“Amaofufe is made up of many units, The Units are: Nde Ukara; Nde Opaisi; Nde Okere Ukwu; Nde Agwara; and Nde Ogbuitem. These are the different Sections of Amaofufe that acquired land here.” The direct implication of the above testimony is that Amaofufe community is - made up of five kindreds which also acquired land in the area now in dispute and amongst the Kindereds that made up Amaofufe are Nde Opaisi the kindred of the Plaintiffs, other are Nde Ukara, Nde Okereukwa, Nde Agwara and Nde Ogbuitem the kindred’s of the Defendants respectively. It is therefore our considered opinion and we do so hold that the claim by the Plaintiffs in this suit that they are the only aborigines of Amaofufe Igbere community and owns the entire and land area in dispute does not hold any water as that claims is not supported by any credible evidence. We also hold that the claim by the Defendants in their counter claim to the effect that Amaofufe village is made up of three family compounds namely Amaelu Amaefi and Elu Okoba which exludes Ndi Uga the family of the Plaintiffs is lame and has no legs to stand upon. It is our view that granting of such prayer will amount to gross miscarriage of justice, Amaofufe Igbere community cannot be complete with the exclusion of any one principal kindred as per Exhibited “B” page 145 esp. at 149. Furthermore, it is quite evidence from the contents of Exhibit “B” that all the five kindred mentioned therein as constituting Amaofufe village or had or had their own exclusive portions of land in the Okposi lind then in dispute and which is part of the area now in dispute, and from all intents and purposes members of the five kindreds retained certain portion of the acquired land exclusively, but consented to the common usage of part of the area now in dispute as evidenced by the erection of personal buildings by members of the community within the geographical area which lies between the Igbere Health Centre and the Roman Catholic Church and School premises. The portions of land acquired by the Ancestors of the 5 family kindreds in “Amaofufe which were retained for the exclusive use of their lineage within this ographical area in discus is evidenced by the testimonies of both the plaintiff Exhibit “B” Oji Abayi of Exiukwu Ibina, and the 2™ Defendant therein Mr. cekwe Ukaegbu aliasEkekwe Ugo of amaofufe for example on page 130 of it “B” the Plaintiff who was claiming title to the Okposi land than in ite stated thus: V's land bounds our at the bottom part of the land; towards the road, we dary with Ogbuisi Uguru;”.aye Defendant farmed on his i.e. the land on our bottom boundary”. It must be pointed out here that both Ekearua and Ogbuisi Uguru mentioned above by the plaintiff in Exhibit “B” as his neighbours in the land in dispute are all members of Amaofufe community and particularly Ogbuisi Uguru was the father of the Plaintiffs in the present suit. Again during the cross examination of 2" Defendant who was the spokepersons for the Defendants ~ the Amaofufe village, he stamped thus in page 149: Qa How many Ikwus are there in Amaofufe. A: (1) Nde Opaisi (2) Nde Ukara (3) nde Okerenta (4) Nde Agwara (5) Nde Ogbuitem. Which of these five Ikwus acquired the piece in dispute Nde Ukara (No. 2 above) 1* Defendant belong to this Ikwu. Which Ikwu had Nde Ukara boundary with towards the Roman catholic Mission school. Nde Opaisi Which Ikwu sold land to Sam Okpo? 3 Nde Opaisi (No. 1 above ) FOe OFQ Therefore, from the above analysis, it is very clear that certain area of the land acquired by the family kindreds in Amaofufe was left fear common usage by all the members of Amaofufe village while they retained certain specific areas of land for the exclusive use of their survivors in title; As such, it is in order and lawful to regard such land area meant for general usage as Amaofufe ‘communal land and property. ‘The question that arises now is: what area in the Okposi land now in dispute is communal land of Amaofufe people? To answer that question and resolve the issues raised by that question it will be necessary to resolve the issues. Pertaining to particular arza of land claimed by both parties such issues that clicited much argument and counter by both parties in dispute, was the question of who granted ihe Roman Catholic ission the land upon which they built their church and school on, The lintiff alleged in their evidence that the grant was made by their father late isi Uguru Opaisi of Nde Opaisi in Amaofufe as land owner. n support of their claim, Plaintiffs tendered Exhibit “A”, “B”, “C” and “D” tively. Defendants debunked this claim, by the Plaintiff, alleging igh the DW4 Chief barrister E.E. Ukaegbu that the grant of land to the said Catholic Mission was made by own father Chief Ekwekwe Ugo fe Ukaegbu), he cited the contents of Exhibit “B” in pages 159, 160,161 