IGBA & ORS v. ANGBANDE & ORS (2021)

IGBA & ORS v. ANGBANDE & ORS

(2021)LCN/15102(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Wednesday, March 17, 2021

CA/MK/143/2019

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

LIKE IGBA 2. AMADU AGUM 3. AKIKI TAFI 4. YUGBA GODWIN MKA (FOR THEMSELVES AND ON BEHALF OF THE MBATOOWA FAMILY) APPELANT(S)

And

IKYO ANGBANDE 2. USUH AYEGH 3. MSUGH IKYOR 4. TERDOO AYEGH 5. TERKURA IKYO 6. DENEN YEMEN 7. SUNDAY WAKU (FOR THEMSELVES AND ON BEHALF OF THE MBATYAM FAMILY) RESPONDENT(S)

RATIO

BURDEN PLACED ON THE CLAIMANT IN A CLAIM FOR DECLARATORY RELIEFS

It is trite that the burden of proof in a claim for declaratory reliefs is on the Claimant and he must succeed on the strength of his own case and not on the weakness of the case for the Defendant, see ARIJE V ARIJE & ORS (2018) LPELR-44193(SC) wherein the Supreme Court held thus: “It is equally trite that the onus is on the claimant to establish his title upon a preponderance of evidence or on the balance of probability. He must succeed on the strength of his own case and not on the weakness of the defence, except where the defendant’s case supports his case. See: Kodilinye Vs Odu 2 WACA 336 @ 337; Onwugbufor vs Okoye (1996) 1 NWLR (Pt. 424) 252; Shittu vs. Fashawe (2005) 7 SC (Pt. II) 107; Nruamah & Ors vs. Ebuzoeme & Ors. (2013) 1 SC 31 @ 55 – 56.” Per KEKERE-EKUN, J.S.C In declaratory reliefs, a Claimant must call or adduce cogent evidence in proof of the relief and it is a discretionary relief which means it is granted on the materials presented to the Court and it has to be judicially and judiciously determined. PER YARGATA BYENCHIT NIMPAR, J.C.A.

WAYS OF PROVING TITLE TO LAND

There are 5 established ways of proving title to land as listed in the case of IDUNDUN V OKUMAGBA (1976) LPELR-1431(SC) and AJIBOYE V ISHOLA (2006) LPELR-301(SC) as follows: “It has been settled by long line of authorities from this Court that ownership or title to land may be proved by any of these five methods, viz: (a) by traditional evidence; (b) by production of documents of title, which are duly authenticated; (c) by acts of selling, leasing, renting out all or part of the land, or farming on it, or on a portion of it; (d) by acts of long possession and enjoyment of the land; and (e) by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute; see Idundun v. Okumagba (1976) 9 -10 SC. 227; Nkado v. Obiano (1997) 5 NWLR (Pt. 503) 31; Section 46 of the Evidence Act, 1990.” Per ONNOGHEN, J.S.C And that was restated by the apex Court in a plethora of authorities: OWHONDA V. EKPECHI (2003) LPELR-2844(SC); OYADARE V. KEJI & ANOR (2005) LPELR-2861(SC); THOMPSON & ANOR V. AROWOLO (2003) LPELR-3240 (SC); OTUKPO V. JOHN & ANOR (2012) LPELR-25053 (SC) and ODUNZE & ORS V. NWOSU & ORS (2007) LPELR-2252(SC). PER YARGATA BYENCHIT NIMPAR, J.C.A.

DUTY OF A PLAINTIFF RELYING ON TRADITIONAL HISTORY IN A CLAIM FOR TITLE TO LAND

The Appellants herein copiously pleaded traditional history, and the law requires them to plead and establish certain facts, see AWODI & ANOR V AJAGBE (2014) LPELR 24219(SC) wherein the apex Court held thus: “In a claim for title to land based on traditional history, the plaintiff has to plead and prove each of the following: (1) The person who founded the land and exercised acts of possession. (2) How the land was found, and (3) The persons on whom the title to the land devolved from its founder to the plaintiff. See Obioha v. Duru (1994) 10 SCNJ 48 at 61 ratios 6 and 7, Piaro v. Tenalo & Ors (1976) 12 SC 31. The pleading of the devolution as well as the evidence in support must be reliable and credible or plausible otherwise the claim for title will fail. See Eze v. Atasie (2000) 6 SCNJ 209 at 218, Elias v. Omo-Bare (1982) 5 SC 25. The plaintiff must rely on his pleading, he cannot plead traditional history and abandon his pleading to rely on acts of ownership over a long period of time. See Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 160.” Per NGWUTA, J.S.C See also the following cases SOGUNRO & ORS V. YEKU & ORS (2017) LPELR-41905 (SC); FALEYE & ORS V. DADA & ORS (2016) LPELR-40297(SC) and ANYANWU V. MBARA & ANOR (1992) LPELR-516(SC). PER YARGATA BYENCHIT NIMPAR, J.C.A.

BURDEN PLACED ON A PARTY WHO RELIES ON TRADITIONAL HISTORY AS HIS ROOT OF TITLE

… see ADDAH V UBANDAWAKI (2015) LPELR-24266(SC) which held as follows: “it is now well established that where a person relies on traditional history as his root of title, the onus is on him to plead the root of title and names and history of his ancestors. He should lead evidence to establish same without any missing link.” See also the following cases: BELLO V SANDA (supra); AWODI & ANOR V. AJAGBE (2014) LPELR-24219(SC); NGENE V. IGBO & ANOR (2000) LPELR-1987(SC) and MICHEAL & ANOR V. ADULOJU (2018) LPELR-46312(CA). PER YARGATA BYENCHIT NIMPAR, J.C.A.

