Suit Number:CA/J/178/2005 MONDAY, 14 JULY 2014
Judges:OYEBISI FOLAYEMI OMOLEYEY JCA ( Presided ) OBANDE FESTUS OGBUINYA JCA ( Read the Lead Judgment ) CORDELIA IFEOMA JOMBO-OFO JCA
Counsel:M. V. Pwul, Esq. (holding the brief of G. S. Pwul, SAN) - for the Appellants.
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P. E. Ede, Esq. - for the Respondent.
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OGBUNINYA JCA (Delivering the Lead Judgment): This appeal questions the correctness of the decision of the High Court of Benue State, sitting in its appellate jurisdiction at Okpoga, in Appeal No. OKP/ HC 4A/2003, coram judice, E. Eko, J., (as he then was), and T. A. Igboche, J., delivered on 21 October 2004. For appreciation of the configuration of the parties, the appellants and respondent were the respective defendants and plaintiff in the trial Upper Area Court, Okpoga. Before the lower
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court, the appellants were the respondent whilst the respondent was the appellant.
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The facts of the case, which eventually culminated in this appeal,
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are brief and amenable to appreciation. The respondent commenced an
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action, suit No. UAC/OKP/CV.53/2002, against the appellants in the
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Upper Area Court, Okpoga, Benue State, presided over by P. E. Oche, Esq., and claimed for a declaration of title to a piece of farmland and economic trees situated at Ogele-Ego Owukpa and injunction restraining the appellants and their agents from further development on the land.
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The appellants counterclaimed against the respondent for a declaration of title to a parcel of land and economic trees situated at Abafu Owukpa and N10,000.00 (ten thousand naira) special damages for trespass thereon. The matter went through a full-scale trial before the trial court. In proof of his case, the respondent gave evidence in person and fielded three other witnesses, PW1- PW3. To disproof the action, two of the appellants testified and they called one other witness, DW1. The trial court visited
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the locus in quo whereat it received evidence from witnesses.
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Thereafter, the trial court delivered its decision on 27 August 2003. In its considered judgment, it dismissed the respondent’s suit and granted the appellants’ counterclaim for declaration of title to the dispute land. It
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dismissed their counterclaim for N10,000.00 (ten thousand naira) special
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damages. The respondent was displeased with the decision. In consequence of the dissatisfaction, he filed an omnibus ground of appeal, shown on page 67 of the record, on 11 September 2003. Subsequently, he obtained the leave of the lower court to file four additional grounds of
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appeal found on pages 68-70 of the record. The appeal was duly heard by the lower court. In a considered judgment, contained on pages 140-144 of the record, delivered on 21 October 2004, it allowed the appeal and declared the respondent as the person “entitled to the ownership or the right of occupancy over the disputed piece of land at Ogele-Ego Ehaje, Onwukpa”.
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The appellants were aggrieved by the decision. Hence, on 17
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January 2005, they lodged a 7 ground notice of appeal located on pages 145-148 of the printed record. Later on, they obtained the leave of this
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court, on 22 January 2013, and filed a 10 ground amended notice of A appeal wherein they prayed the court to: “Allow the appeal, set aside the decision of the lower court and affirm the decision of the trial Upper Area Court, Okpoja”. Sequel to that, the parties filed and exchanged their briefs
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of argument in line with practice and procedure regulating appeals as
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evidenced in the rules of this court. The appeal was heard on 19 June B
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During the hearing of the appeal, learned counsel for the appellants,
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M. V. Pwul, Esq., adopted the amended appellants’ brief of argument, filed, on 4 February 2013 but deemed filed on 19 June 2014, as representing his arguments for the appeal. He urged the court to allow it.
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In the same vein, learned counsel for the respondent, P. E. Ede, Esq., C
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adopted the respondent’s brief of argument, filed on 21 February 2013 but deemed filed on 19 June 2014, as forming his submissions against the appeal. He urged the court to dismiss it.
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Objection to the competence of the appeal
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At the behest of the learned counsel for the appellant, the name of D the then first appellant, Onyeke Omaliko was struck out, for being deceased. Against that, learned counsel for the respondent submitted that
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the present appellants lacked the locus standi to maintain the appeal, because they never asserted that the disputed land was theirs. He posited
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that by Order 15, rule 1 of the Court of Appeal Rules, 2011, hereunder E
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abridged to the rules, the deceased appellant was a necessary party for
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maintaining the appeal. He postulated that for the appeal to be sustained, his name ought to be substituted pursuant to Order 15, rule 2 of the rules. He added that the appellants failed to comply with the provision. He
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urged the court to dismiss the appeal under Order 15, rule 3 of the rules.
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In reply, learned counsel for the appellants, contended that the F
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present appellants are necessary parties to the appeal. He insisted that the provision of Order 15, rule 3 of the rules was inapplicable as it referred to a situation where there was one appellant.
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A look at the two sets of issues shows that they are identical in substance, one set a mirror image of the other. Indeed, the respondent’s G lone issue can be conveniently accommodated by the appellants’ fragmented three issues. For this reason, I will decide the appeal on the basis of the appellants’ issues. After all, they are the ones peeved by the decision of the lower court.
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Resolution of the objection H
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Although, the respondent’s objection was not brought in the manner
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decreed by the provision of Order 10, rule 1 of the rules, it, to all intents and purposes, displays the glaring features of a preliminary objection.
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The reason is plain. The, objection, made viva voce , is a vitriolic attack on the competence of the appeal aimed at snuffing life out of it at its infancy. Unarguably, if it succeeds, it puts an end to the appeal. Hence, in keeping with the dictates and injunction of the law, it has to be attended to first, see FBN Plc v. T.S.A. Ind. Ltd (2010) All FWLR (Pt. 537) 633, (2010) 15 NWLR (Pt. 1216) 247. A resume of the objection is that the appellants are bereft of the locus standi to prosecute the appeal on account
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of not being necessary parties.
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From an etymological perspective, the expression, ‘ locus standi’, a cliche in adjudications, traces its roots to latin language. It denotes: “place of standing”. In its expounded legal form, it connotes the legal
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right or capacity of a person to institute an action in a court of law when
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his right is violated by somebody or authority, see Adesanya v. The President, FRN (1981) 5 SC 112/(1981) 2 NCLR 358, the locus classicus on locus standi in the Nigerian jurisprudence; Adetona v. Zenith Int’I Bank Plc (2011) 18 NWLR (Pt. 1279) 627; Taiwo v. Adegboro (2011)
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D All FWLR (Pt. 584) 52, (2011) 11 NWLR (Pt. 1259) 562.
