ADAMS & ORS v. A-G LAGOS STATE & ANOR (2020)

ADAMS & ORS v. A-G LAGOS STATE & ANOR

(2020)LCN/14525(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, July 24, 2020

CA/L/96/2012

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

ALHAJI ABDUL-TAUHID ISHOLA ADAMS 2. MRS. ALIMOTU SHADIA MOROHUNKEJI DARAMOLA 3. ALHAJA TAWAKALITU EJIDE OLANIYAN 4. BILIAMINU ALAO ADAMS 5. ABDUL-MOJEED OMOLAJA ADAMS (FOR THEMSELVES AND AS BENEFICIARIES OF THE ESTATE OF ALHAJA SABALEMOTU AYINKE) APPELANT(S)

And

1. ATTORNEY-GENERAL OF LAGOS STATE 2. LAGOS STATE URBAN RENEWAL BOARD RESPONDENT(S)

RATIO

WHETHER OR NOT CASE-LAW GIVES THE COURT THE NOD TO EVALUATE DOCUMENTARY EVIDENCE

It is germane to place on record, upfront, that loads of documentary evidence were furnished before the lower Court by the contending parties. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi(2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10 NWLR (Pt 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje(2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36. PER OGBUINYA, J.C.A.

THE DUTY OF THE TRIAL COURT IN ASCERTAINING THE WEIGHT OF EVIDENCE

In ascertaining the weight of evidence, the trial Court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Military Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412. PER OGBUINYA, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE OF WITNESSES CALLED BY PARTIES IN ANY PROCEEDINGS

The law has saddled a trial Court, like the lower Court herein, 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 having regard to their pleadings. To discharge that bounden duty, a trial Court must show how and why it arrived at its findings of fact and final determination 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, but quality of the testimonies, seeMogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 1635; Onyekwuluje v. Animashaun (supra). I have married the decision of the lower Court with the positions of law x-rayed above with a view to identifying their infractions or compliance. PER OGBUINYA, J.C.A.

A CONDITION PRECEDENT

To begin with, in the eyes of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event”, see Atolagbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. Co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A. –G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jombo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439. PER OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offspring of the decision of the High Court of Lagos State, holden in Lagos (hereinafter addressed as “the lower Court”), coram judice: B.A. Oke-Lawal, J., in Suit No. LD/2722/2002, delivered on 14th October, 2009. Before the lower Court, the appellants and the respondents were the claimants and the defendants respectively.

The facts of the case, which transmuted into the appeal, are amenable to brevity and simplicity. The appellants are the surviving children of one Madam Sabalemotu Ayinke who died on 21st July, 1997 in Lagos. Late Madam Sabalemotu Ayinke became seised/possessed of the property in dispute, situate and known as No. 37 Palm Church Street, Lagos, by a Land Certificate Title No. LO 1934 which was registered on 6th April, 1951. In 1951, the Lagos State Government acquired the property under the scheme for the re-development of Central Lagos. In 1993, the Lagos State Government announced its decision to return the property to the owner. The appellants’ deceased mother applied for the re-allocation of the property before her demise, but the

second respondent failed to accede to her application. Thereafter, the appellants made several failed requests to the respondents for the hand over of the property. On 3rd December, 2002, armed officers, men and thugs of the second respondent invaded the disputed property and demolished it. Sequel to that, the appellants beseeched the lower Court, via a writ of summons filed on 19th December, 2002, and tabled against the respondents the following reliefs:
i. A Declaration that being the surviving children of Late Alhaja Sabalemotu Ayinke, they are beneficial owners of, and entitled to the possession of the property at No. 37, Palm Church Street, Lagos.
ii. An order granting the claimants possession of the property at No. 37, Palm Church Street, Lagos.

In reaction, the respondents joined issue with the appellants and denied liability. In their pleading, they raised defences of locus standi, statute-bar and estoppel against the appellants’ suit.

Following the rival claims, the lower Court had a full-scale determination of the matter. In proof of the claim, the appellants fielded one witness, CW1. In disproof of the case, the respondents

called a single witness, DW1. Tons of documentary evidence were tendered before the lower Court. At the closure of evidence, the parties, through their respective counsel, addressed the lower Court in the manner required by law. In a considered judgment, delivered on 14th October, 2009, found at pages 277-288 of the record, the lower Court dismissed the appellants’ claim.

The appellants were aggrieved by the decision. Hence, on 12th January, 2010, the appellants lodged a 4-ground notice of appeal, copied at pages 289-291 of the record, wherein they prayed this Court:
To set aside the decision of the High Court of Lagos State, sitting in Lagos, contained in the JUDGMENT dated 14th October, 2009 delivered by the Honourable Justice B.A. Oke-Lawal (Mrs.) dismissing the claims of the claimants, and to substitute therefor orders upholding the claimants’ reliefs as per their Amended Writ of Summons and Statement of Claim dated 27th November, 2006.