Paes Se twhere the father of Plaintiffs in this suit was cross examined 4s the 5 witness to the Defendants in Exhibit “B” where he stated thus: is the dispute piece yours or another man’s it is mine i.e. ours have you boundary with any person Yes Who on the upper and down Down with No. 1 Defendant: Upper with Nde Ukara. Who gave R.C.M. land Ekwekwa Ugo To resolve this argument it is very important , to identitfy who Ekekwe Ugo vas or on what capacity did he defend the matter resulting in Exhibit “B” In pages 144 to 145 Ekekwe Ugo stated thus in his evidence “My father’s name is Ukaegbu my mother’s Ugo. I am a native of Nde Okereukwu, Amaofufe, my age is over 60 years because I am older than the rest of the parties”. “The person that acquired the land in dispute was late Ukara lyionwu: “Late Ukara the founder of this land, had boundary on his land with late Opaisi. Atthe death of Opaisi, his Son Abanyim succeeded him on their own piece. Anyacle Opaisi succeeded Agbanyim, Okoro Agbanyim succeeded his father _ unto the land. The unit is know as Nde Opaisi Itis the Custom and tradition of Igbere Community that the Elder man in any _ compound family or kindred is regarded as the head of such compound, family Kindred and enjoys certain priviledges like being at the head of every issues that concerns the family/kindred/compound or it individual member. It is also the custom that as_a sign of respect for that position, even if an individual member of such community/compound has a property which he wished to fer to some other person either as gift, grant, or even by pledge and the itional palm wine and Kolanut was brought to the grantor, it is the custom it the Eldest member of that community will not only witness the transaction, aet as the chief spokesperson and grantor in that respect. So that as a of custom, even though the Eldest is not the bonafide owner of such , he can transfer title to the grantee by virtue of his position as the in the family or compound and of course with the consent of the real In such a situation if will be right under the customary law of Igbere Jof course other village within Bende LGA, to regard or generally address as the grantor, but each case depend on fact available, present case, the role in Exhibit “B" of the father of >W4 was that of the amongst his people and as such no doubt their leader or chief. There where in Exhibit “B” that the father of DW4 claimed io have been theone who granted land to the R.C. M. it is our conviction that the statement made by the father to the Plaintiff as 5" witness in Exhibit “B” page 160 during cross examination where he was asked: Q Who gave R.C.M. land and he answer A; Ekekwe Ugo Was made to reflect the Igbere custom of giving respect to whom respect is due and giving honour to whom honour is due in fulfillment of the popular Igbo Idiom which says “Ugwu sara oko” “meaning that you derive self respect from respecting your Elders” That statement certainly did not mean that Ekekwe Ugo actually gave R.C.M. land as individual land owner, he never such, For example in page 134-135 of Exhibit “B” Ekekwe Ugo as 2™ Defendant and spokesman for the defence cross examined the plaintiff thus: Q Are you aware that we gave the R.C. M. the spot they built their school? A; By Plaintiff — Ogbuisi was the person that gave the R.C.M. the land By Ekekwe Ugo: which is ogbuisi’s compound. a A By Plaintiff — He is an Amaofufe man,His Ezi (compound) differ from Q A yours. By Ekekwe Ugo — if his Ezi differ from mine will you inherit his estate? By Plaintiff No. At page 142 the following transpired: Question from Ekwekwe Ugo to Plaintiff’s 1* witness: Q Were you not born during the time I used to give the land to Ibinanta people to farm. A: Not you, but Ogbuisi gives them land, he also gave &.C.M. land. Again at page 150 of Exhibit “B” Ekekwe ugo was cross examined by the iff and the following transpired: Who showed land to the R.C.M. where they built school. I mean Eziama R.CM. School Nde Ukara ‘When ukara and Eziama drew agreement for the R.C.M. School, which people did Nde Ukara said they have boundary with Ogbuisi, Adile Ndukwe When Ogbuisi is the Eziama land lord, how can it be possible that ogbuisi had boundary with the leased land when he is the lessor of the R.CM, for this purpose, R.C.M. is training Ogbuisi’s child free. A; Nde Ukara did not lease out all their lands to the R.C.M. Or OF © & It is therefore our considered view that Ekekwe Ugo did not give the R.C.M. the land where they built their school as the Defendants erroneously wouldwant this court to hold. This court believes the evidence of the P.W.2 Mr. 0.C. Ukadibia representing the Eziama Roman Catholic Mission the lessee to the effect that Ogbuisi uguru father of the plaintiff gave the R C.M. the land where they built their mission and school. ‘This court believes