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Nigerian citizens derive their locus standi from the Constitution, statutes, customary law or voluntary arrangements in organisation involving their civil rights and obligations, see Odeneye v. Efunuga (1990) 7 NWLR (Pt. 164) 618. Locus standi was invented to protect the court
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from being converted into a jamboree by professional litigants or meddlesome interlopers who have no interest in matters see Taiwo v.
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Adegboro . For a party to establish his locus standi , he must show that the matter is justiciable and the existence of dispute between parties, see Taiwo v. Adegboro ; Ajayi v. Adebiyi . It is a statement of claim or affidavit
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in originating summons that is examined by a court in determining the
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locus standi of a party. See Taiwo v. Adegboro ; Adesanoye v. Adewole
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(2006) All FWLR (Pt. 340) 1000, (2006) 14 NWLR (Pt. 1000) 242;
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Odeneye v. Efunuga ; Uwazuruonye v. Governor, Imo State . Here, the trial was not predicated on pleadings. In this wise, the respondent’s evidence adduced before trial court will serve as veritable materials in
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determining the existence or otherwise of his locus standi , see Barclays Bank of Nigeria Ltd v. CBN (1976) 1 All NLR 409; Attorney-General, Kwara State v. Olawole (1993) NWLR (Pt. 272) 645.
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It is discernible from the entirety of the evidence, proffered by both sides of the divide before the trial court, that appellants are laying
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claim to the disputed land in a representative capacity for themselves and on behalf of Ugbugbu community. Their evidence traces ownership of
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the disputed land to the Ugbugbu community, which they hailed from, by settlement. It is of no moment that the initiating processes, their
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counterclaim, did not unveil the representative capacity, see In re: Adeosun A
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(2001) FWLR (Pt. 48) 1223, (2001) 8 NWLR (Pt. 714) 200. In other
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words, the evidence showcased the appellants’ joint interest in the property alongside other unnamed/undisclosed members of Ugbugbu community.
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It follows that they had rights, advantages, duties, whether ascertained or
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potential, over the disputed land. They disclosed sufficient interest which B
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dovetails with special legal right. Indisputably, the respondent’s
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interference in their communal conjoined interest in the disputed property will definitely affect them adversely. After all, chances of success in an action are irrelevant in considering locus standi of a party, see Taiwo v.
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Adegboro ; Ajayi v. Adebiyi ; Adeona v. Zenith Int’l. Bank Plc. Put shortly,
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the law does not give the appellants armed with locus standi , the guarantee C
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of success of the appeal. It merely assures them of a fifty-fifty chance therein.
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Besides, the respondent’s plaint and evidence of the parties revealed that the respondent’s action, claims for title and injunction in respect of
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the disputed land, comes within the wide domain of justiciability. It is D obedient to judicious disposition in the bowel of the court of law. Again, there exists apparent disputation, between the feuding parties, as to who
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owns the disputed plot in question. This exhibits apparent presence of dispute between the parties.
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This juridical survey presents the appellants as necessary not E
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desirable parties to the appeal. In the eyes of the law, a necessary party to
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a proceeding is one whose presence and participation therein is essential for an effective and complete determination of the claim before the court, see Green v. Green (1987) 3 NWLR (Pt. 61) 480, (1987) 2 NSCC (Vol.
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18) 1115; Cotecna Int’l. Ltd v. Churchgate (Nig.) Ltd (2010) 18 NWLR (Pt. 1225) 346; P.W.T (Nig.) Ltd v. J. B. Oladeen International (2010) F
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19 NWLR (Pt. 1226) 1. The raison d’etre of making a person a party to an action is for him to be bound by its result, see Rinco Const. Co. v. Veepee Ind. Ltd 2005) All FWLR (Pt. 204) 816, (2005) 9 NWLR (Pt.
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929) 85; Carrena v. Akinlase (2008) All FWLR (Pt. 444) 1403, (2008)
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14 NWLR (Pt. 1107) 262; P.W.T. (Nig.) Ltd v. J.B.O. Int’l. Given the G
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delegated capacity of the appellants, the members of Ugbugbu community will be conjunctively bound by the result of the appeal.
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Let me place on record that the respondent’s reason for the objection or its intended consequence is unfathomable. It is not lost on the respondent
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that he was the one who, in the first place, brought the appellants to H
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court. An appeal is a continuation of the original action, see FBN Plc v.
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T.S.A. Ind. Ltd. In my view, the respondent, by the objection, has launched an attack against the existence of his action ab initio in the trial court.
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Indeed, he is, curiously, impugning the jurisdiction of this court to entertain his action, instituted in the trial court, and continued in the appeal. The respondent overlooks the fact that if this court is drained of the requisite jurisdiction to adjudicate over the appeal, on the footing that the appellants’ are denuded or stripped of locus standi , his matter would lose its substratum in initio . From the tenor of the objection, I liken the respondent to a man who, while praying fervently for long life, yet, known to him,
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carries in his surface pocket a time bomb which, on detonation, will put paid to his priceless life, see Yoye v. Olubode (1974) 9 NSCC 409 44. The objection smacks of a paradox in the face of the obvious fact that the
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respondent took the appellants to the court. It has no backing of the law.
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Having anatomised the legal positions on locus standi and necessary
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party, I hold the view that the appellants qualify to maintain this appeal. On this premise, I dishonour the respondent’s inciting invitation to terminate in limine its life based on the provision of Order 15, rule 3 of the rules. In the result, I overrule the parol objection and same is,
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accordingly, dismissed for want of legal justification. Consideration of the appeal.
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In the appellants brief of argument, they distilled three issues for the determination of the appeal to wit:
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Whether the lower court, sitting in its appellate jurisdiction
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correctly applied section 46, 135(1) and 146 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, to
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the facts established by the evidence before the trial Upper Area Court.
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Whether the lower court was right when it embarked upon
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evaluation of the evidence, which had been properly
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evaluated by the trial court. Whether the lower court correctly evaluated the totality of evidence and arrived at a correct decision.
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The respondent, in his brief of argument, crafted a solitary issue for the determination of the appeal viz :
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Whether the application of sections 146, 135 of the Evidence Act by the lower court was proper in the circumstances of the case and if so whether the re-evaluation of evidence and
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judgment in favour of the appellant/respondent was proper.
