Silas Okoye Okonkwo & Ors. V. Chief Agogbua Kpajie & Ors. (1992)

LawGlobal-Hub Lead Judgment Report

B. WALI, J.S.C. 

This is an appeal against the decision of the Court of Appeal Enugu in which it affirmed the judgment of the Onitsha High Court dated 29th July, 1981 in Suit No. 0/52/73. In the suit Silas Okoye Okonkwo and 2 others (for themselves and on behalf of the people of Umusiome Nkpor) claimed against Chief Agogbua Kpajie and 2 others (for themselves and on behalf of the people of Ikenga Ogidi) for the reliefs contained in the amended Writ of Summons, to wit –

“1. Order of court on the defendants for boundary between the plaintiffs and the defendants on Okofia land at Nkpor in the judicial division to be demarcated with concrete pillars.

2. Perpetual injunction, and
3. A declaration of title to Okofia land.”

Both the plaintiffs and the defendants filed and exchanged pleadings in which issues were joined. Both parties called witnesses, filed survey plans and tendered judgments in previous litigations between them in respect of the land in dispute. Learned counsel on both sides addressed the court at the conclusion of the evidence adduced. The learned trial judge (Awogu J. as he then was) meticulously considered the evidence and made the following findings –

“On the acts of possession, the plaintiffs claim in Exh. A to have won the land verged pink, which they contended that the defendants now occupy. They claimed to have won the land per the judgment in Suit 0/122/62, but the case appears to have conferred no such title on the plaintiffs. All that it decided on appeal, was that the judgment obtained by the present defendants against the five quarters of Nkpor should not apply to the present plaintiffs (i.e. Umusiome Nkpor). Beyond this, the other evidence of possession were shrines, the Olisaeloka well dug before this action commenced and the house of the 2nd plaintiff as well as others of the plaintiffs’ village.

The maternity of the wife of P.W.2 (Oraekwuotu) is outside the land in dispute. What is of interest however, is that the defendants do not claim the areas on which these scattered buildings of the plaintiffs, their shrines; Olisaeloka well and farms, are located. It is the area to the north of it that the defendants say is their boundary with the plaintiffs. In that area the presence of the plaintiffs is minimal. The defendants on the other hand, would appear to have been in this area many years before the present dispute. P. W.9 (Ejike Chidolue) claimed to have seen the buildings of the defendants in this area when he carried out a survey for the defendants in 1956 or thereabout. To this extent, therefore the acts of possession on (of) this area cancel each other out and the plaintiffs do not have the edge.

By superimposition of the plaintiffs’ plan (Exh.A) and the defendants’ plan (Exh. G), the resultant plan, Exh. C, shows quite clearly the area that I have in mind. The South of the GREEN verge in Exh. C is the area predominantly occupied by the plaintiffs and which the defendants would appear to concede to them, but the area to the north of that GREEN verge is what the defendants claim to be their boundary with the plaintiffs. lt is here that the presence of the defendants is overwhelming.

This boundary is alleged to have been fixed by a court order but the order was not exhibited. On the whole, having regard to the agreement of the parties that ‘mgbu” or “mpia” bush forms the boundary, the issue must revolve itself around where this boundary is located on the “mgbu” or “mpia” bush. The plaintiffs have shown its location on Exhibits A and C. The defendants showed it on Exhibits G and C and also claim that cement pillars (now pillars removed) were planted along the boundary. While I agreed with Mr. Egonu that the cement pillars were not inserted by the order of the court, the fact that some of them are still at the boundary proves, at least, that the defendants know the extent of their boundary in “mpia” bush. This perhaps explains why the defendants have even conceded some of the land in dispute as belonging to the plaintiffs. From the evidence before me, the plaintiffs have not made out a case for declaration of right of customary occupancy to “Okofia” land in dispute. They admit that “mgbu” forms their boundary with the defendants but the “mgbu” on Exhibits A and C does not extend to the Onitsha/Awka Road where they claim to commence their boundary with the defendants. Exhibits A and C appear also to concede the “mgbu” bush as belonging to both parties, but this is not supported by the evidence of the plaintiffs. This might have been enough to dispose of this relief but for the fact that on superimposition of the defendants’ plan (Exhibit G) on the plaintiffs’ plan (Exhibit A), the position of the “okofia” or “owelle” land in dispute becomes very clear.