and approves the contents of Exhibits “A” which is the agreement between the R.C.M. and Ogbuisi uguru, we also upholds the submissions of the plaintiffs that it was on the strength of Exhibit “A” that Chief Barrister B.B. Ukaegbu DW4 on record wrote Exhibit “D” this evident about the grantor of the land where the R.C.M. built their mission/school is so consistent and the contents of Exhibits “A” and D have the nexus between them, coupled with contents of Exhibit “B” particularly in pages 134 and 135; 142 150-151 respectively and the uncontroverted evidence of O.C. Ukadibia as P.W.2 on record all would not put a prudent man on the inquiry as regard the genuiness of the transactions referred to therein. This court in view of the above is urged and do hereby resolved the issue regarding the question of who gave land to the R.C.M. in favour of the Plaintiffs. 7 The principle of law is "NEMO DAT QUOD NON HABEAT” you cannot give what you do not have, Plaintiffs in furtherance of their claim to own all the parcels of land in Okposi now in dispute tendered Exhibit “E” which the decision of a Local Arbitration by the Ebiri Council of Chiefs led by the traditional Ruter of Igbere then His Royal Highness Eze S, U, Ukaegbu in 1985. the matter, was over two parcels of land one situated in Okposi now in dispute and the other in Ukwukwanta respectively. These parcels of land according to Exhibit “E” was sold to one Josaiah Ibekwe Kazi a native of Amankalu Igbere the petitioner in Exhibit “E” by Oji Ekearua and Ogbueze Obasi of Amaofufe Igbere, ‘That transaction was challenged by the family of the plaintiffs, The arbitration panel after hearing both sides and inspecting the land in dispute found for the Respondents now Plaintiffs. They even went as far as applying the equitable remedy of ‘Restitution intergrum” — placing the parties to their criginal positions by ordering the Respondents to refund to the petitioner all tne monies which he paid the wrong persons for the land and advising them to sue the sellers fro refund if they so wished. The Respondents now Plaintiffs did reclaim their lands in line with the Rule in Exhibit “E” it must be noted that the two men, Ekearua Oji and Ogbueze Obasi who wrongfully sold the two pieces of land referred to in Exhibit “E” were all from the same Amaofufe as the Respondents then but now Plaintiffs. ‘The two men did not sell those land as communal property of Amaofufe as land allegedly belonging to their individual fathers/families. Amaofufe as a community did not contest these claims and counter claims during the arbitration in 1985 17 years ago nor did they protest, _ over the decision by the Ebiri council of Chiefs which said that they parcel of Jand in Okposi (Now in dispute) and Ukwukwanta (not in dispute) belong to “the Respondent then in Exhibit “B” but now Plaintiffs. ‘This portion of Okposi* 3 land is amongst the area of land which the Defendants are now claiming as communal property of Amaofufe as allegedly found in their favour in Exhibit “B” the celebrated Native court case of 1956. It is tue that in the context of Ibo Native Jaw and custom, communal ownership is presumed. ‘The burden of displacing that presumption lies on who assert differently see V. IGILIEGBE_ (1952) 14 W.A.C.A. 61 see EKENWA VS. NKPAKARA (1997) 50 LRCN Pg. 1252 ZE per belgore J.S.C. It is also trite that the general principle of Communal ownership (of land) as pronounced in AMODU TIJANY V. SECRETARY SOUTHERN (NIGERIA (1921) A.C, 399 would not apply where it is established by evidence that the native law and custom in any particular area differs from the general principle, See OTOGBOLU V. OKELUWA (1981) 6-7 S.C. 99 at 137. Its trite that the burden of providing a particular fact is on the part who asserts it and it is also trite law that the onus of adducing further evidence is on the person who will fail of such evidence is not adduced see the case of: OKUBULE V. OYAGBOLA Supra) See NIGERIA MARTIME SERVICE LTD. V. AFOLABI. (Supra) See H.M.S. LTD V. FRIST BANK (Supra) However, it was held in IDIKA V, ERISI (1988) 2 N.W.L.R. (Pt 78) p. 563 that Elders or Natives was arbitrated over a matter being native are in a position to know which of the parties owns the land in dispute. This court therefore had no grounds at all to interfere with the Decision of the Ebiri council of Chiefs in Exhibit “E” and hereby approves it. Court is bound under the law to accept and act on an evidence that is not challenged. See OBA OYEBODE LIPEDE VS. CHIEF ADIO SONEKAN (1995) S.C.NJ. 184 at p. 201. Exhibit “O” tendered by the Defendants was an arbitration in 1987 by the same Phiri Council of Chief as in Exhibit “E” over purported sell of kands within the Okposi land now in dispute leveled against the senior brother of DW 4 the plaintiffs in this suit, to a member of his (Defendant’s) family