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In The Supreme Court of Nigeria

On Friday, the 26th day of January 1990  

SC 154/1987

 

Before Their Lordships  

 

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Salihu Modibbo Alfa Belgore

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

Abubakar Bashir Wali

......

Justice, Supreme Court

    

 

Between

 

Anazodo Nwosu

.......

Applicant

 

And

 

Chukwumanjo Udeaja

.......

Respondent

   

 

Judgement of the Court

Delivered by

Abdul Ganiyu Olatunji Agbaje. J.S.C.

 

The plaintiff, Anazodo Nwosu, sued the defendant, Chukwumanjo Udeaja in the then High Court of East Central State of Nigeria in the Onitsha Judicial holden at Onitsha claiming against him as follows:-

 

(a)    Declaration of Title to all that piece or parcel of land situate at Umu-Umeagbu family Uruagu Nnewi as will be delineated in the plan to be filed with the Statement of Claim. General annual value not more than 5.

(b)   100 damages for trespass.

(c)    Injunction to prevent the defendant his agent and/or servants from trespassing into the said plaintiff's land.

 

Pleadings in the case were ordered by Oputa, J. (as he then was) on 20th November, 1972. After pleadings had been filed and exchanged and after a series of interlocutory applications which have nothing to do with this appeal, actual trial of the case began before Uyanna, J., on 14th May, 1982 in the High Court of Anambra State of Nigeria in the Nnewi Judicial Division holden at Nnewi to which the case was assigned after Anambra State has been carved out of the old East Central State of Nigeria.

The learned trial Judge, Uyanna, J., having heard the parties and their witnesses gave judgment for the plaintiff in the following terms:-

 

(1)    That Exh. A dealt with ''Ana Mbubo" which is part of and within the area verged green on Exh. L, plan No. EC365/72 tendered by plaintiff.

(2)    That the whole of the land verged pink on both plans is not the area of land the subject matter of Exh. A.

(3)    That Exhs B & D are relevant and refer to the land the subject matter of Exh. A.

(4)    That the land mentioned on Exh. A was sold to plaintiff's father and that part of the terms of Exh. A was that if the defendant's father did not pay back the sum borrowed from plaintiff's father, plaintiff's father could take over defendant's father's house which plaintiff had done since 30 years defendant's father died. It follows from the findings that the plaintiff is entitled to declaration of statutory rights of occupancy in respect of the portion of land verged green within Exh. L. plan No. EC 365/72. Plaintiff is also entitled to a decree of an order of perpetual injunction in respect of the area verged green. The plaintiff is not entitled to damages as claimed since the defendant had exclusive possession. Plaintiff's claim is dismissed as regards area of the land not within the area verged green.

 

The plaintiff was not entirely satisfied with the decision of the learned trial Judge so he appealed against it to the Court of Appeal, Enugu Judicial Division contending there that on the admissible oral and documentary evidence before the trial court, he was entitled to judgment in terms of his claim not only in respect of the area verged "green" on the plan of the land in dispute, Exh. A as ordered by the learned trial Judge but also in respect of the whole of the land put in dispute by him on the said plan that is, the area of land verged "pink" thereon. The Court of Appeal coram Maidama, Akpata and Babalakin, JJ.C.A. rejected the contentions of the plaintiff before it and in its judgment dated 20th May, 1985, dismissed the plaintiff's appeal to it and affirmed the judgment of the trial court.

 

This is a further appeal by the plaintiff to this court against the decision of the trial court albeit by way of an appeal against the decision of the Court of Appeal in its appellate jurisdiction on the judgment of the trial Court. Leave of the Court of Appeal to appeal against the decision was sought and obtained on the 25th September, 1985.

 

The plaintiff is now attacking the judgment of the Court of Appeal on the following grounds of appeal, leaving out their particulars:-

 

GROUND 1

That the Honourable Court of Appeal erred in law and in fact when they upheld the judgment of the Nnewi High Court which was a misdirection to the effect that there were no numerous and positive acts of possession such as building grants which would have existed long before 1972. Thereby ignoring the preponderance of evidence which point to long possession of the land by the plaintiff/appellant.

 

GROUND 2

The Honourable Court of Appeal erred in Law and in fact in upholding the decision of the Nnewi High Court to the effect that Exhibit G and Exhibit H were rightly rejected, this was because the action was in respect of two pieces of land known as Ana Uno and Ana - Ofia, and further that decisions in cases referred in the Exhibits not pleaded or even seen by the learned trial Judge. Exhibit C was rejected because it was not pleaded, and this particular exhibit C was that which the Court of Appeal said was not even shown to the Judge.

GROUND 3

That the Honourable Court of Appeal erred in law and in fact in holding that having now admitted Exhibits E and F, which were wrongly expunged, by the court below does not alter the fate of plaintiff/appellant's case having regard to the totality of evidence.

GROUND 4

That plaintiff/appellant was in constructive possession of the land in dispute, both the High Court and the Court of Appeal erred in law and in fact by not awarding damages for the trespass committed by the defendant/respondent.

GROUND 5

The judgment is against the weight of evidence.

 

Briefs of argument were filed and exchanged on both sides. In the plaintiff's brief of argument, the issues arising for determination in this case have 'lot at all been precisely identified. It is perhaps in respect of issues Nos. 9 & 10 in the plaintiff's brief of argument that one can say that any precise issues have been identified as arising for determination in this case. The said Issues 9 and 10 are as follows:-

 

(9)   Whether the appellant had not proved sufficient acts of user over the piece or parcel of land.

(10) Whether the Court of Appeal was right in rejecting Exhibits C, G and H; when the same court admitted Exhibit N from the respondent even though the parties in that case were not parties in the present suit?

 

The defendant, in his brief of argument, for his part, stated the issues arising for determination in this appeal from the plaintiffs grounds of appeal B as follows:-

 

It is humbly submitted that the issues for determination in this Appeal are the following:

 

ISSUE NO. 1

Did the appellant plead and give evidence of acts of possession on the whole of the land in dispute.

If he did, were the acts over a sufficient length of time and numerous and positive enough for a declaration of title to be decreed in favour of the appellant on the authority of Ekpo v Ita 11 N.L.R. 68. Did the Court below err in affirming the decision of the trial court, which awarded title to the appellant only to a portion of the land in dispute? In circumstances of this case, does the equitable principle of long possession apply in the appellant's favour.

(Ground 1 of the Appeal)

 

ISSUE NO. 2

Did the Court of Appeal err in upholding the decision of the trial Court that Exhibits "G" and "H" were inadmissible in evidence? in this case. If it did, did that lead to a miscarriage of justice. (Ground 2 of the Appeal)

 

ISSUE NO. 3

The Court of Appeal having held that Exhibits "E" and "F" are admissible in evidence, did the Court of Appeal err in holding that the said admission "does not alter the fate of the plaintiff/appellant's case having regard to the totality of evidence." If it did, did that lead to a miscarriage of justice.

(Ground 3 of the Appeal)

 

ISSUE NO. 4

Did the appellant plead and give evidence of constructive possession of the land in dispute. If he did, was the Court of Appeal in error in affirming the decision of the trial Court that the respondent was not liable in trespass.

(Ground 4 of the Appeal)

 

ISSUE NO. 5

Was the decision of the trial Court, affirmed by the court below, against the weight of evidence adduced at the trial.

(Ground 5 of the appeal)

 

It appears to me that the defendant in his brief of argument has correctly identified the issues arising for determination in this appeal from the plaintiffs grounds of appeal. So, I will stick to the issues arising for determination nation in this appeal as identified by the defendant in his brief. Before I embark on the consideration of these issues, I will like to state the case of the plaintiff in the trial court and the defence of the defendant to it.

 

The case of the plaintiff is as pleaded in the following paragraphs of his Statement of Claim:

 

3.     The land in dispute which is known as and called Ana Mbubo is situate at Uruagu Village in Nnewi. The area, extent and boundaries of the said land are clearly shown and delineated pink in the plaintiff's plan No. EC 365/72 filed with this Statement of Claim.

 

4.     The land in dispute hereinafter referred to as the "Land" was originally the property of Solomon Udeaja whom the defendant claims to be his father.

 

5.     On the 31st March 1928 the plaintiff's father Nwosu Ezeala bought the land from the said Solomon Udeaja for 17 bags of cowries and one goat in accordance with the Nnewi native laws and custom and the said Solomon Udeaja acknowledged the receipt of the said money and goat in a memorandum dated March 31, 1928.

