Sylvanus Odife & Anor. V. Geofrey Aniemeka & Ors. (1992)

LawGlobal-Hub Lead Judgment Report

O. OGWUEGBU, J.S.C.

The plaintiffs brought an action in the High Court of the then East Central State, Onitsha Judicial Division against the defendant claiming the following reliefs:-

“1. Declaration of title to the said Odoachala land.

2. 200.00 damages for trespass.
3. An Injunction to restrain the defendants, their servants and agents from any further act of trespass on the said land.”

The plaintiffs brought the action for themselves and on behalf of the people and elders of Isienyinato Ochana, Isinyi, Nando. The defendants were sued for themselves and on behalf of Umuakiasi Ochana, Isinyi Nando.

The plaintiffs in paragraph 2 of their amended statement of claim averred that the defendants are people of Umu-Akiasi or Umuchaa Ochana Isinyi Nando in Anambra division and that they are strangers from Achanna in Awka Division.

In paragraph 3 of the said amended Statement of Claim, the plaintiffs averred:-

“The town Nando has three quarters who are not necessarily related by blood. The quarters are 1. Ikenga. 2. Ezi and 3. Ifite. Ezi has three quarters viz:-(a) Ubaru Isioye, (b) Akamanato and (c) lsinyi, lsinyi has Ochana, Umuokpalora, Etiti and Obunagu Na Mmuozu. Ochana has two sub-divisions viz:- Ezieke and Amagu. Ezieke has three divisions viz:- 1. Enuagu, 2. Umuajitora and 3. Odoti. Amagu has three divisions viz:- 1. Umu Uchaa or Umu Akiasa, 2. Umumozo, and 3. Umuiveatu. The three groups of Enuagu (1st plaintiff), Umuiveatu (2nd plaintiff) and Umumozo form the plaintiffs’ group called Isienyinato. The Isi Ana or head of Isinyi is Enuagu family of Ezieke Ochana.”

The plaintiffs averred in paragraph 4 that they are the owners in possession.

In paragraph 6, they averred that the land in dispute is part of a large area of virgin forest acquired by the plaintiffs’ forebear OGBUEVI ENUAGU who came from Aba Town in Njikoka Division and settled with his family in Inyi Forest many years ago. Inyi Fore was unoccupied virgin land and the land in dispute is in Inyi Forest. Ogbueyi Enuagu named his new found land Isinyi hence the village is called Isinyi in Nando.

In paragraph 9, the plaintiffs averred that after Ogbuevi Enuagu and his descendants had become firmly established in Isinyi village and exercised unrestricted dominion over Isinyi forest (including the land in dispute), he allowed the following groups to settle on Isinyi Forest – Ajitora, Odoti, Umuchaa, Umumozo and Umu iveatu. The families of Ogbuevi Enuagu, Umuiveatu and Umumozo integrated into his own family fold and formed Isienyinato quarter of Ochana Isinyi. The integrated families were given conditions for their integration and they took an oath. They averred that the defendants’ ancestors took the same oath and kept it until 1920.

In paragraph 2 of their further amended statement of defence the defendants denied that the plaintiffs are people of Isienyinato Ochana Nando but maintained that they are people of Ezieke Ochana Isinyi Nando. They also averred that the plaintiffs do not represent Umu-Mozo family in this action as alleged. The defendants went on to aver that they are people of Umu-Uchaa and Umu-Mozo Amagu Ochana Nando. They denied that they are ever called Umu Akiasa. They stated that they are not strangers as alleged by the plaintiffs.

In paragraph 3 (a) of their amended statement of defence, the defendants denied that there is any group of people known by the name “lsienyinato”. They also averred that they are owners in possession of the land in dispute from time beyond human memory having inherited same from their ancestors DIOKE and DUMALI. The case was tried on the pleadings.

After assessing and evaluating the evidence of the parties, the trial Judge held that the traditional evidence led by the plaintiffs appeared more credible than that of the defendants. He declared that plaintiffs were entitled to the Customary right of Occupancy over the piece of land in dispute, awarded N50.00 as general damages and made an order of injunction against the defendants.

The defendants were aggrieved and dissatisfied with the decision of the trial court. They appealed to the Court of Appeal and complained of various irregularities in the trial.