This is shown in Exhibit C. By Exhibit C, the defendants have not made a claim to the land south of the green verge which extends from the Onitsha/Awka Road to a point marked by an “Ikpokilimodu” tree. This southern boundary divides roughly into two halves the “okofia” land claimed by the plaintiffs. In view of this concession, the effect in law is that the plaintiffs are entitled to the lease of the land claimed by them (see Okechukwu & ors. v. Okafor & ors. (1961) 2 SCNLR 369; (1961) All N.L.R. 685 at 688).

This portion commences with the green point on the Onitsha/Akwa Road in Exhibit C (which corresponds with the concrete pillar shown in Exhibit G at a point marked as “From Onitsha Ms.5”) down to the beginning of “mgbu” bush of the plaintiffs and southwards to the point terminating with the “ikpokilimodu” (or ikpekeloodu as it is spelt in Exhibit G) tree. To the north of this same green verge, the plaintiffs are not entitled to the declaration sought……………….What the plaintiffs seek is an order of court decreeing the “mgbu” bush as the boundary of the parties and that the same be marked out with concrete pillars. The plaintiffs, as I have observed earlier, also said that what they call “mgbu” bush is called “mpia” by the defendants. As I also observed earlier, the plaintiffs appear to make the “mgbu” bush communal to both parties but this is not supported by the evidence.

The defendants, on the other hand, have shown the portion of “mpia” bush belonging to the plaintiffs (they call it “mpia” bush) and also shown the portion belonging to them (which they call “mpia/Ogidi” bush). The dividing line of the “mpial Nkpor” bush and the “mpia/Ogidi” bush is the green verge to the south shown on Exhibit C which as I have observed earlier marks the area southwards which the plaintiffs are entitled to the declaration sought. This green verge to the south agrees with the pink to the south in Exhibit G which the defendants claim to be their boundary with the plaintiffs. If, as the plaintiffs concede, “mpia” is the name which the defendants gave to the bush in-between them. It means that the defendants have conceded a portion of this bush to the plaintiffs and the southern green verge on Exhibit C which agrees with the southern pink verge on Exhibit G marks the dividing line.

It is therefore possible to demarcate a boundary for the parties and I hereby demarcate it along the southern green verge on Exhibit C (which also corresponds with the southern pink verge on Exhibit G). The plaintiffs are entitled to the perpetual injunction sought, which must operate only in respect of the area to which they are granted the right of customary occupation. The injunction does not operate beyond the boundary which has been hereby decreed.”

The plaintiffs aggrieved by the decision of the trial court, appealed to the Court of Appeal, Enugu Division and in a well considered judgment of that court by Aseme, JCA, to which both Belgore and Olatawura JJCA (as they then were) subscribed, dismissed the appeal on all the issues raised and canvassed except for the one relating to the award of costs against the appellants in favour of the respondents.

The appellants still not satisfied, have now appealed to this Court, filing five grounds of appeal in support of the Notice of Appeal.

Learned counsel on both sides filed and exchanged briefs. In the brief filed by the appellants, the following 4 issues were formulated for determination. –

“(a) Was the Court of Appeal right in raising for itself issues which were not raised by the parties and on relying on the same in coming to its decision without giving the plaintiffs-appellants the opportunity to address it on those issues

(b) Was the Court of Appeal right in pronouncing an award in the judgment of the High Court to be wrong when there was no appeal against the award and relying on grounds not relied upon by the High Court in determining the plaintiffs’-appellants’ appeal

(c) Having overruled the decision of the High Court that Exhibits “H” and “J” constituted estoppel per rem judicatam and having held that the lands in dispute in the said Exhibits were not the same as the land in dispute in this cases could the Court of Appeal thereafter rely on the very same Exhibits as acts of possession in respect of the land in dispute in the present case.

