The appellants were plaintiffs at the trial court and having lost their case there appealed to the Court of Appeal, Enugu Division, where their appeal was dismissed. Both parties are from the same locality, Ikenga, but from two different villages of Akpuru or Akpulu - (perhaps due to dialectical preference!) and Amaouko respectively. The appellants in their plan, which was Exhibit A at the trial court, named the land in dispute over which they claimed ownership by praying for declaration of title and injunction, forfeiture and damages resulting from trespass as IKE UGWU AKPURU. The plaintiffs claimed to represent Akpulu family of Ikenga. After several amendments of their claim and statement of claim, following closely on the respondents filing their own statement of defence, the case took off and the evidence offered by the par­ties lead to the close of the case. Learned trial Judge felt as if the plaintiffs were on a wild goose chase and this is evidenced by the record of proceedings substantially made up of amended pleadings by the appellants, provoked each time by the facts in the statement of defence.

The appellants submitted for evidence Exhibit A, which according to them represented the land in dispute. Against this plan is Exhibit B submit­ted by the respondents as defendants at the trial court. The two plans are drawn on the same scale 1":200', but there is a world of difference in their contents and scope. Exhibit A tendered by the appellants has very limited scope, showing the area in dispute as pink verged and inside this pink verge are two areas verged blue which allegedly provoked the litigation leading to this appeal; and finally an area verged violet allegedly granted by the appel­lants to the respondents. Outside the area verged pink, the portion to the East, West and Southwest are marked as Akpuru (Akpulu?) land. Against this is the respondents' plan, Exhibit B which covers a larger area and thus having a wider scope. This exhibit shows a yellow verged area enclosing a pink verged portion corresponding to the land in Exhibit A allegedly in dispute. Both the area in dispute and the land surrounding it verged yellow, come under the name Akpuru or Akpulu used by the appellants to describe the land is not used in Exhibit B. Scattered inside the disputed area and im­mediately outside it in the verged portion are various settlements and farms e.g. Monghalum, Nwafor Uba Atuegwu, Ezekiel Okonkwo, Aronu, Joseph Umeh, ancient hut of Ugwuowele and Ahanonu Ezenamuo's compounds, all belonging to the respondents within the disputed area. Similarly within the yellow verged portion but outside the portion verged pink are settlements of David Umeh, Nwankwo Odoeze, and others on the west and settle­ments occupied by Ugo Ezenemuo, Charles Dimkafor on the East, and farm of Ezeilo to the North, all occupied by the defendants/respondents family or their tenants.

All these areas are not shown on the appellants' plan, Exhibit A. The only common features in the two plans apart from identical scale of drawing and similarity of land in dispute are St. Philips C.M.S. Church, Infant School and Teachers buildings and teachers quarters. Apart from these missing features in the appellants' plan, there is no dispute as to identity of the disputed land.

The appellants claimed the whole disputed land belonged to them and that whenever the respondents show presence therein, it was as a result of their permission by the appellants or through an act of trespass. In the usual manner of the naming of the land in dispute, the appellants call the land Ikengwu Akpulu or fully "Ana Ikengwu Akpulu." This is because their fam­ily is called Akpulu family. This family according to the second plaintiff, Ezeanoikwa Umennaikwe, P.W.2, originated from the first settler on the land called Dimidiji, who begat Akpulu from whom the family derived its name. They claimed exclusive ownership of the land and that they farmed on it, harvested crops and economic trees on it and gave out portions to tenants. Some of the tenants they claimed, are Nwankwo Ezeilo, C.M.S. Mission, Ikenga, and one Okoye Ezeilo. This secondplaintiff, P.W. 1, is their spokes-man and their case rested squarely on his evidence. He agreed that their Akpulu family is made up of three sub-families, to wit Umuezeotakviu, Umuokeke and Umuonono. He attempted to distance Umuonono as subfamily attached to Akpulu and as of no consequence. But evidence emerged, which learned trial Judge believed that indeed Umuonono is the principal branch of Akpulu family and being dissatisfied with the appellants' claim disassociated themselves from the action giving rise to this appeal. Apparently, it was the plaintiffs' wish to distance themselves from the Umuonono as found rightly by the trial Judge when he said inter alia as follows:

the witness stated that Umuonono came dnd attached them­selves to Akpulu family but they are all known as members of Akpulu family in Ikenga. This witness who is about fifty years old stated that Umuonono people have been living together with their family before he was born. It was his evidence that Umuonono sub-family does not own the land in dispute with the rest of the family. He further stated that they did not join them in bringing this action. He denied the suggestion that Umuonono sub-family is the head of Akpulu family.

