SUPREME COURT OF NIGERIA
CITATION: [1996] 4 NWLR (PT. 445) 637 S.C
CORAM
ABUBAKAR BASHIR WALI, JSC (Presided) JUSTICE, SUPREME COURT
IDRIS LEGBO KUTIGI, JUSTICE, SUPREME COURT
EMANUEL OBIOMA OGWUEGBU,(Read the Leading Judgment) JUSTICE, SUPREME COURT
YEKINI OLAYIWOLA ADIO, JUSTICE, SUPREME COURT
ANTHONY IKECHUKWU IGUH JUSTICE, SUPREME COURT
BETWEEN
1. EGBUCHULEM MADUMERE APPELLANTS
2. OKEREKE IGWEANYA
3. MICHAEL OKEREKE (For themselves and on behalf of members of Umunnam Kindred in Ogberuru, Orin Judicial Division).
AND
1. OLE OKAFOR RESPONDENTS
2. OKEREKE EMEROLE (DECD.)
3. FESTUS OKORIE
4. IKEJIOBI OGBUJI
5. URENTA IROCHURUBA (DECD.)
OGWUEGBU, JSC (Delivering the Leading Judgment): This case started about twenty three years ago. It started its journey in the Okigwe Judicial Division of the High Court of the former East Central State. The case was in 1975 transferred to the Orlu Judicial Division of the High Court of East Central State when that Judicial Division was created. The case passed through many Judges of that Judicial Division and at a stage got to the Court of Appeal, Enugu Judicial Division which ordered a retrial.
In the course of its history, Into State was created and Otto Judicial Division became one of the Judicial Divisions of the High Court of Imo State. The case was subsequently determined by Johnson J. on 27:6:85. The plaintiffs claims were dismissed. Their appeal to the Court of Appeal, Port Harcourt Division also failed hence the further appeal to this court.
In the Imo State High Court, Orlu Judicial Division, the plaintiffs who are appellants in this court claimed in a representative capacity on behalf of Umunnam kindred in Ogberuru against the defendants of Umuduruogu Umuegbe Ogberuru, who are the respondents in this appeal. They claimed as follows:-
1. A declaration of title to that piece of land known as and called Ala Uzo Ulo Onumbara situate at Umunnam, Ogberuru, Orlu.
2. N100 (One hundred Naira) damages for trespass.
3. Injunction restraining the defendants, their servants and/or agents from further entering into the said land.
The case was tried on pleadings filed and exchanged by both parties. The 3rd plaintiff and eight witnesses testified for the plaintiffs. The 1st defendant and three witnesses testified for the defendants. As stated earlier, the claims of the plaintiffs were dismissed by the learned trial Judge and their appeal to the court below failed.
In their appeal before us, the following seven issues are identified as arising for determination:-
1. Whether the Court of Appeal was not wrong in upholding the decision of the High Court that Exhibit C does not bind the respondents even in the face of the overwhelming evidence before the court.
2. Whether the Court of Appeal was right when it upheld the use by the High Court of Exhibit G which is evidence in a previous proceeding to contradict the evidence of the 3rd appellant and as such declare him an unreliable witness when it was not tendered to contradict him during cross-examination, but was only tendered and admitted through D.W.1 at the opening of the Defendants case when the defendants have lost the opportunity to confront the 3rd appellant with the exhibit and cross examine him therewith.
3. Whether the alleged contradictions are material enough to merit the great emphasis placed on them by the High Court and the Court of Appeal so as to have so much sway on the decisions of the courts against the appellants.
4. Whether the Court of Appeal was right when it upheld the High Courts decision that the fact that Exhibit D was written by a member of the appellants family constitutes an admission of the contents therein by the appellants when evidence abound that the appellants refused to recognise the work and when the Author in fact confirmed their refusal to recognise the work. And as such whether Exhibit D could be relied upon as establishing the traditional history of Ogberuru.
5. Whether the Court of Appeal was right when it upheld the application of section 45 of the Evidence Act in favour of the respondents when in fact, no circumstances exist for the application of the section in defendants favour and whether the section ought not to have been applied in favour of the plaintiffs instead.
6. Whether the Court of Appeal should not have considered the issue of the grant of land to the Mission and whether a finding one way or the other on who really made the grant would not have helped the Court of Appeal to determine the actual owner of the land in dispute.
7. Whether the judgment is not against the weight of evidence.
The respondents in their brief of argument identified six issues for determination. They overlap with those formulated by the appellants and there is no need to reproduce them.