Thereafter, the parties, through counsel, filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of the civil appeals in this Court. The appeal

was heard on 23rd June, 2020.

During its hearing, learned appellants’ counsel, M.A. Apampa, Esq., adopted the appellants’ brief of argument, filed on 13th July, 2016, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned respondents’ counsel, Abiola Adeyinka, Esq., adopted the respondents’ brief, filed on 21st October, 2016 but deemed properly filed on 9th March, 2017, as forming his submissions against the appeal. He urged the Court to dismiss it.

In the appellants’ brief of argument, learned counsel distilled two issues for determination to wit:
i. Whether the publications by the Defendants in the Lagos Horizon newspaper of 8th to 14th June, 1983, Exhibit B-Bi and the Lagos State Legal Notice No. 2 of 1983, at pages 147-151 of Exhibit XXY constituted fresh offers to the Claimant’s (sic) mother and whether she fully complied with any conditions stated thereunder;
ii. Whether it was non-compliance with the conditions attached to the return of the property in dispute to the claimants or the intervention of a military regime which justified the reluctance of the

defendants to return the property in dispute to the Claimants’ mother.

In the respondents’ brief of argument, learned counsel crafted two issues for determination, namely:
1. Whether the Learned trial judge was right when she held that the Claimants did not place before the Court, documents to show that Alhaja Ayinke complied with the procedure stated clearly in the gazette for re-allocation.
2. Whether the Learned Trial Judge was right when she held that Alhaja Ayinke having received compensation and transferred her freehold interest to the Government had no interest to pass to the Claimants hence the claim is liable to be dismissed.

A close look at the two sets of issues shows that they are identical in substance. In fact, the respondents’ issues can be conveniently subsumed under the appellants’. For this reason of sameness, I will decide the appeal on the issues formulated by the appellants: the undisputed owners of the appeal.

Arguments on the issues:
Issue one.
Learned appellants’ counsel submitted that the respondents wrongly demolished and started building on the disputed property

when the action was before the Court. He relied on Governor of Lagos State v. Ojukwu (1985) 1 All NLR (Pt. 1) 194. He conceded that mere offer by the offeror without acceptance by the offeree would not ripen into contract. He noted that the appellants’ mother accepted the offer from the respondents. He stated the meaning offer as noted by Treitel, The Law of Contract, Sweet and Maxwell, 2003, page 8. He asserted that a unilateral offer to the whole world would ripen into contract even if accepted by one person. He citedCarlill v. Carbonic Smoke Ball Co. Ltd. (1893) 1 Q.B. 256/(1891-4) ALLER Rep. 127. He added that a unilateral offer, as in issue in the appeal, would not be withdrawn once the offeror was in the act of performing since acceptance and performance were the same thing. He cited Errington v. Erington & Woods (1952)1KB 290. He concluded that there must be an implied obligation on the part of the offeror not to prevent the condition being satisfied. He referred to Daulia Ltd. v. Four Millbank Nominees Ltd. (1978) Ch 231.

On behalf of the respondents, learned counsel contended that acquisition would extinguish the interest of the

original owner. He relied onSobande v. Igboekwe (2016) LPELR-4032 (CA). He observed that the publication in the Horizon had to do with a new root of title, not that of the appellants’ mother. He cited Yusuf v. Oyetunde (1998) 12 NWLR (Pt. 578) 483. He explained that the meaning of counter offer as noted in Akinyemi v. Odua Investment Co. Ltd. (2012) LPELR-8270 (SC). He maintained that the appellants wrongly breached the publication as counter-offer when there was no right to form basis of contract.

Issue two.
Learned appellants’ counsel submitted that the appellants’ mother, in her life time, complied with the request to furnish her two passport photographs. He reasoned that the other conditions were satisfied with the respondents being in custody of the Land Certificate, LO 1934, Exhibit L. He claimed that the appellants’ mother was never invited to make payment for the property. He took the view that the respondent unilaterally prevented concluded contract from being pursued to full performance by withholding formal invitation to the appellants’ mother to pay for the property. He relied on the evidence. He concluded

that the respondents were wrong to withdraw their gratuitous offer. He cited Vice-Chancellor in Pelly v. Wathem 68 ER 153.

For the respondents, learned counsel argued that the publication, Exhibit D, contained the conditions precedent for re-allocation of the disputed property which the appellants’ mother failed to fulfill. He cited Tsokwa Oil Marketing Co. v. B.O.N. Ltd. (2002) 11 NWLR (Pt. 777) 163. He stated that the lower Court was right on its finding on the non-fulfillment of the conditions precedent. He urged the Court not to interfere with the finding. He relied on Matanmi v. Dada (2013) LPELR-19929 (SC). He posited that the appellants must succeed on the strength of their case, not on the weakness of the defence. He cited Reptico S.A. Geneva v. Afribank Nigeria PLC (2013) LPELR-20662 (SC). He repeated his submission on the effect of acquisition on the disputed property. He referred to Yusuf v. Oyetunde (supra). He persisted that the lower Court was right to dismiss the suit since the appellants failed to prove their case by credible evidence. He cited Akaose v. Okoye (2016) LPELR-40172 (CA).