(d) (i) As the parties had agreed that an “mgbu” or “mpia” constituted their traditional boundary was the Court of Appeal right in refusing or failing to determine which of the “mgbu” or “mpia” as shown in Exhibit “c” that was said to be the traditional boundary

(ii) Was the Court of Appeal right in confirming the judgment of the High Court which purported to grant to the plaintiffs appellants a relief which was contrary to their claim and in complete disregard of the judgment of the Supreme Court of Nigeria in SC.570/1965

(Iii) Was the Court of Appeal not bound in the exercise of its powers under S.16 of the Court of Appeal Act, 1976, and under Order 3 Rule 23 of the Court of Appeal Rules, 1981, as amended to set aside the order of the trial court granting a demarcation of boundary which was never claimed by the plaintiffs-appellants.”

In their brief of arguments, the respondents formulated six issues for determination. These issues are:-

“(i) Whether the land in dispute was as shown by the appellants in their plan (Exhibit “A”) or as shown by the respondents in their plan (Exh. G.).

(ii) If the plaintiffs’ plan Exh. A did not truly represent the land in dispute, whether the plaintiffs/appellants proved their claim for title to the land in dispute in the trial court as to entitle this appeal of their’s to succeed .

(iii) Whether the plaintiffs/appellants proved that they were in exclusive possession of the land in dispute to entitle them to the benefit of perpetual injunction in the trial court.

(iv) Whether, apart from Exhibits H & J, there are no other evidence/Exhibits to sustain the defendants/respondents’ plea of “estoppel” (as distinct from estoppel per rem judicatam).

(v) Whether the boundary line drawn by the trial Court was just or arbitrary (having regard to the evidence before the trial court)

(vi) Since the parties had agreed that an “mgbu” or “mpia” constituted their traditional boundary and the trial court had taken that into consideration in deciding the boundary, should the Court of Appeal interfere with the said decision (as to boundary) without proof that the said decision was perverse, or contrary to the evidence or had occasioned a miscarriage of justice”

For the purpose of this judgment both the plaintiffs and the defendants will be referred to as the appellants and the respondents respectively.

In the brief filed by the appellants issues (a), (b) and (c) covering grounds (1), (2) and (3) of the Grounds of Appeal were argued together. On issue (a) learned counsel submitted that the Court of Appeal was in error to raise and consider issues suo motu and on which it relied in determining the appeal before it, without first inviting learned counsel to address it on those issues. He particularly referred to and quoted the part of the Court of Appeal Judgment complained 6f which reads

“This plan Exhibit D shows on the southern boundary the pillars located thereon following the decision of the Native Court and confirmed by the District officer”

and submitted that this was contrary to the decision of the trial court. He argued that the statement of defence in Suit No. 012/57, particularly paragraph 3 thereof was not admitted in evidence, but what was admitted as Exhibit N. was the judgment in the consolidated suits Nos. 0.24/56 and 0.12/57. He submitted that the Court of Appeal was wrong in treating paragraph 3 of Statement of Defence in 12/57 as an admission of title in favour of the present respondents.

On the issue of estoppel, it was the submission of learned counsel for the appellants that since the trial court did not decide that an estoppel by conduct or any admission operated against the appellants by virtue of Exhibits “B” and “N” the Court of Appeal was wrong to raise the issue suo motu and rely on it in dismissing the appeal without hearing learned counsel on both sides.

On Exhibits “H” and ”J’ raised in issue (c), learned counsel argued that since the trial court based its judgment on the erroneous view that the lands litigated in these exhibits were the same as the land in dispute in the present appeal which decision was over-ruled by the Court of Appeal, he submitted that the Court of Appeal had no alternative than to enter judgment for the appellants in respect of the land in dispute, more so when it commented that the requirements of res judicata in respect of Exhibit Hand J were not satisfied.

Learned counsel also submitted that there was no cross appeal on these issues.