 

6.     After the customary sale of the said land to the plaintiff the said Solomon Udeaja pledged the same land to Obineke Ezeudefuna and Ezeobi Ikwele.

 

7.     This double deal by Udeaja gave rise to a series of litigations in Court. Thus in Suit No. 127/51 the plaintiff sued Obineke Ezeudefuna and one other to come to Court and accept the sums of 5:l0s and 2 being the equivalent of the money for which the land was pledged. The Court gave judgment for the plaintiff. The Assistant District Officer Mr. Somerset on 19/6152 confirmed the judgment and the plaintiff redeemed the land from the people to whom Udeaja wrongfully pledged the land.

 

8.     Later the very Solomon Anyamene whom as pleaded earlier the defendant claims to be his father sued the plaintiff in Suit No.13/48 claiming in respect of the land as follows:-

(1)     Declaration of title.

(2)     5 damages for trespass and

(3)     An order of the Court for defendant and his heirs further trespass into the land.

          The Court dismissed his claim but made no order as to costs.

 

9.     Udeaja the plaintiff in that case appealed to the Nnewi Area Court in Appeal No.23/48 and contended among other grounds of appeal that the land was never sold outright to the defendant (now the plaintiff) but was a pledge which could be redeemed. The Court after a considered judgment made the following findings of fact:

 

(1)   That the land was sold outright by the plaintiff in that case to the defendant (now the plaintiff.)

(2)   That the defendant (now the plaintiff) is the owner of the land. However the Court advised the defendant to allow the plaintiff the area he has walled to live. If he dies defendant should own this very area. "The plaintiff in that case later died and the defendant who is the present plaintiff occupied the area in accordance with the judgment of the Court.

 

10.   The plaintiff in that case appealed to the District Officer and on review the District Officer on 12th August 1948 found as a fact that the land was sold outright, dismissed the appeal and confirmed the judgment of the lower Court.

 

11.   The District Officer in his judgment reviewed the earlier case of 39/42 in which the said Udeaja admitted that he sold the land to plaintiff. This judgment as well as the series of other judgments above mentioned shall be founded upon at the trial.

 

12.   Appeal in Suit No.127/51 as averred in paragraph 7 above went up to the Lieutenant-Governor Sir Clement Please, K.B.E., C.M.G. who affirmed the Resident's judgment and dismissed the defendants/appellants' appeal.

 

15.    In 1959 in Suit No. 90/59 the plaintiff sued Ezeasomba Ezeudefuna "for an order of the Court for the defendant to appear and let us fix cement pillars on the boundary of land which we have got dispute Ana Mbubo" The plaint note No.90/59 of 3rd September, 1959 shall be founded upon. As a result of this action boundary pillars between the plaintiff's land verged pink in plan No. EC22/51 or EC365/72 filed with this Statement of Claim were fixed by the Court and they are still in existence and are clearly shown in the plan EC 365/72 aforementioned.

 

16.    On the 11th November, 1971 the present defendant came as it were from the blues and began to claim the land which the man whom he claims to be his father had in vain fought for. The defendant instructed Mr. B.C. Ogbuli Solicitor to write letter MS/71/71 of 11th November, 1971 to the plaintiff saying that the plaintiff is a tenant of his father and that the plaintiff should accept the redemption money and quit the land.

 

17.    Thereafter on or about the 25th October 1972 the defendant unlawfully broke and entered the land uprooted the plaintiff's cassava and cocoyam, cut some palm trees excavated foundation and began to build thereon."

 

The defence of the defendant to the case is essentially contained in paragraphs 4 - 8 and 12 of the defendant's amended Statement of Defence G which are as follows:-

 

4.     In answer to paragraph 4 of the Statement of Claim the defendant says that the land in dispute originally belonged to Digboalaeze. On the death of Digboalaeze his son Anyamene inherited the land in dispute. On the death of Anyamene his son Udeaja inherited the land in dispute and on the death of Udeaja, his son, the defendant inherited all his father's property including the land in dispute, in accordance with the native law and custom of Nnewi people.

 

5.     The defendant denies paragraphs of the Statement of Claim and will put the plaintiff to the strictest proof thereof Nwosu Ezeata did not on the 31st March 1928 or any other time purchase the land in present dispute or at all nor did the alleged memorandum dated March 31st, 1928 deal with the land in dispute.

 

6.      In answer to paragraph 6 of the Statement of Claim the defendant denies any customary sale by Solomon Udeaja of the land in dispute to the plaintiff or to the plaintiff's father. The defendant also denies that his father pledged any portion of the land in dispute to Obineke Ezeudefuna and Ezeobi Ikwele.

 

7.     The defendant denies paragraphs 6 and 7 of the Statement of Claim and will put the plaintiff to the strictest proof thereof. The plaintiff surreptitiously used the transaction evidenced by the memorandum of March31, 1929 to lay claim to all lands of Solomon Udeaja. At that time, Solomon Udeaja was not party to the said suit No.127/51, nor could he be since he was already dead then, also at that time Solomon Udeaja's children were minors and because of the molestations and hostility of the plaintiff to the children their mother with the children took refuge at Awka in her father's house. Neither the wife of Solomon Udeaja nor the defendant knew or heard about Suit No.127/51.

 

8.     The defendant denies paragraph 8 of the Statement of Claim and will put the plaintiff to its strictest proof. Agbaja Native Court Suit No.13/48 related to other pieces of land viz "Ana Uno" and "Ana Ofia" not the land in present dispute which the plaintiff himself calls "Ana Mbubo."

 

12.    In answer to paragraph 14 of the Statement of Claim the defendant denies that the construction put on suit 35/55 or suit 127/51 is what is contained in the judgments. In any case, both suits are irrelevant to the present suit as neither the defendant nor his ancestor was party to either of them nor did they relate to the land which is the subject matter of the present dispute.

 

The plaintiff gave evidence in support of the contentions in his Statement of claim and tendered certified true copies of the various judgments he pleaded. Then he called a licensed surveyor, one Chief Ejike Chidolue who put in evidence a survey plan of the land in dispute in this case Exh. L and a survey plan of the land when he had earlier surveyed it for the plaintiff in September 1951 for a previous land case, Exh. "M." The plaintiff called no other witness.

 

The learned trial Judge when the plaintiff sought to put in evidence certified true copies of the various judgments he pleaded and counsel for the other side objected to their admissibility ruled as follows:-

 

As I said earlier, it is too premature to object against admissibility on the ground of irrelevancy. The documents should go in at this stage and the court may hear further addresses later on. Objection overruled: They are tendered as follows. Suit No.39/42 marked Exh. B; Suit No. 58/42 marked Exh. C. Appeal dated 16/ 3/51 marked Exh. D. Appeal No.2/1953 marked Exh. E Suit No.127/51 marked Exh. F

 

After this ruling, the record of proceedings indicates that the plaintiff A then gave the following evidence:-

 

After I had sued these people they incited Solomon Udeaja to sue me and I won him in the suit. He appealed against the judgment and I won him. I received certified copies of the judgment and the appeal thereon.

 

The objection to their admissibility having been overruled, the certified true copies of the judgments in Suits No.13/48 and Appeal No.23/48 were admitted in evidence as Exhibits G and H respectively.

 

The learned trial Judge in the course of the judgment he gave in the case reviewed the above rulings and held that as regards Exhs. B and D they were properly admitted in evidence by him but as regards the other documents i.e. Exhs. C, G, H, E and L previously admitted in evidence by him, he stated that he was satisfied that they ought not to have been admitted by him in evidence and he then rejected them and expunged them from the proceedings in the case before him.

 

There is no doubt that the trial Judge properly directed himself as to the case of the plaintiff before him as the following passages from his judgment show:-

 

The plaintiff seeks a declaration of title to a piece of land shown on plan No. EC.365/72 verged pink thereon and marked Exh. L in this proceeding. He also seeks an order of perpetual injunction against the defendant, his servants, agents or privies to restrain them from further acts of trespass on the said land. In addition he claims a sum of N200.00as damages for the alleged trespass.

 

Both parties exchanged pleadings. As said earlier plaintiff's plan is marked Exh. L and that of defendant, Exh. O In his pleadings as in his evidence plaintiff averred that his father Nwosu Ezeata bought the portion of land in dispute from defendant's father, Solomon Udeaja. The sale was conducted under Nnewi Native Law and Custom. As a condition under this custom a goat was slaughtered. A sum of 17 bags of cowries then the legal tender was paid to the defendant's father. A receipt was issued for this payment - it also mentioned the terms of sale. This receipt was admitted and marked Exh. A. Despite objection by the defendant, this document was admitted. Further reference will be made to this later in this judgment. The sale according to plaintiffs case was made in 1928. According to plaintiff this action arose because in 1972 "the defendant unlawfully cut some palm trees and excavated foundation and began to build thereon" (paragraph 17 Statement of Claim)

 

In the course of his evidence, the plaintiff tendered in sup-port of his claim certified copies of judgments which he said took place touching the disputed land which judgments terminated in his favour ..