and to national Church of God — led by one II. Udo. The panel in favour of the Defendant JAmaofuufe Igbere based on a tenderd agreement of sell between DW4’s Junior “brother Chief Uwakwe Ukaegbu now the Traditional Ruler Amaofufe Igbere and the Agbo Owerri Igbere Community and again on tendered native court | Rulings of 1956 (Exhibit “B" in this case) and that of 1959 not an exhibit respectively, this is over the land donated to I. Udo for the building of the national Church of Nigeria. ‘We approve the decision of the native arbitration panel resul:ing in Exhibit “O” as being consistent with the pronouncement, the Native ccurt in Exhibit “B” Which stated that the Okposi land area which situates tween the maternity ;and the R.C. M. premises belong to Amaofufe Igbere.it must however be made very clear for the avoidance of any doubt in line with our earlier analysis of the contents of Exhibit “B” that the Usage of Amaofufe Igbere in that native court decision was done in a generalized form to generally refer and_identify the community whose subjects acquired land within the said geographical area which was in dispute. That is the custom, tradition and accepted usage in Igbere and indeed village within Bende Local Government area of Abia State of Nigeria. We strongly hold the view that members of the five units that made up Amaofule Community in years gone by lived in harmony and believed in being their brothers’ keeper quite unlike the present crop of the descendants. The attitude of parties in dispute was that of great show of mutual hatred, disrespect and . rancour proceedings in any particular day was almost usually an avenue for trading insults between parties except for timelY interventions by court, The worst offenders along this line were the Plaintiffs, Both parties from their individual conduct regarded this matter as a do or die affair. Plaintiffs’ evidence is that the whole Okposi land in Amaofufe belong to them as they are the only Aborigine in Amaofufe, while the rest units were their strangers who has no claim over any part of the Okposi land now in dispute. ‘The plaintiffs who due to events that had taken place in recent past, according to our view, felt out numbered, as indeed they are, by the growth both in population and affluence of the other unit termed strangers, especially the family of Chief E.E. Ukaegbu the DW4 on record who either by commission or omission or by grand design had taken over the leadership of the community, erecting, building in the choicest part of the land in dispute, without the consent of the plaintiffs, as acclaimed Aborigines, hence the plaintiffs dragging that particular family of Ndi Oyendi to this court to have sanctioned. ‘The family of the DW4 termed strangers from Arochukwu during the course of the proceedings was joined by the units in Amaofufe termed by Plaintiffs as their co-strangers from Okposi and Item respectively, who now counter claimed against the plaintiff's who they termed grand children of a salve boy who was a war captive from Okposi in Ebonyi State, The Defendants counter claimed on 23" march 1998 asking for the following relief’s: 1, A declaration that Amaofurfe community excluding the Plaintiffs are entered to the customary right of occupancy of the certain piece or parcel of land known as and called “Okposi lying and situate in Amaofufe Igbere within the Jurisdiction of this court. 2. Order of court for forefeiture by the plaintifiS of their right if any on the said land. Order of court permanently restraining the plaintiffs, their agents and or successors in title from dealing with the said land in any form or. shape whatsoever.It is the law that the onus of proof in an action for declaration of title lies of the plaintiff except in few case such as where the Defendant claim exclusive ownership of family land, ‘The onus never shifts, and to succeed, the plaintiffs must rely on the strength of his own case and not the weakness of the defence, although the weakness of the Defendant's case times strengthen the plaintiff's case. See KODOLINYE V. MBANEFO ODU 2 W.A.C.A. 336 ATUANYA V. ONYEJEKWE & ANO. (1975) 3 SC. 161 at 168 ELIAS V. OMO BARA (1982) 5 SC 25 LAWSON V. AJIBULU 51(1997) L.R.CN, AT 1552 J.J. This court having earlier reviewed and assessed the evidence of the plaintiffs, his witness and exhibits shall now look at the evidence of the of the Defendant and their witnesses. It is the law that the plaintifi’s title must first be decided upon before the Defendant’s AROMIRE V. AWOYEMI (1972) 2 SC. 1 AT 11 at p. 1571. U. It is only where a plaintiff fails to prove his title to the land in dispute that the Defendant’s possession raise the presumption which the plaintiff is unable to + rebut. See DACOSTA V. IKOMI (1968) 1 ALL N.LR. 394. AROMIRE & ORS. V. AWOYEMI (Supra). Further, the burden of proof in this