TOTAL (NIG.) LTD. & Another v NWAKO & Another (SC 131/1976) [1978] NGSC 1 (11 May 1978)


 

IN THE SUPREME COURT OF NIGERIA HOLDEN AT LAGOS
ON FRIDAY THE 12TH DAY OF MAY, 1978
CITATION: (1978) 5 S.C. (REPRINT) 1

CORAM
ATANDA FATAYI WILLIAMS                          JUSTICE SUPREME COURT
MOHAMMED BELLO                                     JUSTICE SUPREME COURT
ANDREWS O. OBASEKI                                  JUSTICE SUPREME COURT

BETWEEN

(1)    TOTAL (NIG.) LTD                                APPELLANTS
(2)    NWANKWO OKOAKPU    

AND

(1)    WILFRED NWAKO                               RESPONDENTS
(2)    NWEKE NWARATA   

 

JUDGMENT OF THE COURT

(Delivered by A. O. OBASEKI, JSC.)

This appeal has raised before us very many important questions of evaluation of the evidence led before the trial Judge, Aseme, J. against whose judgment this appeal has been brought.

The claim before him, sitting at Awka in the Anambra/Awka Judicial Division of the High Court of the East Central State (but now a division of the High Court of Anambra State) was for

“(1) A declaration that the Plaintiffs are the absolute owners in possession free from encumbrances of the parcel of land situate at Abagana within the jurisdiction known as Agu Ekpotu the boundaries of which are delineated in plan No. PO/E218/72 filed with this Statement of Claim;

(2) £300 damages for trespass;

(3) An injunction restraining the defendants, servants, agents, and privies from further entry into and use of the plaintiffs? said land or in any manner whatsoever interfering with the plaintiffs’ ownership or possession of the said land.”

Pleadings were ordered and duly delivered and after hearing evidence of witnesses and addresses of counsel who appeared for the parties, the learned trial Judge delivered a considered judgment in favour of the plaintiffs wherein he inter alia observed:

“Having made the various findings above, the plaintiffs are entitled to succeed in their claim for declaration. I shall now consider the claim for trespass. ................................

........................................................................

Be that as it may, Obreke has not been sued and the trespass complained of is that of the 1st Defendant, the Total Nigeria Limited, who in 1972 sought to erect a petrol filling station. No witness on behalf of 1st Defendant testified and there being no rebuttal by them of evidence of the Plaintiffs in support of the claim for trespass, there ought to be judgment for the Plaintiffs against 1st Defendant. Nwabuoku v. Ottih (1961) 1 All NLR 48. In their pleadings, 1st Defendant relied on Deed of Lease of the land in dispute from the 2nd Defendant. ........................... As I have found above, 2nd Defendant and his people had no right to grant a lease of the land in dispute. ................. In the circumstances, the claim for trespass succeeds against both defendants. There remains the claim for injunction................. No equitable defences were pleaded or proved and the claim for injunction against both Defendants also succeeds...................”

Before us the appellants’ counsel has complained of the judgment on many grounds. This was after the grounds set out in the Notice of Appeal has been substituted with 7 new grounds. These grounds argued before us read as follows:-

“(1) The learned trial Judge misdirected himself in law fundamentally on the case propounded by the plaintiff when he held:-

“The Plaintiffs who are the Urumpi community in Orofia have pleaded that traditionally their forebears are of Amaenye stock which is the same ancestry of the 2nd defendant”

PARTICULARS

1. The case of the plaintiffs on the pleadings is that the land was originally the property of the plaintiff?s ancestor called Kpolumpi.

2. There was no plea by the plaintiffs in the amended Statement of Claim of common ancestry with the Defendants.”

2. The learned trial Judge misdirected himself in law and on the facts by failing to observe that the evidence of traditional history and of the organisation of the Abagamas tendered by the plaintiffs at the trial was

1. not pleaded by the plaintiffs or was inconsistent with their amended Statement of Claim

2. their witnesses contradicted one another even in giving such evidence outside and contradictory to their pleadings;

3. and that the traditional evidence was in any event inadmissible and ought to have been rejected.

