonged to them. Also the consolidated suits could not raise any estoppel against the 2nd set of Appellants as there was no decision in the cases. I shall deal with his submission on the order of injunction separately later on.

The learned Senior Advocate for the Respondents, Mr. Balonwu, replied to the above submissions. I shall deal with his submissions in the course of this judgment.

I believe it is better to start with a consideration of the use made by the two lower Courts of the previous suits. It is necessary to state that from the pleading in paragraph 14 of the amended Statement of Claim that it was only suit No.0/60/66, that is Exhibit C, the copy of proceedings therein, Exhibit J, and the Supreme Court decision thereon, Exhibit D, that were relied upon by the High Court as raising an issue estoppel against the 1st set of Appellants with respect to a portion of Akpuovu land verged pink in the Respondents’ plan Exhibit A. It is clear also even from portions of the judgment of the Court of Appeal set out in 5.2 of the Appellants’ brief that the Court of Appeal clearly adverted to this. The learned Justice of the Court of Appeal said:

“He submitted that by holding that the decision in suit No. 0/60/66 operated as estoppel against the Appellants the Judge erred in law in that no estoppel was pleaded and that the Respondents as Defendants in that case never counter claimed for title. He however conceded the parties in 0/60/66 and in the case now on appeal are the same community variously represented but argued that the land in the earlier case was smaller. That is so.”

Later, he continued:

“But since the land in issue in 0/60/66 is almost entirely within the present land in dispute, the Appellants cannot be heard now to claim the same land as theirs. To say so, as they now do, is to indirectly ask the Court to set aside the decision of the Supreme Court on the same matter.”

But assuming, without agreeing, that the Court of Appeal approached the matter as though the undecided cases, suit Nos. 0/60/66 and 0/14/67 were included in the consideration of issue estoppel, that could not have affected my decision because I would have held that it was not a substantial error in that it did not lead to a miscarriage of justice, for two reasons. First: from the findings by the trial Court which I outlined above it is clear that there were other grounds to sustain the judgment. Indeed, the Court of trial was able to reach the same decision upon a proper direction. Secondly, upon a close study of Exhibit E, I am of the view that the proper order would have been one of dismissal, not striking out, of the consolidated suits. The parties adjourned the cases to await the results of suit No. 0/60/66 on appeal in the Supreme Court. When the appeal failed, and the Plaintiffs were not prepared to go ahead with their action, the proper order would have been one dismissing the suit.

See Nwachukwu & Ors v. Nze & Ors (1955) 15 W.A.C.A. 36. At least, if the learned trial Judge decided to strike out the cases, he should have imposed a condition that the Plaintiffs must not institute fresh proceedings. For it was clear that why Mr. Eyisi on their behalf was not prepared to proceed was that they had lost suit No. 0/60/66 on appeal. After the stage had been set for the contest, and the Plaintiffs were not ready to go on because of the result of the Supreme Court Appeal on the contiguous piece of land, they ought not to have been allowed to escape, as it were, through the back door so as to be able to come back: See Fox v. Star Newspaper Co. (1900) A.C. 19. Although the Court had a discretion in the matter, it was one that ought to have been exercised with the full view of all the circumstances: See Hess v. Labouchere 14 T.L.R.; Chief Ojora v. Odunsi (1959) 5 F.S.C. 189 p. 190. In view of the reason for the discontinuance, the suits ought to have been dismissed. However, as there was no appeal against the striking out order (without a condition that no suits on the same action should be brought by the same Plaintiffs), the consolidated suits cannot be relied upon as raising an issue estoppel. But, for what I have said. if it were relied upon, it did not occasion a miscarriage of justice.