Answering these arguments, learned counsel for the respondents contended that even if there was no cross appeal by the respondents, the Court of Appeal, under Section 16 of the Court of Appeal Act, 1976, has been vested with wide powers in dealing with any case on appeal before it and therefore has full jurisdiction over the whole proceedings as if it were the court of first instance. He argued that in the passage of the judgment complained of, the Court of Appeal was not drawing any conclusion, but only examining the pleadings and the case of the respondents. Learned counsel submitted that the appellants were quoting the Court of Appeal out of con as it did not, in the passage quoted raise any issue suo motu or draw any conclusion.

In relation to Suits Nos. 0/24/56 and 0/12/57 admitted as Exhibit N, he submitted that it was not only the judgment in these cases that was tendered but also the entire proceedings in them. He particularly referred to paragraph 16 of the Amended Statement of Defence in which he specifically pleaded the contents of paragraph 3 of the statement of defence in 0/12/57. He emphasized that the argument of learned counsel for the appellants that the Court of Appeal treated paragraph 3 of the Statement of Defence in 0/12/57 as an admission was untenable and submitted that all that the Court of Appeal did was the examination of the pleading in that case and its corresponding judgment as was done in ALADE V. ABORISHADE (1960) SCNLR 398, (1960) FSC. (VoI.5) 167 at 173, a decision referred to and relied upon by the appellants. It was also the submission of the respondents’ counsel that it was futile for the appellants to argue that they did not concede title to the respondents in Exhibit B in respect of the land in dispute as in that exhibit, the Supreme Court observed that “Mr. Ofodile conceded that appellants are not contesting the issue of title but argued that there was evidence of long possession by the defendants/appellants.”

On the issue of the litis contestatio i.e. the subject matter in dispute, learned counsel submitted that the appellants pleaded in paragraph 17 of the Amended Statement of Claim that the land in dispute in Suit No. 122/62 as shown in plan No.EC/5/63 admitted as Exhibit D, “virtually corresponds with the plaintiffs’ okofia” which is the land in dispute in the present case. He submitted on the evidence before the court, it was right for the court to reach the conclusion that Exhibit G, the Respondents’ plan which corresponds with Exhibit D and also Exhibit C – the plan of superimposition on Exhibits A & G accurately represents the land in dispute, but not Exhibit A.

With regard to Exhibit H and J, the counsel submitted that though they may not satisfy all the conditions constituting res judicata, but however constituted acts of possession as concluded by the Court of Appeal that “From the superimposed plan – Exhibit C part of the land the Umusiomes now claim includes part of the land which Ikenga Ogidi won in Suit No.D/12/56 – Exhibit N”. He said that the duty is on the appellants to prove their case and not to rely on the weakness of the defendants’ case and that they have failed to do so as found by the trial court and the Court of Appeal.

It is not in doubt that this is a case involving series of previous litigations between the same parties or their privies over virtually the same area involving the same piece of land. This is clear from the pleadings of both parties and the evidence led in support thereof.

On the first issue raised by the appellants, it is not correct to say that the pleadings in Suit No.0/12/57 were not admitted in evidence but only the judgment in what case. Learned counsel for the appellants objected to the admission of pleading in Suits 0/24/56 and 0/12/57 (consolidated) when P.W.2 was giving evidence, and contended that only the judgments were admissible. The objection was over-ruled by the learned trial judge and remarked –

“Suits No. 0/24/56 and 0/12/57 (consolidated) admitted in evidence as Exhibit N”.

in short the issues raised here were not raised suo motu by the Court of Appeal. They were issues raised and canvassed in the High Court. From the findings of the learned tria1judge, he did not solely base his judgment on Exhibit N. His conclusion is that –

“From Exhibit N, it is clear that the Umusiome was sleeping when Ikenga woke her up to join in the combat. By Exhibit D the Supreme Court sent Umusiome back to slumber. By Ikenga’s own conduct, it is estopped from contending that Umusiome ‘stood by’ in Exhibit N. However having aroused Umusiome from sleep, Ikenga again sued her, this time for trespass and injunction. This claim was by Exh. B dismissed on appeal, but neither Exhibit O nor Exhibit B confers any title to ‘Okofia’ land on the present plaintiffs”.