PARTICULARS

1. In evidence the plaintiff testified contrary to their pleadings that the land was inherited through their ancestor ENYE down to Kpolumpi and that the land was partitioned to Kpolumpi out of their father?s land.

2. 2nd plaintiff testified that ENYE had three sons - Agbiligba, Abanime and Anyaora, and that Agbiligba begat Kpolumpi their ancestor whereas P.W.9 (Joel Okonkwo) testified that Kpolumpi begat Anyaora one of the three sons of ENYE

3. 2nd plaintiff testified that Abagana has six villages including Amaenye but p.w. 6 said Abagana consisted of 9 villages. 4. The evidence of P.W. 6 that Kpolumpi is from Urumpi one of the 9 villages of Abagana named by him destroys the case of common ancestry set up at the trial that Kpolumpi (Urumpi) is descended from Amaenye (another of the nine villages mentioned by P.W. 6) from which 2nd defendant hails.

6. 2nd plaintiff testified that each village owns separate lands, that Orofia has four quarters of which Urumpi is one, and that only Urumpi claimed the land in dispute.

PARTICULARS

(3) The learned trial Judge misdirected himself in law when he accepted the plaintiffs? traditional root of title and history as offered in evidence at the trial as he was thereby giving judgment for the plaintiffs upon a case not set up by them on the pleadings.

(4) The learned trial Judge misdirected himself in law when he held:

“In Suit No. 27/44 Nwude Nwako was a witness of Amaenye Abagana and he was then called by them to say that where Simon Eme lived belonged to Urumpi community. The people of Amaenye in Suit 27/44 who are now represented by the 2nd defendant in the case are therefore bound by the decision of the District Officer and are estopped from asserting that Simon Eme is not tenant of the people of Urumpi Orofia. See Section 150 Evidence Law Cap. 49 Law of Eastern Nigeria. Although the people of Urumpi were not parties on record in Suit 27/44 but their man Nwude Nwako gave evidence as representing the Urumpis? case with respect to the land where Simon Eme occupied. The Urumpis are therefore parties. The term parties for purposes of estoppel included not only those named on the record but also those who had the opportunity to attend the proceedings. Wakefield v. Cooke (1904) AC. 31. See also Phipson on Evidence 11th Edition Cap. 1360; Onisango v. Akinkunmi and Ors. (1955) WR NLR 39.:

PARTICULARS

1. The 2nd defendant is not estopped per rem judicatam

2. The reference to “parties” in Onishango v. Akinkunmi (1955) WRNLR 35 is to parties estopped by conduct who have the knowledge and opportunity to attend proceedings in which they have an interest and refrain from so doing.

3. The 2nd defendant was not estopped by conduct.

4. Evidence given in previous proceedings is not evidence in subsequent proceedings

5. The evidence of a witness in a previous proceedings can only be used to cross-examine that witness in a subsequent case.

6. The area of land to which the judgment in Suit 27/44 relates is uncertain

7. The judgment in the said suit was reversed by the Resident

8. There was no issue estoppel as the Urumpi community were not parties in Suit 27/44.

(5) The learned trial Judge misdirected himself on the evidence by overlooking the numerous material contradictions in the evidence of the plaintiffs and their witnesses and that the evidence of these witnesses confirmed in material particulars the evidence of the defence witnesses and that the reason given by him for preferring the evidence of the plaintiff and their witnesses to that of the 2nd defendant (namely demeanour) overlooked the hard facts of the evidence in the case.

(6) The verdict is against the weight of evidence.”

The above grounds of appeal were exhaustively dealt with by Mr. H.A. Lardner, learned counsel who appeared for the appellants. The grounds involved serious questions of law and facts and after hearing the submissions of learned counsel for the appellants, learned counsel for the respondent ( Professor Kasumu) after a spirited reply conceded that the judgment left much to be desired and submitted that in view of the very many questions unanswered and issues undecided by the learned trial Judge the justice of the case would be better met by an order of retrial.