POSITION OF THE LAW WHERE THE PARTIES IN A CLAIM FOR DECLARATION OF TITLE TRACE THEIR ROOT OF TITLE TO THE SAME PERSON

From the pleadings and evidence, both sides seem to trace root of title to the same person and the law is where both sides trace their root of title to the same person, which is a possibility, then the party who adduces better evidence will win, and at times the first in time or priority in creation is an added benefit, see ALABI & ANOR V DOHERTY & ORS (2005) LPELR-6145(CA) where Onnoghen, JCA as he then was said: “Turning to the merit of the case as presented before the lower Court, it is very clear that both parties claimed title through a common source. That is, they trace their title to a common root of title being the Ashamu family. In such a situation the issue to be decided is simply, which of the two claimants has a better title. It is the respondents case that they have the better title, while the appellants claim same, particularly as they claim that their title was first in time and therefore bears priority.” See also SUU VS. JOBAK NIG. LTD (2012) LPELR – 7932 (CA); ADESANYA VS. OTUEWU (1993) 1 NWLR (PT. 270) 414; WELLE VS. BOGUNJOKO (2007) 6 NWLR (PT. 1029) 125. PER YARGATA BYENCHIT NIMPAR, J.C.A.

APPLICATION OF THE DOCTRINE OF ‘QUIC QUID PLANTATUR SOLO SOLO CEDIT’

… see REGISTERED TRUSTEES OF MASTER VESSELS MINISTRIES (NIG) INCORPORATED V EMENIKE & ORS (2017) LPELR-42836(CA) where Ogunwumiju, JCA (as she then was) now JSC said: “The doctrine of ‘quic quid plantatur solo solo cedit’ simply means ‘whatever is fixed to the land becomes part of it’. See Francis v. Ibitoye 1936 13 NLR 11. The purport of this doctrine is that if a party is declared owner of a land in dispute, he automatically owns whatever attachment is on the said land. No doubt, the doctrine is now an established principle in the Nigerian land law and it is of great importance in tenancy laws. By the application of the doctrine of ‘quic quid plantatur solo solo cedit’, any improvement made on the land by a tenant becomes the property of the landlord upon the expiration of the tenancy except agreed otherwise.” See also AGBOOLA V. UBA PLC & ORS (2011) LPELR-9353(SC); BABATUNDE & ANOR V. BANK OF THE NORTH LTD & ORS (2011) LPELR 8249(SC) and BILLY V. BARKA (2018) LPELR-44082(CA). PER YARGATA BYENCHIT NIMPAR, J.C.A.

POSITION OF THE LAW WHEN A PARTY’S EVIDENCE ON MATERIAL FACTS IS INCONSISTENT OR CONTRADICTORY

… see MAKKAN V HANGEM & ORS (2018) LPELR-4401(CA) where Otisi, JCA held thus: “When a party’s evidence on material facts is inconsistent or contradictory, it would cast serious doubt on the veracity of the party’s case and the Court would be justified to disbelieve the party. This is simply because the Court cannot pick and choose which piece of inconsistent evidence to believe and give effect to; Ige v. Akoju (1994) LPELR-1451(SC), (1994) 4 SCNJ 288; Akpan v. Otong (1996) 10 NWLR (Pt. 476) 108; Nwokoro v. Onuma (1999) 9 S.C.59; Usiobaifo v. Usiobaifo (2005) 1 S.C. (Pt. 11) 60; Igabele v. The State (2006) LPELR-1441(SC); Taiwo v. Ogundele (2012) LPELR-7803(SC). What amounts to contradiction in evidence was recently restated by the Supreme Court, per Augie, JSC in Zakirai v. Muhammad (2017) LPELR-42349(SC) at pages 70-71 of the E-Report in this manner: “The law insists that where there are material contradictions in the evidence adduced by a party, the Court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting version to follow – Kayili v. Yilbuk & Ors (2015) LPELR-24323(SC). A piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts. Put another way, evidence contradicts evidence, when it says the opposite of what the other evidence says, not just on any point but on a material point.” See also DAREGO V A.G. LEVENTIS (supra) where I adopted the definition of contradiction as follows: “A contradiction or contradictory evidence is simply when a piece of evidence asserts or affirms the opposite of what the other asserts or when they give inconsistent accounts of the same event, see EKE V THE STATE(2011) 3 LPELR-1133(SC); OKOIZIEBU V THE STATE (2003) 11 NWLR (Pt. 83) 327.” On the effect of contradiction on a party’s evidence, I said that it destroys the case of the party, leaves it without discretion. This Court in the case of PATRICK GODDY EKWUNO & ORS v. BOSAH EKWUNO (2011) LPELR –9180 (CA) held as follows: “Contradiction in the evidence of the Plaintiff’s witnesses is disastrous and has the effect of destroying the case of the Plaintiffs.” See AUDU v. GUTA (2004) 4 NWLR (Pt.864) 463.” The contradictions in the evidence of the Respondents’ witnesses in the lower Court will impact on the veracity of their defence and I cannot pick and choose which of the evidence to believe because as observed earlier, the trial Judge did not evaluate the evidence properly and therefore did not make a finding, see KAYILI V YIBUK & ORS (2015) LPELR- 24323(SC). PER YARGATA BYENCHIT NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the Benue State High Court sitting in Makurdi delivered by HON. JUSTICE ADAM ONUM-CHIEF JUDGE (now Retired) on the 21st September, 2018 wherein the Court below entered judgment against the Appellants. The Appellants dissatisfied with the judgment, filed an Amended Notice of Appeal dated 20th November, 2020 setting out 5 grounds of Appeal.