On this, the learned Justice of the Court of Appeal commented –

“One of the consolidated suits No.0/24/56 (Exh.N) was an action by Michael Okongwu and 2 Ors, representing the four quarters of Nkpor (Isingwu, Obuba, Mbachu and Amofor) v. Agugogbua Kpajie & Ors., representing Ikenga Ogidi quarter of Ogidi claiming declaration of title to land called Okofia, damages for trespass and injunction. In Suit No.0/12/57 Chief Agugogbua Kpajie and ors representing Ikenga Ogidi sued Michael Okongwu representing the five quarters of Nkpor including Umusiome quarters, claimed declaration of title to land called Owelle, 3700 damages for trespass and injunction. Both suits were consolidated for trial and the proceedings and judgment in the suits are pleaded and tendered in evidence in the present action as Exh. N. I must observe that what are relevant in Exh. N are the pleading and judgment, as evidence of witnesses in that case cannot be evidence in the present action except where it is used to cross examine a witness, see Alade v. Aborishade (1960) SCNLR 398, (1960)5 FSC 167 at 171; The Stool of Abinabina v. Chief Enyimadu (1953) 12 WACA 171. In paragraph 3 of the Statement of Defence in the cross action, that is suit 0/12/57, in which some Umusiome people were parties, it was pleaded that they (Umusiomes) do not lay any claims on any part of the land in dispute as their own or belonging to their own quarter and will state that Umusiome’s land is not included in the land in dispute and that they are not in any way interested on the land now in dispute.”

As rightly stated by the Court of Appeal, evidence of witnesses in a previous case cannot be used as evidence in another action save for the purpose of cross examination See Alade v. Aborishade (supra). It is only the pleadings of the previous case, if properly pleaded that can be used in a later case in order to show what was in the earlier case and to point to the inconsistency on the part of one party or the other to the later case. See also on this point the judgment No. SC.314/1970 Soetan v. Oluga delivered on 16th April 1971 – unreported, but quoted at page 618 Vol.9 – DigestofSupreme Court Cases (per Udo Udoma, J.S.C). What the learned trial Justice of the Court of Appeal did was to examine and compare the pleadings in Exh. N with those on Exh.O and concluded –

“It is not surprising that Umusiomes were excluded in the Supreme Court judgment because they had conceded title to the land to the Ikenga Ogidis. By the provisions of S.150 Evidence Act the Umusiomes are estopped from denying their concession of title to Ikenga Ogidis.”

Even if the concession mentioned by the learned Justice of the Court of Appeal was ignored, there was still evidence enough give judgment in favour of the respondents. He went further and stated –

“It must be noted, that plan No.5/63 was tendered as Exh.C by the Ikenga Ogidis (as plaintiffs) in suit No.0/122/62 in which the Umusiomes conceded title to Ikenga Ogidis. Although the concession was with respect to area verged Green in plan 5/63, the Umusiomes have in the present action filed plan ECAS/65/77 which does not cover the same area as in plan EC/5/63. The above was the controversy between (the parties before the Umusiomes instituted their instant Onitsha High Court Suit No.0/52/73”

Having said that, as regards the identity of the land in dispute, the learned justice of the Court of Appeal before agreeing with the trial court, examined the evidence and opined –

“This plan (EC/44/45) Exh.C referred to in the Judgment in suit0/12/57 was put in evidence as Exh.A2 in the later suit No. 0/122/62, and as Exh. F in (he present action and it covers the same area of land as in plans EC/5/63 (Exh.D) and plan MEC/65/79 (Exh.G). The High Court judgment in the consolidated suit No.0124/56 and 0/12/57 went on appeal to the Federal Supreme Court as FSC/208/1960 but the appeal was dismissed.”