On the traditional evidence, the learned Justices of the Court of Appeal at page 264 of the record held as follows:-

“This was a finding of fact by the trial Judge who had seen and heard the witnesses. We ought not disturb the finding. See Ebba v. Ogodo (1984) 4 S.C. 84 (1984) 1 SCNLR 372. This finding alone would have been sufficient to decide the issue of title in favour of the plaintiffs.

There is however an important aspect which fundamentally impaired the case of the plaintiffs. From the very way the plaintiffs framed their case in the pleadings, it was from the beginning doomed to fail.”

The Court of Appeal also held that the trial court did not evaluate the evidence of P.W.4 and D.W.4 and that the action of the plaintiffs was not properly constituted. The appeal of the defendants who were appellants in the Court of Appeal was allowed and the judgment of Awogu. J. (as he then was) was set aside in its entirety.

The plaintiffs appealed to this Court against the decision of the Court of Appeal. They filed two grounds of appeal, namely:

“A. The Court of Appeal having held as follows:-

‘The trial Judge compared the traditional evidence argued by both parties. He then said at page 133 of the Records: “I hold therefore that the traditional evidence led by the plaintiffs appears more credible than that of defendants.” This was a finding of fact by the trial Judge who had seen and heard the witnesses. We ought not to disturb the finding. See Ebba v. Ogodo (1984) 4 S.C. 44 (1984) SCNLR 372. This finding alone would have been sufficient to decide the issue of the case in favour of the plaintiff.

Erred in law and misdirected itself in proceeding to allow the appeal and to dismiss the Respondents’ (now appellants) case.

PARTICULARS OF ERROR AND MISDIRECTION

(i) In the pleadings the existence of the plaintiffs as a group was not in issue but the name of the group.

Paragraph 2 and 3 of the Amended Statement of Defence are as follows:

“2. The defendants deny that the plaintiffs are a people of ISIENYINATIO OCHANA NANDO but maintain that they are the people of Ezieke OCHANA NANDO……..

3. Save and except that the defendants deny that there is any group of people known by the name “ISIENYINA TO” and save and except that the defendants deny that the head of ISIANA of ISINYI is ENUAGU FAMILY of EZIEKE OCHANA, the defendants admit the rest of paragraph 3 of the Amended Statement of Claim.”

(ii) The appellants claim title through ENUAGU family which was found by the Court by the acceptance of the appellants’ traditional history to be original owners of the land in dispute.

(iii) The learned trial Judge found as follows: “Thus, while there is no evidence showing how IVEAGU and MOZO came to be elevated or assimilated into the ENUAGU group thereby becoming co-owners of the land in dispute it suffices that the Enuagu group have so elevated them.”

The Court of Appeal misdirected itself and erred in law by dismissing the plaintiffs/respondents’ (now appellants’) case instead of entering a non-suit in the circumstances.

PARTICULARS OF MISDIRECTION AND ERROR

(i) By dismissing the plaintiffs’ /respondents'(now appellants) claims which claims were prosecuted through ENUAGU group’s root of title the Court of Appeal in effect dismissed the ENUAGU group’s title to the land in dispute and thereby created ESTOPPEL per rem judicatam against the ENUAGU group in favour of the present respondents (defendants).

(ii) The fact that a land owning group made strangers co-owners of a piece of land can not be a valid group (sic) for depriving that group of its ownership of the land as against a (sic) defendants who have been adjudged not to have a better title.

(iii) There was credible evidence that ISIENYINATO IS ANOTHER name for ENUAGU/IVEATU/MOZO and there is unchallenged evidence of the origin of ISIENYINATO by 1st plaintiff, P.W4, P.W.5, and P.W.7

(iv) Plaintiffs/appellants claim title through ENUAGU while the defendants/respondents though settlers put up adverse claim to title through DIOKE and DUMALI who were adjudged not to be the owners of the land in dispute.”

Four issues were identified by the appellants for determination in the appeal:-

1. Whether the Court of Appeal was right in dismissing the claims of the plaintiffs/appellants for want of capacity of the plaintiffs to sue.
2. Whether the Court of Appeal was in any case right to dismiss the plaintiffs’ claims for want of capacity to sue.