 

The defendant is the son of the person whose father, according to plaintiff, sold the disputed land to his (plaintiff's) father."

 

From the following passages from the judgment of the learned trial Judge it appears clear that the defence of the defendant to the plaintiff's claim was present to the learned Judge's mind:

 

In his Statement of Defence as well as in his oral testimony defendant denied that his father never (sic) sold the disputed land to plaintiff's father. The land had originally belonged to his great ancestor, Digho Alaeze. After the death of Digho Alaeze his, defendant's father, Solomon Udeaja, inherited the land under Nnewi Native Law and Custom. Upon the death of Digbo Alaeze he, defendant, inherited the whole area in dispute. He said he knows "Mbubo Solomon Udeaja" - he said it has no connection with the disputed land. His father he said did not pledge the disputed land to plaintiff's father. His father died in 1950 and before his death was living on Ana Digho Alaeze land. Before his father's death he, defendant was living on the disputed land with his father and mother. No sooner that his father died than the plaintiff began molesting his mother. As a result, she fled to Awka her parent's home along with him and her other children. He defendant and other children returned to Nnewi at the end of Nigerian Civil War. He consulted Counsel who wrote a letter to plaintiff to accept the redemption money his father borrowed from plaintiff's father when the defendant's father was litigating over other lands - not the one in dispute. Defendant continuing said plaintiff under cover of the loan made by his plaintiff's father to his father was grabbing lands belonging to defendant's father. As a result D.W. 1, his eldest sister lodged a complaint to the Agbaja Native Court in 1953 - that complaint was tendered as Exh. N. in 1972 when the plaintiff would not accept the redemption money he went into the disputed land and began erecting a building. He said he had almost completed the building by the time plaintiff took out this writ. Finally he said that the plaintiff lives on "Mbubo" which is on Digbo Anaeze land. He did not put plaintiff on the land nor did he acquiesce that he continues to live thereon.

 

It appears clear to me too that the learned trial Judge also appreciated it that the onus was on the plaintiff to prove that the area of land which was the subject matter of the transaction in Exh. A was the same as the area of land in dispute in this case. The learned trial Judge on the evidence before him came to the conclusion that the transaction between the plaintiff's father and the defendant's father Nbubo Solomon Udeaja evidenced in part by the document, Exh. A, related to the transaction of sale in respect of a piece of land known and called Nbuho land. The learned trial Judge appreciated it also that Exh. A, the Memorandum of the transaction of sale of land under Native law and custom was silent as to the name and description of the land to which it referred. He then held that the fact that Exh. A was silent on these points was not fatal to the plaintiff's case. On the totality of the rest of evidence before him including Exhs.B and D, the certified true copies of judgments put in evidence by the plaintiff and the evidence adduced by the defendant, the learned trial Judge came to the following conclusions as regards the identity of the land sold by the defendant's father to the plaintiff's father:-

 

It follows therefore that as far as the name of the land in dispute is concerned and as regards whether it was sold or pledged - Exh. B is relevant. I am therefore satisfied that Exh. B was properly admitted in this proceeding. Exhibit B was also the subject of appeal in Exh. D - the judgment of the lower court in Exh. B was upheld. The Appeal Court found as long ago as 1942 that plaintiff's father had built on Ana Mbubo - "thereby precluding the possibility of redemption even at double rate." Equally too Exh.D is relevant to this proceeding and was properly admitted in evidence. The combined effects of plaintiff's evidence, evidence of D.W. 1 and judgments in Exhs.B and D is that the land sold to plaintiff's father is Ana Mbubo and that plaintiff built on it more than 40 years ago according to Exh.D which I consider was properly admitted in evidence.

 

Having so held, the learned trial Judge proceeded as follows:-

 

Having accepted that Ana Mbubo is the subject matter of Exh. A, it remains to consider whether Ana Mbubo is coextensive with the land in dispute. Although plaintiff claimed the whole area verged pink on his plan Exh. L he, plaintiff, did not refer to the whole land as Ana Mbubo. I am not satisfied that the whole land verged pink on Exh. L is Ana Mbubo. Ana Mbubo is, I think, that area verged green on plaintiff's plan Exh. L. I have come to the view that the land sold to plaintiff's father is the portion verged green on plaintiff's plan because outside that portion there are no "acts of ownership numerous and positive enough to warrant inference that plaintiff's possession is to the exclusion of the defendant" - Aderemi v. Adedire. This view is fortified by the fact that although plaintiff's father bought the land on Exh. A over 54 years ago the only positive acts unequivocal is apparently the grant of one Samuel Ezimuo of a portion of land on which he is yet building an uncompleted house as shown on Exh. L - on the Southeast portion within the land verged pink. If areas outside (he portion verged green were comprised in the transaction recorded on Exh. L there would have been numerous and positive acts of possession such as building, grants to persons which would have existed long before 1972 when this suit was instituted. No doubt, dotted here and there, outside the area verged green, are portions described as "Cassava and yam farms and economic trees by plaintiff." These might equally have been planted by the defendant or his father. They are not conclusive in favour of the plaintiff that he is exclusively in possession. The rule is that a plaintiff cannot get a decree for more than he proved.

 

It was upon the above findings read as a whole that the learned trial Judge founded his judgment in favour of the plaintiff to which I have refer-red earlier on in this judgment.

 

As I have said earlier on in this judgment the plaintiff was not satisfied with the judgment and so he appealed against it to the Court of Appeal, Enugu Division contending there that he was entitled to judgment in respect of the whole of the land in dispute in Exh. L, the survey plan.

 

Arising from the issues put forward for determination in the lower court, the Court of Appeal, as per the lead judgment of Babalakin, J.C.A. in which Maidama and Akpata, JJ.C.A. concurred, held that Exhs. G, H and C, which as I have shown earlier on in this judgment were expunged from the evidence after the learned trial Judge had previously admitted them in evidence, were rightly rejected by the learned trial Judge. However, it was held that Exhs. F and E ought not to have been so treated by the learned trial Judge. So, these two exhibits were, so to say, re-admitted in evidence. Having readmitted Exhs. F and E in evidence, it was further held that they could not have enhanced the case of the plaintiff for the following reasons:-

 

It will be observed that this case Exhibit F was neither between the plaintiff/appellant and the defendant/respondent nor his father nor was it proved that the defendants in that case were related to the defendant/respondent. Therefore the plaintiff's acts therein could not bind the defendant/respondent, in particular acts of possession shown on Exhibit M later prepared for the case cannot bind the defendant/ respondent

 

Even if it was held that judgment in Exhibit F will confer the ownership of the whole of the land shown in Exhibit M and thereon edged pink on the plaintiff/appellant (which is not so) there is no evidence on record that the plaintiff/appellant has in fact redeemed the piece or parcel of land which he claimed from the two defendants in the said Exhibit F. In effect Exhibit F did not confer the ownership of land in Exhibit M on the plaintiff/appellant.

 

As I have said above, the Court of Appeal confirmed the decision of the trial court.

 

Before considering the issues arising for determination in this appeal, it will be necessary to bear in mind one important feature of this case which is as follows:

 

It is the plaintiff's case that the land in dispute originally belonged to the defendant's father, one Solomon Udeaja. It is the plaintiff's case that his lather bought the land in dispute from the latter. So, this is not a case where the plaintiff would be expected to succeed on his claim for title to the land in dispute by proving acts of ownership to the land in dispute. He could only succeed in his claim for title to the land against the defendant by showing that the defendant's father had divested himself of title to the land in dispute by sale of the same to the plaintiff's father. If the plaintiff could not prove the sale of the land or any particular part thereof to his father, his claim to title to the land in dispute or that part thereof in respect of which he failed to prove the sale to his father would fail. So, the crux of the matter in this case is whether on the totality of the evidence before the trial court it could be said the plaintiff had proved title to the whole of the land in dispute as a result of sale thereof to his father by the defendant's father, its admitted original owner. So in this case the decision in the case of Ekpo v. Ita 11 N.L.R. 68 is not in point when considering whether or not the plaintiff has proved his title to the land in dispute.