Facts leading to this appeal are straight forward and can be summarized in the following way. The Appellants as Plaintiffs had on the 20th May, 2017 via writ of summons commenced the action against the instant Respondents then as Defendants and sought the followings reliefs:
i. A DECLARATION that the Plaintiffs are entitled to and are the owners of the subject matter of this suit, to wit, all that vast parcel of land lying, being and situate at Idye Ukor, Adaka bounded to the North by Zaki Emberga Kyav, (Mbaku Family Land) to the south by Iorchor Atsaga, (Mbayum Family and) to the East by Lower Benue River Basin Fishery/Farm, and to the West by the Mbatyam Family Land.

AN ORDER of perpetual injunction restraining the Defendants, jointly and severally, whether by themselves heirs, family, servants, agents, privies of whatever description or whosoever from further harassing, disturbing the Plaintiffs, their family, agents, servants, privies and or any person(s) acting on their behalf on the land, subject matter of this suit and from committing further acts of trespass on the said land.
iii. Special damages against the Defendants, jointly and severally, in the sum of Seven Million, Five Hundred Thousand Naira (N7,500,000.00) only being cost of the harvest carried out by the Defendants on the Plaintiffs’ Ponds.
iv. The sum of Ten Million Naira (N10,000,000.00) only being as general damages against the Defendants, jointly and severally for trespass.
v. The sum of Two Million Naira (N2,000,000.00) only being as legal Practitioner’s fees in respect of this suit against the Defendants, jointly and severally.

Issues were joined in pleadings and the matter went to full trial with parties calling witnesses in proof of their respective pleading. After full consideration the Court below entered judgment

against the Appellants, thus the appeal.

The Appellants’ brief settled by TERNA J. YAJI, ESQ., is dated 20th day of November, 2020 and filed on the 23rd November, 2020, and it distilled 5 issues for determination as follows:
1. Whether from the totality and evaluation of evidence the Appellants satisfactorily established exclusive ownership of the land in issue to entitle them to judgment on the weight of evidence.
Distilled from Ground one
2. Whether the trial Court was right in limiting itself to a narrower compass on the impasse between the parties rather than considering the expansive documentations, the evidence and the submission of counsel and by doing so failed to consider all the issues raised by the parties in the suit.
Distilled from Ground 2
3. Whether the trial Court misdirected itself when it dismissed the Appellants’ suit because inter alia “the line of defence of joint enjoyment of the land is supported by the witnesses led by the Plaintiffs…” and “are all indigenous to the land in issue by reason of Ningev ancestry” without considering Appellants’ issue of being the ones

who settled the Respondents near the land in issue in the first place.
Distill from Ground 3
4. Whether the trial Court misdirected itself when it dismissed the Appellants’ suit because it was convinced that “the land in which the ponds are located in the Defendant’s ward (Modern Market ward), which is different from the Defendants’ (sic) ward known as Baa Ward”. Distilled from Grounds 4
5. Whether the lower Court exercised its discretion judicially and judiciously in dismissing the Appellants’ case. Distilled from Ground 5

The Respondents’ Brief settled by Chief J. J. IGBABON, ESQ., is dated 23rd November, 2020 and filed on the 23rd November, 2020, it formulated one issue, thus:
Whether the trial Court was right in view of the evidence before it to dismiss the Appellants’ (as Plaintiffs’) case?

APPELLANTS’ SUBMISSION
ISSUE ONE, TWO & THREE
The Appellants argued the three issues together and submitted that the trial Court failed to evaluate evidence especially pertaining the established facts before arriving at the conclusion it reached. The Appellants

reproduced the facts that are not disputed at the trial Court, found at pages 166, 98-99, 167-169 and stated that having been undisputed, they ought to have been taken as admitted and proved. Citing MEARSK V. WINLINE (NIG) LTD (2015) ALL FWLR (PT. 808) 672. The Appellants submits that had the trial Judge taken the above admitted and proven facts into consideration, he would have not dismissed the Appellants’ suit but would have granted their reliefs because the Appellants’ claim before the lower Court is that their family was the first to settled on the land in issue (see P. 141 of the Records). According to the Appellants, the Respondents gave a feeble denial to the above facts as contained at pages 63 of the Records but such denial of facts run short of the requirements of the law on proper traverse and the law mandates Respondents to further state the true position upon their denial of the averment, to wit; how they came to live and be settled on the land in issue even if they were, with the Appellants, descendants of Ningev. Cited the case of TAIWO V. ADEGBORO (2011) 11 NWLR (PT. 1259) 562; SONGO V. AKURE (2014) ALL FWLR (PT. 753) 1944;

ATANDA V. ILIASU (2013) ALL FWLR (PT. 681) 1469; ACHILIHU V. ANYATONWU (2013) ALL FWLR (PT. 696) 483. Also, the Appellants states that once a traverse is not met directly, the Defendant is taken to have admitted it as stated in NIGERIAN BOTTLING COMPANY PLC V. OLAREWAJU (2007) ALL FWLR (PT. 364) 360. The conclusion of the Appellants’ argument is that the averments in their claim were therefore proved and required no further proof as held in MUSARI V. BISIRIYU (2014) ALL FWLR (PT. 735) 387. The Appellants reproduced the holding of the trial Judge at page 232 of Record and state that issue of declaration of title to land must be determined on the basis of laid down principles for proof of title to land and as this case, where the parties rely on traditional history, it must accord with those principles as contemplated in the case of IDUNDUN V. OKUMAGBA (1976) NMLR 200; ADDAH V. UBANDAWAKI (2015) 1 KLR (PT. 357) 193; BELLO V. SANDA (2012) ALL FLWR (PT. 636) 462. The Appellants states that in resolving the impasse between the parties, the lower Court jettisoned the well established principles for declaration to title to land and reached a perverse decision which