This witness, P.W.l, insisted it was the plaintiffs that gave the Church Missionary Society the land on which their Church, Schools and the teachers' houses are built but offered no evidence in support. As against this is the evidence of the respondents, showing not only their being in possession, but also their unequivocal grants to the C.M.S Mission and other ten­ants and these grants and possession dated over a lengthy period of time that it is a certainty they and not the appellants who have better title to the land in dispute The nearest evidence to proving any right of the plaintiff over the disputed land according to the Judge, is that of P.W.2, Okerie Ezeilo, who claimed to be the plaintiffs' tenant, not on the disputed land but on an adjoining land, "having a common boundary with the land in dispute." This witness, however, confessed he did not know the families in Akpulu but knew the families seem to be “separated from each other" only the previous year before he gave his evidence. The other witness Okorondo Okeke, P.W.3, an in-law of the plaintiffs, said that he used to work for the plaintiffs on the land without being challenged; this was all he knew. For his part, Nwankwo Ezeilo, P.W.4, blandly said he knew the land in dispute belonged to the appellants without anything more, and that is because he paid tributes to them. He farmed the land only once and had left the land twelve years prior to his evidence. It is remarkable that none of these P.W.2, P.W.3 and PW.4 ever in their lengthy evidence pointed at the very portion of the dis­puted land where they occupied, however briefly. The trial Judge had no reason to prefer their evidence to the cogent evidence of the defendants/re­spondents, who not only demonstrated where they occupied on the land in question, but also the grant to the C.M.S. Church. The evidence of the third defendant, as D. W. 1, as to how the C.M.S. Church was given part of the dis­puted land in 1957 is clear and supported by the evidence of the district pas­tor, D.W.2. This witness, D .W. 1, tendered Exhibit C, a 1922 case decided in favour of his father against the plaintiffs' family. As this was not enough, Okoli Ewerije, D.W.4, who is a member of Umuonono family, the principal family of Akpulu, and was the head of that family, testified that the disputed land belonged to the respondents.

The respondents of Amaokuko village call the land Ana Ugwu Owelle and they claimed that the land had been theirs from the time of their forefathers and that the appellants are only trying to divest them of it because they had land on the West of the disputed land as boundary men.

Learned trial Judge in a well considered evaluation of the evidence be­fore him came to this strong conclusion:

After considering the evidence led by the parties in this case and the submission of their counsel, I have come to the conclusion G that the plaintiffs case is very weak. 1 do not believe the plaintiffs and their witnesses that the defendants who undoubtedly live on a portion of the land in dispute live on the land as a result of a grant made by their ancestor to the defendants' ancestors. I am satisfied and find as a fact that the defendants live on the land as of right and not as a result of any grant made to them by the plaintiffs' ancestor. Each party claims making the grant to the C.M.S., a very important act of ownership. I do not believe the plaintiffs that the grant was made by them. 2nd plaintiff in his evidence stated that the grant was made by his father to the C.M.S. But P.W.5 appears to disagree with this claim for in his evidence he stated that the grant was made by his father to the C.M.S. Ac-cording to him, 2nd defendant's father, Umennaike, was merely present when his father made the grant. I agree with Mr. Any­aduba, the learned counsel for the defendants that failure on the part of the plaintiffs to call an independent witness to give evidence for them on this important issue weakens plaintiffs' case.

………………………………………………………………………………….

The witness readily admitted under cross-examination that his brother, Anagbogu, is marrying the daughter of the late 1st de­fendant. Learned counsel for the plaintiffs has capitalized on this piece of evidence and has relied on it as a ground to discredit the evidence of the witness. According to him the witness is not an independent witness the reason being that he came to give evi­dence merely to support his in-laws. I do not share this view, Rev. Umeobi comported himself so well in court and was unruf­fled even when under cross-examination some uncomplimentary remarks were made about him. Rev. Umeobi undoubtedly impressed me as a most truthful witness. I accept his account in full about the establishment of the C.M.S. in Ikenga and the humble role he played in bringing this about. I am satisfied and find as a fact that it was the late 1st defendant and the members of his family who gave the land to the C.M.S.

He therefore found no merit in the plaintiffs/appellants' case and dismissed it in its entirety. In the Court of Appeal, the following grounds of appeal. were canvassed by the appellants:

(1)             The learned trial Judge erred in law in relying heavily ('n hearsay evidence of Rev. Umeobi D.W.2 in giving his judgment for the defendants.

PARTICULARS OF ERROR:

 (a)    Rev. Umeobi who was then only a student, was not present and never participated in the negotiation of granting land to the C.M.S. and never told the court on the finding of the trial Judge that "it was Ahanonu who told him that he gave the land on which the Church was built to the C.M.S.

(b)    Rev. C. Oti who was mentioned by the witness to have negotiated with the 1st defendant was still alive and in Imo State was not called to give detail of land donation.

The learned trial Judge misdirected himself on facts when he held as follows: "Each party claims making the grant to C.M.S. a very important act of ownership. I do not believe the plaintiffs that the grant was made by them. 2^nd plaintiff in his evidence stated that the grant was made by his father to the C.M.S. But p.w.5 appears to disagree with this claim for in his evidence he stated that the grant was made by his father, Umennaike was merely present when his father made the grant. I agree with Mr. Anyaduba, the learned counsel for the defendants that failure on the part of the plaintiffs to call an independent witness to give evidence for them on this important issue weakens plaintiffs A case. Defendants, on the other hands, called Rev. Umeobi a native of Ezinifite to give evidence about the grant."