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Submissions on the issues
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Issue one
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Learned counsel for the appellants reproduced the provisions of
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sections 46, 135(1) and 146 of the Evidence Act, 1990. He submitted that sections 46 and 146 of the Act raise presumptions which are applicable
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subject to certain conditions. He relied on the cases of Okoko v. Dakolo A
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(2006) All FWLR (Pt. 336) 201, (2006) 14 NWLR (Pt. 1000) 401; Polo
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v. Ojor (2003) FWLR (Pt. 137) 1085, (2003) 3 NWLR (Pt. 807) 344;
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Ogunyele v. Oyewole (2000) 14 NWLR (Pt. 687) 290. He noted that it is the trial court, which watched witnesses testify, that has the prerogative
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of determining if the presumptions in those sections 46 and 146 would B
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apply, citing the case of Agbi v. Ogbeh (2006) All FWLR (Pt. 329) 941,
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(2006) 11 NWLR (Pt. 990) 65. He reproduced the finding of the trial court on page 23 of the record and posited that it was based on the evidence before it. He added that it was not the business of the lower court to
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interfere with the decision of the trial court which was based on credibility
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of witnesses. He referred to the case of Awoyoolu v. Aro (2006) All FWLR C
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(Pt. 308) 1319, (2006) 4 NWLR (Pt. 971) 481 for the submission.
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Learned counsel enumerated the facts or conditions a party relying on section 46 of the Act must satisfy. He cited the case of Okolo v. Dakolo for the conditions. He explained that the possession and enjoyment must
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be in respect of a different land not in dispute. He insisted that the section D did not avail the respondent. He noted that the lower court was in error to rely on the section. He further submitted that a party would not plead
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various methods and await the court to give him judgment on any that fitted his evidence, citing the case of Nruama v. Ebuzoeme (2006) 9
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NWLR (Pt. 985) 217, (2007) All FWLR (Pt. 347) 723. He posited that E
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the lower court ought to have invoked section 46 of the Act in favour of
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the appellants, who had a larger piece of land thereat.
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He quoted the provisions of sections 135(1) and (2) and 136 of the Act and stated that they have been interpreted in the cases of Onyenye v. Ebere (2004) 13 NWLR (Pt. 889) 20; Shittu v. Fashawe (2005) All FWLR
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(Pt. 278) 1017, (2005) 15 NWLR (Pt. 986) 671. He reasoned that those F
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provisions of the Act operated against the respondent who had the burden to prove his claim for declaration of title to the land and he would fail if no other evidence was led. He relied on the case of Onobruchere v. Esegine (1986) 1 NWLR (Pt. 190) 799 for the point. He took the view that the
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lower court wrongly placed the burden of proof of declaration of title to G the land on the appellants which occasioned a miscarriage of justice. He placed reliance on the cases of Onobruchere v. Esegine; PHMB v. Ejifagha (2000) 11 NWLR (Pt. 677) 154; N.B.N. Ltd v. U.C. Holdings Ltd (2004)
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3 NWLR (Pt. 891) 442 for the view. He explained that a claim for
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declaration of title is a discretionary relief which is granted on the materials H
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placed by a plaintiff and not on the admission of a defendant. In support
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of that, he referred to these cases: Idundun v. Okumagba (1876) 9 SC 277; Bello v. Eweka (1981) NSCC 48 at 56.
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Learned counsel stated that section 146 of the Act had been given judicial interpretation in the case of Polo v. Ojor (2003) FWLR (Pt. 137) 1085, (2003) 3 NWLR (Pt. 807) 344. He postulated that the provision must be considered with other presumptions and settled legal principles; adding that where there were conflicting presumptions in a case they would cancel each other leaving the operation of section 135 and 136 of the Act. He cited the case of Agbonfo v. Aiwereoba (1988) 1 NWLR (Pt.
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70) 325 in support of the postulation. He maintained that the presumptions in sections 46 and 145 of the Act cancelled each other in favour of the appellants. He relied on the case of Begha v. Tisa (2000) 4 NWLR (Pt.
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652) 193. He posited that section 146 of the Act had never been used in
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defeating the claim of another person who proved a good title to the land,
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citing the cases of Da Costa v. Ikomi (1968) All NLR 382; Idundun v. Okumagba (1976) 10 NSCC 445; Graham v. Esumai (1984) 11 SC 123 at 149 for the point. He persisted that the lower court was wrong in disturbing the factual finding of the trial court, relying on Awoyoola v.
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He stated that the decision of the lower court was perverse as it was made in disregard of a statutory provisions, section 1(2)(e) of the Act which provided that the Act was inapplicable to the proceedings of the trial court. He relied on the case of Udengwu v. Uzuegbu (2003)
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E FWLR (Pt. 179) 1173, (2003) 13 NWLR (Pt. 836) 136. He noted that an
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appellate court considering the decision of Area or Customary Court should
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concern itself with the substance of the decision. He referred to the case of Dungus v. Mbubudiye (2005) 8 NWLR (Pt. 927) 292 on the point.
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For the respondent, learned counsel contended that it is the duty of
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the court to give logical effect to the letters of the law. He stated that in
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prescribing the general standard and burden of proof by section 135(1)
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of the Act, section 146 of the Act spells out who the burden rested upon in a peculiar circumstance. He explained that section 146 of the Act put the burden of proof on the person who affirmed that the person in possession was not the owner. He relied on the case of Akwafuo v. Anyanwu
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(2006) All FWLR (Pt. 302) 89 for the contention. He quoted the evidence from the appellants which showed that the respondent was in possession of the disputed land. He posited that possession of land could be proved by cultivation of it, citing the case of Zanwai Santi v. Bagobiri (2006) All FWLR (Pt. 292) 100 in support. He maintained that the respondent was in possession of the disputed land and the burden of proof shifted to the appellants to show that he was not. In support of the point, he referred to
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these cases: Dagaci of Dere v. Dagaci of Ebwa (2006) All FWLR (Pt.
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306) 786; Oyekaonwu v. Ekwumbiri (1996) 1 All NLR 32; Oyeyiola v.
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Adeoti (1996) 1 NWLR 10; Adegbola v. Obalaka (1978) 2 LRN 164. A He explained that the burden of proof created by section 146 of the Act was regardless of the position of the parties, but as it related to their possession and affirmation of ownership, citing the case of Polo v. Ojor
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to buttress the explanation. He insisted that the lower court was right
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when it held that the burden of proof was on the appellants under the B
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provisions.