3a. Whether, having regard to the fact that the root of title to the land in dispute on which the plaintiffs/appellants relied was that of ENUAGU as original owners and having regard to the fact that the Court of Appeal accepted the traditional evidence of the ENUAGU unit as the original owners and since the two other units comprising the plaintiffs were not setting up title different from the title of ENUAGU, the Court of Appeal was right to dismiss the plaintiffs’ claims.

4. Whether, in the circumstances of this case, the Court of Appeal was right to dismiss the plaintiffs’ case instead to entering an order of non-suit.”

The learned counsel for the plaintiffs/appellants submitted that the existence of the plaintiffs/appellants as a group was never in issue. He said that what was controverted was the name of the plaintiffs/appellants. The court was referred to paragraphs I and 3 of the statement of claim and paragraphs 2 and 3(a) of the statement of defence. It was submitted that the composition of the plaintiffs appellants’ group as such was not in issue and that there was no need for the Court of Appeal to go in search of evidence in relation to the composition of the plaintiffs’ group.

The plaintiffs/appellants also complained against the holding of the Court of Appeal that there was no factual or legal basis for the existence of Isienyinato when there was credible and unchallenged evidence that Isienyinato is another name for ENUAGU/IVEATU/MOZO by P.W.4, P.W.5 and P.W.8.

The appellants’ counsel maintained that this is rather a case of the original owners assimilating two other groups as co-owners and this could not prejudice the defendants in any way since they (defendants) have been found not to be the owners of the land. He referred to the case of Anyaoke v. Adi (1985) 1 NWLR(Pt.2) 342.

The appellants’ counsel further said that the Court of Appeal by dwelling on the competence of the plaintiffs to sue seemed to be confusing juristic personality and juridical personality because Isienyinato may not be a juristic personality but it is a de facto community (juridical personality) on whose behalf the plaintiffs on record expressly stated that they are suing. We were referred to the case of N.B.A. v. Gani Fawehinmi (1986) 2 NWLR (Pt.21) 224 and Gani Fawehinmi v. N.B.A. (No.2)(1989) 2 NWLR (Pt.105) 558.

It was finally submitted on behalf of the appellants that by dismissing the plaintiffs/appellants’ claims in their entirety, the Court of Appeal by its decision created estoppel per rem judicatam against ENUAGU unit which the very court found as a fact were the original owners of the land and in favour of the defendants whose traditional evidence as the original owners had been rejected.

It was contended that the fact that Enuagu unit sued as Isienyinaro should in no way enhance the title of the defendants/respondents or give them a better title than Enuagu unit to entitle them to have the Enuagu claim to title dismissed.

The learned appellants’ counsel submitted that Iveatu and Mozo which joined Enuagu unit to sue as plaintiffs never disputed the title of Enuagu unit as the original owners as opposed to the defendants/respondents who put up a rival claim to title by basing their root of title on Dioke and Dumali who were adjudged not to be the original owners of the land in dispute.

We were urged to allow the appeal, set side the decision of the Court of Appeal and restore that of the High Court or in the alternative, order a non-suit.

In reply, the learned counsel for the defendants/respondents referred the court to paragraph 2, 3a and 6 of further amended statement of defence as well as paragraph 3 of the amended statement of claim. He maintained that by the pleadings, the defendants/respondents maintained that there was no group known as Isienyinato. They said that the 1st plaintiff was from Enuagu in Ezieke while the 2nd plaintiff is from Umuiveatu. Enuagu and Iveatu are from two different sections of Ochana, Isinyi Nando.

Respondents’ counsel further stated that the trial Judge appreciated the fact that the right of the plaintiffs/appellants to bring the action was in issue and the issue was taken up again by the defendants in the Court of Appeal. He stated that this issue was rightly decided in favour of the defendants in the Court of Appeal.

It was also contended on behalf of the respondents that in view of the pleadings, the plaintiffs/appellants had the onus of proving their title to the land in dispute either by traditional evidence or exclusive possession over the years or by both and they failed in both.

The learned respondents’ counsel submitted that if the traditional history of both parties is in conflict as in this case, the court should determine which is more probable by reference to the facts in recent years as established by evidence and the trial court failed to apply this test.