The plaintiffs/appellants case is that the land in dispute called Uzo Ulo Onumbara and verged pink in their survey plan Exhibit A belongs to them - the people of Umunnam. The defendants/respondents maintain that the land in dispute which they call Ala Okpu Umuduruogu and verged pink in Exhibit B descended to them by inheritance from their original ancestor called Dumogu.
Before I proceed to consider the appeal, I would like to dispose of two preliminary issues raised in the respondents brief of argument. The first touches on ground two of the grounds of appeal filed by the appellants. They complained that the judgment of the court below is a nullity because it is not in conformity with the provisions of section 258(2) of the Constitution of the Federal Republic of Nigeria, 1979. No issue was formulated on the said ground of appeal and no argument was advanced in support of it. The said ground of appeal must be deemed to have been abandoned and it is hereby struck out.
The second refers to paragraph 4.7 at pages 21-22 of the appellants brief headed The Amala Arbitration - Exhibit H Was Not Proved. The learned respondents counsel has urged us to strike out the argument in paragraph 4.7 because the learned Judge and the court below made specific finding of fact that the Amala Arbitration pleaded by both parties was proved. Learned respondents counsel submitted that no ground of appeal was raised on Exhibit H and no issue for determination was raised on it in this appeal. He urged us to expunge the appellants submission on it because it cannot be covered by the omnibus ground. He cited the case of Ndiwe v Okocha (1992) 7 NWLR (Pt.252) 129 at 139-140 and Elukpo & Sons Ltd. V Federal Housing Authority (1991) 3 NWLR (Pt. 179) 322 at 337.
It is trite law that an issue for determination should arise and relate to a ground of appeal. An argument in a brief should also be based on an issue formulated from the ground of appeal. In paragraph 4.7 of the appellants brief, the argument canvassed therein does not relate to any ground of appeal let alone to an issue formulated there from. The appellants did not raise any complaint against the Amala Arbitration or Exhibit H. The trial court made specific and exhaustive findings of fact based on the pleadings and evidence on the Amala Arbitration and Exhibit H. The court below upheld those findings. No ground of appeal questioned the findings.
There are specific complaints against other exhibits such as Exhibits C, D and G in grounds 3B, 4 and 7 of the grounds of appeal and issues arising in the appeal are formulated from them. This is not the case with Exhibit H. Since there is no complaint against the findings on the arbitration and Exhibit H, no argument can be raised on them.
Arguments in a brief must be based on issues arising and related to the grounds of appeal. Where this is not so, such argument is incompetent and should be ignored. I agree with the learned respondents counsel that the argument in paragraph 4.7 of the appellants brief is not based on any issue for determination in the appeal. It is incompetent and the said paragraph is expunged from the appellants brief.
l now turn to the issues for determination in the appeal. In the first issue it is contended by the appellants counsel that the court below was wrong in upholding the decision of the trial court that
Exhibit C does not bind the respondents in the face of the overwhelming evidence before the court.
Exhibit C was tendered by the appellants. Counsel maintained that it is the result of an arbitration by Barrister Obioha when P.W.7 (Uba Unigwe) representing Umunnam Ogberuru kindred sued Okereke Emerole (2nd defendant) in the Native Court in Suit No. 70/61 and the case was later withdrawn. The preamble to Exhibit C reads:-
This Agreement made the day of 21st September, 1964 BETWEEN Uba Unigwe of Umunnam, for himself and on behalf of his family AND Okereke Emerole (sic) of Umuegbe for himself and as representing his entire family all of Ogberuru in Orlu Division.
Exhibit C was thumprinted by Uba Unigwe and Okereke Emerole and witnessed by Eze Nnadozie, l. Nhakanya and Nwokeji Ikpo. It is the contention of the learned appellants counsel that the wording of the above preamble expressed the fact that the parties therein entered into the agreement as representatives of their respective families.
He further stated that by the provision of Section 131 of the Evidence Act, it is totally improper for the learned trial Judge and the Court of Appeal to have gone outside the clear wording of Exhibit C to rely on extraneous evidence for the purpose of construing it. We were referred to the case of Colonial Development Board V Joseph Kamson (1955) 2 NLR 75 and Section 75 of the Evidence Act. He criticised the inferences drawn by the court below from the cross-examination of the P.W.7 in supporting the findings made by the learned trial Judge that Exhibit C did not operate as estoppel against the respondents.