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He described the submission of the appellants on conflicting presumption as unnecessary because they neglected to appreciate the duty section 146 of the Act imposed on them, which duty could not be
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discharged by the mere presumption in section 46 of the Act, relying in
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Ojoh v. Kamalu (2006) All FWLR (Pt. 297) 978. He cited the evidence C
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from the respondent which made the lower court to apply section 46 of the Act. He reasoned that if there was any cancellation of presumptions, section 46 of the Act cancelled that of the respondent and left sections 135 and 146 of the Act in his favour.
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Learned counsel further contended that no law prohibited the lower D
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court from applying the provisions of the Evidence Act in an appeal from the Area Court. He posited that the application of the Evidence Act was not the subject of appeal before the lower court. He maintained that the lower court could apply any law relevant to any case before it even if not
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cited by counsel. E
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Issue two
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Learned counsel for the appellant contended that it is not the business of an appellate court to evaluate evidence adduced before a trial court, which enjoyed the exclusive privilege of watching and hearing
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evidence, and ascribing probative value to their evidence, except the evaluation was improperly done. He relied on the case of Agbi v. Ogbeh F
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He reasoned that the trial court properly evaluated the evidence and there was no where the lower court criticized its evaluation to justify its re evaluation of the same. He insisted that what the lower court did was wrong. In support of the contention, he referred to the cases of: Fashanu
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v. Adekoya (1974) 1 All NLR (Pt. 1) 35; Agbonifo v. Aiwereoba . G
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On behalf of the respondent, learned counsel argued, per contra , that an appellate court has a duty to re-evaluate evidence where a trial court did not properly do so to justify its decision. He insisted that the lower court was right to re-evaluate the evidence which was improperly
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evaluated by the trial court against the tenor of evidence. He highlighted H
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the evidence of the witnesses from both parties, that called for the lower
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court’s re evaluation of the evidence.
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Issue three
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Learned counsel for the appellant listed the circumstances when an appellate court would re-evaluate evidence. He added that even under such situations, an appellate court would not substitute its views for that of the trial court. He placed reliance on the cases of Military Governor W/S v. Agboola (1974) 1 All NLR (Pt. 2) 66; Agonifo v. Aiwereoba . He noted that the lower court whilst re-evaluating the evidence, wrongly quoted the evidence of PW3 in favour of the respondent. He opined that
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it was bent on searching for evidence to support its view which was different from that of the trial court. He insisted that the lower court wrongly used the evidence of PW2 in favour of the respondent. He
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deprecated the lower court’s reliance on the evidence of PW1 that was
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borne out of vengeance.
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He queried if the lower court properly evaluated the evidence of the appellants. He highlighted the evidence of the appellants and named them unchallenged. He maintained that the evidence were not properly evaluated by the lower court and that was wrong. He placed reliance on
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the cases of Onisaodu v. Elewuju (2005) 13 NWLR (Pt. 998) 517, (2006)
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All FWLR (Pt. 328) 676; Adebayo v. Shogo (2005) All FWLR (Pt. 253)
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739, (2005) 2 NWLR (Pt. 925) 467 on the point. He reasoned that if the lower court had properly evaluated the evidence, it would have affirmed the decision of the trial court.
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On the side of the respondent, learned counsel submitted that the appellants gave inconsistent evidence establishing their root of title over
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the disputed land. He highlighted those pieces of evidence and maintained that they were fatal to their claim for title. He relied on the cases of Falomo
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v. Onakanmi (2006) All FWLR (Pt. 298) 1242; Alikor v. Ogwo (2010) 5
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NWLR (Pt. 1187) 781 for the point. He persisted that the lower court
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was right when it dismissed their counterclaim.
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He narrated the contradictions in the evidence of the appellants showing how the respondent came into possession of the disputed land. He took the view that the evidence of the appellants were full of contradictions that went to the root of the matter and the lower court’s re-
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evaluation of the evidence was correct. He cited the cases of Joshua Ogunleye v. Babatayo Oni (1990) 2 NWLR (Pt. 135) 745; Agbonifo v.
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Adekoya (1988) 1 NWLR (Pt. 70 325) on the point.
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Resolution of the issues
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I will settle the issues seriatim , beginning with issue one. It probes
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into the rightness of the lower court’s application of the provisions of sections 46, 135(1) and 146 of the Act to the evidence before the trial
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court. Before I delve into the kernel of the issue, I will deal first with one adjunct point, raised by the appellants, in their submissions. It relates to
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their castigation of the lower court’s application of the provisions contrary A to the provision of section 1(2) of the Act. Indisputably, the provision of section 1(2) of the Act which is ipsissima verba with section 256(1) (c)
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of the Evidence Act, 2011, proscribes the application of the Act to judicial proceedings in any civil causes or matters before any Area or Customary
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Courts. See Kuusu v. Udom (1990) 1 NWLR (Pt. 127) 421; Orugbo v. B
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Una (2002) FWLR (Pt. 127) 1024, (2002) 16 NWLR (Pt. 792) 175;
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Nuhu v. Ogele (2003) 18 NWLR (Pt. 852) 251, (2004) FWLR (Pt. 193)
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362. No doubt, the trial court, an Upper Area Court, is one of those courts in which the provisions of the Act are inapplicable to proceedings before it.
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Be that as it may, the lower court, a High Court of justice, is not C
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one of the courts catalogued in the prohibitive provision. It will be a defilement of the law to factor into that discriminatory provision the proceedings before the lower court. In the Latin days of the law, it was crafted as: expressio unius est exclusio alterius or inclusio unius exclusio alterius - the expression of one thing is the exclusion of another. See D Awuse v. Odili (2004) All FWLR (Pt. 212) 1611, (2004) 8 NWLR (Pt.