The respondents also contended that the Court of Appeal set aside the finding of the trial court on traditional history of the parties and also that the acts of possession and ownership of the land in dispute were in favour of the defendants/ respondents. This Court was urged to dismiss the appeal and affirm the judgment of the Court of Appeal.

I will start with the question whether the two parties joined issue on the capacity of the plaintiffs to sue. Whether the Court of Appeal was right in dismissing the plaintiffs/appellants’ claims for want of capacity will be dealt with later in the judgment.

The plaintiffs on record instituted this action for themselves and on behalf of the people and elders of Isienyinato Ochana, Isinyi Nando. The defendants were sued for themselves and on behalf of Umuakiasi Ochana, Isinyi Nando. These facts are set out in paragraphs 1 and 2 of the amended statement of claim.

In paragraph 3 of the amended statement of claim, the plaintiffs/appellants averred that………. the three groups of Enuagu (1st plaintiff), Umu Iveatu (2nd plaintiff) and Umu Mozo form the plaintiffs’ group called Isienyinato.”

The defendants/respondents controverted these averment in paragraph 2 of the further amended statement of defence where they averred: “The defendants deny that the plaintiffs are people of Isienyinato Ochana Nando but maintain that the 1st defendant (sic) is from Enuagu in Ezieke and the 2nd defendant (sic) is from Umuiveatu in Amagu. Both Ezieke and Amagu are in Ochana, Isinyi Nando. The plaintiffs do not represent Umu-Mozo family in this action as alleged in paragraph I of the amended statement of claim ………..”

In paragraph 3(a) of the further amended statement of defence, the defendants averred: “Save and except that the defendants deny that there is any group known by the name ‘Isienyinato’ the defendants admit the rest of paragraph 3 of the amended statement of claim.”

From the above pleadings issues on the very existence and the capacity of the group known as “Isienyinato” to institute this action were sufficiently joined. It was not only the name of the plaintiffs/appellants that was controverted in the further amended statement of claim.

In issue three it was contended on behalf of the appellants that the root of title relied upon by them was that of Enuagu as the original owners and the Court of Appeal having accepted the traditional evidence of the Enuagu unit as the original owners and since the two other units comprising the plaintiffs were not setting up title different from the title of Enuagu unit, the Court of Appeal should not have dismissed the plaintiffs’ claim.

On the traditional evidence adduced by both parties, the learned trial Judge made the following findings:

“1. A comparison of the traditional evidence led by patties appears to tilt in favour of the plaintiffs.” (See page 131 lines 28 – 32 of the records of appeal) and

2. “Thus the story of the plaintiffs that Ezieke and Amagu are names for unrelated groups appears more credible. These unrelated groups came from different places and at different times to settle with Ogbuevi Enuagu. I hold therefore that the traditional evidence led by the plaintiffs appears more credible than that of the defendants.”

(See page 133 lines 1-8 of the record).

These are findings of fact on the traditional evidence which the learned trial judge made. The Court of Appeal at page 264 lines 26 – 30 of the record also held:-

“This was a finding of fact by the trial judge who had seen and heard the witnesses. We ought not dispute the finding. See Ebba v. Ogodo (1984) 4 S.C.84 (1984) 1 SCNLR 372. This finding alone would have been sufficient to decide the issue of title in favour of the plaintiffs. ”

Up to this point, the courts below were ad idem on proof of title to the land in dispute by the plaintiffs/appellants on the basis of their traditional evidence.

The Court of Appeal appeared confused when it proceeded to propound a new approach to the application of the principle enunciated in Kojo II v. Bonsie & Or. (1957) WLR, 1223 at 1226. The Court of Appeal misinterpreted the ratio. The learned Justices of the Court are saying that evidence of traditional history is not to be held conclusive unless it is in consonance with facts in recent years. (See page 275 lines 14 – 16 of the record). This is quite the contrary.

In Kojo II v. Bonsie & Or, the Privy Council held that where there is a conflict of traditional history, which has been handed down by word of mouth, one side or the other must be mistaken. The best way is to test the traditional history by reference to the facts in recent years as established by evidence, and seeing which of the two competing histories is more probable. It is only where there is conflict in the evidence of traditional history led by the parties that the principle in Kojo’s case is applied.