Counsel maintained that there is abundant evidence on the record to show that the 2nd defendant (now deceased) was a very important member of the respondents family and that his acts bind the respondents. It was also contended that the respondents acknowledged the capacity of Okereke Ememle to make grant o7 their land to Uba Unigwe and also the capacity of Uba Unigwe to receive the land on behalf of the people of Umunnam.
The learned respondents counsel submitted that the findings of fact made by the learned trial Judge on Exhibit C and upheld by the court below should not be disturbed by this court unless they are tainted with miscarriage of justice opare based on inadmissible evidence. He cited the cases of Adeleke V Aserifa (1990) 5 SCNJ 104 at 108; (1990) 3 NWLR (Pt. 136) 94. Chukwuogor V Obuora (1987) NSCC 1063 at 1073/74; (1987) 3 NWLR (Pt.61) 454 and Chikwendu V Mbamali (1980) 3 S.C. 31 at 53.
He further submitted that the appellants claim that they are in possession of any portion of the land in dispute was rejected both by the trial court and the court below and contrary to their claim, Exhibit C does not give them possession of the land in dispute or any land at all. We were urged to reject Exhibit C as a worthless evidence in relation to the present proceedings and that it is a personal agreement between P.W.7 and the deceased 2nd defendant.
On Exhibit C, the learned trial Judge found as follows:-
As regards item 11, I am convinced that the dispute in Exhibit C was personal between P.W.7 Uban Unigwe and the deceased 2nd defendant Okereke Emerole and the result therefore was not binding on the defendants. Similarly, the plaintiffs cannot claim any benefit or advantage from the proceedings in Exhibit C because P.W.7 Uba Unigwe did not enter into the dispute as a representative of the plaintiffs Umunnam people but in his (P.W.7s) private capacity.........
There is nothing to establish that (sic) fact that Obioha arbitration was indeed true. Since Obioha is dead, yet the plaintiff failed to call the chairman of the Obioha arbitration one Michael Ohabuchi to give evidence, and no reason was given for his non-appearance.
The Court of Appeal while dealing with Exhibit C considered the answers given by P.W.7 to cross-examination by the learned defendants counsel in the trial court. P.W.7 admitted under cross-examination that in the Native Court Suit No. 70/64, he claimed the land as his own while Okereke Emerole also claimed it as his own. The court below then held:-
From the above, even though Exhibit C began by stating:
THIS AGREEMENT made ...... BETWEEN Uba Unigwe of Umunnam, for himself and on behalf of his family AND Okereke Emerole of Umuegbe for himself and as representing his entire family..... The evidence coming from the horses (P.W.7s) mouth as it did that 2nd appellant was claiming the land in dispute as his own (he was equivocal as to whether he claimed it as his own or on behalf of his Umunnam community) the learned trial Judge was right, in my view after evaluating the evidence before him, to arrive at the conclusion he did when he said at page 370, lines 12 - 22 thus:
............................................................................................................................................................
.........................
I cannot but agree with these findings on the facts
.........................................................................................
True, it is that both P. W.7. and the 2nd appellant are/were important members of the appellants and respondents communities, but in the light of what I have found above, I do not agree with the learned Senior Advocate that all the respondents and appellants should be regarded as parties and a fortiori, privies to Exhibit C.
It has not been shown by the learned appellants counsel that these concurrent findings of fact are perverse.
In this case, the learned trial Judge found that the alleged arbitration by Barrister Obioha was not true.
Furthermore, the learned trial Judge and the court below rejected the assertion by the appellants that they are in possession of any portion of the land in dispute. The court of trial found that the appellants failed to prove any act of ownership and possession over the disputed land and that the allegation by the plaintiffs that the land was partitioned in 1964 into two equal parts as stated in Exhibit C was not established. The learned trial Judge also found that the appellants did not plead their root of title and did not even allege that the land was communal property of Umunnam people before they came to sue in a representative capacity. The court below also accepted the above findings.
If the appellants did not prove any acts of ownership and possession of the land in dispute as found by the courts below, Exhibit C which purports to share the land into two equal parts between the two parties by way of concession by the appellants cannot be true and would have been procured for the purpose of this case. Such acts of ownership or possession if proved could have formed the basis of Exhibit C but they were not proved. Sections 76,132 and 150 of the Evidence Act, Laws of the Federation of Nigeria, 1990 do not apply having regard to the facts found by the courts below.