they urge this Court to set aside. According to the Appellants, part of the expansive documentation, evidence and submission of the Appellants which are replete with uncontroverted traditional history of the founder of the land in issue and their ancestor beginning from Diogo Toraondo and Jonyi Nomshi, (the first settlers on the land in issue) to the present Appellants (See pages 140-141). The Appellants also submits that the Respondent asserts that they own, live and have been cultivating the land in issue beginning from their founder, Tyam (see P. 63-64 of Records), however, the Respondents and the Appellants are duty bound to show how their ancestors were and how they came to be on the land in issue and passed to them especially, in the presence of the Appellants’ uncontroverted evidence that the Appellants’ family settled them on the land. Relied on OKOKO V. DAKOLO (2006) 14 NWLR (PT. 1000) 401 (SC); IBIKUNLE V. LAWANI (2007) 3 NWLR (PT. 1022) 580; ODI V. IYALA (2004) 8 NWLR (PT. 875) 283 (SC); EWO V. ANI (2004) 3 NWLR (PT. 861) 610 (SC). Therefore, where a Plaintiff and Defendant anchor their case on traditional evidence in proving ownership

of the land in dispute, the duty of the Court is to weigh their evidence on the imaginary scale and determine which evidence of the two is weightier, citedBIARIKO V. EDEH-OGWUILE (2001) 4 SC (PT. II) 96; OKOKO V. DAKOLO (SUPRA) AND IBIKUNLE V. LAWANI (Supra). Also, the Appellants restated the principle of proving title by traditional evidence as held in case of OHIAERI V. AKABEZE (1992) 2 NWLR (PT. 221) 1; OYADARE V. KEJI (2015) 7 NWLR (PT. 925) 571. Further, the Appellants contends that the evidence before the lower Court was to the effect that though the Respondents are related to the Appellants, they were only subject to certain rights over the land as granted them by the Tiv Native Law and Custom as evidence before the trial Court proved that there are only three sons of Ningev which could share land and that the Respondents were not one of the sons entitled to any land except as granted them.

The Appellants reproduced paragraph 20 of their Amended statement of claim at 143 of records; paragraph 1, 4, 5 and 6 of their reply to statement of Defence at page 98-99 and the evidence of the 1st and 2nd Respondents under cross examination. The Appellants

submits that failure of the trial Court to evaluate traditional evidence led by them occasioned miscarriage of justice, citedMOGAJI V. ODOFIN (1978) 3 S.C. 78. The Appellants avers that the Respondents contest the Appellants’ ownership of the land but states that the 5 ponds on the land are jointly harvested by all the children of Ningev including parties herein (See p. 62-67 of record). The Appellants asked the following questions: firstly, if the lands belong to the Respondents, what right do the Appellants have to jointly harvest the ponds when they will be deemed to belong to the Respondents as owners of the land in line with the maxim, quic quid plantatur solo, solo cedit? Cited UNILIFE DEVELOPMENT CO. LTD V. ADESHIGBAN (2001) LPELR SC. Secondly, if the Appellants did not own the land in issue, why were they asked, according to the Respondents “to give up ownership of the land in dispute” to them? Thirdly, who are the sons of Ningev entitled to share of the family land and are the Respondents one of such sons? All these questions are germane in the determination of the suit by the lower Court and are still germane in this appeal.

The Appellants also reproduced the evidence of DW2, DW3 and DW4 contained at pages 167-169 of the record and submitted that the testimonies therein are contradictory and at variance with the pleaded defence of the Respondents and relied on DAREGO V. A.G. LEVENTIS LER (2015) CA/L/481/2011. It is trite that parties must be consistent, they cannot approbate and reprobate at the same time because trial is not a game of hide and seeks, and neither is it a fencing game as held in MR. EMMANUEL IMON OKON & ORS V. CHIEF KENNETH BASSEY UBI & ORS (2006) ALL FWLR (PT. 328) 717. It is also trite that a Court cannot pick and choose which portion of the evidence of the witnesses highlighted above to believe. It is either they are truthful witnesses or outright liars whose evidence must be evaluated as credible or incredible as the case may be, relied on NWORU V. STATE (2018) LPELR 44640 (CA) and KAYILI V. YILBUK & ORS (2015) LPELR-24323 (SC). According to the Appellants, instead of the lower Court to evaluate the totality of the evidence before it especially the Appellants’ claim in paragraph 10 wherein the Appellants states that the Respondents and other were

permitted and let to harvest the land and the ponds by the Appellants, but rather it relied on the common ancestry of the parties and PW3’s testimony under cross examination. Letting in the Respondents to cultivate the land does not derogate the Appellants from ownership of same. The Appellants reproduced the holding of the Court in DAREGO V. A.G. LEVENTIS (Supra). The Appellants states that the trial Court’s failure to evaluate the evidence and testimony adduced by parties led to a perverse judgment which occasioned injustice, they urge this Court to resolve these issues in favour of the Appellants.