Be that as it may, we shall now proceed to examine the facts of the case and the various submissions made by counsel on the grounds of appeal argued before us.

The facts of the case set out in the plaintiffs/respondents pleadings are briefly as follows:-

“The Plaintiffs are descendant of one Kpolumpi who originally owned and lived on the land in dispute. He however moved from the land to Orofia village and settled there. There he raised a family and one of his children by name Nwako begat Orazulume who later returned to the land abandoned by his grandfather, lived and died there in the property erected by him the ruins of which still lay visible on the land. The Plaintiffs who are descendants of Kpolumpi constitute Urumpi community in Orofia but have over the years exercised possessory rights over the land in dispute mainly the grant of land to the Abagana community to establish a market known as Nkwo Odenigho; (2) stopping one Pius Unegbu (alias Egbunike) and one Obeki both from the 2nd Defendant?s community from building structures on the said land, and (3) putting Simon Eme on Ifile Ukpo a customary tenant on a portion of the land adjoining the land in dispute.

In July, 1972, the 1st Defendant in pursuance of a lease granted by the 2nd Defendant and others on behalf of Amaenye community entered the land in dispute and commenced the erection of a petrol filing station.

The second defendant/appellant however in his Statement of Defence denied that plaintiffs? forebears are of Amaenye stock and that the action is prosecuted on behalf of Urumpi extended family of Abagana. The 2nd defendant/appellant further pleaded that the land in dispute was a portion of the land originally founded by their ancestor called Enye and which land had descended to his family of Amaenye Abagana and that Dumukofi a Native Court Suit No. 27/44 created estoppel per rem judicatam. He admitted putting the 1st defendant on the land in dispute, but claimed that his family did it as owners in possession.

More particularly, paragraphs 1, 5, 6, 7 and 8 of the Statement of Claim reads:

“1. The Plaintiffs whose forebears are of the Amaenye (also sometimes written as Amenye and Amene) stock of Abagana take this action for themselves and for and on behalf of the members of the Urumpi extended family of Abagana (hereainafter referred to as the Urmpi community) with the approval of the court.

5. The land verged green on the Plaintiffs? said plan No. E/GA. 145/73 (hereinafter referred to as the Plaintiffs? land) was originally the property of the Plaintiff?s ancestor called Kpolumpi who lived on this land and has remained the property of the Plaintiffs.

6. Later Kpolumpi left the land in dispute, moved to Orofia and settled there.

7. At Orofia Kpolumpi begat a male child with two others whom he named Nwadikobili for short or Nwadikebili Amaenye, meaning that only a man of extraordinary courage could live at Amaenye in which is situate the land from which he had moved out to settle at Orofia. The other two children of Kpolumpi were Nwako and Onyeamaghichu.

8. Nwako begat Orazulume who later returned to the Plaintiffs? said ancestral home verged green on plan No. E/GA.145/73. Orazulume lived on this land till his death. The ruins of the said Orazulume?s compound are visible on the Plaintiffs? land to this day.”

The 2nd defendant/appellant joined issue with the plaintiffs on the facts pleaded above in his Statement of Defence. In particular, paragraphs 6, 7 and 22 of the Statement of Defence read:

“6. In further answer of paragraphs 5, 6, 7 and 8 of the amended Statement of Claim, the 2nd Defendant says that the land now claimed by the Plaintiffs is only a portion of one of their communal lands founded by their ancestor called “Enye”

7. The ancestor “Enye” had 3 sons viz, Agbaligba, (2) Anyaora and (3) Abanime. All the sons enjoyed their father?s land in common.

A. Agbaligba begat Dekwo - who begat Uzo - Enugwu - who begat Okakpu and Okakpu begat Nwankwo Okakpu (2nd defendant);

B. Abanime begat Enyibe who begat Ebelonwu and Ebelonwu begat Nwoye Ebelonwu who now lives inside the land in dispute. All the descendants of Enye enjoy their ancestral lands in common.