particular matter is no longer static due to the Defendant's counter claim. Defendants in order to prove their exclusive ownership of the land in dispute, gave their traditional history through Ezeogo Samuel Orji of Amaefi Amaofufe as DW3 on record the 68 years old retired professional teacher alleged that Amiaofufe community was originally founded by one “Ofufe” the son of Uhuka of Uhukanma in Eke Igbere. That Ofufe begat Ulu who begat Enwonye who begat Ugurukwu who begat Oziza who Ogbuitem, who begat Akachukwu and other sons Akachukwu begat oji the father of the witness that Ogbuitem begat Ugo the grandmother of the DW4 on record Chief E.B. Ukaegbu of Ndi Oyendi Amaelu Amaofufe. ‘The witness during cross examination by 2" plaintiff said that he knew Okposi land in dispute that it belong to his father and that it was deforested by his great grand father Ogbuitem whom he also refered to as the great grandfather of Amaofufe village which excludes the Plaintiffs Nde Opaisi family, When asked whether he knew the boundaries for the land he claims as his father’s he answered that he does not know the boundary of his land. ‘This court view as’ very very unfortunate especially when viewed from the further evidence of the witness which was supported by the DW4 Chief E.E, Ukasgbu that the other compounds or units in Amaofufe village were strangers to the great grandfather of the witness DW3 on record. He alleged that his family alone is the aborigine of Amaofufe and that the Ancestor of Ndi Qyendifawisis ar pws bhicr Barrister EE, Ukaegbu and that of Elu Okoba compounds were business 190associates of his Ancestor Ogbuitem whom the said ogbuitem settled in their different compounds. This court find it very difficult to believe this witness and his story an aborigine of Amaofufe whose father owns the land in dispoute and does not know the boundaries of his property which is in dispute between his stranger and the children of his Ancestor’s slave, This court is not impressed at all this obvious fabrication None of the defendants’ witnesses could collaborate this traditional evidence by this witness as it relates to his claim of it being his father through deforestation by his great grand father Ogbuitem, However, Chief Barrister E.E.Ukaegbu testifying as DW4 on record in his evidence collaborated the evidence of DW3 that his Ndi Oyendi cum Amaelu compound in Amaofufe and Elu Okoba compound were business associates to the Ancestor of DW3 and as such were settled by the said Ancestor of DW3 as his strangers, but it was “Ofufe” who deforested the land in dispute but when he was reminded by the 2" Plaintiff that his father Ekekwe Ugo as 2™ Defendant in Exhibit “B” had stated that the land was deforested by Ukara of Elu Okeba and again that his Co-defendant 8.B.Oji as DW3 had in his evidence stated that the land in dispute was deforested by Ogbuitem, the witness said that he was not aware of that. And when the witness was asked to tell, the Coust which of the three different versions of the Defendants stories in support of their claim about who deforested the land, would he want the Court to believe, he asked the Court to believe his own version of story. This court does not believe this witnesses ‘s version of the traditional history of the land in dispute over that told by his own father in the 1956 Native Court case- Exhibit “B” on record or above that told by the DW3 whom he acknowledge as his host and legitimate owner of the land in dispute by implication. These different versions of traditional history presented by Defendants in their attempt to prove their court claim of being exclusively entitled to the land in dispute are hereby rejected. Itis the law that were the line of succession is not satisfactorily traced in an action for declaration of tile because of gaps and mysterious linkages and or no nexus, it should be rejected. See: ALADE V. AWO (1975) 4 SC P. 215 at 229 PIARO V. TENALD & ANO. (1976) 12 SC P.41 JALOGUN V. OLIGBEDE (1991) 3 MMLR PT. 208 P. 223. is court prefer to believe the traditional evidence of Amaoiufe relating to the a of the land in dispute as told in Exhibit “B” by the father of DW4 as 2™ fendant and the said Exhibit “B” which was tendered by Plaintiffs but d by the Defendants in his evidence in Chief. Though it is true that fing the burden on the Defendant, particularly to disprove Plaintiffs’ claimto title is an approach not in line with all decided cases on the point, but it is the law that in cases where there is a counter claim, the Defendant becomes the Plaintiff for the sake of determining the counter claim. This Court believe the evidence of Mr. Abel Uche Anyaogu,DW1 on record. 