ISSUE FOUR
The Appellants reproduced paragraph 9 of the claim at page 141 and the Respondents’ answer which is at page 63 to state that the Respondents’ answer to the Appellants submission runs short of the requirements of the law in proper traverse as the Respondents are duty bound to further state the true position upon their denial of the averment. CitedTAIWO V. ADEGBORO (SUPRA); SONGO V. AKURE (SUPRA); ATANDA V. ILIASU (SUPRA); ACHILIHU V. ANYATONWU (SUPRA); NIGERIAN BOTTLING COMPANY PLC V. OLAREWAJU (SUPRA). The Appellants

submits that the identity of the land was not in issue as it was well known to the parties and they were ad idem as to the land. The Appellants also submits that for the fact that the Appellants live in a different Ward (Baa Ward) from the Respondents (Modern market ward) does not divest them of their ancestral land located in another ward and the trial Judge was wrong to have relied on same. The Appellants reproduced their claim at page 142 and the trial Court’s holding on it at pages 234-235. The Appellants asked: if the lower Court was convinced that the land in issue was located in the Respondents’ ward, how then could the Appellants be entitled to joint ownership of land that is not within their ward? The Appellants states that the Respondent argued in their statement of defence that the land and ponds are collectively harvested by the parties but under cross examination, the same Respondents denied joint ownership. The Appellants reproduced DW1, DW2, DW3 and DW4’s testimony at pages 166-169 of Records.

The Appellants further argued that the Respondents disassociated the Appellants from the land in issue however, under the furnace

of cross examination, they resorted to denying their pleadings. The Appellants submits that the lower Court was not entitled to pick and choose which of the contradictory evidence of the Respondent to believe, it ought to have discountenanced the evidence on that point as unreliable, citing Section 122(2) (a) of the Evidence Act, 2011. Furthermore, the Appellants submits that the lower Court is duty bound to take as proved facts which are common knowledge in the locality in which the proceeding is being held or generally under Section 124(1)(a) of the Evidence Act and by paragraph B of the First Schedule to the Local Government Law [Cap. 98] Law of Benue State, 2004, were in the list of Council Wards/District is provided. According of the Appellants, it is a well established fact that States, Local Governments and Council Wards have been established throughout Nigeria for administrative purposes and not to divide families or brothers. Thus, it can be seen that while some members of the same family have been placed in one State, Council Ward, the other may be placed in another. This does not mean there is a large gulf between them as to suggest that the land in

one Council ward cannot belong to a family living in another Council ward as decided by the lower Court. This fundamental error led to the perverse judgment which has led to the miscarriage of justice complained of and the Appellants urged this Honourable Court to resolve issue four in their favour.

ISSUE FIVE
The Appellants contends that the lower Court failed to exercise its discretion judicially and judiciously and the failure to so act has caused a miscarriage of justice. The Appellants also stated that the Appellate Court does not interfere with the exercise of judicial discretion by a lower Court, however, where it is shown that such discretion was not exercised judicially and judiciously, this Court has never refrained from interfering as held inMTN NIGERIA COMMUNICATIONS LTD V. WIGATAP TRADE & INVESTMENT LTD (2013) ALL FWLR (PT. 684) 123; M.P.M.R V. EXPO-SHIPPING LINE (NIG) LTD (2010) ALL FWLR (PT. 530) 1235; ANI V. OTU (2017) ALL FWLR (PT. 912) 618; ACHONU V. OKUWOBI (2017) ALL FWLR (PT. 905) 1294; WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 ALL NLR (PT. 1) 1; U.B.A LTD V. G.M.B.H. & CO. (1989) 2 NWLR (PT.110) 374; The

Appellants also submits that the lower Court relied on OGUNDAIRO & ORS V. I.B. OKANLAWON & ORS (1963) LPELR-25403 (SC) and KOLAWOLE ADEOYE & ORS V. CHIEF BUREMO ONI (2016) LPELR-40187 (CA) in exercising its discretion. The Appellants submits that from the holding of the trial Court at pages 234 it cannot be stated that the trial Judge rightly considered the evidence adduced by parties. It is trite that not only must justice be done, it must also be seen to be done. Citing R. V. SUSSEX JUSTICES, EX PARTE MCCARTHY (1924) 1 KB 256; ABACHA V. FAWEHINMI (2000) NGSC 17, ALIMI & ORS V. KOSEBINU & ORS (2016) NGSC 12. The Appellants contends that no reasons were given by the trial Court or none can be garnered from the Records for its decision on the evidence adduced. Referred to AGBANELO V. UNION BANK OF NIGERIA LTD (2000) FWLR (PT. 13) 2197; OJOGBUE V. NNUBIA (1972) 1 ALL NLR (PT. 2) 226; E.F.C.C V. DADA (2015) ALL FWLR (PT. 783) 1842. According to the Appellants, the decision of the learned trial Judge was predicted upon extraneous considerations and parameters employed to dismiss the Appellants’ case and as such the decision is an improper

exercise of discretion by the lower Court, is not bona fide, manifestly wrong, arbitrary, reckless or injudicious, it has occasioned a miscarriage of justice and they urge the Court to set it aside. Citing EZE V. A.G. RIVERS STATE (2001) 18 NWLR (PT. 746) 524 (SC).

In conclusion, the Appellants states that the Appeal has merit and presents the perfect platform for this Honourable Court to set aside the perverse judgment of the lower Court and to substitute the judgment of the trial Court with a judgment in favour of the Appellants.