He then adopted the findings of the learned trial judge where the latter said –

“By Exh. C the defendants have not made claim to the land south of the Green verge which extends from the Onitsha/Awka Road to a point marked by Ikpokilimodu tree. This southern boundary divides roughly into two the okofia land claimed by plaintiffs. In view of this concession the effect in law is that the plaintiffs are entitled to the lesser of the land claimed by them see Okechukwu & Ors v. Okafor & Ors (1961) All NLR 685 at 688 (1961) 2 SCNLR 369. This portion commenced with the Green point on the Onitsha/Awka Road in Exh.C (which corresponds with the concrete pillar shown in Exh.G at a point marked as “from Onitsha MS”) down to the beginning of Mgbu bush of the plaintiffs and southwards to the point terminating with the Ikpokilimodu (or Ikpekeleodu as it is spelt in Exh.G) tree,”

From the pleadings, it is not correct for the appellants to say that the trial court was wrong in demarcating a boundary that was not claimed. In fact what the appellants claimed in their plan Exh. A was found to be on the evidence adduced, a larger parcel of land than what they are entitled to. The land in dispute was properly identified by Exhibits C, B, and G and in that regard the trial court, as affirmed by the Court of Appeal, found that the appellants had failed to prove the case for a declaration of title of customary right of occupancy to Okofia land as claimed in Exh. A. The learned trial judge however found from the evidence adduced that the respondents had successfully proved previous litigations pleaded in their statement of defence and that it was possible to demarcate the boundary,’ See KWADZO v. ADJEI, (1944) 10 WACA 274. In that regard, he made an order demarcating the boundary between the respondents and the appellants in line with their plan Exh. G. He said –

“What the plaintiffs seek is an order of court decreeing the “mgbu” bush the boundary of the parties and that the same be marked out with concrete pillars. The plaintiffs, as I have observed earlier, also said that what they call “mgbu” bush is called “mpia” by the defendants. As I also observed earlier, the plaintiffs appear to make the “mgbu” bush communal to both parties but this is not supported by the evidence. The defendants, on the other hand, have shown the portion of “mpia” bush belonging to the plaintiffs (they call it “mpia” bush) and also shown the portion belonging to them (which they call “mpia/ogidi” bush). The dividing line of the “mpia/Nkpor” bush and the “mpia/ogidi” bush is the green verge to the south shown on Exhibit C which as I have observed earlier marks the area southwards which the plaintiffs are entitled to the declaration sought. This green verge to the south agrees with the pink to the south in Exhibit G which C the defendants claim to be their boundary with the plaintiffs. If, as the plaintiffs concede, “mpia” is the name which the defendants gave to the bush in-between them, it means that the defendants have conceded a portion of this bush to the plaintiffs and the southern green verge on Exhibit C which agrees with the southern pink verge on Exhibit G marks this dividing line. It is therefore possible to demarcate a boundary for the parties and I hereby demarcate it along the southern green verge on Exhibit C (which also corresponds with the southern pink verge on Exhibit G).”.

On issues (d) (i) and (ii) covered by Grounds 4 and 5 of the Grounds of Appeal, learned counsel submitted that it was common ground that “mgbu” or “mpia” bush constituted the traditional boundary and that despite the clear claim of the appellants for a declaration that “mgbu” bush is the boundary between them and the respondents, the learned trial judge made an arbitrary order demarcating the boundary in contravention of Exh. B which is the Supreme Court judgment in SC.570/75. He submitted that the Court of Appeal erroneously refused or failed to determine which of the “mgbu” or “mpia” bush constituted the traditional boundary between the parties which he said was clearly shown in Exhibits A and F.

On issue (d)(iii) which was based on additional ground 6, learned counsel submitted that the Court of Appeal erred in not setting aside the arbitrary order of demarcation of boundary made by the trial court as that was not the appellants’ prayer in item (iii) of their claim. He urges this Court to set it aside.