88 yrs old retired traded from Ndi Oyendi Amaclu Amaofufe who truthfully stated that he knows the land in dispute called Okposi, belonging to Amaofufe people and having common boundary with an area called Ogugu Akpo and does not know who deforested the land in dispute and cannot call all the names of its boundary neighbours but only knows that it is surrounded by Ibina Igbere people. During the amplification of his address to Court, the Learned Counsel to the Plaintiffs urged this honourable Court to void the written address of the Defendants presented on their behalf by Chief Barrister E.E. Ukaegbu the DW4 on record for the reason of it being contrary to law. That the DW4 is only competent to address the Court in his own behalf while his Co-defendants under the law was entitled to present their individual addresses and not a group address. This matter was defended in a represenative capacity with DW4 Chief Barrister E.E Ukaegbu and late Nwachukwu Kalu defending on behalf of themselves and as representing Amaofufe Igbere people excluding the family of the Plaintiffs. Both DWI, DW2, and DW3 all testified in their evidence to such representation. The 2™ defendant Nwachukwu Kalu died during the course as the sole representative of the Defendants. It is also on record that even though the Defendant is a legal practitioner of great repute, he never represented the Defendants in the capacity of a legal practitioner, he never announced his appearance for the Defendants but had always announced that they are unrepresented which is the law. This Court does not see anything wrong in his presenting the Defendants’ address as their representative. ‘That is in line with the natural rule of “Audi Alterem Partem”, and therefore is in order. Therefore, this Court regard the objection by the Learned Counsel to the Plaintiffs, Chief Barrister C. A. Kalunta as frivolous and hereby reject it, and therefore oyernules it, on the submission of the Learned Counsel 10 the Plaintiffs Chief Barrister C.A. Kalunta in page 2 of his written address that the pleading of Counsel in law is binding on the party in the Suit in whick: it is delivered for the purpose of the Suit, that Exhibit Q, the Statement of defence in theUmuahia High Court case between the same parties, was prepared, signed and filed by Chief EE. Ukaegbu the DW4 on record himself. ‘That he was also a | Defendant in that Suit which was in a representative capavity where he citied in “support of his arguments the cases of LEWIS & ANOThis Court will all due respect disagrees with this submission of the Learned Counsel to the Plaintiff's and views it as misdirecting. The citations in order but the facts are not the same. It is trite law that under the rules of pleading, because what is not given in evidence from the statement of claim is deemed abandoned and of no legal consequence - See NKADO VS. OBIANO (1997) 5 SC.N.J. AJOYEBI & ANO. V. GOVERNOR OF OYO STATE & ORS. (1994) 17L.R.C.N, P.94at 10 by IGU J.S.C. itis a fact that the High Court case at Umuahia resulting in exhibit Q was in Conclusive, On the submission made by Defendants on page 1 of his address that since the Plaintiffs claim that Okposi land is the family land of Ndi Ogbuisi Uguru family, that the proper person and the only person to file and prosecute the action is the head of their family. ‘That even thouyh the head of their Opbuist family hac been coming, to Court, that he is the only competent person to file and defend this action; he referred Court to the cases of: FATUNMISE V._OMISHORE University of Ife LR Pt. 11 P. 236, NIG. LAND LAW by Prof. B.O. Nwabueze P. 58, the case of MAHUMUD V ZEHUAH 2 WACA 172 also CHAPMAN V. CFAO 9 WACA 181 It is our considered opinion that the above submission of the Defendants is frivolous and misconceived and is not in line with decided cases. In the case of Bassey V.Cobham (1924) 5 NLR 92, it was held that since the head of family is as regards family land in position analogous to that of a trustee and since the members of the family are beneficiaries, any member may assert a right to its protection if the head neglects or refuse to do. Such actions are usually brought in representative capacity. It is a fact that the Plaintiffs brought the action in a representative capacity and the term parties “in law includes not only those named on the record of proceedings but also those represented and who had the opportunity to attend and protect their interest in the proceedings ~See EKENNA VS. NKPAKARA (1997) 50 L.R.C.N. P. 12492, SULU GAMBARI J.C.A. held in G.CAPPA LTD. VS SHOKUMBI (SUPRA) “The controversy as to whether a group or section of a family or even a single ‘member of a family has locus standi to institute an action in respect of wrong done to the family property has been laid to rest. So any member of the family take steps to protect the family property of his interest in it even if he does have the authority of the family to bring the action”. Therefore, there is standi to institute an action in