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876) 481; Ehuwa v. O.S.I.E.C. (2006) All FWLR (Pt. 298) 1299, (2006)
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18 NWLR (Pt. 1012) 544; P.C.H.S. Co. Ltd v. Migfo (Nig.) Ltd (2012)
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All FWLR (Pt. 642) 1615, (2012) 18 NWLR (Pt. 1333) 555. At the time
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the lower court was adjudicating over the appeal, even though it E
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germinated from the trial court, it was seised of the matter. Then, the trial
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court was no longer dominus litis over the proceedings. The lower court was not debarred from applying the provisions of the Evidence Act in its determination of the appeal. It was only restrained from prying into the trial court’s failure to adhere to the provisions of the Evidence Act when
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it had dominion over it. After all, the law is in the breast of the judge and F
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he can make use of it, any moment the need arises, see Okochi v. Animkwoi
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(2003) 18 NWLR (Pt. 851) 1, (2004) All FWLR (Pt. 200) 1524. Indeed,
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the Evidence Act is a statute which the lower court is laden with the duty, by the law, to enforce, see Attorney-General, Adamawa State v. Ware
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(2006) All FWLR (Pt. 306) 860, (2006) 4 NWLR (Pt. 970) 399; Inakoju G
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v. Adeleke (2007) All FWLR (Pt. 353) 3, (2007) 4 NWLR (Pt. 1025)
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427; Ekiti State v. Akinyemi (2012) 17 NWLR (Pt. 1276) 373. Given these legal dissections, the seemingly dazzling submission of the appellant flies in the face of law. I will therefore not deride the decision of the lower
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court on account of an exercise that is legitimate. H
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At this juncture, it is germane to invite the hallowed principle of
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law relevant to interpretation of decisions of native or Customary Courts. The law mandates appellate courts to look at the substance, not the form,
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of proceedings in such courts, to be liberal and broad in the construction of their decisions and the procedure adopted therein with the aim of discovering the dispute, the matters upon which issues were joined and the purport of the decision, see Ikpang v. Edoho (1978) All NLR 196; Ekpa v. Utong (1991) 6 NWLR (Pt. 167) 258, (1991) 7 SCNJ (Pt. 1) 170; Ezeanya v. Okeke (1995) 3 SCNJ 60; Garuba v. Yahaya (2007) All
-*-
FWLR (Pt. 357) 862, (2007) 2 NWLR (Pt. 1021) 390; Arum v. Nwobodo
-*-
(2013) All FWLR (Pt. 688) 870, (2013) 10 NWLR (Pt. 1362) 374; Olodo
-*-
v. Josiah (2010) 18 NWLR (Pt. 1225) 653, (2011) All FWLR (Pt. 573)
-*-
1897. In determining the decision of the lower court here, I will, in due respect to the law, give a cursory examination to the proceedings in the
-*-
trial court.
-*-
One of the appellants’ grouses was that the lower court employed the provision of section 46 of the Act against their case. The provision, which is a clone of section 35 of the Evidence Act, 2011, reads:
-*-
46. Acts of possession and enjoyment of land may be evidence D of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which
-*-
such acts are done, but also of other land so situated or connected therewith by locality or similarity that what is true as to the one piece of land, is likely to be true of the other
-*-
piece of land.
-*-
This provision is comprehension-friendly. It has been translated
-*-
into one of the five recognised ways of proving title to land in the corpus of the Nigerian land law jurisprudence. It is usually listed as the last or fifth mode in that regard, see Idundun v. Okumagba ; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285, (2011) All FWLR (Pt. 595) 203;
-*-
Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404, (2011) All
-*-
FWLR (Pt. 568) 827; Momoh v. Umoru (2011) All FWLR (Pt. 588)
-*-
797, (2011) 15 NWLR (Pt. 1270) 217; Ayanwale v. Odusami (2011) 18
-*-
NWLR (Pt. 1278) 328, (2012) All FWLR (Pt. 610) 1246; Otukpa v.
-*-
John (2012) 7 NWLR (Pt. 1299) 357; Iseogbekun v. Adelakun (2013)
-*-
G All FWLR (Pt. 664) 168, (2013) 2 NWLR (Pt. 1337) 140; Arum v.
-*-
Nwobodo .
-*-
The pre-conditions for the availability of the provision to a party were wrapped in the succinct pronouncement of Fatayi-Williams JSC, as he then was in Idundun v. Okumagba (supra) at 156, a locus classicus
-*-
H on methods of proving titles to land, as follows:
-*-
In any case, as learned counsel for the respondents has rightly
-*-
submitted, for the provisions of section 45 of the Evidence Act to apply, there must be an admission by
-*-
the respondents, or a finding by the trial judge, that the land A in dispute was surrounded by other lands belonging to the appellants.
-*-
See also Okoko v. Dakolo ; Anukam v. Anukam (2008) All FWLR (Pt. 413) 1255, (2008) 5 NWLR (Pt. 1081) 455; Kaiyaoja v. Egunla
-*-
(1974) 12 SC 55 at 63; Jinadu v. Esurombi-Aro (2009) All FWLR (Pt. B
-*-
483) 1231, (2009) 9 NWLR (Pt. 1145) 55; Nwokorobia v. Nwogu (2009)
-*-
All FWLR (Pt. 476) 1868, (2009) 10 NWLR (Pt. 1150) 553; Odunukwe
-*-
v. Ofomata (2010) 18 NWLR (Pt. 1225) 404, (2011) All FWLR (Pt.
-*-
568) 827. The provision creates a rebuttable probability or presumption, not conclusive evidence of ownership of land, see Kaiyaoja v. Egunla ;
-*-
Odunukwe v. Ofomata . Put simply, the provision is not an automatic C
-*-
passport to a party, who relies on its, to earn title to land.
-*-
The trial court, on pages 23 and 24 of the record, found that the disputed land was surrounded by a larger area of land which belonged to the appellants. The finding was premised on the evidence, the admission
-*-
of the respondent at the visit to the locus in quo and its observations D
-*-
thereat. The trial court had the license of the law to pay a visit to the locus in quo , in the presence of both parties, and utilise the observations therefrom in reaching its finding, see Ejidike v. Obiora (1951) 13 WACA 270; Enigwe v. Akaigwe (1992) 2 NWLR (Pt. 225) 505; Ipinlaiye II v.
-*-
Olukotun (1996) 6 SCNJ 74, (1966) 6 NWLR (Pt. 453) 148; Kenon v. E
-*-
Tekam (2001) FWLR (Pt. 70) 1660, (2001) 7 SCNJ 620; Shekse v.