PARTICULARS OF MISDIRECTION:

(a)    Grant of the land to C.M.S. is one of the acts of ownership and was as important as other acts of ownership given in evidence by the plaintiffs. 

(b)    The learned trial Judge disbelieved the plaintiffs because the 2nd defendant said that his father made the grant whereas the p.w.5 said that it was his father who made the grant. The 2nd defendant Ezeanoikwa Umennaike and the P.W.5 is Richard Umennaike and both are of the assertion that their respective father was the person who made the grant.

(C)    The plaintiffs called many independent witnesses on sev­eral acts of ownership and, even if, Rev. Umeobi is not an independent witness where his brother is marrying the daughter of the 1st defendant.

(d)    Rev. Umeobi's evidence which the learned trial Judge accepted in disbelieving the plaintiffs contradicted the evi­dence of the 1st defendant's son D.W.1 in that Rev. Umeobi said that 1st defendant agreed that "he and mem­bers of his family will become members of C.M.S. Church"  as a condition for helping to establish the Church whereas D.W.1, the son of 1st defendant agreed that he was a Roman Catholic and his father (1st defendant) died a juju priest.

3.    The judgment is against the weight of evidence.

ADDITIONAL GROUNDS OF APPEAL:

4.    The learned trial Judge erred in law being completely miscon­ceived of the real issue before him.           

PARTICULARS OF ERROR:

(a)    The plaintiffs pleaded that the land in dispute which they own is in Akpulu village in Ikenga Town.

(b)    The defendants on the other hand pleaded that the land in dispute which they also own is in Amaokuko village also in Ikenga Town.

(c)    Yet the learned trial Judge failed to consider and therefore G decide - where in fact is this land in dispute in Akpulu vil­lage or in Amaokuko village.

The learned trial Judge misdirected himself both in law and in fact when he adjudged as follows:­

The learned Counsel for the plaintiffs when cross-examin­ing these two witnesses introduced a version nowhere pleaded by the plaintiffs in their Statement of Claim.

PARTICULARS OF MISDIRECTION

(a)    The learned trial Judge failed to consider the rules that ought to, and should be observed when pleadings are ordered.

(b)    The learned Counsel for the plaintiffs never introduce any new version

(c)    All that the learned Counsel for the plaintiffs did was to lead evidence to expound what was already pleaded namely that the land in dispute is in Akpulu village in Ikenga Town.

The argument on the grounds seemed to have coalesced into two issues of whether

(a)    the judgment was perverse having regard to the claim for decla­ration of title as the Judge failed to make findings on issues seri­ously contested, and

(b)    the judgment was perverse as to the claims of both parties on the grant to C.M.S. Church.

The Court of Appeal (Aseme, Ogundare, Katsina-Alu, JJ.C.A.) rightly found the only issue of law was the plea of res judicata concerning Exhibit C, a 1922 Native Court case. The strong point of the appellants' case in that Court is certainly that of the court's finding on the grant to C.M.S. Church. The only evidence of a grant to C.M.S. by the plaintiffs is that of P.W. 1. It is far from being conclusive, at best it is an allegation. But the onus is on the plaintiff to prove his case; he wins by the strength of the evidence he proffers and it is not the duty of the defendant to help him. In this case the de­fendants, now respondents, took the trouble of showing clearly through a minister in the C.M.S. Church that the land was actually granted by the respondents in 1957. D.W.2, who offered this evidence did not have to go far than this on behalf of the respondents as the primary duty of the plaintiffs/appellants to prove their case had not been fulfilled. As for the different naming of the land in dispute by the parties, Aseme J.C.A. in the lead judg­ment has this to say:

Both parties agreed therefore that the land is in Ikenga but as usual in these land matters they named the land in dispute diffe­rently, the plaintiffs called it "Ikengwu-Akpulu" as shown in their survey plan No. PP/E45~76 while the defendants on the other hand called the land "Am.ugwu Owelle" as shown in their survey plan No. EIGA/209/72. Whatever the land is, the two sur­vey plans which are on the same scale and prepared by two sur­veyors have shown the land in dispute. Plaintiffs did not call the surveyor who prepared their plan and so did not the defendants.

The Court dismissed the appeal, and thus the appeal to this Court. The grounds of appeal complained that the Court of Appeal never adverted to the cases of Amata V. Modekwe 14 W.A.C.A. 580 and Worhi Dumiye V. Stephen Iduozo & Anor. (1978) 2 SC. 1. Further, it was contended that the evidence of D.W.2 ought to be regarded as hearsay and discountenanced. In short, the appellants are contending that the evidence of D.W.2 Rev. Samuel Urneobi was hearsay. The Court of Appeal, just as the trial court did, found and to my mind rightly so, that this witness being the superinten­dent of the C.M.S. Church on the land in dispute must know who his land­lords are. It should be borne in mind that this witness was a party to the moves leading to the establishment of the Church on the land since he was a  seminary student on holidays in 1957, by introducing the respondents to Rev. J.C. Oti, who was then the superintending pastor of the area.