As regards the use made by the High Court of Exhibit G and upheld by the Court of Appeal, it was submitted on behalf of the appellants that Section 198 of the Evidence Act made ample provisions regulating the use of, the procedure and the condition upon which evidence or statement of a witness in a previous proceedings may be used to contradict him. It was his contention that enough foundation was not laid for the admissibility of the evidence of the 3rd plaintiff in the previous proceedings-(Exhibit G) and that it was admitted in evidence at the opening of the case for the defendants and after the close of the case for the plaintiffs and long after the 3rd plaintiff had given evidence. Counsel stated that Exhibit G is a piece of inadmissible evidence and that it was a record in a part-heard matter before another judge. He referred the court to the cases of Brown V Dunn (1894) 6 R. 67 (H.L.); Naba Kumar v R. Narayan (1923) A.L.R. 7; Ariku & Or. v. Ajiwogbo (1962) 1 All NLR 630; (1962) 2 SCNLR 369; Alade v. Aborishade (1960) 5 FSC 167 at 171; (1960) SCNLR 398 and Ogunnaike v. Ojayemi (1987) 1 NWLR (Pt.53) 760.
This case was part-heard by Uche, J. of the blessed memory. The 3rd plaintiff testified before him as P.W.1. When the case was heard de novo by Johnson, J., the 3rd plaintiff also testified. It is his evidence before Uche, J. that was admitted in evidence as Exhibit G.
Mr. Ogbuli for the respondents submitted that at the trial before Johnson, J., It became necessary for the defendants to cross-examine the 3rd plaintiff on the statements he had earlier made on oath before Uche, J. which contradicted the evidence he was giving before Johnson, J. and that the 3rd plaintiff was reminded of what he said before Uche, J. which he denied before the defendants tendered a certified true copy of the evidence for the purpose of discrediting him. He further submitted that the learned trial Judge complied strictly with the provisions of section 198 of the Evidence Act before Exhibit G was tendered and admitted in evidence.
In reply to the submission that Exhibit G was tendered after the plaintiffs had closed their case and at the defence stage, he submitted that Section 198 of the Evidence Act did not provide for the time when Exhibit G is to be proved and tendered. He cited the cases of Agu v. Atuagwu (1955) 21 NLR 83 at 84; Alade v. Aborishade supra; Mozie v. Mbebie & Or. (1966) NMLR 167 at 168; Ogunnaike v. Ojayemi supra; Sonekan v. Smith (1964) 1 All NLR 168 and Romaine v. Romaine (1992) 4 NWLR (Pt. 238) 650 at 669.
The complaint on Exhibit G is that the provisions of Section 198 of the Evidence Act was not strictly followed by the learned trial Judge before it was received in evidence. Section 198 of the Evidence Act now Section 199 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria, 1990 provides:
A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is
cross-examined without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
The 3rd plaintiff was asked under cross-examination whether he gave evidence in court on a particular day before late A. K. Uche, J. He agreed that he did and was further asked whether in that earlier evidence he had agreed that the defendants were living on the land in their hundreds. The 3rd plaintiff replied that he could not remember having said so. At that stage, learned respondents counsel applied to tender the certified true copy of the earlier proceedings to contradict the witness. The learned trial Judge advised counsel to complete the cross-examination of the witness so as to lay enough foundation.
As the cross-examination continued, the following notes were made by the learned trial Judge:-
Put: Listen to your evidence on 15:2:83 (15th February, 1983). When you said that the Chiefs and elders of Ogberuru looked into the case but did not reach any decision.
Ans. No, I did not say so.
Exhibit G was subsequently tendered by D.W.1 (Rev. E. E. Onwochei), the Assistant Chief Registrar of the High Court and it was admitted in evidence as Exhibit G.
The learned trial Judge had this to say about the 3rd plaintiff:
In cross-examination, 3rd plaintiff Michael Okereke denied most of the statement he had earlier made in the previous proceedings touching on fundamental issues in this dispute hence the need arose to contradict him by tendering copy of his previous statement.
On the evidence of the 3rd plaintiff the learned trial Judge said:-
There are numerous contradictions in the evidence of the 3rd plaintiff Michael Okereke which make him an unreliable witness. I do not intend to go into the details at this stage.
The court below held that Exhibit G was used only to impugn the testimony of the 3rd plaintiff, that it is immaterial when it was tendered and that the learned trial Judge rightly used the exhibit to cast doubt on the credibility of the 3rd plaintiff.