22. The 1st Defendant is on the land in dispute with the express permission of the 2nd Defendants? people who are the owners of the land and have not therefore committed any acts of trespass.”

On the pleadings therefore, it is not common ground that the plaintiffs and 1st defendant are of Amaenye stock. In any case, there was no averment by the plaintiffs that all the Amaenye stock were the founders of the land in possession. What Amaenye stock really consisted of was not made clear throughout the Statement of Claim. Since the plaintiffs did not trace their genealogy as regards their interest in the land in dispute beyond Kpolumpi, the inference therefore is that it is Kpolumpi and his descendants that constitute the Amaenye stock.

The 2nd defendant?s defence traced his genealogy and title to Enye whom he described as the founder of the communal lands of which the land in dispute formed part and averred that all the descendants of Enye enjoy their ancestral lands in common.

However, when evidence was adduced by the parties

“It was common ground that the land is in Amaenye village of Abagana. It was also common ground that Enye was common ancestor of both the Plaintiffs and the 2nd Defendants. Although no genealogical tree was pleaded by Plaintiffs, the 2nd Plaintiff who was the star witness to the plaintiff gave his ancestral tree as follows:-

“Enye” is the common ancestor of Amaenye. Enye had 3 sons - Agbaligba, Abanime and Anyaora.

Agbaligba begat Kpolumpi who is our ancestor”

Testifying on the ancestry of the 2nd defendant, his evidence reads:

“The 2nd defendant is not a descendant of Agbaligba but Abanime”

These facts were however absent from plaintiffs? pleadings. Hence, the appellant has complained in this appeal that without amendment of the Statement of Claim the 2nd plaintiff and his witnesses including 9th P1/W Joel Okonkwo, could not testify and should have been precluded from testifying on his ancestry beyond Kpolumpi and claim to have common ancestor with the 2nd defendant in Enye. This is notwithstanding the fact that the number and names of the sons of Enye given by him were pleaded by the 2nd defendant.

The traditional evidence on how the plaintiffs acquired title to the land which reads:-

“This land is owned by Urumpi community. This land was inherited through our ancestor Kpolumpi who had this land as his share of their father?s lands. We are descendants of Kpolumpi,”

was not on facts pleaded by the plaintiffs either. The fact of Kpolumpi having had the land in dispute as his share of his father?s land was never pleaded. It was never pleaded by the plaintiffs that Kpolumpi?s father had any lands. How his father acquired the land was never pleaded either.

On this issue of genealogy and how their interest in the land in dispute was acquired, 2nd defendant?s evidence reads:-

“I have heard of Enye. He was our ancestor the people of Amaenye. The land in dispute was one of the lands Enye founded that descended to the descendants of Enye.

He had three sons, Anyaora, Abanime and Agbaligba. I hail from Agbaligba section or branch.

It is not true that the land was that of Kpolumpi.

...................................................................................

The ancestor of the Plaintiff was not called Enye. He was Kpolumpi. From Urumpi to the land in dispute one has to pass through the villages of Adogbu, Orofia, then Akpu Abagana, then Amaenye.”

Although the plaintiffs/respondents pleaded in paragraph 3 of the Statement of Claim that they were owners in possession and that in such capacity they have exercised numerous acts of ownership over the land in dispute and other areas of the Agu Ekpeotu or Abonkwu land, the abandonment of the land by Kpolumpi and his children, as pleaded in paragraphs 6 and 7 of their Statement of Claim and their settlement in Orofia is very much in violent contradiction. The reason for the abandonment is expressed in paragraph 3 of the Statement of Claim which reads:

“At Orofia, Kpolumpi begat a male child with two others whom he named Nwandikebili for short or Nwadikebili Amaenye, meaning that only a man of extraordinary courage could live at Amaenye in which is situate the land from which he had moved out to settle at Orofia. The other two children of Kpolumpi were Nwako and Onyeamaghichu.”