respect of wrong done to family property any member of the family. See BARUWA VS. OSOBA (Supra).CONCLUSIO! The traditional history as given by both the Plaintiffs and the Defendants are in conflict with that each other and most seriously in conflict with that contained in Exhibit “B” which both parties adopted in their attempt to prove their claim. It is the law that evidence of traditional history when found to be cogent and not in conflict with that of the Defendant and accepted by the Court, can support a claim for declaration of title to land, ‘The law is well settled that where there is a conflict in the traditional history of the parties, as in the present case, the demeanor of witnesses is of little guide to the truth of the matter as it must be recognized that in the course of transmission on from generation of the traditional history mistakes may occur without any dishonest motive whatever. In such a case, the traditional history is to be tested by recent facts established with a view to probable. It is trite law that the claim before the court is determined by reference to the claim brought by the Plaintiffs when there is no counter claim — (1990) Vol.7. SCNJ 221 and 239, Exhibit “B” tendered by the Plaintiffs to prove their Claim of Ownership of the whole Okposi land area as contained in their evidence on Oath and supported by their Survey Plan no, OSN/ABD/1/2000. as Exhibit “H” stated categorically in page 145 that Amaofufe is made"up of many Units. He named the Units as: Ne Ukara; Nde Opaisi, Nde Okereukwu; Nde Agwara; Nde Ogbuitem that these were the different sections of Amaofufe that acquired the land here ~ the area in dispute. It is trite that original acquisition of land Ly settlement under Customary law means no more than first occupation or original settlement on land, for whatever purposes. A Plaintiff who relies on grant or original settlement of land is only required to establish such grant or first settlement to the satisfaction of Court and this he can do whether or not this is accompanied by exercise of dominion over the land in dispute, an exercise which may on its, ‘own be sufficient to establish title to land — ODOFIN VS. A'YOOLA (1984) 11 SC 72. Again, it is trite law that where traditional evidence, including evidence of first settlement, is satisfactiorily placed beiore the Court and is accepted, title to Tand can be declared on such evidence of title alone ~ See OLUYOLE V.OLORA (1968) NMLR 46.NKOKO &ORS V. CHIEF OKON UDO UDO APKAKA & ORS_ (2000) 7 NWLR (Pt. 664) 225. The big question that needs a specific answer is: Are there really two traditional histories as told by parties in dispute which are in conflict with each other? Generally speaking, the answer is Yes; but specifically speaking, the answer is Capital NO. the answer is yes because both parties in dispute gave their individual traditional histories in their quest to convince the Court to grant their respective claims. The answer is a Capital NO because both parties adopted the contents of Exhibit “B” which on its own gave an entirely different traditional history of Amaofufe Community from those given the Court by the parties in dispute, It is an undisputed fact that Both parties in dispute lifted into evidence specific area from the said Exhibit “B” which they found and as believed to be advantageous to their individual claims before this honourable Court, while they feined total ignorance of the contents of other pages in the said Exhibit “B”, which they found will not support their claim. This Court will not allow itself to be deceived by this self centred attitude of the parties. Coker JSC (as he then was) in L.C.C, V. AJAYI (1970) 1 NWLR 291 P. 296 held that “A” Man Cannot at the same time obtain aa advantage by Maintaining a particular stand point and then seek to discard that stand point whilst keeping the advantage”. It is trite that the rule of interpretation is that the document should be read as a whole. On the issue of general and special damages sought as relief No. 2 by Plaintiffs intheir claim. Special damage in law as described by Lord Macnagh in STROMS. BRUKS QN_ (1905) 515 AT 525-526 and which was cited y IGU JSC in EKENIA Vs. NKPAKARA (1997) 50 LRCN at P. 1251 J.J. as:- “Damage of the type law with not infer from the nature of the act they do not follow in the ordinary course; they are exceptional in their character and therefore, they must be claimed specially and proved strictly.” The onus is on the Plaintiffs to satisfy the court that they arc entitled on the evidence brought by them to the various declarations and reliefs claimed - ATOYEBI & ANO VS. GOV. OYO 17 LRCN -p. 95 at 30-40. Sentiments have no place in the court’s adjudication process ~ OHIAH LONYIAU (1989) 1 N.W.L.R. (Pt. 99) 514, ing regard to all the circumstances of this case, and the totality of