A previous inconsistent statement can be put to a witness in cross-examination for the purpose of testing his credibility. The statement is not admissible for the purpose of proving the truth of its contents. The fact that the statement was made and is inconsistent with the witnesses testimony in the present proceeding is significant.
After a careful consideration of the notes made by the learned trial Judge before Exhibit G was admitted in evidence, I am satisfied that the attention of the 3rd plaintiff was specifically drawn to those parts of his evidence which were to be used for the purpose of contradicting him and he was reminded of what he said on that occasion. Those portions of his evidence were even read out to him. Counsel for the defendants brought up Exhibit G in cross-examination of the witness to discredit trim and the learned trial Judge did not make any illegitimate use of Exhibit G. See Alade v. Aborishade supra; Agu v. Atuagwu supra; Ogunnaike v. Ojayemi supra; and Ariku & Or. v. Ajiwogbo supra. The words in section 199 of the Evidence Act are clear and were complied with by the learned trial Judge.
In my view, the essential requirements of section 199 are that where a party intends to impeach the credit of a witness by showing that what that witness has said in the present proceedings contradicts his evidence in the previous proceedings, his attention must specifically be drawn to those parts of his evidence which are to be used for the purpose of contradicting him, he must be reminded of what he said on that previous occasion and. he must also be given an opportunity of making an explanation. All these were complied with in the present proceedings and I agree with the court below that there is no provision in the said section of the law as to the exact time the statement should be tendered. However, the statement should be put in evidence by the defendants as part of their case either immediately or in the ordinary cause of the case. See Maurice Cameron v. Anderson (1930) 21 Cr. Ap. R 178 at 181.
The learned trial Judge found that there are numerous contradictions in the evidence of 3rd plaintiff Michael Okereke which rendered his evidence unreliable. He proceeded to enumerate the various contradictions. Some showed that the evidence of the 3rd plaintiff in the present proceedings are at variance with the pleadings or not pleaded at all. Others showed that the evidence in the previous proceedings contradicted the evidence in the present proceedings. In the light of my conclusions above, issues two and three are answered in the positive.
Issue four is whether the court below was right when it upheld the finding of the learned trial Judge that Exhibit D written by a member of the appellants family is an admission of its contents by the appellants when there is abundant evidence of the appellants refusal to recognize the work.
Learned counsel appearing for the appellants submitted in his brief that Exhibit D is not such a book or manuscript contemplated by Section 58 of the Evidence Act. He referred to the cases of Adeseye v. Taiwo (1956) 14 WACA 84; (1956) SCNLR 265 and Idundun & Ors. v. Okumagba (1976) 9-10 S.C. 227. He further submitted that the appellants denied that the book was ever recognized by them as the traditional history of Ogberuru and so it is not binding on them and that the author of Exhibit D who testified as P.W.8 also stated that the book was not accepted by his people.
The learned trial Judge disbelieved the testimony of P.W.8. It was submitted that he did not give any reasons for doing so, that P.W.8 was not shown to be a person having special knowledge of the native law and custom of Ogberuru and that the contents of Exhibit D should have been disregarded by the court below since the source of information of the informants of P. W.8 were not ascertained.
It was contended that if the learned trial Judge had not used the contents of Exhibit D to discredit the appellants and held it to have constituted an admission by them and had considered the traditional history of the appellants with evidence of recent history of the land, he would have found for them.
The learned respondents counsel reminded the court that one of the live issues before the learned trial Judge was: Whether the defendants were strangers or non-indigenous members of Ogberuru clan. He referred to paragraphs 5a, 6, 6a, 7 and 8 of the statement of claim where the appellants averred that the respondents ancestor, Egbe was a stranger from Amaifeke who received no share of Ogberurus land but was given a portion of land by the appellants ancestor after Ogberurus lands had been shared.
Counsel referred to paragraph 17 of the statement of defence where the defendants pleaded thus:-
17. The defendants say that all the traditional history of Ogberuru, the customary ethnic grouping and other matters posited by the plaintiffs are in direct conflict with the Traditional History of Ogberuru as written in a book by a prominent Umunnam (plaintiffs) son. This book was written by a Mr. S. Power Ofor upon information supplied by five other prominent members of the plaintiffs family. The defendants will rely on the relevant admissions made by the plaintiffs in the said book.