The issues formulated for determination by the appellants in this Court are:

(1)    "Whether as complained by the Appellants the Defendants/Re­spondents met their (Appellants') case or whether as stated by B the Court of Appeal it was a question of ascribing different names to the same piece of land."

(2)    "Whether the oral testimony of one of the Defendants' witnesses namely D.W.2 of what he was told by the 1st Defendant on re­cord on the issue of who gave land to the C.M.S. was hearsay or not."                              

(3)    "Whether the judgment is perverse."

The Court of Appeal rightly held, in affirming the trial Court's decision that the appellants seemed unsure of their case by the numerous amendments of their statement of claim. It was certainly not an extraordinary sentiment by the lower Courts; the appellants waited each time for the respondents to file amended statement of defence provoked by the statements of claim to further amend their pleadings. It is true a party can amend his pleading up to the close of the case and before the judgment. But as in this case the appel­lants amended not only the pleadings but also the claim (which at any rate was superceded by the pleadings) amounting to a departure from the origi­nal claim. One has to juxtapose the various statements of claim to know the collosal reconstruction of the initial claim with the final one. The complaints of the appellants are not understandable in view of the position taken in their respective plan by the parties.

Exhibit A, the appellants' plan, called the land in dispute Ugo Akpuru (which I believe means the same thing as Ugwu Akpulu). Even though this plan is on 200 feet to 1 inch scale as the Exhibit B of the respondents, there is however a world of difference in what each one indicates. Exhibit A merely F shows the land in dispute and surrounded it with open space on four sides and except southeast thereof which is conceded to Ezinnifite people cld lined the entire surrounding land belonged to Akpuru people. Whereas in Exhibit B, the respondent enclosed the same land to the North and West of a wall (defensive wall called Ekpe) touching the Ekpe in the south but float­ing in another encirclement to the east before the Ekpe, to the north and substantially to the west, all verged yellow and claimed that entire yellow  verge as ugwu Owelle. To the east of this yellow verge is the land of Ezeobu Umuetu, to the south east is the Ezinifite, and to the south west is the land of Igbo Ukwu. West of this yellow verge is the land of Umuonono and also to the north. Umuonono is the principal sub-family of Akpuru who refused to join the appellants in this dispute. To my mind the appellantls have no land within the yellow verge on Exhibit B, they only wanted to encroach from the H west and the north but would have no cooperation of their kindred, Umuonono. There is no confusion, both Amaokuko (where the respon­dents live) and Akpuru (of the appellants) are in Ikenga. The inference being drawn by the appellants from the cases Makanjuo1a V. Balogun (1989) 3 N;W.L.R. (Pt.1()8) 192, 194; Egonu V. Egonu (1978)11 and 12 S.C. 134, 135; Emegokwue V. Okadigbo (1973) 4 S.C. 113 is completely inapplicable to this case. There is hardly any averment that the respondents never traversed, neither were there matters unpleaded that were relied upon by the respondents. I can hardly find any support or relevance in the appellants case with the decisions in Amata V. Modekwe 14 W.A.C.A. 580, 582 or in Nwadike V. Ibekwe (1987) 4 N.W.L.R. (Pt.67) 718, 741.

Surely, the evidence before the trial court in support of the appellants as plaintiffs was so scanty that their case cannot be supported. In all civil cases, the person who asserts must prove. In the case of the plaintiff it is he that must first prove his case and make it strong enough to support his pleading. Should he fail to do this, his case will remain unproved, however elegant his pleadings. The failure of the defendant to prove, even his refusal to testify cannot alleviate the primary burden on the plaintiff to prove his case. In the instant case, the plaintiffs' case was far from being proved, and in the ab­sence of admission of their case by pleading and or evidence of the defen­dants, the case of the plaintiffs had been doomed from the trial court.

As for the alleged hearsay evidence of the evidence of D.W.2, it ap­pears the appellants are escaping from their primary duty. Can it be said that they proved their averment that a grant was made to the Church Missionary Society to build St. Philips Church, School and teachers' houses? The Church is not dead for it is the Church that will testify who made the grant. The plaintiffs never called the Church. Rather, the superintending priest of the Church was called by the respondents as D.W.2. Whether his evidence F was primary or hearsay is not here relevant, at best, it is a weak link in the case of the defence. But can the weakness of the defence exonerate the plaintiffs from their primary duty of proving their case? Their case, they failed abysmally to prove. Mr. C.O. Anah, of counsel, for the appellants, said the evidence of D.W.2, being that of a non*member of any of the two families in dispute, should be regarded as hearsay and therefore inadmissi­ble. Learned counsel went to great pains of supplying authorities to backup this proposition. Ben Ikpang & Ors. V. Chief Sam Edoho Anor. (1978)6 and 7 S.C. 221, 247, 248 and 249. He also posited that evidence of a right must exist for a long time to be of any use in deciding the issue of title as in this case. He relied on The Stool of Abjnabina V. Chief Kojo Enyimadu XII W.A.C.A.171, 172; F.M. Alade V. Lawrence Awo (1975) 4 S.C. 215, 223;  Adeyemo V. Popoola (1987) 3 N.W.L.R. (l,t.66) 578, 589 and 590 These cases, with respect, have no bearing to the circumstance of the appeal now at hand. They certainly made remarkable statements of law and are valid, but have no application here. One concerned chieftaincy dispute and that a member of the family in dispute is the best witness on happenings in the fami­ly or family history; this should not be extended by analogy to land case in the strict sense.