RESPONDENTS’ SUBMISSION
ISSUE ONE
The Respondents restated the principle of burden of proof in civil matters as held in ELEGUSHI V. OSENI (2005) 14 NWLR (PT. 945) 348; FAMUROTI V. AGBEKE (1991) 5 NWLR (PT. 189) 1 and the provision of Section 131(1) of the Evidence Act, 2011. The Respondents argued that in declaration of title the onus is on the Appellants to establish by credible evidence that they are entitled to the declaration sought as held inEYO V. ONUAHA (2011) ALL FWLR (PT. 574) 1 and also in discharging the evidential burden placed on the Appellants, the law states that, they can only succeed on the

strength of their case and not on the weakness of the Respondents’ case as held in OHOCHUKWU V. ATTORNEY GENERAL OF RIVERS STATE (2012) 6 NWLR (PT. 1295) 53; OLANIYAN V. FATOKI (2013) 37 WRN 36; ODUBOTE V. OKAFOR (2012) VOL. 8 142 and ASAM V. OKPOSIN (2001) FWLR (PT. 56) 630. The Respondents submits that the Appellants woefully failed to discharge the evidential burden placed on them, as such the trial Court was right to dismiss their claim. The Respondents reproduced the reliefs sought by the Appellants at Page 5-9 of records. Also, the Respondents reproduced the content of paragraphs 3 and 4 of the Amended statement of claim where the Appellants alleged that they are owners and are entitled to all that vast piece and parcel of land described therein. According to the Respondent, the Appellants contended that the Respondents are immigrants from Lokobi in Doma Local Government Area of Nasarawa State and the Appellants’ forefather (whom the referred to as Diogo Toraondo and Jonyi Nomshi) gave the land to occupy or settle and they are also trespassers on the land in dispute and harvested the five ponds which belong to them (Appellants) amidst several

warnings. The Appellants called PW1, PW2 and PW3 as witnesses and all testified (see Page 159-165 of Records). In Response to the Appellants’ contention, the Respondent vehemently denied the claim and averred that they are indigenous to the land in dispute and they share common ancestry (Ningev) who is the founder of the entire lands including the one in dispute. The Respondent further averred that Ningev is comprised of four families i.e. Mbatowe (the Appellants); Mbazimba; Mbatyam (the Respondents) and Angwe and the Respondents never migrated from Lokobi in Nasarawa State and that the five ponds are collectively harvested by all the four sons of Ningev. The Respondents called a total of four witnesses whose testimony is recorded at Page 165-170 of records.

The Respondents restated the law in establishing title to land as stated in the case ofDAKOLO V. DAKOLO (2011) 46 NWLR (PT. 2) 669; MOMOH V. UMORU (2011) 46 NWLR (PT. 1) 292. The Respondents submits that the Appellants adopted the traditional history to prove title to the said land but failed to properly trace their root of title. The Respondent relied on the case of OHIAERI V. AKABEZE (1990)

2 NWLR (PT. 221) 5 to stated that a party who is relying on the traditional history in proof of title must show in his pleadings and evidence who his ancestors are and how they came about possession of the land. From the evidence adduced it clearly shows that both the Appellants and the Respondents are from a common descent-Ningev and as such both have one root of title. The Respondents reproduced the holding of the trial Court at pages 234-235 of the Records to submit that the trial Court was right to have held that the Appellants failed to trace their root of title and to precisely state the identity and boundaries of the land because the law states that before any declaration of title can be decreed, the land on which it is sought must be ascertained and defined with precision as held in OKOKO V. DAKOLO (2006) ALL FWLR (PT. 336) 201. The Respondents also submits that the onus of proof of boundaries is on the Appellants particularly where the Respondents traverse has the effect of rendering the quantum, size and extent of the claim uncertain and at large to prove these matters; and if the Plaintiffs fails in this regard, his entire action must fail. Cited

EKPEMUPOLO V. EDREMODA (2009) ALL FWLR (PT. 473) 1220; OGUNYOMI V. OGUNDIPE (2011) ALL FWLR (PT. 594) 188 and AREMU V. ADETORO (2007) ALL FWLR (PT. 388) 985. Furthermore, the Respondents submits that the Appellants have failed to discharge the burden of proving with certainty the identity and boundaries of the land in dispute as such a declaration of title to the said land cannot be declared in their favour. The Respondents urged this Honourable Court to dismiss the appeal with substantial cost for lacking in merit and affirm the judgment of the trial Court.

RESOLUTION
I have carefully considered the Amended Notice of Appeal, the Record of Appeal and the briefs of respective Counsel in this appeal particularly the issues formulated for determination by the Court. The Appellants donated 5 issues while the Respondents donated a sole issue for determination. In the light of the nature of the complaint against the judgment appealed against, it revolves around evaluation of evidence and it is advisable to take all aspects of evaluation of evidence at once to avoid repetition and for expediency, therefore, the sole issue distilled by the Respondents shall

be adopted for resolution in this appeal. In doing so, all issues and points in issue presented by the Appellants shall also be determined.

The Appellants as Plaintiffs before the trial Court prayed for several reliefs as highlighted earlier in this judgment and called 3 witnesses in proof of their claim for declaration of title amongst other reliefs. Their sworn Statements on Oath were also tendered as Exhibits A-C. The Respondents called 4 witnesses and also tendered their sworn Statements on Oath as Exhibits E-H. From the Appellants’ account, they claimed original and exclusive ownership until the Respondents moved from Doma in Nasarawa State and they were settled on a part of the land being their relations or descendants through a female scian of Ningev. The Respondents admitted their roots from Tyam the said daughter of Nyom and DW1 admitted they were in Doma at some point and moved back and were settled on the land being part of the family. The Respondents gave a contradictory history, some of the witnesses admitted joint ownership with the Appellants while others asserted that they own the land and ponds to the exclusion of the Appellants.

Basically, the Appellants are retrieving possession from the Respondents having admitted that they were allowed onto the land being relations. It is on that basis that the claim should have been determined upon evidence before the Court below.