Resolution of the issues
It is germane to place on record, upfront, that loads of documentary evidence were furnished before the lower Court by the contending parties. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi(2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10 NWLR (Pt 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje(2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR

(Pt. 1667) 36. I will tap from this co-ordinate jurisdiction in the appraisal of the army of documents in the appeal. Having been adequately fortified by the above position of the law, I will proceed to resolve the two nagging issues in this appeal.

An indepth study of the two issues discloses that they intertwined in that they share a common mission: to emasculate the lower Court’s findings on the appellants’ claim. Given this interwoven judicial relationship, I will, in order to conserve the scare judicial time and space, amalgamate them and fuse their considerations. They specifically quarrel with the lower Court’s finding that the appellant’s mother failed to satisfy the condition precedent for the reallocation of the disputed property. In other words, they jointly chastise the lower Court’s evaluation of the evidence presented before it. Put differently, the appellants, in the two issues, accuse the lower Court of improper evaluation of evidence because the judgment is against the weight of evidence.

A castigation of a decision on the premise that a judgment is against the weight of evidence, invariably couched as an

omnibus ground, connotes that the decision of the trial Court cannot be supported by the weight of evidence advanced by the successful party which the Court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law. Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial Court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the trial Court. In ascertaining the weight of evidence, the trial Court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Military Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163)

11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412.

(2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 1635; Onyekwuluje v. Animashaun (supra). I have married the decision of the lower Court with the positions of law x-rayed above with a view to identifying their infractions or compliance.

Now, the heart of the appellants’ chief grievance, indeed their trump card on the two knotty issues, is that the lower Court erred in law in its finding that neither the appellants nor their mother/progenitor met the condition precedent for the re-allocation of the disputed property. To begin with, in the eyes of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event”, see Atolagbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. Co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A. –G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jombo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439.

In this wise, I will reap from the co-extensive jurisdiction of this

Court and the lower Court in the appraisal of documentary evidence. On the premise, I have given a microscopic examination to the legion of documents tendered by the feuding parties before the lower Court. My first port of call is Exhibit B-B1, Lagos Horizon Newspaper Publication of 8th-14th June, 1993. It collectively monopolises pages 46-48 of the record. The property in dispute is listed as serial number 40. In the said exhibit, precisely at the cradle of page 47 of the record, the respondents outlined the requirements for return of the requisitioned property, videlicet: (a) Proof of ownership and/or all other evidences (sic) of claim or to possession (b) Actual size of plot which should be reflected in the relevant survey site plan. (c) Up to date payment made to the Government.

From the tenor and phraseology of these three requirements, they are conjunctive, not disjunctive, id est, all must be concurrently satisfied by an applicant, as they constitute the passport to fetch him/her the reallocation of the seized property. In essence, they are a classic exemplification of conditions precedent. It follows, that their conjoined fulfillment is sine

qua non for the re-allocation of the distressed property to the distrainee. Curiously, the appellants, in their infinite wisdom, starved the Court of any ray of evidence, which ought to be documentary, indicative of their mother’s compliance with those co-existing conditions; conditions that were the fore-runners/precursors to the re-acquisition of the disputed property. The satisfaction of those conditions was very imperative in the face of Exhibit K, indemnity agreement, wherein the appellants’ mother divested herself of all the interest in the disputed property in favour of the respondents. In the exhibit, she, categorically, made herself destitute of all her rights which were embedded and appurtenant to the disputed property. Indubitably, the non-satisfaction of those requirements rendered the appellant’s claim an echo in ipse dixit. In effect, it constitutes serious coup de grace in the appellants’ stride to reclaim the disputed property as their maternal patrimony.

In the twilight of the judgment, at page 288, lines 16 and 17 of the record, the lower Court found/proclaimed:
The appellants did not place before the Court

documents to show that they or Alhaja Ayinke complied with the procedure stated clearly in the gazette for reallocation.

Having regard to the legal dissection, anatomised above, the solemn finding is impeccable. It is not offensive to the law to warrant the intervention of this Court. It will smell of judicial sacrilege to tinker with a finding that is not hostile to the law.