Anybody connected with land whether due to family link with the land as a witness to what happened to the land or as a party to a transaction on the land is definitely a competent witness. But in the instant case, the primary duty of the appellants, as plaintiff in the court of trial was to prove their case and not to fish for weakness of respondents' case. The appellant failed to discharge this primary duty; they never proved their case. They are precluded from looking for faults in the respondents' case. All the evidence of D.W.1 did was to corroborate the claim of the respondents in defence of plaintiffs' claim. I see no merit in this submission by the appellants.

I find no merit in this appeal and it must be dismissed. I hereby dismiss this appeal as entirely lacking in merit. I award N500.00 as costs of this ap­peal against the appellants.

Judgment delivered by

Uwais,J.S.C.

I have had the opportunity of reading in draft the judg­ment read by my learned brother Belgore J.S.C. I entirely agree that the ap­peal has no merit and that it has failed. Accordingly, the appeal is hereby dis­missed with N500.00 costs to the respondents.

Judgment delivered by

Agbaje,J.S.C.

As per their last amended Statement of Claim dated 10/3/79 the plaintiffs, Ezeokafor Umeojiako & another for themselves and as representing members of Akpalu family of Ikenga sued the defendants Ahanonu Ezenamuo & 10 others for the following reliefs:

(1)    Declaration of title to the plaintiffs piece and parcel of land known as and called "Ikeugwu Akpulu land" situate at Akpulu Ikenga the annual value of which is about N10.00 (ten Naira).

(2)    Forfeiture of the portion of the said land granted to the father of the 1st and 2nd defendants by the plaintiffs' family.

(3)    N200.00 (two hundred naira) damages in that the defendants E trespassed into portions of the said land, not granted to them."

The statement of claim supercedes the writ.

Both the plaintiffs and the defendants filed plans showing the land in dispute, Exh. A, plaintiffs' plan and Exh. B, defendants' plan. A companion of the two plans shows, as both the trial court and the lower court have found that the identity of the land in dispute is not in dispute.

The trial Court having heard the parties and their witnesses dismissed F the plaintiffs' claims because according to that court there was no merit whatsoever in the plaintiffs case; a decision based on the evidence before him. The plaintiffs' appeal to the Court of Appeal, Enugu was dismissed, thus confirming the findings of fact of the trial Court. This is a further appeal to us by the plaintiffs with leave of the lower court.

In this Court we are faced with the concurrent findings of fact in the two 9 lower courts. The principles to be applied in such a situation are clear.

Counsel for the defendants/respondents has called our attention to them in the following passage in the brief of arguments for the respondents - the defendants:­

It is the Policy of the Supreme Court of Nigeria not to disturb concurrent findings of fact of 2 Courts unless there is some miscarriage of justice or a violation of some principle of law or procedure which will justify such interference. See Mogo Chikwendu V. Nwanegbo Mbamali (1980) 3 S.C. Ukpe Ibodo v. Enarofia & Others (1980)5 - 7 S.C. P.42 at 55; Lokoyi V. Olojo (1983)8 S.C. 61 at 68 - 73; Nwobodo Ezendu & Others V. Isaac Obwgwu (1986) 3 S.C. P1 at P21 -22 (1986) 2 N.W.L.R. (Pt. 21) 208.

Adverting to the rule as to concurrent findings of fact in two lower courts, the Privy Council in the Stool of Abinabena V. Chief Kojo Enyimadu 12 W.A.C.A. 171 at 173 said:-

But the rules as to concurrent findings is subject to certain exceptions one of which is clearly stated by Lord Thankerton at page 259 of the case cited as follows:-

In order to obviate the practice there must be some miscarriage of justice or violation of some principle of law or procedure.

After defining miscarriage of justice, Lord Thankerton continues:-

The violation of some principle of law or procedure must be such an erroneous proposition of law that if that propos­ition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose appli­cation will have the same effect.

It is because of this exception to the rule that I have decided to say a word or two on issue 2 raised in the plaintiffs/appellants brief namely:-

Whether the oral testimony of one of the Defendants witnesses namely D.W.2 of what he was told by the 1st Defendant on re­cord on the issue of who gave land to the C.M.S. was hearsay or not.