 

On the scope of the decision in Ekpo v. Ita (supra) the old West African Court of Appeal had said in Mumuni Abudulai v Ramotu Manue 10 W.A.C.A. 172 at p. 174 as follows:-

 

Much was made of the fact that the respondent had faled to prove any act of ownership over a period of 25 years and the case of Ekpo v. Chief Ita 11 N.L.R. 68 was relied upon to Support the proposition that a claim for declaration of title cannot succeed unless the plaintiff proves acts of ownership extending over a length of time. In this connection, we think it necessary to point out that that case seems to have been misunderstood as going further than it in fact does, owing possibly to the too general terms of the wording of the judgment. It is clear that the dictum does not apply where, as in this case, the plaintiff relies upon and proves title by grant; the onus as to act of ownership is only thrown upon the plaintiff where the other evidence of title is inconclusive or entirely lacking.

 

However, I will have to advert to the long possession of the land in dispute or part thereof in the context of the present plaintiffs claim for a declaration of title to the land.

 

As I said, it is the plaintiff's claim that the land in dispute originally belonged to Solomon Udeaja. Then the plaintiff pleaded that the defendant claimed to be the son of the said Solomon Udeaja. The plaintiff's evidence on the point albeit in cross-examination was as follows:

 

The land in dispute is the land which the defendant's father sold to my father - it is the same land in area features.

 

In the light of this evidence, I do not see how counsel for the plaintiff can validly argue that on the evidence before the trial court it has not been proved that the defendant is the son of Solomon Udeaja. I am therefore satisfied that the learned trial Judge was right in treating it as common ground that the defendant is the son of Solomon Udeaja.

 

Having said that much, it follows that the defendant is the successor in title of the true owner of the land in dispute, Solomon Udeaja. The plaintiff having admitted that Solomon Udeaja was the original owner of the land in dispute, it follows that his, plaintiffs, long possession of the land in dispute cannot be used as a weapon of attack against Solomon Udeaja or his successor in title but only as a shield. In other words, the plaintiff cannot rely on that long possession per se and bring an action for declaration of title against Solomon Udeaja or his successor in title in respect of the land in dispute. On the other hand, if Solomon Udeaja or his successor in title claimed title or possession of land in dispute against the plaintiff, he could resist the claim by relying on his long possession on the equitable doctrine of laches and aquiescence. The following cases illustrate the above points I have just made, namely Agboola v. Abimbola SC.336167 delivered 4th July, 1969; Da Costa v. Ikomi SC.773/1966 delivered 20/12/68 and Ayodele v. Olumide SC.260/67 delivered 23/6/69 and Akinwunmi v. Saidi 1 F.S.C. 107 [1956] SCNLR 339: All these cases are in fact illustrations of the principle laid down in the case of Awo v. Gam 2 N.L.R. 100 which says:

 

In our opinion, it would be wholly inequitable to deprive the defendants of property of which they have held undisputed possession and in respect of which they have collected rents for so long a term of years with the knowledge and acquiescence of those who now dispute their title, even if it were as clear as it is upon the evidence doubtful that they entered into possession, contrary to the principles of native law. We do not decide this point in accordance with any provision of English law as to the limitation of actions, but simply on the grounds of equity, on the ground that the Court will not allow a party to call in aid principles of native law, and least of all principles, which as in this case, were developed in and are applicable to a state of society vastly different from that now existing merely for the purpose of bolstering up a stale claim.

 

As regards issue one identified by the defendant as arising from Ground1 of the plaintiff's ground of appeal namely:-

 

Did the appellant plead and give evidence of acts of possession on the whole of the land in dispute. If he did, were the acts over a sufficient length of time and numerous and positive enough for a declaration of title to be decreed in favour of the appellant on the authority of Ekpo v. Ita 11 N.L.R. 68." having regard to the authorities I have just cited and the following authorites cited in the defendant's brief of argument, namely - Olayioye v. Oso (1969) 1 A.N.L.R. 281 at 285; Ogbechie v. Onochie (1988) 1 N.W.L.R. (Pt.70) 370, I have no doubt that the plaintiff cannot in this case use his long possession of the land in dispute as a weapon of attack against the true owner of the land in dispute or his successor in title, by claiming a declaration of title to the land based on the long possession.

 

However, from the plaintiff's claim as pleaded, it will be unfair to say that he was basing his title to the land in dispute on long possession of or acts of ownership to the land in dispute. His claim to title to the land was based on sale of the same to his father by the original owner of the land, Solomon Udeaja, the defendant's father. It was the learned trial Judge who in his judgment said that he had come to the view that the sale to the plaintiff's father was in respect of the portion of land verged "green" on the plaintiff's plan because outside that portion, there are no acts of ownership by the plaintiff or his predecessor in title numerous and positive enough to warrant the inference of the plaintiff's possession to the exclusion of the defendant would appear to be a mis-direction on the part of the learned trial Judge as to what the plaintiff must prove in order to succeed in his claim for tide based as it were on a sale by the defendant's father to the plaintiff's father of the land in dispute. If this were all to this case, I would have held that this is very serious mis-direction which would have affected the decision of the learned trial Judge. However from the various passages from the decision of the learned trial Judge referred to by me earlier on in this judgment, it is clear that the learned trial Judge fully appreciated the case of the plaintiff before him and the evidence in support of it. In particular the learned trial Judge properly adverted his mind to the transaction of sale of land, which the plaintiff pleaded, and the evidence in that regard. The learned trial Judge held that the sale of the land was in respect of the area verged green on Exh. L and not in respect of the area of the land verged pink in Exh. L. He came to this point having regard to the totality of the evidence before him. The learned trial Judge used the evidence of possession by the plaintiff or his father before him, of portions of land in dispute to determine the area of land sold by the defendant's father to the plaintiff's father.

 

If one bears it in mind that the plaintiff, in order to succeed in his case that the defendant's father had sold the land the plaintiff was claiming to the plaintiff's father under native law and custom, had to prove that the defendant's father had handed over the land in question to the plaintiff's father in the presence of witnesses, one could hardly say that it was wrong of the learned trial Judge to look for evidence of possession of the land in question by the plaintiff and his predecessor. Cole v. Folami 1 F.S.C. 66 at p.1; [1956] SCNLR 180, has decided it that in order to prove sale of land under the native law and custom, one must prove not only the payment of the purchase price, but also the fact that the land in question was handed over in the presence of witnesses.

 

In view of what I have just said, I am satisfied that the reference by the learned trial Judge to acts of ownership numerous and positive enough on the part of the plaintiff to warrant the inference that he was in exclusive possession of the land in dispute was only a mis-direction which has in fact not occasioned a miscarriage of justice.

 

The next issue arising for determination by me is Issue 2 namely whether the Court of Appeal was right to have held that Exhibits G and H were inadmissible in evidence.

 

Before I consider this point, I must comment on the decision of the learned trial Judge to review his earlier decision on certain documents already tendered and admitted in evidence. It must be pointed out that the rulings of the learned trial Judge admitting the exhibits in evidence are decisions or orders of that court. And it has been said in Obimonure v. Ennoaho (1966)1 All N.L.R. 250 that the inherent jurisdiction of a court to set aside its judgment or order is limited to judgments or orders which are nullities. See also Ogbu v. Urum (1981)4S.C.1. There is no question of the ruling of the learned trial Judge admitting all the various exhibits in evidence being a nullity. So, the question of the learned trial Judge setting aside that decision or ruling for that reason does not arise. So the learned trial Judge could not set aside that decision or ruling. So all the exhibits, which the learned trial Judge had previously admitted in evidence in this case should have been considered by him in coming to a decision in this case. In other words the weight to be attached to each of the exhibits ought to have been considered by him. So in my judgment, Exhibits G and H, which had been admitted in evidence, should have been considered along with the other documentary evidence in the case. However, the weight to be attached to the documents is another matter.

 

I have held that Exh. "G" having been previously admitted in evidence by the learned trial Judge, the latter could not later in his judgment review that decision and expunge that exhibit from the proceedings of the ease. So, the lower court, in my judgment was wrong in holding that the trial court rightly, whilst considering its judgment, rejected the document, Exh. G, procedings and judgment of a native court in suit No.13/48 between Solomon Anyamene and Aniozodo Ezenguodo. An examination of the reasons given by the lower court for holding that the document was rightly expunged from the record of the proceeding, namely:

 

An examination of the said Exhibit however showed that the action was in respect of two pieces of land known as "Ana-Uno and Ana-Ofia."