However as evidence of facts of ownership, the plaintiffs pleaded the return of Orazulume to live in the vicinity of the land in dispute, the grant of the land in dispute and other portions of the Agu Ekpeotu or Abonkwu land to the Abagana community to establish a market known as Nkwo Odenigbo. They also pleaded putting tenants including one Simon Eme on the land in dispute and stopping one Egbunike and one Obeki from building structures on the land. Finally they pleaded the acknowledgment of their ownership of the land west of the land in dispute by the 2nd defendant before His Highness the Igwe of Abagana and the admission by Nwude Nwako, a witness and representative in interest of the 2nd defendant in the Dunukofia Native Court case No. 27/44 that the land lying immediately east of the land in dispute was owned by the plaintiffs.

The acts of ownership pleaded by the plaintiffs were denied by 2nd defendant who pleaded in paragraphs 13 and 20 of the Statement of Defence that his family have from time immemorial exercised maximum acts of ownership.

In the course of the hearing, both parties led evidence to establish the same or serious acts of ownership but each side claiming its exercise.

Not unnaturally, this increased the burden on the learned trial Judge of determining and ascertaining the truth of the matter. In the performance of this function, the learned trial Judge in his summary of the pleadings observed in his judgment:

“The Plaintiffs who are the Urumpi community in Orofia have pleaded that traditionally their forebears are of Amaenye stock which is the same ancestry of the 2nd Defendant.?

This summary is inaccurate as nowhere in the pleadings of the plaintiffs was it averred that the 2nd defendant in of the same stock as the plaintiff. The claim of membership of Amaenye stock by the plaintiffs was traversed and became one of the issues to be determined but not having pleaded facts about their ancestry the plaintiffs were in law incompetent to lead evidence of the issue and all the evidence led by them outside their pleadings went to no issue. This was the main complaint in ground 1 of the grounds of appeal and we think the point was well taken.

Parties are bound by their pleadings and they are not allowed without amendment of their pleadings to go outside them in establishing their case. Aderemi v. Adedire (1966) NMLR 398 at 401.

The learned trial Judge correctly identified the main issue when he said: “The issue therefore in this case is who is owner of this land in dispute.”

There were however other subsidiary issues which, it appears, the learned trial Judge failed to advert his mind to. They resolve themselves into the following questions:

(1) Who was Kpolumpi?

(2) How did he get to Amaenye village?

(3) How did he acquire the land, if he did?

(4) Did his evacuation from the land in dispute amount to abandonment?

(5) How did Orazulume Nwanko get back to the land in the vicinity of the land in dispute and who allocated the portion he lived on to him?

(6) Was the donation/grant to the Amaenye community of the land in dispute revoked?

(7) If not, did Amaenye community surrender the land to the Urumpis?

(8) Are the Urumpi community related to Amaenye community?

(9) If so, which of them controls the land and which of them owns the land?

(10) Who owns all the lands in Amaenye village?

(11) If Amaenye community, does the abandonment of the land by Kpolumpi and his children not make the land the property of Amaenye community?

Although there was evidence on some of these matters, there were no findings made by the trial Judge.

Where it is established before a court of appeal that vital issues which depend much on the appraisal and evaluation of the evidence are left undetermined, a case for a retrial is made out for such a failure has occasioned a miscarriage of justice, i.e. miscarriage of justice which in this context means (as ably defined by Lord Thankerton in the case of Bibhabati Devi v. Kuma Ramendra Narayan Roy (1946) AC 508 at page 521) “such a departure from the rules which permeate all judicial procedure at all.”

The learned trial Judge in the summary of the evidence of the 2nd plaintiff inaccurately stated that

“He said that Kpolumpi once lived on the land but later left it and settled in Orofia”

This statement was more in line with the plaintiffs? pleadings. It did not fall from the mouth of the 2nd plaintiff.

“This land is owned by Urumpi community. This land was inherited through our ancestor Kpolumpi who had this land as his share of their father?s land.”

The claim to inheritance by both Kpolumpi and the plaintiffs, however, is outside the pleadings.