Learned counsel submitted that this admission in Exhibit D contradicted the pleadings of the plaintiffs that the defendants ancestor was a stranger in Ogberuru and that it was tendered through P. W.8 without objection. It was further submitted that when D.W.3 (Igwebe Mkpo) testified that he and five others of the plaintiffs family supplied P.W.8 with the information with which he produced Exhibit D and that it was untrue that Ogberuru people rejected the book, not even one question was put to him in cross-examination to dispute these facts.
The court was urged to hold that Exhibit D was properly admitted in evidence as admission by the appellants concerning one of the matters in dispute within sections 19, 20 and 150 of the
Evidence Act and that Exhibit D supports the respondents case that they are the descendants of Ogbemm and not strangers as pleaded by the appellants.
The court was referred to page 382 lines 15-23 and page 386 lines 10-23 of the record of appeal. It was submitted that Exhibit D was not tendered under section 58 of the Evidence Act to prove the native law and custom of Ogberuru because no native law and custom was pleaded by the appellants and having admitted in Exhibit D that the respondents are descendants of Ogbentru, the appellants are estopped from proving that the respondents are strangers. We were referred to sections 20, 26 and 150 of the Evidence Act.
Counsel further stated that the learned counsel for the appellants in his final address in the trial court conceded the fact that both parties are descendants of Ogberuru from one ancestor.
Exhibit D is contained at pages 382 to 419 of the record of appeal. At page 382 lines 15-23,
P.W.8 recorded thus:-
ACKNOWLEDGMENTS
I am grateful to the following for supplying me with all necessary information about the Historical past of Ogberuru, on mythology, customs and traditions, namely David Ndubuisi Okaform (sic) Igwegbe Mgbo, Idii Omokwe, Ezike Dike. On the history of the churches by Okorie Nwokike, Benjamin Ezike (Alias Dimkpanawu) Johnson Ebonine and Peter Nwosu. And to Samuel Oguekusi, for having devoted his time to read over the manuscript.
At page 386 lines 10-23 P.W.8 wrote:-
After the death of Ochasi, Ogberuru being the first son of the father occupied the fathers IsiObi and had nine children which represents (sic) the nine villages of Ogberuru namely, Ubalia, Eziama, Azala, Enwerem, Nnam, Elele, Nhem, Isiakpu, Egbe and (Amuji).
The appellants did not plead any native law and custom in paragraphs 5(a), 6, 6(a), 7 and 8 of their amended statement of claim and the respondents did not also plead any native law and custom in paragraph 17 of their statement of defence. Section 58 now section 59 of the Evidence Act, Laws of the Federation of Nigeria, 1990 has no application to Exhibit D. If the parties had pleaded native law and custom and Exhibit D is tendered to prove it, section 59 of the Evidence Act would have been relevant.
The learned trial Judge and the court below rightly treated Exhibit D as an admission. The contents of Exhibit D, being statements made out of court by a party to the proceedings is admissible in evidence against that party and in this case, the appellants. Exhibit D is an admission which amounts to estoppel. The respondents had believed that the statement contained therein to wit, that they are descendants of Ogberuru to be true and had acted upon such belief. The appellants will not be allowed to deny the truth of that statement.
Furthermore, the admission made in Exhibit D was confirmed by P.W.6 when he agreed in answer to cross-examination that the defendants are descendants of Ogberuru and the learned appellants counsel made similar concession during his final address in the trial court.
I agree with the court below that it is too late in the day for the appellants to complain that the statement of P.W.8 which is contained in Exhibit D on their traditional history is hearsay. His evidence was weighed against that of D.W.3and the learned trial Judge who saw, heard and watched them as they testified preferred the evidence of D.W.3. I am of the same view with the court below that Exhibit D was properly admitted in evidence and the use made of it by the learned trial Judge was legitimate.
The learned appellants counsel submitted that the Court of Appeal was wrong to have upheld the application of section 45 of the Evidence Act by the learned trial Judge in aid of the respondents. He contended that from the record of appeal it is clear that the land north of the land in dispute was given to the respondents by the appellants forefathers and that the court below found that to be so.
It was further submitted that it was only the appellants that gave evidence relating to the ownership of the land immediately south of the land in dispute, pleaded grant of land to the church and called witnesses to testify as to this grant when the respondents called no witness to testify as to their claim to the grant of the land to the same church.
Counsel concluded that section 45 of the Evidence Act was wrongfuly applied in favour of the respondents instead of the appellants because the land north of the land in dispute was given to the respondents by the appellants and the land south of it is owned by the appellants. He cited the case of Okechukwu v Okafor