 

The judgment in the case further referred to decisions in cases Nos. 58/42 and 69/42 of which the Court based its judgment which decisions were not pleaded or seen by the learned trial Judge.

 

I therefore agree that this Exhibit is rightly rejected as irrelevant to the proceedings in respect of the land now in dispute."

 

even shows that the reasons have more to do with the weight to be attached to the document than any other thing else. Exhibit H is the decision of the native court of appeal on Exh. G. confirming the decision.

 

It now remains for me to see if the exclusion of Exhs. G and H from the evidence in this case by the trial court could have occasioned a miscarriage of justice.

 

The case in Exh.G was between the present plaintiff and the present respondent's father. The latter was in the case claiming from the former, title, damages for trespass and an injunction in respect of two pieces of land said to be known as "Ana-Uno" and "Ana-Ofia." As we are dealing with proceedings in a native court, we are permitted to travel outside the claims as stated on the writ to the evidence in the case in order to discover the real subject matter of the dispute. See Uyaelunmuo & Ors. v. Igbanugo & Ors. F.S.C. 240/63. After I have done this, I am in no doubt that the case has to do with the transaction of the sale of land, which the present plaintiff alleged in this case his father entered into with the defendant's father. So in my judgment the proceedings and the judgment in Exh.G are very much relevant to the case in hand. And the case was between a party to this case and a privy of the other party to this case. The judgment of the native court in Exh.G is inter alia as follows:-

 

We have seen cases Nos. 58/42 J.B. 2/41-1/42 P.67 and case No. 29/42 where judgments all were delivered in favour of the defendant. We have also seen the agreement made by both parties and in a certain part the defendant promised allowing the plaintiff some portion of land for farming but he has not done it. In though that is left to him as the land belongs to him. In case No.58/42, the plaintiff appeared witness for the defendant and stated he sold the whole land to defendant's late father.

 

For all the reasons given here above, we dismiss the plaintiff's claim with no cost. We cannot alter previous judgement on the very portion of land, but higher court may do it.

 

The judgment in Exh.H on appeal on Exh.G is inter alia as follows:-

 

Plaintiff is having many cases of land sales in this court which shows he sold many pieces of his land. If he had not sold the land out rightly to defendant he should have tackled defendant since 10 years that he defendant started to make use of the land. He plaintiff meant the land should be defendants, hence he gave defendant authority to redeem other pieces of his land there. On the land many people gave evidence that defendant redeemed many of the land pieces pledged away by plaintiff.

 

Our judgment is therefore for defendant for the land, which he had bought outrightly from plaintiff. It is now 20 years and 2 months since the agreement on the land was made defendant exercised patience according to the term of the agreement, but plaintiff could do nothing. Defendant has been living and using the land since 10 years.

 

We advise the defendant to allow plaintiff the area he has walled to live. If he dies defendant should own this very area. Should plaintiff's issue wish to succeed him on the at liberty to allot more area to plaintiff for farm purposes or not.

 

The effect of the judgments in Exhs.G and H is that the present plaintiff is adjudged owner of the land in dispute in the case as a result of his having bought the land from the original owner of the land, the father of the present defendant. There is no plan of the land in dispute in Exhs. G and H. There is nothing in Exhs. G or H indicating the boundaries of the land in dispute in the case either.

 

In my judgment therefore, the proceedings and judgment in Exhs.G and H, if the documents had not been expunged from this case, wrongly in my view, by the trial court and the Court of Appeal could only have reinforced the learned trial Judge in his conviction that there is a transaction of sale of land between the present plaintiff's father and the present defendant's father. But because there was no mention of the boundaries of the land in dispute in Exhs.G or H in the record of proceedings including judgment of either case, it cannot be said that the land in dispute in Exhs. G or H is exactly the same as the land in dispute in this case. Because of what I have just said I am of the firm view that the wrongful exclusion of Exhs.G and H from evidence in this case could not have occasioned a miscarriage of justice.

 

I agree with the Court of Appeal that the wrongful exclusion of Exhs. E and F from the evidence of this case by the learned trial Judge could not have occasioned a miscarriage of justice. However I would rather so decide for the following reasons. The transaction of sale of land between the plaintiff's father and the defendant's father upon which the plaintiff relied in this case took place in 1928. There was no doubt privity of estate between the plaintiff and the defendant as far as the land, the subject matter of the transaction of sale of land, is concerned. The same thing goes when one is considering ~ privies in blood of the plaintiff's father and the defendant's father as regards that same land.

 

Exh.F suit No.127/51 between Andezodo Nwosu of Uniagu (present plaintiff) and Obuneke Ezeudefuna and Emeasoda Ezeudefuna (third parties), on appeal as Exh.E. commenced in 1951 after, according even to the present plaintiff, his father had acquired in 1928 his interests in the land to which the case in Exh. F related by outright purchase from the present defendant's father. In the circumstances, I refer to Halsbury Laws of England 4th Edition Volume 16 page 1043 para. 1545:-

 

Privy's title must be derived subsequent to proceedings. In order that a judgment may be conclusive against a person as privy in estate to a party litigant it is necessary to show (apart from his taking with a notice of a pending action) that he derives title under the latter by act or operation of law subsequent to the recovery of the judgment, or at least to the beginning of the proceedings, and that the judgment was one affecting the property to which title is derived. Purchasers of land are not estopped by proceedings begun after the purchase, and a judgment obtained against the mortgagor of land after completion of the mortgage, setting aside his purchase of the land on the ground of fraud, is not even evidence against the mortgagee who was not a party to the action.

 

In the same breath, I refer to the following passages in the decision of the old West African Court of Appeal in Abbey v. Ollenu 14 W.A.C.A. 567 at 568:-

 

The proceedings in that case were not commenced until the year 1936, that is to say after the respondent's purchase of the land from Fiscian, and in such circumstances he is not estopped as being privy in estate by a judgment obtained in an action against his vendor commenced after the purchase: Mercantile Investment and General Trust Company v. River Plate Trust, Loan, and Agency Company.

 

It follows therefore in my judgment that Exh.F (on appeal Exh.E) cannot operate as estoppel per rem judicatam in this case.

 

What remains to be seen is whether Exh.F, on appeal Exh.E can operate as an estoppel against the defendant in this case, not per rem judicatam but in the principle of standing by. The principle was stated thus in Alashe v. Ilu (1964)1 All N.L.R. 390 at 396:-

 

It is clear that this principle can only apply in cases where the party sought to be estopped knew what was passing and was content to stand by and let someone else in the same interest champion his cause and fight his battle. As Lord Radcliffe observed in Anachuna Nwakobi and Others v. Eugene Nzekwu and Another (1964)1 W.L.R. 109:

 

the principle of 'standing by', while certainly a valuable one for application when circumstances demand it, does need to be confined to cases in which participation in 'the battle' is proved up to the hilt. Otherwise, the distinction between suits in which plaintiffs have chosen to sue a defendant individually, though a community title may be brought in question, and those suits in which they set out to and do challenge a community title as such will be in danger of being obscured; and even a measure of assistance to a defendant from other community members may give plaintiffs an advantage in all future litigation which, in fairness, there is no reason for them to enjoy.

 

That observation is a valuable footnote to the principle of standing by stated in Wycherley's case and applied in Ofori Atta's case, and a reminder of the danger of extending it outside its scope to cases to which it does not properly apply.

 

What then was the situation in Exh. F (on appeal Exh. E) goin,' by the evidence on 1219/51 in the case? In Exh. F, the present plaintiff, as plaintiff in the case said in the course of his evidence that Solomon the father of the present defendant was dead at that time. so, it was out of the quest on that the defendant's father was aware of the case, let alone participated in it. There is nothing in the whole of Exh.F, on appeal Exh.E to show that the present defendant was aware of that case let alone participated in it.

 

From the following evidence of the 2nd defendant, Emeasoba Ezeudefuna in Exh.F, given most presumably on behalf of himself and the 1st defendant therein Obimeke Ezeudefuna, namely:-

 

My name is Emeasoba and a native of Uruagu. I had not had a land case with Solomon. I do not know what the plaintiff is saying. I got my compound and this Mbubo and that plaintiff is claiming from Solomon.

Question by plaintiff to No.2 defendant:- You said that your land is quite difference, why is it that you wanted to joined No.1 defendant to swear oath that it was pledged to you in the year 1942 i.e. in Suit No.60/42?

Answer:- I did not join the No.1 defendant in swearing.

Question by Court:- Do you believe that the land pledge to No.1 defendant is different from the one pledge or bought by you?