In reply, learned counsel for the respondents submitted that the demarcation decreed by the trial court cannot be described as arbitrary. He argued that although the appellants’ prayed the trial court to decree that the boundary between the appellants’ and the respondents’ lands is the “mgbu” or “mpia” bush as called by the appellants and the respondents respectively, the appellants had failed to show within the “mgbu” or “mpia” bush claimed by appellants to be communally owned, what constituted the boundary or that the “mgbu” bush is by itself, the alleged boundary, He submitted that learned trial judge was able to identify the boundary between the parties after a painstaking consideration of the evidence adduced by the contestants, particularly Exhibit C which is the resultant plan from superimposition of Exhibits A and G, the plans of the appellants and the respondents respectively. Learned counsel also submitted that in 0/122/62 which went on appeal to the Supreme Court as SC.570/65 – Exhibit B – the claim was for trespass and damages and not for demarcation of a boundary, and therefore the demarcation decreed by the trial court is not contradictory to, nor in contravention of Exhibit B. Learned counsel further argued that even if neither of the parties had asked for the demarcation of a boundary along the line demarcated by the trial court, and even if the respondents did not file a cross appeal, the appellant cannot complain so long as the justice of the case warranted it in consonance with evidence adduced and accepted by the learned trial judge. He urged this court to dismiss the appeal as no miscarriage of justice was occasioned.

In a case involving demarcation of boundary, the acid test is whether a surveyor, taking the record could produce a plan showing accurately the land to which title has been given – see Kwadzo v. Adjei (supra). From the evidence adduced and accepted by the learned trial judge, it is possible to ascertain with a degree of accuracy the boundaries of the land in dispute, particularly the northern boundary, and on this the learned trial judge found as follows-

“From Exhibit C “mpia/ogidi”bush appears to be one bush and what learned counsel called the mpia/ogidi bush is in the area which the plaintiffs did not put in dispute. In other words, mpia/ogidi bush (though written in two places on Exhibit G) constitutes the integral “mpia” bush of the defendants, in contrast to the “mpia/Nkpor” bush which the defendants conceded as belonging to the plaintiffs. Furthermore, the superimposition of the two plans (i.e. Exhibit C) shows the two “mpia/ogidi” bush of the Defendants as including the “mgbu” bush of the plaintiffs and it is, therefore, not correct to say that the middle “mpia/ogidi” bush agrees roughly with the plaintiffs “mgbu” bush. If the “mgbu” bush of the plaintiffs as shown on their plan represents the boundary between the parties, it should have touched the Onitsha/Awka Road (as the 2nd plaintiff testified in his evidence), where the boundary of the parties appears to commence. The defendants, on the other hand, showed their mpia bush as being the Onitsha/Awka Road, but the plaintiffs’ mgbu bush hangs somewhere in between Onitsha/Awka Road and the “ikpokilimodu” tree which from evidence of both parties agree to be the southernmost portion of the land in dispute.”

XXX XXX XXX XXX XXX XXXXXX XX

As I also observed earlier, the plaintiffs appear to make the “mgbu” bush communal to both parties but this is not supported by the evidence. The defendants, on the other hand, have shown the portion of “mpia” bush belonging to the plaintiffs (they call it “mpia” bush) and also shown the portion belonging to them (which they call “mpia/ogidi”bush) is the green verge to the south shown on Exhibit C which as I have observed earlier marks the area southwards which the plaintiffs are entitled to the declaration sought. This green verge to the south agrees with the pink to the south in Exhibit G which the defendants claim to be their boundary with the plaintiffs. If, as the plaintiffs concede, “mpia” is the name which the defendants gave to the bush in between them, it means that the defendants have conceded a portion of this bush to the plaintiffs and the southern green verge on Exhibit C which agrees with the southern pink verge on Exhibit G marks this dividing line. It is therefore possible to demarcate it along the southern green verge on Exhibit C (which also corresponds with the southern pink verge on Exhibit G).”