I am satisfied that the courts below accepted the traditional evidence of the plaintiff/appellants. There was no conflict in the traditional evidence and there was no need for the learned trial Judge to embark on the questions of possession and acts in recent times. This conclusion is also supported by the conclusion of the Court of Appeal where Oguntade, J.C.A. stated at page 275 lines 22 – 28 of the records:

“Had I been satisfied that the lower court resolved the question of title in this case solely on acts of possession, the failure of the court to consider to the advantage of the defendants the finding that they were in predominant possession of Odoachala land would have warranted a reversal of the conclusion as to title.” (Italics mine).

The finding of the learned trial Judge on the issue of title based on traditional evidence of the plaintiff was affirmed by the Court of Appeal. Where the two courts parted ways was on the consideration of acts of possession which the court of first instance should not have ventured to consider having regard to its finding on the traditional evidence.

The issue of title to the land in dispute having been resolved in favour of the appellants by the courts below, the only issue left to be determined in this appeal is want of capacity on the part of the plaintiffs.

I had earlier in this judgment come to the conclusion that the parties joined issue on it. The evidence led by the plaintiffs which the courts below accepted is that Ogbuevi Enuagu first settled on the land in dispute. Ajitora, Odoti, Umuchaa, Umu-Mozo and Umuiveatu later came. They begged Ogbuevi Enuagu to allow them stay in Isinyi forest. He allowed them after they Swore on juju that they would always acknowledge his ownership of the Isinyi forest and would not do certain acts on the land without his knowledge and consent.

I am in total agreement with the Court of Appeal that no evidence of custom or otherwise was led as to how Umu-Mozo and Umuiveatu which belong to Amagu unit of the defendants (Umuchaa) became integrated in Enuagu and christened Isienyinato. This union of Enuagu, Umuiveatu and Umu-Mozo looks like a fiction. Isienyinato is neither a juristic person nor a juridical person. Juridical personality is acquired when the law accepts and recognises the existence of such a body or unincorporated association. Even then, the capacity to sue and be sued is not thereby given by mere recognition and acceptance of its existence. See Fawehinmi v. N.B.A. (No.2) (1989) 2 NWLR (Pt.105) 558 at 580. I cannot equate the Nigerian Bar Association ‘which can sue and be sued through a representative action with the body or quarter conveniently christened Isienyinato. I am therefore satisfied that Isienyinato has no capacity to institute the action.

Whether the Court of Appeal rightly dismissed the reliefs sought is another issue. Enuagu unit has capacity to sue by its representatives. The courts below accepted the traditional evidence of the plaintiffs based on the evidence that Ogbuevi Enuagu first settled in Isinyi forest and later allowed five units which include the defendants, Umuiveatu, Umumozo and two others to settle on the land conditionally after they took an oath. Title to the land in dispute was adjudged by the courts below to be in Enuagu, Umuiveatu and Umu-Mozo which instituted the action in the name of Isienyinato.

If the action is dismissed in its entirety as the Court of Appeal had done, it amounts to taking away what the two courts below found in favour of Enuagu unit. I agree with the learned counsel for the appellants that the fact that Enuagu unit sued as Isienyinato did not in any way enhance the title of the respondents or give them a better title than Enuagu. Umuiveatu and Umu-Mozo never disputed the title of Enuagu. They rather based their claims on the root of title of Enuagu unit.

From the foregoing, I am satisfied that the dismissal of the claim in its entirety was wrong and unjust. Judgment should have been entered for Enuagu unit which the courts below accepted her traditional evidence of ownership of the land in dispute. The order of dismissal made by the Court of Appeal, created estoppel per rem judicatam against Enuagu which the same Court of Appeal found as a fact to be the original owner of the land. The judgment if allowed to stand would lead to inequitable and undesirable results.

An order of non-suit will not be made because Enuagu proved its case against the defendants/respondents. What Enuagu failed to prove is their amorphous union with Umuiveatu and Umu-Mozo. They proved their ownership of the land in dispute.

It is the duty of this court of aim at doing substantial justice between parties and not to let that aim be turned aside by technicalities.

In the result, the appeal is allowed. The judgment of the Court of Appeal dismissing the plaintiffs’ claims is set aside.