Answer: I bought the land outright including my dwelling compound and No.1 defendant bought his own outright too.

Question by Court:- You and No.1 defendant who first bought land from Solomon?

Answer:- We bought the land at the same time.

 

It cannot be said by any stretch of the imagination that the defendants in Exh.F had the same interest in the land in dispute with the present defendant's father. Nor can it be rightly said that the defendants were championing the cause of the present defendant's father or even fighting his battle there. In the circumstances, I have no hesitation in coming to the conclusion that there is no room at all for Exh.F to operate as estoppel against the present defendant on the principle of standing-by.

 

The conclusion I reach is that the findings and judgment in Exh. F (on appeal Exh. E) are not binding in the least on the present defendant. Because of this the wrongful exclusion of Exh.F (on appeal Exh.E) from evidence in this case could not possibly have occasioned a miscarriage of justice.

 

I can now go on to consider issues 4 and 5 identified in the defendant's brief, together. The issues in the final analysis boil down to the question of whether or not on the oral and documentary evidence adduced by the plaintiff he was entitled to judgment:-

(i)     for title not only to the land verged green on plan Exh. L but to the whole of the land verged red on the plan; and

(ii)    to damages for trespass to the land in dispute in this case.

 

I have dealt with the documentary evidence, the certified true copies of court judgment.

 

I will now examine the oral evidence adduced by the plaintiff, if any, with respect to his alleged acts of possession of the land in dispute and trespass on the land by the defendant.

All the plaintiff said in this regard is as follows:

 

In examination in chief "I am the owner of the land and I am still living on it .. It is on Ana Mbubo to which you refer that I live and cultivate ... the land, which the defendant's father sold to my father included the same land where his, defendant's father's house stood

 

As I have said earlier on in this judgment, the plaintiff called no other witness besides P.W.2, a licensed surveyor who put the plans Exhs.M and L in evidence. Because of what I have said when considering Exhs.F and E, the plan Exh.M used in that case is of no assistance at all in this case. The plan, Exh.L of the land in dispute in this case, is not evidence that the features shown on the plan exist on the land in dispute. Nor is it evidence as to ownership of the various cultivations shown on the plan as existing on the land in dispute.

 

My conclusion is that the evidence adduced by the plaintiff on the point of his possession of the land in dispute was very very scanty to say the least. The learned trial Judge has done the best any reasonable tribunal could have done for the plaintiff by looking into the certified true copies of the judgments relied upon by the plaintiff and the evidence for the defendant in order to find out the area of land in possession of the plaintiff having regard to the sale of land under native law and custom upon which the plaintiff based his claim.

 

On the findings of the learned trial Judge which are amply supported by Exhs.B and D and the very scanty evidence from the plaintiff and the evidence from the defendant Jam not persuaded that he, the learned trial Judge was wrong in coming to the conclusion that the plaintiff and his father before him, have been in possession of only the area verged green in Exh. L. There is no evidence in this case as found by the learned trial Judge that the defendant entered this area of land. In the circumstance, it cannot be said that the defendant was guilty of trespass to the land.

 

In the case in hand, we are faced with concurrent findings of fact as to area of land sold, by the defendant's father to the plaintiff's land. From what I have been saying above, I have no doubt that the concurrent findings of fact are correct. In my judgment the plaintiff ought not to have been given leave by the lower court to appeal to this court on issues of fact.

 

In the result, the plaintiff/appellant's appeal is dismissed by me with N500.00 costs to the defendant/respondent.

 

Judgment delivered by 

Uwais. J.S.C.

 

 I have had the opportunity of reading in advance the judgment read by my learned brother Agbaje, J.S.C. I agree that the appeal should be dismissed for the reasons contained in the said judgment with N500.00 costs to the respondent.

 

Judgment delivered by 

Belgore. J.S.C.

 

 I had a preview of the lead judgment of my learned brother Agbaje, J.S.C. I agree entirely with his reasoning and conclusion, which I adopt as mine, I also dismiss the appeal and make an award of N500.00 against the appellant.

 

Judgment delivered by 

Nnaemeka-Agu. J.S.C.

 

This case commenced in an Nnewi High Court in Anambra State. The claim which was commenced in 1972 was for a declaration of title to a piece or parcel of land called "Ana Mbubo" by plain-tiff but Ana Digboalaeze by the defendant, which is situated at Umu-Umeagbu Family, Uruagu Nnewi, 100 damages for trespass and perpetual injunction. It was common ground that the land was originally that of the defendant's father, Solomon Udeaja.

 

The main issues in the High Court were whether the plaintiff's father, Nwosu Ezeala, as evidenced by a memorandum dated the 31st march, 1928 (Exh. A) purchased the land in dispute from the defendant's father according to custom. If he did, what was the extent of the land so purchased? Several native Court cases, namely, Exhibits B, C, D, E, F, C, H, J and N. were pleaded and relied upon by the plaintiff. Another important question was: which of these cases related to the land in dispute or part thereof. I shall deal with these cases later in this judgment. Plaintiff's plan was tendered as "Exh. L" and defendant's plan as "Exh. O" On the observation of the learned trial Judge, Uyanna, J., both plans have the same physical formation although some different features are shown. There was no dispute as to the identity of the land in dispute. The learned judge found as a fact:

 

i.       That as evidenced by Exh. A. the plaintiff's father bought a piece of land from the defendant's father in l928 and that other evidence on the point was supported and reinforced by the testimony of the defendant's sister who testified as D.W.1.

ii.     That Ana Mbubo, the subject of the transaction, was limited to the area verged green in Exh. L and did not extend to the area outside the area edged green;

iii.     That of the Native Court cases, Exhs.B and D were relevant to the issue in controversy in the case, whereas Exhs. C, G, H, E and F were not; and

iv.    That part of the terms of Exh. A was that if the defendant's father did not pay back the sum borrowed from the plaintiff's father, plaintiff's father would take over defendants father's house, and that pursuant to that, plaintiff's father had taken over defendant's father's house since over 30 years (i.e. by 1983) when defendant's father died.

 

He therefore entered judgment for the plaintiff in terms of his claim for the area verged green in Exh.L. With respect to the area verged pink the learned Judge held:

 

If areas outside the portion verged green were comprised in the transaction recorded on Exh. L, there would have been numerous and positive acts of possession such as buildings, grants to persons which would have existed long before 1972 when this suit was instituted.

 

He relied on the decision in Aderemi v Adedire (1966) N.M.L.R. 398.

 

Dissatisfied with the decision, the plaintiff appealed to the Court of Appeal, Enugu Division. He attacked particularly the exclusion of Exhs. C, G, H, E and F; and the limitation of the area of plaintiff's land to the area verged green. In the judgment of Babalakin, J.C.A., to which Maidama and Akpata, JJ C. A., concurred, he found that Exhs. E and F were relevant and so wrongly expunged; that Exhs. C, G and H were irrelevant and so rightly expunged. Yet he came to the conclusion that the learned trial Judge was right in his finding that what was granted to the plaintiff's father in Exh. A was the area edged green in Exh. L.

 

The plaintiff has further appealed to this Court. The learned counsel for the plaintiff (hereinafter called the appellant) filed four grounds of appeal which have been set out in the lead judgment of my learned brother, Agbaje, J.S.C.

 

Learned counsel also formulated ten issues for determination. With respect, these issues as formulated, appear to break all the known rules with respect to such issues. Seven of them have no relevance with the grounds of appeal filed. Some indeed sought to introduce, without leave, issues which were never canvassed in the Court of Appeal or the High Court. For examples, issues numbered (1), (2) and (3) sought to introduce for the first time issues as to the parentage of the defendant. This Court has stated it times with

out number that issues for determination in an appeal must arise from the grounds of appeal filed and that, even where there is a ground of appeal on a point which was not canvassed in the court below, the leave of this Court is necessary before it can be made an issue in the appeal. For the reason of the wrong start by the learned counsel for the appellant a good deal of the 21-page brief of the appellant has no bearing on the real issues in the appeal. In my view, the formulation by the learned counsel for the defendant (here-in-after called the respondent) appears to be more relevant. They have been set out in the lead judgment.