It is, however, not correct to say that suit No. 0/60/66 (Exhibit C, D, and J) could not raise an issue estoppel between the 1st set of Appellants and the Respondents with respect to the portion of Akpuovu land (called Iyi-Ngwe by the 1st set of Appellants) and which is verged pink in Exhibit A. It is trite that claims as to declaration of title are decided on the relative strengths of the cases of the parties before the Court: See Karimu v. Fajuba (1968) N.M.L.R. 151, p.152-3; Arase v. Arase (1981) 5 S.C. 33, p. 35; Ramonu v. Akinwunmi: S.C. 106 (1965) of the 23rd day of June, 1966. As it is so, decision one way or the other raises an issue estoppel against the Plaintiffs, even where, as in this case, the Defendants in the former suit is not relying on the decision as estoppel per rem judicatam. I am therefore of the view that although, for the reasons I have given, suits Nos. 0/202/66 and 0/14/67 cannot be (and were not) relied upon as raising an issue estoppel against the Appellants, suit No.0/60/66 could be, and was rightly, relied upon to raise issue estoppel against the 1st set of Appellants, over the area it covers in the land in dispute (verged pink in the two plants Exhibits A and K). This was what the learned trial Judge said. As far as this area goes, if the Respondents counter claimed for title to it in the 1966 case there can be no doubt that they could have had judgment therefore. All the necessary ingredients of issue estoppel as enunciated in Obi Izediuno Ezewani v. Obi Nkadi Onwordi & Ors. (1986) 4 N.W.L.R. 27, at p.47 are present. The subject matter in the two cases is the land verged pink in Exhibit A and K, the plans of the Respondents and Appellants.

The parties in both cases are the 1st set of Appellants and Respondents. The question for decision in both cases was the ownership of the land in dispute. The effect of this is that the 1st set of Appellants cannot be allowed to reopen the issue. See Yaw Duedu v. Evi Yiboe (1961) 1 W.L.R. 1040; Amos Ogbesusi Aro v. Salami Fabolude (1983) 2 S.C. 75, at pp.76-78.

What then were the uses of other previous cases pleaded and relied upon by the Respondents It is clear that the Native Court suit No.20 of 1945 was pleaded to show that Chief Nweke, the Chief of Urum, who was a Court member and stated the case of the Court, had admitted that Akpuovu land belonged to Okibe, the head of Respondents’ family. No question has been raised as to the admissibility of the proceedings in the case, Exhibit C. It is also clear from the evidence before the Court, including the plan, Exhibit A, that that case related to a part of Akpuovu land which the 2nd set of Appellants called “Okpokolo”. The learned trial Judge so found. In my opinion, an admission by the Chief of Urum as to the ownership of Okpokolo land long before this litigation began is a material and relevant fact which could be proved against the subsequent generations of Urum people, of which the Appellants form a part. Considering as I must, the circumstances in which the admission was made (for which see Seismograph Service (Nig.) Ltd. v. Eyuafe (1976) 9, 10 S.C. 135), I cannot but come to the conclusion that it is a very strong piece of evidence against the 2nd set of Appellants as to the ownership of that part of Akpuovu land verged green in Exhibit A.

As for the area of Akpuovu land covered by suit Nos 0/202/66 and 0/14/67, I believe it is only safe to say no more than Mr. Balonwu said about them that the proceedings were tendered to show that they were adjourned to abide the results of Appeal No.SC.139/1973; but that after the appeal was dismissed the 2nd set of Appellants refused to proceed with the cases. I should only add that in view of what I stated above, if there were any appeal against the striking out order without any condition as to any subsequent suit, I should have held that it had merit.

But these former suits were not the only evidence against the Appellants. There is the finding that in 1952, the Respondents, without let or hindrance, installed a water pump in another part of the land in dispute. The admission against interest by P.W.3 and P.W.4, members of the Appellants’ family, that they were living on the land in dispute with the permission of the Respondents, is a very strong evidence of an admission against interest.

When a man who is among the persons represented in a representative action makes a solemn statement on oath which cuts at the foundation of his party’s case, such a statement usually represents the truth in the matter in controversy and is admissible.