-*-
Planksha (2008) All FWLR (Pt. 439) 422, (2008) 15 NWLR (Pt. 1109)
-*-
105; Ukaegbu v. Nwololo (2009) All FWLR (Pt. 466) 1852, (2009) 3
-*-
NWLR (Pt. 1127) 194; Atanda v. Iliasu (2013) All FWLR (Pt. 681) 146,
-*-
(2013) 6 NWLR (Pt. 1351) 529; Arum v. Nwobodo . Section 77(d)(i) of
-*-
the Act, section 127 of the Evidence Act, 2011, enabled the trial court to F
-*-
make the visit to the locus in quo.
-*-
In reversing that finding, the lower court, on page 141, lines 20-25, of the record, intoned:
-*-
“At the trial, it was not in dispute that the appellant was in actual possession of the disputed piece of land. It was the G attempt of the 1st defendant/respondent to arrest the actual possession from the appellant that was the cause of action.
-*-
The fact that the appellant was in actual possession of the disputed land and he had been in enjoyment of the land for a
-*-
length of time is evidence of his ownership of the right of H
-*-
occupancy of the land. Section 46 Evidence Act.”
-*-
Now, I have read the proceedings in the trial court, not with the finery of a toothcomb as decreed by law. I am unable to see, or stumble
-*-
on, even with judicial lens, the evidence indicative that the respondent was in possession, actual or constructive, or owned the contiguous pieces of land to the disputed property. Contrariwise, the evidence on record, amply, demonstrated that the appellants possessed and owned the bigger area of land adjacent to the disputed land. In the glaring absence of the respondent not being in possession of the other pieces of land abutting the land in dispute, it is difficult, nay impossible, for him to take benefit
-*-
or refuge under the sacrosanct provision of section 46 of the Act. The reason is simple. There is no “other land so situated or connected therewith by locality or similarity that what is true as to the one piece of land, is
-*-
likely to be true of the other piece of land” under his enjoyment to attract
-*-
the provision in his favour. Thus, the lower court, with all due respect to
-*-
it, deployed the provision in an inverse manner in favour of the respondent. A juxtaposition of the evidence with the provision, tangibly, reveals that the lower court ought to have invited the provision in favour of the appellants who were, evidentially, in possession and enjoyment of the
-*-
contiguous land to the disputed one. I endorse, in toto, the elegant argument of the appellants that the lower court indulged in an improper invocation of the provision to an underserved party, the respondent.
-*-
Another provision the lower court called in favour of the respondent was section 146 of the Act. The provision, which is in parimateria with
-*-
section 143 of the Evidence Act, 2011, is of note here and it provides: 146 - When the question is whether any person is owner of anything
-*-
of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
-*-
This provision submits to easy appreciation. It has fallen for
-*-
interpretation by the apex court in floods of cases and construed to evince
-*-
a rebuttable presumption of ownership, see Onobruchere v. Esegine ; Kyari v. Alkali (2001) FWLR (Pt. 60) 1481, (2001) 11 NWLR (Pt. 724) 412;
-*-
Ojoh v. Kamalu (2005) 18 NWLR (Pt. 958) 523; Dagaci of Dere v.
-*-
Dagaci of Ebwa (2006) 7 NWLR (Pt. 979) 382; Salami v. Lawal (2008)
-*-
G All FWLR (Pt. 438) 200, (2008) 14 NWLR (Pt. 1108) 546; Afolabi v.
-*-
Western Steel Works Ltd (2012) 17 NWLR (Pt. 1329) 286.
-*-
A superficial examination of the evidence, offered by the parties before the lower court, shows that the respondent was in possession of the disputed land. According to the respondent he had been in possession
-*-
H up to 100 years. The appellants agreed that he had been in possession for about 20 years but “it was Ogbugbu community who gave land to the
-*-
plaintiff to farm” as shown on page 9, lines 18 and 19, of the record. It was, also, their evidence, on the same page 9 of the record, that the land,
-*-
which they acquired by settlement, was given to Ogbanje Agada, the A respondent’s uncle, to use and that ownership of same reverted to them when he left. I will return to this point later in due course. To my mind,
-*-
the appellants showed the circumstances that brought the respondent into possession of the disputed land. The appellants’ evidence of settlement
-*-
thereon and gift of the land to the respondent to farm neutralized his B
-*-
possession of same. Put bluntly, the presumption which ensured to the
-*-
respondent, by dint of his possession of the disputed land, was successfully rebutted by the appellants. The appellants fulfilled the obligation which the prescription of the provision of section 146 of the Act has saddled
-*-
them with. In this wise, the evidential burden, which fluctuates like the oscillating pendulum in a wall clock, resided in the respondent to displace C
-*-
the evidence of the appellants which dislodged his as enjoined by section 137 (2) of the Act, section 33(2) of the Evidence Act, 2011. A glance at the evidence signifies that the respondent was unable to discharge that bounden duty.
-*-
Besides, I had, on the penultimate point found, after due consultation D with the law, that the lower court wrongly bequeathed the benefits of section 46 of the Act to the respondent. The implication of that solemn
-*-
finding, which there are no extenuating circumstances for me to disturb, is not a moot point. It constitutes a serious dent on his possession under
-*-
section 146 of the Evidence Act. In the sight of the law, possession cannot E
-*-
stand where the radical title fails, see Ukaegbu v. Nwololo; Ameen v.
-*-
Amao (2013) 9 NWLR (Pt. 1358) 159. Indeed, proof of ownership is akin to proof of possession, see Ayanwale v. Odusami (2011) 18 NWLR (Pt. 1278) 328, (2012) All FWLR (Pt. 610) 1246; Olaniyan v. Fatoki
-*-
(2013) 17 NWLR (Pt. 1384) 477, (2014) All FWLR (Pt. 717) 703. In
-*-
law, “even if there was copious evidence of possession, the length of F
-*-
possession does not ripen invalid title to a valid ownership title” per Aderemi, JSC in Yusuf v. Adegoke (2007) All FWLR (Pt. 385) 384, (2007)
-*-
11 NWLR (Pt. 1045) 332 at 359; Olubodun v. Lawal (2008) 17 NWLR
-*-
(Pt. 1115) 1 at 37. In the end, I hold that the possession which the lower court allocated to the respondent under section 146 of the Act, was, with G due reverence to it, wholly, unwarranted and out of tune with the law.