 

I shall now deal with the first issue, as framed by the respondent. It is as to whether the appellant gave evidence of acts of possession on the whole land in dispute? If he did, were the acts proved to be over a sufficient length of time and numerous and positive enough to entitle him to a declaration of title? In other words did the appellant satisfy the principle in the old case of Ekpo v. Eta (1932)11 N.L.R. 68 over that part of the land in dispute outside the area edged green in the appellant's plan, Exh. L

 

In my respectful opinion, I think the introduction of the second limb of this issue is in grave error and liable to lead to a misdirection. This is because the core issue in this case was, from the beginning, whether he established that his father acquired right over the land in dispute by purchase by reason of Exh.A and, if he did, the extent of that land. The learned trial Judge, rightly in my view, found purchase established. As the outstanding issue is whether the land purchased extended to the rest of the area verged pink, i.e. outside the area verged green, the question of the principle in Ekpo v. Ita (supra) does not, in my view, arise. For in the case of D.O. Idundun & Ors. v. Daniel Okumagba & Ors. (1976)9 10 S.C. 227, at pp.246 -250 this Court, per Fatayi-Williams, Bello and Obaseki, JJ S. C. made it clear that there are five ways of proving title, namely:

1.     By traditional evidence (Adedibu v. Adewoyin 13 W.A.C.A. 191;

2.     By production of a document of grant or title (Johnson v. Lawanson) (1971)1 All N.L.R. 56;

3.     By proving acts of possession and ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the plaintiff is an exclusive owner (Ekpo v. Ita) 11 N.L.R. 68;

4.     By proving acts of long possession and enjoyment of the land; but this only raises a presumption of ownership (Da Costa v. Ikomi) (1968)1 All N.L.R. 394, P.398; and

5.     By proof of possession of connected or adjacent land in circumstances, which make it probable that, the owner of such adjacent or connected land is probably the owner of the land in dispute (Okechukwu v. Okafor) (1961)1 All N.L.R. 685.

 

Each of the above methods will suffice independent of the others to prove the title. So, in a case like this in which the appellant's case was based on ownership by grant, it is a misdirection to insist additionally that we had also to prove acts of ownership extending over a long time and numerous and positive enough to warrant the inference that he was an exclusive owner. It is enough if he proves the grant. Admittedly in this case there was no plan to which the grant was attached. So, part of the task is to establish the precise boundaries of the subject of the grant. In such cases, evidence of acts of possession of areas outside the part of the land in dispute verged green in Exh.L, may help in showing that the grant was not as limited in area as the courts below have held. Yet, to insist that such acts of possession must be numerous and positive and extend to a very long time is to mix two independent methods of proving title and thereby place on the appellant a higher standard of proof than his case truly demands. In numerous cases it has been made abundantly clear that the principle in Ekpo v. Ita (supra) cannot be rightly insisted upon in cases in which other methods of proving title, such as by grant or by evidence of tradition, has been resorted to. See: Abudulai v. Ramotu Manue 10 W.A.C.A. 172, at p.174; Okechukwu v. Okafor(supra) at p.691; Mogaji Lasisi Atanda & Ors. v. Salami Ajani & Ors. (1989) 3 N.W.L.R.(Pt.11l)511,atp. 549.

 

In my respectful opinion, the wrong importation of Ekpo v. Ita principle into this case affected the whole inquiry in that instead of the courts below directing their minds to finding out whether there were any proven acts of possession from which they could have inferred that appellants land purchased under Exh. A probably extended to areas of the land in dispute edged green in Exh. L, they were looking for numerous and positive acts of possession and ownership extending over a very long time. I shall try to re-examine the case from what I consider to be the correct perspective, in order to know whether there was in fact a substantial misdirection.

 

This brings me to the first limb of the first issue:

Did the appellant plead and give evidence of acts of possession of the rest of the land in dispute outside the area verged green?

 

In the attempt to prove his case the appellant pleaded and relied on a number of old native court cases. After the learned trial Judge had admitted them in evidence, some of them have been again admitted by him and the Court below but some have been held to be irrelevant, as between the parties and expunged from the records. I very much doubt the propriety of the procedure whereby a Judge admits some judgments as exhibits and later t4rns round to reject them as inadmissible. This procedure has not the support of decided cases, unless, of course the original decision to admit them was null and void. Having admitted them he ought to have concentrated on their cogency.

 

Now I must approach all the Native Court cases from the standpoint that there are no written pleadings or other technical rules of procedure in Native Courts. It is the substance and not the form that ought to be regarded in each case. Unlike in proceedings before the High Court, I can even look at the evidence given in each case in order to find out what the real issues were and who were the true parties or in what capacities they took part in each case.

 

I must note that Exhs. A, B and D were mainly the materials from which the learned Judge found that the appellant proved title over the area verged green in Exh. L. I agree I shall now consider the cases, which sought to prove his title to the rest of the area verged pink.

 

On Exhs.F (Native Court Suit No.127/51) and E (appeal therefrom to the Lieutenant Governor, Eastern Region) in which the plan, Exh.M was filed by order of court, Babalakin, J.C.A. stated as follows:

 

It will be observed that this case Exhibit F was neither between the plaintiff/appellant and the defendant respondent nor his father nor was it proved that the defendants in that case were related to the defendant/respondent. Therefore the plaintiff's acts therein could not bind the defendant/respondent, in particular acts of possession shown on Exh.M later prepared for the case cannot bind the defendant/respondent.

 

In fact the pleadings and evidence of the defendant/respondent and his witness was that when that case was going on, the defendant/appellant (sic) and his people were not around. They had moved to Awka because of the molestation of the plaintiff/ appellant.

 

After adverting to the pleadings and the conflict of the features in the plans A of the parties (Exhs. L and O) and other evidence as to what quantity of land was "Ana Mbuho", whether it was limited to the area verged green in Exh. L or extended beyond it, he noted that the learned trial Judge resolved it in favour of the respondent. In other words, he found that 'Ana Mbuho' was the area edged green in Exh. L. The learned Justice of Appeal found support for this conclusion in plaintiff's evidence in Exhibit B, Native Court Suit No. 39/42 where he stated:

 

About 15 years ago, defendant sold Animbubo dwelling land to my father. They made agreement. I am living there now. It was arranged that if any other people defendant should redeem them and keep the people off the land. Obineke, Ndulue Emeasoba and Osuojuku are farming the land. Nwamgboh Alodiwe is using palm trees there.

 

After noting that this evidence relates to "Animbubo dwelling land" he wondered how it could have escalated to the farm lands to which the appellant now claims, as per Exhs. M and L.

 

With respects, I think the learned Justice of Appeal put the matter too narrowly when he stated that Exhs. E, F and M cannot bind the respondent because it was neither between the appellant and the respondent nor his father or a person related to him. The correct question should have been whether or not the parties to Exhs. E and F were privies to the appellant and the respondent. For it is not only acts of parties and their parents and relations that bind in such a case: acts of privies also bind. And there are three classes of privies, namely:

(i)     privies in blood, such as ancestor and heir;

(ii)    privies in law, such as testator and executor, intestate and administrator; and

(iii)   privies in estate, such as testator and devisee, vendor and purchaser, lessor and lesser, or assignor and assignee.

See on these: Mrs. Shola Coker & Anor. v H. Rufai Sanyaolu (1976)9-10 S.C. 203, at page 223. See also: Carl-Zeiss-Stifiung v. Rayner & Keeler Ltd. (No.2) (1966)2 Ml E.R. 536, p.530, H.L. Privity normally implies identity of successive interest. So, if the only reason for regarding Exhs.E, F and M as worthless was that the defendants therein were not parties or parents or relations of the appellant, I would have disagreed with the learned Justice of Appeal in the Court below. It is clear from the proceedings in Exh. F (and so E) that the defendants in that case were claiming title through Solomon Udeaja, the father of the respondent. The 2nd defendant in that case, for himself and the 1st defendant testified as follows:

 

I got my compound and this Mbuho land that plaintiff is clainmg from Solomon (i.e. Solomon Udeaja).

 

Part of the judgment of the Native Court made this clear where it stated:

Defendants are now stating that Solomon Udeaja sold the land outright to them which the previous cases proved as false.

 

It appears to me from the state of the evidence and the finding by the court that it is inescapable that the defendants in the case had a privity of estate, and therefore an identity of interest with Solomon Udeaja, the respondent's father.

Then to the question, what is the real value of Exh. F and E, as against the respondent? Can it operate against him simply because there was a privity of estate between the defendants in Exhs. C (and E) and himself?

 

Before I can answer this question correctly I must advert to two clear B principles of the law of estoppel.