It is trite that the burden of proof in a claim for declaratory reliefs is on the Claimant and he must succeed on the strength of his own case and not on the weakness of the case for the Defendant, see ARIJE V ARIJE & ORS (2018) LPELR-44193(SC) wherein the Supreme Court held thus:
“It is equally trite that the onus is on the claimant to establish his title upon a preponderance of evidence or on the balance of probability. He must succeed on the strength of his own case and not on the weakness of the defence, except where the defendant’s case supports his case. See: Kodilinye Vs Odu 2 WACA 336 @ 337; Onwugbufor vs Okoye (1996) 1 NWLR (Pt. 424) 252; Shittu vs. Fashawe (2005) 7 SC (Pt. II) 107; Nruamah & Ors vs. Ebuzoeme & Ors. (2013) 1 SC 31 @ 55 – 56.” Per KEKERE-EKUN, J.S.C
In declaratory reliefs, a Claimant must call or adduce cogent evidence in proof of the relief and it is a

discretionary relief which means it is granted on the materials presented to the Court and it has to be judicially and judiciously determined.

There are 5 established ways of proving title to land as listed in the case of IDUNDUN V OKUMAGBA (1976) LPELR-1431(SC) and AJIBOYE V ISHOLA (2006) LPELR-301(SC) as follows:
“It has been settled by long line of authorities from this Court that ownership or title to land may be proved by any of these five methods, viz: (a) by traditional evidence; (b) by production of documents of title, which are duly authenticated; (c) by acts of selling, leasing, renting out all or part of the land, or farming on it, or on a portion of it; (d) by acts of long possession and enjoyment of the land; and (e) by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute; see Idundun v. Okumagba (1976) 9 -10 SC. 227; Nkado v. Obiano (1997) 5 NWLR (Pt. 503) 31; Section 46 of the Evidence Act, 1990.” Per ONNOGHEN, J.S.C
And that was restated by the apex Court in a plethora of

authorities: OWHONDA V. EKPECHI (2003) LPELR-2844(SC); OYADARE V. KEJI & ANOR (2005) LPELR-2861(SC); THOMPSON & ANOR V. AROWOLO (2003) LPELR-3240 (SC); OTUKPO V. JOHN & ANOR (2012) LPELR-25053 (SC) and ODUNZE & ORS V. NWOSU & ORS (2007) LPELR-2252(SC).

The Appellants herein copiously pleaded traditional history, and the law requires them to plead and establish certain facts, see AWODI & ANOR V AJAGBE (2014) LPELR-24219(SC) wherein the apex Court held thus:
“In a claim for title to land based on traditional history, the plaintiff has to plead and prove each of the following: (1) The person who founded the land and exercised acts of possession. (2) How the land was found, and (3) The persons on whom the title to the land devolved from its founder to the plaintiff. See Obioha v. Duru (1994) 10 SCNJ 48 at 61 ratios 6 and 7, Piaro v. Tenalo & Ors (1976) 12 SC 31. The pleading of the devolution as well as the evidence in support must be reliable and credible or plausible otherwise the claim for title will fail. See Eze v. Atasie (2000) 6 SCNJ 209 at 218, Elias v. Omo-Bare (1982) 5 SC 25. The plaintiff must rely on his pleading,

he cannot plead traditional history and abandon his pleading to rely on acts of ownership over a long period of time. See Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 160.” Per NGWUTA, J.S.C
See also the following cases SOGUNRO & ORS V. YEKU & ORS (2017) LPELR-41905 (SC); FALEYE & ORS V. DADA & ORS (2016) LPELR-40297(SC) and ANYANWU V. MBARA & ANOR (1992) LPELR-516(SC).

The Appellants listed certain facts which are undisputed and thus admitted by the parties, namely:
i. That Ningev had only three sons named, Mbatoowa (the Appellants); Mbazimba and Nyom (this was pleaded at paragraph 4 of Appellants reply to Statement of defence at pages 99 of the record and the evidence at paragraph 5 of Exhibit C and the evidence of DW1 under cross examination (pages 166 of the record of appeal).
ii. That Tyam, the Defendants founder was the daughter of Nyom (pleading at paragraphs 1, 5, and 6 of Appellant’s Reply to Joint Statement of Defence and paragraphs 6 and 8 of Exhibit C at pages 114 and evidence of DW1 under cross examination.
iii. That under Tiv Tradition and custom, family land is basically shared among the

male children of the family and in the case at hand between the three son’s of Ningev, which are: Mbatoowa; Mbazimba and Nyom as pleaded in paragraph 1 of Plaintiffs reply to joint statement of defence; evidence at paragraph 2 and 5 of exhibit C at pages 114 and the evidence of DW1 under cross examination at pages 166 of the record.
iv. That no resolution of any Mbagbaange Extended Council meeting was ever reached concerning the land in issue or the ponds. Pleading at paragraph 9 of the Appellants reply to Joint statement of defence and evidence at paragraph 9 of Exhibit C and DW2 and DW3 under cross examination at pages 167-168 of the record of appeal.
v. That aside the 5 ponds being claimed by the Appellants, the two other families of Mbanyom and Mbatyam also use the ponds near the land in dispute, pleading at paragraph 22 of the statement of claim at pages 143; paragraph 6 of the Plaintiffs Reply to Joint statement of Defence, evidence at paragraph 6 of exhibit C at pages 114 and DW2, DW3 and DW4 under cross examination who named other ponds near the land in dispute and outside the 5 named in the claim.