One other grouse, which the appellants weaved to castrate the decision, is the lower Court’s failure to follow the judgment in Exhibit C. The Exhibit C, which conolises pages 55-57 of the record, was the decision of the lower Court, in Suit No. LD/2900/1997, presided over by A.R.A. Sahid, J, tendered by the appellants. The appellants implored the lower Court to follow that decision which returned the disputed property therein, in the same class with that herein, to the plaintiffs owners in that action. I have perused that decision, which enjoys only persuasive authority, with the finery of a toothcomb. In that case, the learned trial Judge found as facts that the plaintiffs accomplished the needed requirements and paid N46,500.00 for the reallocation. There lies the

dichotomy between the two cases.
The ancient doctrine of stare decisis, under whose shelter, the lower Court ought to hide to kowtow to that decision, thrives where facts of cases are in pari materia. It is lame where the facts of cases are not on all fours. The facts of proof of ownership and payment to the defendants in that case make it distinguishable from the appellants’ case which parented the appeal. They are not factually coterminous to ignite the employment of that decision as a barometer to measure the success of the appellants’ case. It stems from that yawning gap, that the lower Court did not fracture the law when it dishonoured the salivating supplication of the appellants to follow that decision on the footing of factual differentiae.

My noble Lords, I have, for purposes of ex abundanti cautela, revisited the record, the spinal cord of the appeal, in the residence of the 12-page judgment, sought to impugned, which occupies pages 277-288 of the record. I have given a further clinical examination to it. The lower Court, to my mind, carried out a meticulous and thorough analyses of the evidence, viva voce and documentary,

proffered by the warring parties after assigning them to their respective pans in the imaginary scale of justice. It attached deserving probative weight to the respective evidence offered by the parties. It found that the respondents’ pan in the imaginary scale of justice hosted more admissible, credible and conclusive evidence. A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. J. Inv. Ltd. v. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-Ikpeazu (2017) 15 NWLR (Pt. 1589) 345. In the same vein, a piece of evidence is conclusive if it leads to a definite result, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474; Ojobo v. Moro (2019) 17 NWLR (Pt. 1700) 166. The lower Court found rightly in my view, that the evidence of the respondents, based on their qualitative nature, preponderated over those of the appellants’. The net effect is that the appellants, woefully failed to prove their case. Proof, in law, is a process by which the existence of facts is established to the satisfaction

of the Court, see Section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399; Onyiorah v. Onyiorah (2019) 15 NWLR (Pt. 1695) 227.
In the light of this juridical survey, done in due fidelity to the law, the lower Court did not transgress the law as to make its finding/decision guilty of the allegation of perfunctory evaluation of evidence labelled against it by the appellants. The lower Court’s finding is immaculate. In the result, all the censures, which the appellants rained against it, peter into insignificance. On this score, I decline the learned appellant’s counsel’s inviting solicitation to sacrifice the finding, on the non- proof of the appellants’ claim, on the undeserved altar of improper evidential evaluation. In the end, I am left with no choice than to resolve the conflated issues one and two against the appellants and in favour of the respondents.

On the whole, having resolved the two issues against the appellants, the fortune of the appeal is plain. It is bereft of any grain of merit and liable

to the penalty of dismissal. Consequently, I dismiss the appeal. I affirm the judgment of the lower Court delivered on 14th October, 2009. The parties shall bear the respective costs they incurred in the prosecution and defence of the doomed appeal.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The leading judgment of my learned brother, Obande Festus Ogbuinya, JCA, which has just been delivered was made available to me in draft.

The manner of resolution of the disparate contentions in the appeal are in accord with my views. The lower Court properly evaluated the evidence and ascribed probative value thereto. There is no basis for an Appellate Court to interfere as there is sufficient evidence on record supporting the finding of facts arrived at by the trial Court: AKPAGBUE vs. OGU (1976) 6 SC 63, ODOFIN vs. AYOOLA (1984) 11 SC 72 and AMADI vs. NWOSU (1992) 5 NWLR (PT 241) 273 at 280. The nature of the duty of an appellate Court in reviewing the evaluation of evidence at nisi prius remains to find out whether there is evidence on which the trial Court acted in the manner it did. Once there is, the appellate Court will have no business substituting its own views

for the findings of the trial Court. See ENANG vs. ADU (1981) 11-12 SC 25 at 39 and WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320.

It is for the above reason and the sapient reasoning and conclusion immaculately articulated in the leading judgment, which I adopt as mine, that I equally dismiss this appeal for being devoid of merit.

BALKISU BELLO ALIYU, J.C.A.: I have read a draft of the lead Judgment written and delivered by my learned brother OBANDE FESTUS OGBUINYA, JCA. The two issues for determination have been very ably considered and I am in total agreement with the reasoning and conclusion reached therein.

I too find no merit in this Appeal and I dismiss it. I affirm the Judgment of the lower Court delivered on the 14th October, 2009 in respect of Suit No: ID/2722/2002. Appeal dismissed by me.

Appearances:

M.A. Apampa, Esq. For Appellant(s)

Abiola Adeyinka, Esq. Director, Lagos State Ministry of Justice For Respondent(s)