 

First: the doctrine of estoppel per rem judicatam is a product of the adversary system of litigation as practised in our courts. The essence of this is that as between the opposed parties, an issue, once litigated, should be regarded as for ever decided. See Spencer Bower & Turner: Res Judicata (2nd Edn.) 13 -14. This is a part of the common law principles, which we received from English law. Diplock, L.J., in Thoday v. Thoday (1964) P.181, at p.197 put it thus:

 

Estoppel merely means that under the rules of the adversary system of procedure upon which the common law of England is based a party is not allowed, in certain circumstances, to prove in litigation particular facts or matters which, if proved, would assist him to succeed as plaintiff or defendant in an action.

 

The second principle is identity of issues. This requires that identical questions must be involved both in the present suit between the same parties or their privies and the former suit, the decision in which is deemed to estop. Thus in David Chiekwe v. David Obiora & Ors. (1960) 5 F.S.C. 258; (1960) SCNLR 566, the plaintiff pleaded estoppel, relying on a judgment of the Onitsha Native Court which upheld the claim for trespass against the defendants. The trial court rejected the plea on the ground that the land in issue was not shown to be the same with the one formerly in litigation. Bairamian, F.J., stated the principle in these words:

 

The plaintiff's claim in the Native Court was for trespass on Eneofufe Nwoliokwa; but the mere name of the land is not en-lightening. The judgment is for damages for trespass and says no more. There is nothing to show that it covers the land in dispute in the High Court. That is enough reason for saying that the plea of res judicata cannot succeed.

 

A similar situation has arisen in this case. It is therefore clear that before a previous suit can be successfully pleaded, as estoppel per rem judicatam in a present suit, the issues in the two cases must be the same. so, where there are more issues than one, res judicata may be pleaded with respect to one or some of them but not on all of them. This is the basis of what has often been referred to as issue estoppel. In the instant case, the two main issues are

(i)     whether the father of the appellant had Ana Mbubo granted to him by the father of the respondent; and

(ii)    what is the extent of that land?

 

The first issue was settled between the original grantor and grantee by the courts interpretation of Exh.A in Exhs. B and C and G and H. Unfortunately there is nothing in these cases to assist the appellant in his assertion that the land extends to the area edged pink.

 

There is no doubt that if Exh. F (and the appeal proceeding, Exh. E) were binding on the respondent as estoppel, the second issue may have to be A resolved in favour of the appellant. But to so hold will be tantamount to saying that on the basis of privity of estate estoppel can be successfully raised against a party on an issue which, on accepted evidence. he did not know about and did not contest and could not have contested due to the fraudulent act of the party relying thereon. For the courts below accepted the facts pleaded in paragraph seven of the statement of defence that the appellant's predecessor in title so harassed the respondents, who were still minors, and their mother that they had to run away from Nnewi and take refuge in Awka about 1950, after their father died. They neither knew nor could have known about the proceedings. Estoppel cannot be created in favour of a party by reason of his own fraud. I must in this regard note that fraud is an extrinsic collateral act which vitiates every judgment no matter how solemnly pronounced. Lord Brougham put it vividly in the case of Earl of Bandon v. Becher (1835) 3 Cl. & Fin. 479 when he stated at p.510:

 

.. you may at all times either as actor or defender, object to the validity "of a decision provided that it was pronounced through fraud, contrivance, or covin of any description . and such a decision, shall avail nothing for, or against, the parties affected by it, to the prosecution of a claim or a defence of right.

 

See also Peny v. Meddowcroft (1846)10 Beav. 122, at pp.136 and 137 per Lord Langdale. Dealing with the same principle, the learned authors of Spencer-Bower & Turner: Res Judicata (2nd Edn.) at para. 371, on p.323 explained:

 

The fraud necessary to destroy a prima facie case of estoppel by res judicata includes every variety of mala fides and mala praxis whereby one of the parties misleads and deceives the judicial tribunal.

 

The Court below held, and this has not been challenged that the appellant's father harassed the mother of the respondent with her children who were still minors out of Nnewi to Awka before he commenced Exhs. F and G and filed the plan, Exh.M, where in he claimed the whole of respondent's father's land. Such a judgment cannot operate as estoppel. Its proper basis would have been that he has wilfully and voluntarily acted in such a way and induced a certain situation that he ought not be allowed to deny what he had represented by word or conduct: Joe Iga & Ors. v. Ezekiel Ama-Kin & Ors. (1976)11 S.C. 1,12-13. Coincidentally, Exh.F was instituted in 1951, after the death of respondent's father. The conclusion I have reached is that although there is a privity of on the issue of purchase of "Ana Mbubo" by the appellant's predecessor-in-title, it does not extend to the issue of the quantum of the land. To hold that there was on the facts of this particular case will be to do violence to the adversary system of administration of justice by imposing estoppel on the respondent as it were through the back door. I there fore agree that Exhs. E, F and M are not helpful for determining whether the appellant's Ana Mbubo extended beyond the area verged green.

 

I believe there are other good reasons why the conclusion of the learned trial Judge and the Justice of Appeal that "Ana Mbubo" was limited to the area edged green in Exh.L should be upheld. Most importantly, the description of the land as a "dwelling land" in suits No.39/42 (Exh. B), which appears to be the earliest in the series of cases, is more consistent with the area edged green in Exh.L rather than the area outside it which is comprised of extensive farmlands. The only exceptions to these are the war-time construction of Sam. Akose, described as appellant's relative, which has been stopped. Certainly it was not shown in the plan Exh. M, which was made in 1951. In addition, the courts below appear to have accepted the case of the respondent that after the respondent's father died in 1950, his children were so harassed that they had to take refuge in Awka. Faced with these pieces of evidence it appears to me that the learned trial Judge was justified in receiving the evidence of cases decided over the land during and after 1950, such as Exhs. E and F, with suspicion and so attaching little, if any, weight to them. It is equally remarkable, probably more than mere coincidence, that, most of the acts of possession and ownership shown on the plan Exh. M, outside the area edged green were shown as 1950 and 1951 farms. Those shown on Exh.L are even more recent. From all these, it appears to me that the learned trial Judge was right to have resolved the conflict in evidence as to whether Ana Mbuho was limited to the area verged green as the respondent claims, or extends to the pink verging, as the appellant claims, against the appellant.

 

In considering the manner the two lower courts resolved the conflict in evidence as to the quantum of the land granted by Exh.A, it is necessary to bear in mind the important issue of onus of proof. As it is common ground that the land in dispute was originally that of the respondent's father, the onus is on the appellant to prove not only that he (respondent's father) had divested himself of his title but also the quantum of land which was granted to him. For it is an established rule that once it is proved or admitted that the original ownership of land was in one party the onus of proving that that party has divested himself of that ownership is on the other party who asserts the contrary: See Bello Isiba & Ors. v. J. T. Hanson & Anor. (1967) 1 All N.L.R. 8 at p.10; Ochonma v. Unosi (1965) N.M.L.R. 321, at p.325; Thomas v. Holder (1946)12 W.A.C.A. 78. In the instant case the burden was that of the appellant. By Exh.A, and Exhs. B and C, he proved that his father, his predecessor-in-title, was granted a certain quantity of land called "Ana Mbubo." On the next equally important issue as to what the precise boundaries of that land were, he runs into a number of problems. First: is that up till 1951 (the date of Exh. M), that is some twenty-three years after the grant there was no plan of the precise land granted to him under Exh. A. It has been decided in many cases - and this accords with common sense - that a plan of a piece of land, the subject of a grant, which was prepared by the grantee in the absence of the grantor some time subsequent to the grant is no evidential value if an issue is raised about the quantum of the land granted. In this case, respondent's father had died before the plan, Exh. M was prepared unilaterally by the appellant - some-twenty-two years after the grant. Surely this cannot be a reliable evidence of the land granted to him.

Secondly: appellant's evidence in Exh.B., which I have referred to, shows the land he was claiming up to 1942 was a dwelling land. In this state of the facts, the conclusion by the Court below that the appellant tried to increase the land granted to him after the death of the grantor becomes eminently palpable.

These conclusions dispose of this appeal. I therefore, agree with my learned brother, Agbaje, J.S.C., though for slightly different reasons that the appeal has no merit. I hereby dismiss it with N500.00 costs to the respondent.

 

Judgment delivered by 

Wali. J.S.C.

 

I have had the privilege of a preview of the lead Judgment of my learned brother, Agbaje, J.S.C., which has just been delivered. I agree with the reasoning and conclusion. For those same reasons I also dismiss the appeal and agree with the consequential orders made by my learned brother, Agbaje, J.S.C.

 

Counsel

A. Adeniran (with him, Durueke)

 

For the Appellant

U. N. Ugwu

 

For the Respondent