These findings show clearly that the boundaries (If the land in dispute were identified and ascertained and the learned trial judge in my view is perfectly justified in demarcating it along the southern green verge on Exhibit C (which also corresponds with the southern pink verge on Exhibit G). It is the case of the respondents that the “mgbu” or “mpia” bush claimed to be the traditional boundary between the parties has long been cleared by the appellants and that the other bush now being claimed to be the boundary is inside the respondents’ Owelle land. Even P.W.2 admitted in evidence that they “cleared a portion of our mgbu and built houses.” The evidence of PW.9, Ejike Chidolue, the surveyor employed by the appellants to produce Exhibit A further weakened the appellants’ case when he compared and contrasted Exhibits A and G and other survey plans used by the parties in previous litigations affecting the same parcel of land in dispute. In his evidence under cross-examination, he said –

“I know the parties in this suit. I know the land in dispute, I remember making a plan for the defendants in 1956 and 1957. I also remember making a plan for the defendants (then plaintiffs in Suit No.0/122/62), and the number was EC.5/63. This is the plan and it is in respect of the land in dispute…..Plan No.EC.5/63 admitted in evidence and marked Exhibit D. (Without objection). I see the concrete boundary pillar on Enugu/Onitsha Road on Exh. B. It is the same as Ms (i.e. milestones) which Ikenga showed as their boundary on Exhibit D. The concrete pillar boundary (i.e Ms.5) is on the right of the road from Onitsha to Enugu. I do not know if it is conventional to show the mile posts to Enugu on the left rather than on the right. I see Ms.5) 1/2 and Ms. 6 on Exhibit D. Both are on the left side of the road. Going down the boundary from Ms.5, there is another concrete boundary pillar, which I saw. It is shown on Exhibit D. They were planted before I surveyed the land. There are 3 other concrete boundary pillars on the boundary alleged removed, but shown on Exhibit D. I see Exhibit C. The apex of GREEN on Exhibit C (shown as IKPOKILIMODU is the same as the apex of Exhibit D. The area verged YELLOW in Exhibit D is identical with PINK on North/East and GREEN on South/West in Exhibit C. The entire area verged PINK in Exhibit D is the same as GREEN in Exhibit C. It is the land in dispute in 0/122/62 that is shown as GREEN in Exhibit C. XXXXXXXXXXXXXXXXXX XXXXX. I see Exhibit D. Where I wrote “See Plan dated 24/8/31 by Victor Coker, L.S”, along a boundary means the boundary where the writing occurs agrees with the boundary in Coker’s plan. I cannot say that all the boundaries in Exhibit D agree with the boundary in Coker’s plan. It agrees with it only in respect of the northern boundary.”

It was as a result of the meticulous examination of the evidence and particularly that of PW.9 and the excerpt above, that the learned Justices of the Court of Appeal, in agreeing with the learned trial judge, commented as follows –

“From the evidence of 9PW it clearly shows that the three plans used in previous litigations Mr. Coker’s plan Exhibit E, plan No.EC/44/55 Exh. F and .plan No.EC/5/63 Exh. D covers the same area of land as in the Green area on the superimposed plan Exh. C which also agrees with Ikenga Ogidis’ plan No.MEC/65(79 Exh.G in this present suit.” I consider that the appellants had not, as pleaded by them, that they had successfully and effectively too, proved their case. The respondents on the other hand, had offered evidence in proof of possession of the land in dispute, particularly the northern boundary, such as the character and the condition of the land in dispute permitted that the presumption of ownership goes with such possession which the appellants failed to displace.

And without going into greater analysis of the evidence vis-a-vis the issues raised in this appeal, I think I have said enough to demonstrate that the conclusions reached by the lower court and the court below are unimpeachable, notwithstanding the fact that some issues were raised suo motu by the Court of Appeal and considered without hearing learned counsel on the same. No miscarriage of justice was occasioned as a result. Therefore having regard to the overwhelming evidence unaffected by these issues, I see no reason to interfere with the concurrent findings of fact by both trial court and the Court of Appeal.

In the result, I dismiss this appeal and affirm the decision and the orders of the Court of Appeal. I also award N1,000.00 costs to the respondents against the appellants.

---

SC.27/1987