The learned trial Judge also took note of his evidence that “as owners we farm the land” when he observed:

“It was his evidence that the Plaintiffs? people of Urumpi were farming on this land until they permitted Abagana community to establish Nkwo Odenigbo market.”

This evidence as to farming the land by the plaintiffs? people was outside the pleadings and should have been expunged.

As regards his evidence concerning Nkwo Odenigbo market, what appears on the record as evidence from the 2nd plaintiff is:

“I know Nkwo Odenigbo market. It is on Urumpi land in Amaenye. This market is on the left of the junction of the road leading to Otuocha from Onitsha/Enugu road. This market is no longer in use. The Abagana community established this market on the land having been donated by Urumpi community.”

Nowhere in it was the word „permitted? used. The evidence given is more in line with the pleadings of the plaintiffs in paragraph 9 of the Statement of Claim which reads:

“....................At one time the Plaintiffs gave the land in dispute and other portions of their land .......................... to the Abagana community to establish a market known as Nkwo Odenigbo ...............”

The summary of it given by the learned trial Judge is inaccurate. The full import of the evidence was devalued by the use of the term “permitted.? The mis-statement has occasioned a miscarriage of justice.

This erroneous summary was made despite the fact that PI/W.6 whose evidence the learned trial Judge accepted testified that the Abagana community take it that the land belonged to the community” and that “ that was why the Abagana community gave the land to Chief Obeki.”

Further in the course of his judgment, the learned trial Judge commented:

“I believe the evidence that Plaintiffs? forebears originally lived on the land verged green on the plan Exhibit A but left it to live at Orofia”

There was no basis for this belief as the 2nd plaintiff did not testify that his forebears lived on the land and in any case did not give the names of his forebears that lived on the land. The evidence of PL/W.9 as regards plaintiffs ancestor and descendants is outside the pleading. This disposes of grounds 2, 3, 5 and 6 which we find well taken.

The judgment was so full of mis-statements and errors that we are inclined to agree to Professor Kasumu’s suggestion that the justice of the case would be met by an order allowing the appeal and sending the case back for retrial.

This court and before it the Federal Supreme Court, the West African Court of Appeal and Privy Council have left litigants in no doubt by their declarations that parties are bound by their pleadings and should not lead evidence outside their pleadings.

In the case of Adenuga v. Lagos Town Council 13 WACA 125, the West African Court of Appeal observed:

“As has been said on many occasions in this Court, a party in a civil suit is bound by his pleadings. He cannot set up as his case one thing in the pleadings as his case and in this court rely on some thing entirely different.”

It seems to us that the learned trial Judge should not have accepted the evidence of the 2nd plaintiff and his witness albeit without objection on matters not pleaded and should not have allowed their testimony to follow the trend complained of. Moreover, having let in the answers, he should have ignored or disregarded them as they went to no issue as settled by the pleadings. This view accords with the decision in Abimbola George v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 and also with the observations of the Federal Supreme Court in Idahosa and Anor v. Oronsaye (1959) 4 FSC 166 at page 171 and in O.S. Bada v. Chairman, L.E.D.B. and 5 Ors. (unreported but see SC. 501/65 of 23rd June, 1967) where this court observed inter alia as follows:-

“The evidence in regard to long possession did not pertain to matters arising out of the pleadings and so should have been ignored and rejected by the learned trial Judge who should have confined himself to determine the issues raised by the pleadings, as was by Lord Summer in North Western Salt Co. Ltd. v. Electrolyte Alkali Co. Ltd. (1914) 416 at page 481:

“Much of the oral evidence was strictly immaterial since, though obtained in cross-examination, it went to no issue”

And again, in Abowaba v. Adeshina (1948/1949) 12 WACA 18 the court at page 19 observed:

“...........therefore in this country it is necessary for the Defendant to plead all the material facts upon which he relies to answer Plaintiffs? claim and we are in no doubt that the Respondent ought to have pleaded waiver of forfeiture and if the Appellant had objected at the trial to the admission of evidence as to such waiver, such an objection should have been upheld and the evidence excluded. The question is can we now eliminate it?