-*-
The appellants solicited this court to brand the finding of the lower court on the issue as perverse. A verdict of court is perverse when it runs counter to the pleadings and evidence before it, a court takes into account
-*-
extraneous and irrelevant matters, a court shuts its eyes to the evidence, H
-*-
a court goes outside the issues canvassed by the parties or it has occasioned
-*-
a miscarriage of justice, see Udengwu v. Uzuegbu (2003) FWLR (Pt. 179) 1173, (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995)
-*-
A 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114)
-*-
427, (2009) All FWLR (Pt. 455) 1617; Onyekwelu v. ELF Petroleum
-*-
(Nig.) Ltd (2009) All FWLR (Pt. 469) 426, (2009) 5 NWLR (Pt. 1133)
-*-
181; Momo v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ihunwo v. Ihunwo
-*-
(2013) All FWLR (Pt. 674) 75, (2013) 8 NWLR (Pt. 1357) 550; Olaniyan
-*-
B v. Fatoki (2013) 17 NWLR (Pt. 1384) 477, (2014) All FWLR (Pt. 717)
-*-
703. I have, as enjoined by law, married the lower court’s finding, sought
-*-
to be ousted, with these adumbrated elements of perversion with a view to ascertaining its perversity or otherwise.
-*-
My lords, from these legal expositions, substantiated with ex
-*-
cathedra authorities, the finding, totally, ignored the evidence furnished
-*-
before the trial court. The lower court’s donation of the benefits in sections
-*-
46 and 146 of the Act ran foul of the evidence. Those provisions were interpreted in a converse form. Indeed, it was a quintessence of a court shutting its eyes to evidence. I dare say, the finding was enveloped by perversity.
-*-
Moreover, the perversity snowballed into a miscarriage of justice to the appellant. Miscarriage of justice, in the eyes of the law, is such a departure from the rules which pervade all judicial process as to make
-*-
what happened not in the proper sense of the word judicial procedure at all, see Amadi v. NNPC (2000) FWLR (Pt.9) 1527, (2000) 10 NWLR
-*-
(Pt. 674) 76. It implies a decision or outcome of legal pleadings which is prejudicial or inconsistent with the substantial rights of a party. It means
-*-
a reasonable probability of more favourable result of the case for the party alleging it. It is a failure of justice. Gbadamosi v. Dairo (2007) All FWLR (Pt. 357) 812, (2007) 3 NWLR (Pt. 1021) 282; Aigbobahi v.
-*-
Aifuwa (2006) All FWLR (Pt. 303) 202, (2006) 6 NWLR (Pt. 976) 270;
-*-
F Akpan v. Bob (2010) All FWLR (Pt. 501) 896, (2010) 17 NWLR (Pt.
-*-
1223) 421; Afolabi v. Western Steel Works Ltd (2012) 7 NWLR (Pt.
-*-
1329) 286; Abubukar v. Nasamu (No. 2) (2012) All FWLR (Pt. 630)
-*-
1207, (2012) 17 NWLR (Pt. 1330) 523; Oke v. Mimiko (No. 2) (2014)
-*-
All FWLR (Pt. 714) 126 , (2014) 1 NWLR (Pt. 1338) 332.
-*-
Indubitably, the lower court’s improper construction of sections 46, 135(1) and 146 of the Act generated far-reaching consequences. The grave error propelled it, with due deference, to misplace the burden of proof on the parties. It is trite that a wrong apportionment of burden of proof gives birth to a miscarriage of justice, see Onobruchere v. Esegine ; PHMB v. Ejifagha; Ewo v. Ani (2004) All FWLR (Pt. 200) 1484, (2004)
-*-
3 NWLR (Pt. 861) 610. These, clearly, indicate that after a comprehensive
-*-
examination of the entire evidence alongside with the law, the appellants would have earned a more favourable result from the lower court save
-*-
for the wrongs they complained of. Put clearly, were those alleged wrongs A redressed by the lower court, the unbiased scale of justice would have tilted in favour of the appellants. In sum, there was the lower court’s failure, with due regard to it, to dish out justice which occasioned a miscarriage of justice to the appellants.
-*-
Since the finding reeked of perversion as well as embraced a B
-*-
miscarriage of justice, it was assailable. Interestingly, the law permits
-*-
this court to tamper with it. In order not to hurt the law, this court will intervene by vacating the finding which is caught by the miasma of perversity. All in all, I resolve issue one in favour of the appellants and
-*-
against the respondents.
-*-
That leads me to issue two. This issue and issue three are C
-*-
intertwined. In view of that compatible/symbiotic relationship, I will fuse their consideration. In a precise form, the two amalgamated issues quarrel with the propriety of lower court’s evaluation of the evidence in the trial court. I will be brief here. This is because, some integral parts of issue one dovetail with the purports of these two issues. D
-*-
The law has saddled a trial court with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings before it. To discharge that bounden duty, a trial court must
-*-
show how and why it arrived at its findings of fact and final determination E
-*-
of the issues before it. It has to be cautious and understand the distinction
-*-
between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and
-*-
putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, F
-*-
but quality of the testimonies see Mogaji v. Odofin ; Olagunju v. Adesoye
-*-
(2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akand e; Ayuya v. Yonrin
-*-
(2011) All FWLR (Pt. 583) 1842, (2011) 10 NWLR (Pt. 1254) 135;
-*-
Adusei v. Adebayo (2012) All FWLR (Pt. 627) 664, (2012) 3 NWLR
-*-
(Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; G
-*-
Ndulue v. Ojiakor (2013) All FWLR (Pt. 673) 1804, (2013) 8 NWLR
-*-
(Pt. 1356) 311. I must constantly bear in mind the long standing principle of law that the proceedings of a Customary Court, such as the trial court, should be given liberal interpretation.
-*-
It is settled law that it is the prerogative duty of a trial court, which H
-*-
witnessed, with its necessary senses, the demeanour of witnesses, to assess
-*-
the relevant evidence before it. It enjoys this monopoly to the exclusion of appellate courts. Where a finding of a trial court borders on demeanour
-*-
and credibility of witnesses, an appellate court, being a stranger to the visual proceedings, is prohibited from tinkering with it so as not to substitute its own views with that of the trial court. Nevertheless, where a trial court draws wrong inferences from the evidence on record or indulges in perverse finding, then an appellate court can re-evaluate the evidence and interfere with any finding arising from such a perfunctory judicial exercise see Agbi v. Ogbeh .