the fidence before this court, the declaration sought in item 2 of the Plaintiffs” im does not succeed. The evidence in totality and the fining of facts made yereon does not support the granting of the order.A court must give its judgment according to the justice of the case. KARIMU_AYINLA VS. SIFAWU SIJUMOLA (1984) 5 S.C. 44 at 47. Therefore, in line with the massive evidence before this Honourable court and the finding of facts both from the evidence of the both parties in dispute, their witnesses and the inspection exercise carried on the land in dispute, this court is compelled to hold and do hold as follows:~ 1. The claim by the Plaintiffs that they are exclusively entitled to the 4 Customary right of Occupancy over all the area of Okposi land as showed in their survey plan No, OSN/ABD/V/2002 on record as | Exhibit “H”, cannot be granted by this court. 2. ‘The Defendants’ claim that they alone excluding the family ofthe Plaintifis are Amaofufe Community and as such are entitled to a specific area of the Okposi land which falls within the larger area claimed by Plaintiffs, and which Defendants termed community land of Amaofufe people, is misconceived and frivolous and is not supported by any credible evidence. It is our considered view and which we do hold strongly, that every available evidence before this Honourable court, both given orally and as contained in Exhibits A, 4 B, C, D, E and O respectively, all unequivocally referred the Family of the Plaintiff’ as indigenes of Amaofufe community. Therefore the | claim of the Defendants in their counter claim that Plaintifis are not : indigenes of Amaofufe Igbere Community is baseless and an incurable defect in their claim, fatal to their counter claim as a whole. In view of the above situation, Defendants counter claim is bound to fail and has failed, and having failed, it is hereby dismissed for lacking in Merit. 1. The Plaintiffs are hereby granted the customary right of occupancy over _ the Okposi land area comprising from the Roman Catholic Mission and School premises unto and including those land areas being bounded by Ndi Agboto Ibina; Ndia Mbe Ibina and that of Eziukwu Ibina demarcated by Odu trees which the Defendant called Ukwukwanta and Mgbele Ogbo lands respectively. Also granted the Plaintiffs is the area of land also not contested by Defendants, from the old Road called Uzo ‘Agu by Defendants and bounded by the lands of Ndi Okorocha, and that of Ndi Okwuoma and that belonging to Abel Oteteh downwards to the footpath leading to the former or old homestead (Ezi) Cum compound of Amaofule people which is no longer inhabited, and including all the land areas across the said track road upward (o tie tarred road leading to ‘Agbo Igbere and terminating at Chief Sam Okpo’s house. Also granted to the Plaintiffs is the particular piece of land in Okposi land area whichwas granted to them in 1985 by the Ebiri Counsel of Chiefs against Josaiah Ibekwe Kazi as contained in Exhibit “E” and known as Elu Uzo. Defendants, their servants, privies agents, are perpetually restrained from entering or interfering with the above specified areas granted exclusively to the Plaintifls, The following areas of Okposi iand is hereby granted to Amaofufe community and thereby declared community land: the strip of Farm areas in Okposi demarcated by Odu trees and sharing boundaries with the Plaintiffs land which the Defendants called Ukwukwanta land, that has boundaries with the lands of Ndi Mbe Azu, Eziukwu and.Agbo Owerre Ibina respectively up and including all the built up areas on both sides of the tarred road from Onu leading to Agbo Ibgere and bounded by the Old road also known as Uzo Agu and terminating at the Footpath leading to the former Amaofufe Compound but excluding the piece of Jand just before the unity study class Building which Plaintifis claimed to be the homestead of their grandfather and which is hereby granied to them. Plaintifls, their servants privies, agent are perpetually restrained from entering or interfering in whatsoever manner with the area of land declared by this Honourable Court as Amaofufe community land without the consent of other principal members of Amaofufe community comprising of Nde Opaisi; Nde Ukara; Nde Okereukwu; Nde Ogbuitem and Nde Agwara as could still be found in Amaelu/Ndi Onyendi; Amaefi, Elu Okoba and Ndi Ugah compounds of Amaofufe Community. It is further ordered by this Honourable court that no single individual in Amaofufe community should on his own volition and without the consent of other members, especially principal members of the already mentioned kindred’s, solely appropriate, or alienate the area of lands belonging to Amaofufe Community. That is our Judgment so be it. SIGNED: SIGNED:__ HIS HON. WALTER N.UKO HIS HON. OGBONNAYA OGBOSO PRESIDING MEMBER MEMBER Certified True Copy