The object of pleadings is to compel the parties to define the issues upon which the case is to be contested and to prevent one party taking the other by surprise by leading evidence on material facts of which the other has no due warning.”

And also in the case of National Investment and Properties Co. Ltd. v. Thompson Organisation Ltd. (1969) 1 All NLR 138 Lewis JSC., delivering the judgment of the court commented:

“It is convenient here to deal with one other general matter. Chief Akin Olugbade frequently asked us to look at the evidence adduced and not at the pleadings as it was the evidence that mattered. Now just as an Appellant is bound by his grounds of appeal so at the earlier stage of the action both parties are bound by their pleadings and it is elementary that admissions in pleadings do not have to be proved. In so far as pleadings do not contain admissions then the matters alleged must be proved in evidence but that evidence cannot derogate from the pleadings as Chief Akin Olugbade seems to us to think it could. See Idahosa v. Oronsaye 4 FSC. 166 at 171. A plaintiff must call evidence to support his pleadings and evidence which is in fact adduced which is contrary to his pleadings should never be admitted. It makes no difference as Chief Akin Olugbade suggested, that the other side did not object to the evidence or that the judge did not reject it. It is of course the duty of counsel to object to inadmissible evidence and the duty of the trial court anyway to refuse to admit inadmissible evidence. But if notwithstanding, this evidence is still through oversight or otherwise admitted, then it is the duty of the court when it comes to give judgment to treat the inadmissible evidence as it had never been admitted. This has long been the case but it is clearly set out in the judgment of this court in Bada v. The Chairman, LEDB SC. 501/65 of 23rd of June, 1967. We cannot therefore look at or accept evidence on record here when it runs contrary to the pleadings of the plaintiffs.”

Finally, the ground of misdirection complained of in ground 4 was, in our view, also well taken for we find great merit in it.

There was before the learned trial Judge, the judgment of Mr. Dermot O?Conor, Resident, Onitsha Province, to whom an appeal against the District Officer?s judgment was taken. In that judgment, the Resident observed:

“It should be noted that a case of 1940 assigned to the Respondents of Abagana the land whereon is built the house of Simon Eme just south of the Awkuzu -Awka Road boundary.”

Further in suit 27.44, the Amaenye Abagana people gave evidence that they were the original owners of the land from “pre-government” days. In our opinion, therefore, whatever be the evidence of Nwako to the contrary in the said proceedings, could not amount to admission by Amaenye people that the Urumpi community owns the land nor could it operate as estoppel against the appellant in this case.

However, the acceptance of the traditional evidence tendered in proof of the title of the respondents to the land in dispute is the pith of the matter on appeal. Title was really not declared solely on the evidence of exercise of acts of ownership as to being on the full effect of errors in the appraisal and evaluation of evidence of acts of ownership.

The unanswered questions of the truth of the claims of the respondents to the same ancestral origin as the appellants and related issues of devolution of title, the effect of abandonment and donation of the land to the community have persuaded us to the view that the judgment of the learned trial Judge must not be allowed to stand.

The appeal is hereby allowed and the judgment of Aseme, J., dated the 8th day of December, 1975 together with the order as to costs is hereby set aside.

We hereby order that the case be remitted to the High Court of the Anambra State sitting at Awka for hearing de novo before another Judge with liberty to the parties to amend their pleadings.

Costs in the court below is to abide event of the retrial.

The respondent shall pay the appellants costs in this appeal assessed at N415.00.

Sgd. A. Fatayi-Williams, JUSTICE, SUPREME COURT.

Sgd. M. Bello, JUSTICE, SUPREME COURT.

Sgd. A.O. Obaseki, JUSTICE, SUPREME COURT.

Counsel:

H,.A. Lardner, Esq. and Chike Ofodile, Esq., for the Appellants

Professor K.A. Kasunmu , for the Respondents.

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