The judgment of this court is that the customary right of occupancy is awarded to Enuagu unit of Ochana Isinyi Nando in respect of the land in dispute verged PINK in Exhibit “A” and BROWN in Exhibit “C”.

The judgment of Awogu, J, as he then was is modified to that extent. The plaintiffs/appellants are entitled to costs of this appeal which I assess at N1,000.00 (one thousand naira only.) The total costs of N1,100.00 awarded against the appellants in the court below if paid should be refunded to the plaintiffs/appellants.M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Ogwuegbu J.S.C. I agree that the appeal be allowed with N1.000.00 costs to the appellants.P. NNAEMEKA-AGU, J.S.C.: This is an appeal by the plaintiff against the judgment of the Court of Appeal, Enugu Division, which had allowed an appeal against the decision of an Onitsha High Court. The High Court had granted the claim of the plaintiffs who claimed on behalf of Isi Enyi Nato for a declaration of title, damages for trespass and injunction. It found that the plaintiffs’ evidence of tradition as it relates to Enuagu, one of the three component units of Isienyi Nato as more probable than the defendants’.

The Court of Appeal agreed with the learned trial Judge’s finding that plaintiffs’ evidence of tradition as it relates to Enuagu was more probable but dismissed the plaintiffs’ case mainly because it was not satisfactorily proved how Umu-Iveagu and Umu-Mozo came to be integrated into one landowning unit with Enuagu. It further came to the conclusion that if the evidence on acts of possession and ownership were properly evaluted, it would have been found that the case of the defendants in that respect was stronger. Then it allowed the appeal and dismissed plaintiffs’ claim in its entirety.

The plaintiffs have appealed to this Court. My learned brother, Ogwuegbu, J.S.C., has fully set out the facts leading to this appeal the grounds of appeal and the issues for determination and dealt fully with them. I only wish to add my own comments on three of the issues.

One contention on behalf of the plaintiffs is that the Court of Appeal was in error to have dismissed the plaintiffs’ case after agreeing with the learned trial judge that plaintiffs’ evidence of tradition was more probable. It was contended that the court below found that it was Enuagu who first settled on the land. So the fact that Enuagu people sued as Isienyinato could not enhance the title of the defendants as, assuming but not agreeing that the other two component units of Isienyiato were strangers, that could not rightly take away Enuagu’s title to the land which they had established by credible evidence of tradition. Learned Senior Advocate for the respondents submitted that the Court of Appeal set aside the finding of the learned trial judge on traditional history and held that acts of possession and ownership were in favour of the defendants. So, the plaintiffs did not discharge the onus of proof on them.

To start with, it is not correct to say that the Court of Appeal set aside the learned trial judge’s finding on tradition. The Court of Appeal held:

“The trial Judge compared the traditional evidence called by both parties. He then said at page 133 of the record:

‘I hold therefore that the traditional evidence led by the plaintiffs appears more credible than that of the (Defendants.’

This was a finding of fact by the trial Judge who had seen and heard the witnesses. We ought not to disturb the finding. See Ebba v. Ogodo (1984) 4 S.C. 84 (1984) 1 SCNLR 372. This finding alone would have been sufficient to decide the issue of title in favour of the plaintiffs.”

Now it has been pointed out several times that once a trial court in a land dispute accepts one of two conflicting versions of evidence of tradition in a dispute as to title and that acceptance is not faulted on appeal, that is virtually the end of the matter. Evidence of acts of possession becomes unavailing unless it is of such a nature as to oust the title of the true owners by, say, the doctrine of acquiescence or long possession. See on this: Da Costa v. Ikomi (1968) 1 All NLR 394 Sanyaolu v. Coker (1983) 1I SCNLR 168, p. 182. Obaseki, J.S.C. put this principle succinctly in O.K.O. Mogaji & Ors v. Cadbury Nigeria Limited (1985) 2 NWLR (Pt.7) 393, at p. 431 where he stated:

“It is my opinion that where the root of title is known and pleaded and not lost in antiquity and historical oblivion, the circumstances for any inference of title created by acts of ownership does not arise.”