Rev. Samuel Umeobi was D.W.2 in the trial court. The evidence which E the trial Judge accepted and to which issue 2 relates is as follows:-

In the year 1957, I was at Ibadan as Theological student. I re­turned home on holidays to my home town Ezinifite. Then the late 1st defendant came to me and requested me to see that the C.M.S. is brought to lkenga. I told him that I would do soon the condition that he and the members of his family will become members of the C.M.S. He agreed. I then sent him to the Pastor at Uga Rev. Canon, J.C. Oti to take up the matter. I then returned to Ibadan after the holidays. Rev. Canon Oti is now at Imo. When next I returned home on holidays the church was already established. It was a thatched house and I worshipped in the church during one of the evening services. When I saw Ahanonu he was happy that the C.M.S. church had been established and I also thanked him for providing the land on which the church was built. It was Ahanonu who told me that he gave the land on which the church was built." Commenting on his evidence the learned trial Judge said:-

Rev. Umeobi undoubtedly impressed me as a most truthful wit­ness. I accept his account in full about the establishment of the C.M.S. in Ikenga and the humble role he played in bringing this about. I am satisfied and find as a fact that it was the late 1st de­fendant and the members of his family who gave the land to the C.M.S.

There is no doubt that the evidence of D.W.2 as to who granted the A church land was hearsay evidence and consequently inadmissible unless it qualifies as traditional evidence under section 44 of the Evidence Act. And in the Stool of Abinabena V. Enyimadu (supra) at page 172 traditional evidence has been defined as evidence as to rights alleged to have existed beyond time of living. The right in question now, grant of land to St. Philips C.M.S. Church in Ikenga said to have occurred not earlier than 1957 is evidently within time of living. So evidence of D.W.2 in proof of that grant can­not pass as traditional evidence. So I uphold the contention of counsel for the plaintiffs/appellants on issue 2 that the evidence of D.W.2 as to what D.W.1 told him as to who granted the land in question to St. Philips C.M.S. Church in Ikenga was inadmissible and cannot form the basis of a decision in this case being hearsay evidence see Abowaba V. Adeshina 12 W.A.C.A. 18 at 20.

.

However this is not the end of the matter on this issue. Later in his evi­dence after his evidence-in-chief, most presumably in cross-examination, this witness D.W.2 said as follows:-

Ever since the establishment of the C.M.S. at Ikenga we have recognised Ahanonu as our landlord.

The witness was here speaking of his own knowledge and therefore was not giving hearsay evidence. The clear inference to be drawn from this evidence is that members of Ahanonu family i.e. 1st defendant's family, granted the land of St. Philips C.M.S. Church at Ikenga to it. So, besides the hearsay evidence of D.W.2 as to who made the grant, there was evidence from him from which the inference as to who made the grant can be properly E drawn. The inference is in line with the hearsay evidence which must be rejected. So in the circumstance, the admission of the hearsay evidence has in fact not occasioned a miscarriage of justice. In this regard section 226(1) of Evidence Act says:

226    (1).  The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted can-not reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.

As I have said earlier on in this judgment we are concerned with concurrent findings of fact of the two courts below. I have shown that the violation of the principle of law which counsel for the plaintiffs/appellants correctly in my judgment pointed out could not have resulted in any miscarriage of justice.

The judgment of the trial court which the lower court confirmed was amply supported by the evidence before it.

For the above reasons and the fuller reasons given in the lead judgment of my learned brother Belgore, J.S.C., which I have had the benefit of read­ing in draft, I too dismiss the plaintiffs/appellants' appeal with N500.00 costs to the defendants/respondents.

Judgment delivered by

Nnaemeka -Agu,J.S.C.

This is a further appeal by the plaintiffs against the judgment of the Court of Appeal, Enugu Division. That Court had dismissed an appeal by the same plaintiffs against the judgment of Umeunwa, J., who had dismissed the plaintiffs case. The claim, as amended in the statement of claim, was for a declaration of title to "Ike Ugwu Akpulu" land said to be situate at Ikenga, forfeiture of the land granted to the defendants, £100.00 damages for trespass and perpetual injunction.

After full hearing the learned trial Judge came to the following conclu­sions on the facts before him namely:

(i)    That a 1922 Native Court proceeding, Exh. C., on which the de­fendants relied for their plea of estoppel per rem judicatam could not so operate because it was not shown that the parties therein were the same with those in the instant suit; in any event, that the record was incomplete;

(ii)    That the plaintiffs' case was very weak;

(iii)    That the defendants live on the land in dispute, not as a result of a grant from the plaintiffs but as of right;

(iv)    Though each side claimed to have made a grant to the C.M.S., he believed D.W.2, Rev. Samuel Umeobi, and so he was not satisfied that it was the plaintiffs who made the grant; and

(v)    That he believed D.W.4, Okoli Enwerije, from Umuonono Family of Akpulu Village, that the land belongs to the defen­dants and that it was they who made a grant of part of the land in dispute to his father.

He therefore dismissed the plaintiffs' case.

On appeal to the Court of Appeal, the Court, coram: Aseme, Ogun­dare, and Katsina-Alu, JJ.C.A., dismissed the appeal. Their Lordships held:

  We were satisfied that in this case the learned Judge correctly set out the issues on the pleadings, assembled the evidence of witnesses by both sides and as in Mogaji vs. Odofin (1978)4 S.C. 91,weighed the evidence so adduced on the imaginary scale and came to the right conclusion. I am satisfied that there is no merit in this appeal which I dismiss with N200.00 cost to the respondent.