-*-
While treating issue one, I found that the decision of the lower court was marooned in perversity. I have no reason to desert that solemn finding. The import of the finding is obvious. It connotes that the trial
-*-
court’s appraisal of the evidence was proper thereby dispelling any
-*-
justification for the lower court to intervene with it. That my earlier
-*-
finding further demonstrates that the lower court’s evaluation of the evidence was fraught with impropriety, depicting it as an incorrect decision.
-*-
For completeness, the lower court, in order to justify its departure D from the decision of the trial court, derided the evidence of the appellants as riddled with contradiction and unworthy of belief. On page 143,
-*-
lines 4-9, of the cold record of appeal, the lower court stated:
-*-
This apart, the defence gave inconsistent evidence as to how he first acquired the disputed land. It is not clear from
-*-
their evidence whether it was Ugbugbu Ejogu who first settled on the land or his sons Amuche and Agada. With
-*-
the actual possession of the land by the plaintiff/appellant, and the unsatisfactory traditional evidence or history of the defendants are bound to fail in their claim to title over the
-*-
disputed land. See Eguenu v. Iyama (1991) 1 LRCN 104.
-*-
In dealing with this point, it is important to recall the attitude of
-*-
an appellate court to the proceedings of an area court. It must not be accorded a broad construction. Likemost legal terminologies, contradiction traces its lexical descent to a latin word, ‘ contradictum ’, an amalgam of ‘ contra ’ and ‘ dictum ’, which denotes“to saythe opposite”. For contradiction
-*-
to vitiate evidence of a party, it must be on material, not tangential, point, see Ogun v. Akinyelu (2004) 18 NWLR (Pt.905) 362, (2005) All FWLR
-*-
(Pt. 243) 601; Owie v. Ighiwi (2005) All FWLR (Pt. 248) 1762, (2005) 5
-*-
NWLR (Pt. 917) 184; Wachukwu v. Owunwanne (2011) All FWLR (Pt. 589) 1044, (2011) 14 NWLR (Pt. 1266) 1; Taiwo v. Ogundele (2012) All
-*-
H FWLR (Pt. 639) 1033, (2012) 15 NWLR (Pt. 1322) 57.
-*-
The respondents, qua counsel, in a bid to puncture the appellants’
-*-
case chronicled myriads of instances of contradictions in their evidence presented before the trial court. A holistic look at the evidence reveals
-*-
that the appellants based their root of title on settlement - a traditional A history which means “that nobody other than the person pleading it first settled on the land,” see Olubodun v. Lawal (2008) 17 NWLR (Pt. 1115)
-*-
1 at 36, per Aderemi JSC. Put the other way round, settlement does not recognise a previous title holder over land see Kode v. Yusuf (2001) FWLR
-*-
(Pt. 40) 1727, (2001) 4 NWLR (Pt. 703) 392; Yusuf v. Adegoke . Evidence B
-*-
clearly showcased that the Ugbugbu community, via its progenitors, that
-*-
first settled on the land. It is also clear from the evidence that Agbogiri, where the respondent came from, was not part of Ugbugbu community. These are the meat and nucleus of the appellants’ root of title. It is not
-*-
susceptible to doubts.
-*-
The few pieces of evidence which the lower court and the C
-*-
respondent highlighted did not, in my view, constitute inconsistencies that were material or fundamental to the appellants’ radical title of settlement. If anything, I classify them as minor discrepancies which were not potent enough to douse the focus of their root of title. In, any event,
-*-
the law gives witnesses the latitude to narrate events with minute D
-*-
differences else they will be liable for evidentiary tutorage. In Owie v. Ighiwi at 29, Tobi JSC, admirably, observed:
-*-
Human being, being not machine, does not act with the characteristic automation of machines. There could be little
-*-
differences here and there when they give evidence on the E
-*-
same matter or event. If human beings give evidence on the
-*-
same matter or event to the exact minutest details, a judge should seriously suspect such evidence because of a possibility of tutoring or rehearsal developing into recitation
-*-
before the date of giving evidence. Where there are inarticulate or immaterial differences, of evidence of witness F
-*-
here and there, that in itself shows their truthful testimonies...
-*-
See, also, Ogun v. Akinyelu (supra) .
-*-
My lords, the appellants’ evidence of settlement was that of traditional history which is not evidence of yesterday, but many years back; what the lawyers call immemorial evidence, dating back to ancient G times, see Ojoh v. Kamalu (2005) 18 NWLR (Pt. 958) 523 at 562. The evidence had lived and endured through generations so that witnesses cannot be expected to deliver their parol testimonies about events with regimented accuracy or precision. The reason is a familiar one. Memories
-*-
of human beings fade with the passage of time. It was, therefore, natural H
-*-
for the appellants and their witness as to furnish viva voce evidence that
-*-
would be dotted with slight differences. In so far as the law endorses that, those trifling differences in the evidence of the appellants do not cast
-*-
any blight on their reliability. For these reasons, I decline the tempting invitation of the respondent to style those pieces of evidence, which he outlined, as being material to the hub of the appellants’ case. On this score, I disagree, wholeheartedly, with the lower court’s finding which labelled the respondent’s evidence as being inconsistent. Against the backdrop of the foregoing, the trial court’s evaluation of the evidence was more in tandem with the law. The lower court’s
-*-
evaluation with all due respect to it, was, totally, divorced from the law. I will be transgressing the law if I allow it to stand. I therefore vacate it in order to pacify the law. In all, I resolve the issues two and three in favour
-*-
of the appellants and against the respondent.
-*-
Overall, having resolved the three issues in favour of the appellants,
-*-
the destiny of the appeal is not a second guess. The appeal is meritorious. Consequently, I allow the appeal. Accordingly, I set aside the decision of the lower court delivered on 21 October 2004. For the avoidance of doubt, I restore and affirm the decision of the trial court wherein it dismissed the
-*-
respondent’s action, but declared the appellants and the Ugbugbu community the owner of the disputed land situated at Ogele-Ego Ubafu Ehaje Owukpa. The parties shall bear the respective costs they incurred
-*-
in prosecuting and defending the appeal.
-*-
OMOLEYE JCE: I agree.
-*-
JOMBO-OFO JCA: Having read in draft before now, the lead judgment so meticulously articula1ted by my learned brother, Ogbuinya JCA, I cannot help but agree entirely with the sound reasoning and conclusion reached therein.
-*-
The appeal indeed has merit and it is accordingly allowed, while the reliefs as counterclaimed by the appellants are granted. I abide by the consequential orders as made in the lead judgment.
-*-
Appeal allowed