I entirely agree with him in this. This principle has been reiterated in many decided cases, including – Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511; at pp. 548 – 550 Nzekwu & Ors. v. Nzekwu & Ors. (1989) 2 NWLR. (Pt 104) 373, Jegede & Ors. v. Gbajumo & Ors. (1974) 10 S.C. 183, p. 187. Indeed, as was stated in the old and celebrated case of Ekpo v. Ita (1932) 11 NLR 68, at p. 69, it is when the evidence of tradition is inconclusive that such a case is decided on a question of facts, that is acts of possession and other recognized means of proving title. Indeed, quite often once the evidence of tradition called by one of the parties is accepted, any evidence of possession by the party which was not permitted by the true owner is regarded as acts of trespass. In the instant case, as no question of laches, or acquiescence arose, the acceptance of plaintiffs’ evidence of tradition should have made it unnecessary for the Court of Appeal to go into acts of possession.

Also, on the accepted evidence of tradition, it was Enuagu who first settled on the land in dispute. What was disputed was how Urnu-Iveatu and Urnu-Mozo got assimilated to Enuagu as the land owning unit. If the Court of Appeal was not satisfied with the evidence on that disputed issue, it is, in my view, no valid ground for dismissing the plaintiffs’ case in its entirety. Dismissal of the action in the circumstance, as learned counsel for the appellant has rightly observed, created an estoppel per rem judicatam in favour of the defendants who on the accepted evidence of tradition, were strangers to the land. It is in order to avoid such unjust situations that courts have usually given to parties the judgment they deserve in spite of any problems that may arise in their obtaining or proving a proper order of representation in a representative action. See on this:

Adegbite v. Lawal (1948) 12 W.A.C.A. 398;

Ndokubo & Anor v. Bob-Manuel & Ors. (1967) 1 All NLR 113;

Ubagu & 15 Ors. v. Okachi & 4 Ors. (1964) 1 All NLR 36.

In the instant case, it will be unjust to deny Enuagu plaintiffs’ entitlement to the land in dispute, the root of title to which they have proved on accepted evidence, simply because the court held that they did not prove that Urnu-Iveatu and Umu-Mozo owned the land jointly with them and the court found that the assimilation of Umu-Mozo and Umu-lveatu to Enuagu owners was not proved. The justice of the situation demands that Enuagu should not be denied the title that belongs rightly to them simply because they failed to prove the capacity of Isi Enyi Nato. But in finding for Enuagu alone, I would agree with the learned trial Judge where he stated that Enuagu having asserted that Umu-Mozo and Umu-Iveatu are joint owners of the land in dispute qua Isienyinato cannot in future be heard to say that they were exclusive owners. They will certainly be estopped from asserting so a classic case of a distinction without a difference.

Finally learned Senior Advocate for the respondents pointed out that the learned trial Judge failed to consider the evidence of D.W.4; that the evidence of P.W.4 and D.W.4, both from Umu-Mozo conflicted. He simply said that their evidence which goes each in different directions cancelled out one another. It is counsel’s contention that this mathematical equation was a far cry from a proper evaluation of evidence and that in view of the evidence of D.W4 the main issue in the case should be resolved in favour of the respondents.

I must point out that there was no cross-appeal by the respondents. Although Order 8 rule 3 of the Supreme Court Rules, 1985, has been amended with the result that a respondent’s notice is no longer necessary, it is, I believe still necessary to cross-appeal where a respondent seeks to challenge any finding of fact. Much as I agree that the learned trial Judge’s mathematical equation with respect to the two witnesses is novel and cannot be a proper substitute for a proper evaluation of evidence, the fact remains that the Court of Appeal was able to come to its conclusion that the appellant’s evidence of tradition was preferable in spite of that. As its coming to that conclusion in the circumstance has not been challenged by any appeal or cross-appeal before us, I do not see how I can interfere on that ground or how I can hold that it led to a miscarriage of justice. It is trite that any purported issue which has no ground of appeal to support it is incompetent: See – Osinupebi v. Saibu & Ors. (1982) 7 S.C 104. pp. 110 – 111 Emeghara v. Imo State Health Management Board (1987) 2 NWLR (Pt.56) 330. I would, therefore, resolve the issue against the respondent if ever it was an issue, as there was no ground of appeal to sustain it.

For the above reasons and those contained in the lead judgment of my learned brother, Ogwuegbu, J.S.C. I allow the appeal and subscribe to the orders made in the lead judgment.

---

SC.236/1988