On further appeal to this Court the main thtust of the argument of the learned counsel for the appellants is duofold. First: that there are ten villages in Ikenga, including the plaintiffs' (appellants') Akpulu village and the de­fendants' (respondents') Amaokuko village which is some three miles away. The land in dispute is situate inside Akpulu village. So, it was unreasonable to have held that the respondents could have owned the land deep inside the appellants' village otherwise than by reason of the customary grant, which appellants have pleaded and rely upon. Secondly: that, as the learned Judge recognized the fact that the grant to the C.M.S. was a very vital issue of fact, he was wrong to have proceeded to resolve it upon the evidence of D.W.2 whose evidence was hearsay in that he merely testified as to what the 2nd defendant told him.

I wish to begin my consideration of the arguments of counsel on both sides in this appeal by stating that if the appellants had from the beginning and throughout the case concentrated on the line which their counsel's argu­ment has taken in this court and called the necessary evidence in support thereof, they would have had a very strong case indeed. This is because, as the West African Court of Appeal stated in Udekwu Amata V. Udogu Mod­ekwe, etc. (1954)14 W.A.C.A. 580, at 582, it is improbable that if the re­spondents' village is so many miles away, they would have ancestral homes and permanent buildings in the appellants' own village situate such a dis­tance away. Indeed it is a principle declared by statute and affirmed in so many decided cases that acts of possession and enjoyment of land may be evidence of ownership not only of that land over which the acts are done, but also of other lands so situated or connected with it by locality or similarity that what is true of that piece or parcel of land is likely to be true of the other. See section 45 of the Evidence Act; See Okechukwu & Ors. V. Okafor & Ors. (1961)1 All N.L.R. 685; [1961] 2 SCNLR 369 also D.O. Idundun & Ors. V. Daniel Okumagba (1976) 9-10 S.C. 227, at p.249. So, as a proposi­tion of the dry bones of law, the learned counsel for the appellants is right.

The important question, however, is this: on the actual case which the appellants brought to court, did they establish the necessary facts for the application of the law? In my respectful opinion, the answer is in the negative. In saying so, I have to bear in mind the fact that this being basically a claim for a declaration of title, the appellants as plaintiffs had to succeed on the strength of the case and evidence which they brought to court, any weakness in the defence case notwithstanding: J.M. Kodilinye V. Mbanefo Odu (1935) 2 W.A.C.A. 336, p.337; Ayitey Cobblah V. Teney Gbeke (1947) 12 E W.A.C.A. 294, at p.295.1 am underscoring this principle because learned counsel for the appellants in his submission stated a few times that the re­spondents' did not meet the appellants' case.

On the contrary, I thought that if the main plank in the appellants' case was that the respondents ancestral village, Amaokuko, was far away from the land in dispute and that the land was situated in the heart of the appellants village, their first duty was to have filed a plan showing these two important features namely: the respondents' ancestral village lying far from the land in dispute and the land in dispute embedded in, and surrounded by appellants' other land owned and occupied by them. But they did not. All that their plan shows was the land in dispute with a few other lands of theirs shown beyond the periphery. No attempt was made to show the relative positions of the two ancestral villages. Understandably, on this state of the appellants' plan the respondents reproduced the plan but claimed the sur­rounding lands as their own. The learned trial Judge held, and I agree with him that on this state of the plans, there is no dispute as to the identity of the land in dispute. Above all, what tolled the death knell of the appellants' case, even as it was, was that they failed to call evidence of any of their boundary neighbours. In particular, they did not call any witness from Ezinifitte, which was shown in the plans of both parties as boardering the land in dispute in the south, to support their case. Rather it was the respondents who called one of them, Rev. Samuel Umeobi, as D.W.2. He testified as to how the C.M.S. church was established on the land in dispute and that when he was the Superintendent of the church they had always recognized one Ahanonu, a prominent member of the respondents' village, as their landlord.

But I believe that the most devastating blow to appellants' case was the evidence of D.W.4, Okoli Enwerije, the head of Umuonono Family of Akpulu who testified on oath that the land in dispute was that of the respon­dents and that the appellants themselves were strangers on Umuonono land. But it was the appellants' case that they were prosecuting the case for and on behalf of the whole of Akpulu. The evidence of D.W.4 was therefore clearly an admission against interest by a section of the community on whose behalf the case was being prosecuted. It is therefore a very strong evidence against the appellants' case. When a person or persons on whose behalf a case is being fought come forward and swear that they have no case at all, a situa­tion is created which rather compels a trial court to take a certain course, the fact t lat an admission is not usually conclusive notwithstanding. Coupled with this and the evidence of D.W.2, the only witness from the Ezinifitte neighbours is the fact that from their pleadings the underpinnings of the appellants' case were brittle and weak, if not completely in a collapsed state. For in paragraphs 8 and 10 of their amended statement of claim dated 19th day of January, 1976, they pleaded that their predecessor-in-title granted the land in dispute to those of the respondents. They did not aver that it was a conditional or a revocable grant. Although they later, in paragraphs 11 and 12, mentioned the payment of some tributes for sometime - and it had long been stopped - they did not plead that its payment was a condition for the grant or a continuation of it. In the circumstances one is bound to ask the question: can the appellants successfully sue for forfeiture of an outright grant made by their predecessor-in-title? I think that on their own case alone if they ever had title, they lost it by the grant. I therefore entirely agree with the courts below that the appellants' case was palpably very weak.