In addition to the above, I cannot ignore the fact that the Respondents called nine witnesses who were obviously believed in view of the various findings of fact I have referred to, and which have not been faulted in this appeal. On the above state of the facts, there can be no doubt that Respondents proved their case. But I should not fail to mention certain aspects of the case for the Appellants which further strengthen the Respondents’ case. I have set out the view of the learned trial Judge on the evidence of the Appellants star witness, D.W.2. the recognised traditional ruler of Urum who testified that the land in dispute was property of the Respondents and Umuokpaleke sub-family of Akanabo Urum. Umuokpaleke did not however advance any claim to the land on their own. Nor did any pleading on behalf of the Appellants support such a case. In the final analysis it is therefore, the admission that the land belongs to the Respondents that becomes relevant and significant. It is a matter of common knowledge that old men and traditional rulers are by their positions not only in a position to know the true facts in land disputes but also often find it difficult to twist the truth. The important admission by the recognized traditional ruler of Urum in this regard has a ring of truth. It appears to me to be more than a mere coincidence that in 1945, Chief Okafor Nweke, the then Chief of Urum, in the Native Court suit No. 20 of 1945. admitted. in the solemn atmosphere of the Court, that the part of Akpuovu land called Okpokolo by the Appellants belonged to the Respondents predecessor-in-title; and now his son, again the Recognized Traditional Ruler of Urum, made an admission to the like effect.

It is from the above background that I wish to examine the second most significant feature of the Appellants’ case, to wit: their inconsistency as to parties. Right from the start the Respondents pleaded that the Appellants who were said to be one community more populous than the Respondents split themselves up and each started to claim a part of the Respondents’ Akpuovu land, despite the intervention of neighbours. Suit No. 0/60/66 was instituted on behalf of Akanabo over the area they called Iyi-Ngwe; 0/202/66 by Akanato, Umuokpala and Umuerike over the area of the land called Ukpokolo (Okpokolo); the same three family units in 0/14/67 claimed another area of the land called Iyi-Agu.

The Respondents in order to emphasize the unity of Akpuovu land filed only one plan for the three cases, namely, Plan No. MEC/285A/66 (Exhibit F) which is reproduced in this case as Exhibit A. The learned Judge, rightly in my view, noted the fact that in those two suits, the three families claimed ownership of Ukpokolo (Okpokolo) and Iyi-Agu lands, in the present suit. According to the Appellants’ plan, Exhibit K, the area of suit No. 0/202/66 is being claimed exclusively by Akanato Family. This observation is correct and unanswerable if we refer to the pleadings and the plans. The learned counsel for the Appellants tried to explain this away by reference to where the representatives of the second set of Appellants come from as elicited under cross-examination. This, to my mind, cannot be of any material relevance. A party’s case is set out in the pleading and proved by evidence. So, any evidence which is contrary to the pleadings whether extracted in chief or under cross-examination goes to no issue and ought to be disregarded: See Aniemeka Emegokwuo v. James Okadigbo (1973) 4 S.C. 113, p. 117. Lord Sumner put it succinctly in the House of Lords in the case of North Western Salt Co. Ltd. v. Electrolytic Alkali Co. Ltd. (1914) A.C. 461 where he stated at p. 481:

“Much of the oral evidence was strictly immaterial since, though obtained in cross-examination; it went to no issue. It may therefore be disregarded.”

I appreciate with full sympathy the position of an Appellate counsel who happens not to have been the counsel in the Courts below. He has to take the case as he meets it, dead or alive. But having said so, a party in a civil case is bound by his pleadings. He cannot set up a case on his pleadings and in this Court try to rely on something entirely different, even if there are random extractions under cross-examination to support it. See Adenuga v. Lagos Town Council 13 W.A.C.A. 125, at p. 126. A party’s case is not made in its brief but in its pleading. I am therefore, in agreement with the inference that the inconsistency in the Appellants’ case in this case with their case in suit Nos 0/202/66 and 0/14/67 on the important question is this: if their case that each family has its own separate communal land is accepted, how can they explain the coming together of Akanato, Umuokpala, and Umuerike in 1966 and 1967 to claim ownership of Iyi-Agu or Okpokolo lands If the custom had changed since 1967 when and how did the change come about Upon a calm look at the whole case, I am satisfied that the two lower Courts came to correct decisions in the case put before them.

I shall now deal with the issue of permanent injunction dealt with under issue number 4. The learned counsel for the Appellants in his brief and oral argument submitted that the order as made and the terms of the order cannot be justified and are harsh and oppressive. He gave reasons for this submission:

He contended that the finding of the trial Judge at the visit to the locus in quo could not justify the order in that it was decidedly a built-up area and it was not shown whether this was a permanent village and a continuation of the ancestral village homestead as claimed by the Appellants or a new settlement as claimed by the Respondents. He cited Udekwu Amata & Ors. v. Udogu Modekwe & Ors. 14 W.A.C.A. 580.