I shall deal with the second major issue, that is the evidence of D.W.2, F rather briefly. The gist of the appellants' complaint is that his evidence as to the important issue of the grant to the C.M.S. was as to what the 2nd defen­dant told him, which was hearsay. I must state right away that if that were the only import of his testimony, it would have been inadmissible. See Abowaba V. Adeshina 12 W.A.C.A. 18, at p.20; also Management Enterprises Ltd. V. Otusanya (1987) 2 N.W.L.R. (Pt.55) 179, at p.193. But let me say that I do not agree with Mr. Anyaduba that the evidence in question was admissible G as evidence of tradition under section 44 of the Evidence Act. This is be­cause hearsay evidence which is admissible under section 44 of the Evidence Act should be not only that of a family tradition but also that which is "earlier than the memory of living witnesses:" see Commissioner of Land V. Adi­gun (1937) 3 W.A.C.A. 206. Not only was the evidence in the way it was given not evidence of family tradition but also an account being given in 1979 about a 1957 transaction cannot, by any stretch, be referred to as being beyond living memory. But even if the portion of the evidence of D.W.2 as to what the 2nd defendant told him is disregarded as hearsay there remain his account as to what part he played in setting up the C.M.S. Mission on part of the land in dispute and, importantly, the fact that during his tenure as Superintendent of the Mission he regarded the respondents as their landlords. So even if I disregard the part of the evidence of D.W.2 which is hear­say, there are still parts of his evidence which would combine with the other facts and features of the case which I have discussed to justify the verdicts of the courts below. Bearing in mind the fact that this was a claim founded on a declaration of title, I am of the clear view that the appellants have clearly failed to discharge the onus on them.

On the above state of the facts, what should be my conclusion in this appeal? I must bear in mind that there have been concurrent findings of fact by the two lower courts; that those findings have not been faulted by the argu­ment before us; that those findings confirm that the appellants' case is weak and that they failed to discharge the onus of proof on them. what is more, the respondents are admitted to be in possession whereas the appellants failed to prove the grant with which they sought to explain away the respondents' possession. In this state of the facts, I must warn myself, as I did in Karimu Olunjile V. Bello Adeagbo (1988)2 N.W.L.R. (Pt.75) 238, at p.255, that:

…….this Court does not make it a habit to upset concur­rent findings of fact and concurrent judgment by two or three courts.

It will only do so when it has been satisfied that there has been a serious error, such as a wrong approach to the issue of onus of proof, or to the evi­dence called by either side or its evaluation, or a violation of an important principle of law or of procedure, or of the principles of fair hearing, or the like which has occasioned a miscarriage of justice or the findings are shown to be perverse. See on these –

Ibodo V. Anarofia (1980) 5 - 7 S.C. 42

Mogo Chikwendu & Ors. V. Nwanegbo Mbamali & Anon. (1980) 3)4 S.C. 31.

George Onobruchere & Anor V Ivwromoebe Esegine & Anor (1986)1 N.W.L.R. (Pt. 19)799. On these principles, I have no alternative but to dismiss the appeal.

For the above reasons, I agree with my learned brother, Belgore, J.S.C., that the appeal fails. It is hereby also dismissed by me with N500.00 costs in favour of the respondents.

Judgment delivered by

Wais,J.S.C.

I have had the privilege of reading in advance, a copy of the lead judgment of my learned brother, Belgore, J.S.C., and I agree with his reasoning and the conclusion that the appeal lacks merit.

The evidence proferred by the parties to the dispute has been properly considered and evaluated by the trial court as a result of which it arrived at the right decision that the appellants had failed to prove their case. On the other hand, it found that the Respondents had adduced sufficient and reliable evidence in proof of their claim and entered judgment in their favour.

On appeal to the Court of Appeal the findings by the learned trial Judge on facts and law were painstakingly examined and affirmed, thus dismissing the appeal.

There is concurrent findings of fact reached by the High Court, and the Court of Appeal that on the totality of the evidence proferred by the appellants. they did not prove their claim to the land in' dispute. Where there are concurrent findings of fact of the lower courts, it has been the established policy of this Court not to interfere with such findings unless there is some miscarriage of justice or violation of some principles of law or procedure that will necessitate and justify such interference. See Sule Oladelo Asariyu V. The State (1987)11-12 SCNJ 125; (1987) 4 N.W.L.R. (Pt.67)709, Sunday Nwosu v. Board of Customs and Excise (1988)12 SCNJ 313; (1.988) 5 N.W.L.R. (Pt.93) 225, Lokoyi V. Olojo (1983) 8 S.C. 61 and Ukpe lbodo V. Enarofia & Ors. (1980) 5-7 S.C.42.

For these same reasons contained in the lead judgment of my learned brother, Belgore, J S.C., I shall also dismiss the appeal. I abide by the consequential order contained therein, including that on costs.

  Appeal dismissed.