(ii) Many members of the Appellants’ village have been resident on the land in dispute for many years; and the Respondents conceded that they granted portions of the land to some of those Appellant’s people resident in the land; as no order of forfeiture has been made against them, an order of permanent injunction cannot be made against them.

The first of the above points should better be dealt with by reference to what the learned trial Judge found after his visit to the locus in quo. He said:

“The visit to the locus in quo which I carried out in the presence of the parties and their counsel on the 6th of October, 1978, shows that the buildings complained of by the Plaintiffs are being put up by the Defendants on a portion of land in dispute which is already built-up area. This portion is along the Isu Aniocha Urum-Amanuke main road. East of it is a portion of the land in dispute which is decidedly a farm land. The Defendants, at the locus in quo, indicated to me that apart from farming on that portion of land they did not intend to build any houses on it.”

If this conclusion is viewed from the background of the pleadings, evidence, and findings at the trial and in the Court below, it will be seen that the problem which the learned counsel for the Appellants is complaining about does not exist. P.W.2 testified that it was just before the 1966 cases that the Appellants refused to pay further tributes and, apart from their grantees from among the Appellants, others moved into the land in dispute by force and started to build. It is important to note that the portion of the land built upon by the Appellants was farm land. The learned Judge found that it was about 1966 that the rest of the Appellants stormed the land in dispute because of

their numerical superiority. The Court of Appeal on the materials before it concluded.

(i) that the Respondents were on the land in dispute before the Appellants;

(ii) That there were only eight areas of trespass, as shown in the Respondents’ plan, Exh. A, and this has not been contradicted by the Appellants’ plan, Exh. K;

(iii) that Respondents’ grantees from among the Appellants’ people are known and identifiable;

(iv) that the Appellants’ long stay on the land was made up of two periods – the period before 1966 when they were tribute-paying farm tenants and the period 1966 and after when they became trespassers by refusing to pay tribute. In particular the Court below found, and I agree with it, that since the Appellants became trespassers the Respondents have been challenging them by appealing to the neighbouring communities to intervene and defending the four actions instituted by the Appellants before instituting the present action.

From the above state of the facts, it appears to me that when the learned trial Judge in 1978 described the area built upon by the Appellants as a built-up area, it can only mean that it had been built up between 1966 and 1978. This is more so because he at the same time concluded from what he saw that the area was “decidedly a farm land.” It is this trespass that is the cause of action in this suit. This case is therefore distinguishable from the case of Udekwu Amato & Ors. v. Udogu Modekwe & Ors. (supra) in that it could not be both a farm-land and an ancestral village of the Appellants at the same time. The permanent injunction was rightly granted, therefore. The point was made about the Respondents’ grantees from the Appellants’ village is however, valid. They are customary tenants of the Respondents. Unless their tenancies are forfeited for misbehaviour, or the tenancy is abandoned, they are entitled to hold their land in perpetuity; See: Ejeanalonye & Ors. v. Omobuike & Ors (1974) 1 All N.L.R. 298, at p. 303. The order of injunction should not therefore be made in such a way as to appear to include them. But where, on the facts, an order of permanent injunction was correctly made but, in its application, it embraces more persons than should have been restrained the error will not, on appeal, result in the order being set aside in toto if it could be amended to exclude those persons who should not have been included. It is useful in this regard to observe that in Ejeanalonye’s case (supra) the area covered by an order of injunction which was allowed to stand was amended by this Court. I shall therefore amend the persons to be affected by the order.

In the result the appeal fails and is dismissed. The judgments of the lower Courts are affirmed. But the order of injunction shall be amended to read:

“Perpetual injunction restraining the Defendants, excepting the tenants of the Plaintiffs, their servants and or agents from further acts of trespass on the said Akpuovu land.”

I assess and award costs in favour of the Respondents in the sum of N500.00.

SC.149/1986