The above facts having been established by evidence from both sides should have formed the fulcrum of the determination by the Court below in arriving at the judgment. The trial Court found that the parties share common ancestry, undoubtedly so, but there is a slant from the pleadings and evidence of the Appellants that the trial Court failed to appreciate. The contention of the Appellants was that TYAM the Respondents founder was a daughter of NYOM and this fact was admitted by DW1 under cross examination. The Appellants also made it out by pleadings and evidence that in Tiv Custom and Tradition, family land is shared among male children or line and not through the female, this was also confirmed by DW1. I have gone through the Statement of Defence and evidence of the Respondents and they did not deny the fact that their ancestry is through NYOM a daughter and if so, can they stand on equal footing with the Appellants when it comes to inheritance from the lineage of NINGEV?Going by the evidence of Tiv tradition it cannot happen and therefore, because of the break in the chain of the devolution, the Respondents have more to do in order to join issues in tracing their traditional

history, the Appellants having placed evidence on the scale in that respect, the evidential burden shifts to the Respondents and it was not discharged. On the other hand, the Appellants were able to lead evidence of the founder and how it devolved to the Appellants and they also explained how the Respondents came to be on the land and were also benefitting from the ponds in contest amongst other specific family ponds, there is no missing link in the Appellants restatement of family history, see ADDAH V UBANDAWAKI (2015) LPELR-24266(SC) which held as follows:
“it is now well established that where a person relies on traditional history as his root of title, the onus is on him to plead the root of title and names and history of his ancestors. He should lead evidence to establish same without any missing link.”
See also the following cases: BELLO V SANDA (supra); AWODI & ANOR V. AJAGBE (2014) LPELR-24219(SC); NGENE V. IGBO & ANOR (2000) LPELR-1987(SC) and MICHEAL & ANOR V. ADULOJU (2018) LPELR-46312(CA).

From the pleadings and evidence, both sides seem to trace root of title to the same person and the law is where both sides

trace their root of title to the same person, which is a possibility, then the party who adduces better evidence will win, and at times the first in time or priority in creation is an added benefit, see ALABI & ANOR V DOHERTY & ORS (2005) LPELR-6145(CA) where Onnoghen, JCA as he then was said:
“Turning to the merit of the case as presented before the lower Court, it is very clear that both parties claimed title through a common source. That is, they trace their title to a common root of title being the Ashamu family. In such a situation the issue to be decided is simply, which of the two claimants has a better title. It is the respondents case that they have the better title, while the appellants claim same, particularly as they claim that their title was first in time and therefore bears priority.”
See also SUU VS. JOBAK NIG. LTD (2012) LPELR – 7932 (CA); ADESANYA VS. OTUEWU (1993) 1 NWLR (PT. 270) 414; WELLE VS. BOGUNJOKO (2007) 6 NWLR (PT. 1029) 125.
The Appellants dutifully adduced evidence of their root without a break while in traversing the Appellants’ root of title, the Respondents did a poor job and could not scale

over the alleged fact that Tyam was a daughter and going by Tiv Native Law and custom, they have no inheritance with the Appellants, they failed to establish their progenitor and how the land devolved to them. The Respondents denied the pleadings at paragraph 14 without stating their own facts thus leaving the pleading uncontested. The Respondents tried to show that they had joint ownership and therefore the burden to establish where or the point they came to joint ownership must be established by evidence if it is different from the version of the Appellants. The Respondents also alleged sole ownership of the ponds while other witnesses said all families were harvesting the ponds jointly. The Appellants also showed by evidence that they were first in time. It is clear that the Court below narrowed its consideration thereby neglecting to evaluate some pieces of evidence. It could be to keep the family united but part of the reason for the claim is because the Respondents are making attempts to dispose off part of the land and the allegation was not denied.

The fundamental question is: Whether the Appellants established their root of title and unbroken

chain from the progenitor to the present. I see from the evidence that they did by clearly showing that Ningev had 3 sons (Mbatoowa, Mbazimba and Nyom which was admitted by 3rd Respondent, see page 168 of the Record of Appeal) who could share the land according to Tiv customs and that the Respondents are from Tyam a daughter Nyom not a son and cannot therefore share from the land, this was admitted by the 1st Respondent under cross examination (See page 166 of the Record of Appeal). The Respondents therefore as relatives could be allowed to live on the land as it was done but with limited rights excluding disposal of the land. From the traditional evidence the land was first inhabited with the natural ponds and the Appellants are only claiming the ponds that belong to their family line. Having established original rights and the fact of settling the Respondents on the land, the evidential burden shifts on the Respondents to establish what they claimed as joint ownership and that would be from the beginning and to trace their male root of title to Ningev the progenitor. This was not done and therefore, the case of the Appellants was stronger and weightier. The

trial Court evaded or jumped this level of evaluation.

The Respondents contested the ownership of the land but admitted joint ownership of the 5 fish ponds and said the ponds were harvested by all descendants of Ningev which is not true as the other family line have their ponds even though they are also members of Ningev and they are not claiming the 5 ponds. How they were separated is another minus in the case of the Respondents, the Appellants claimed both land and ponds collectively because the ponds come with the land. There was also the contention that the Mbabgaange Extended Council directed that the Appellants should give up ownership of the land in dispute to the Respondents while the ponds should be jointly harvested. This was denied by DW2 and DW3 under cross examination (See pages 167-168 of the Record of appeal). And I agree with the Appellants when they asked the rationale behind such a directive, because if the land belongs to the Respondents and the ponds are on the land, then on what basis would the ponds be jointly owned? This further reinforces and strengthens the case of the Appellants. This also raises to the fore the principle of what

is on the land belongs to the land and so the owner of the land would also own such ponds on the land, see REGISTERED TRUSTEES OF MASTER VESSELS MINISTRIES (NIG) INCORPORATED V EMENIKE & ORS (2017) LPELR-42836(CA) where Ogunwumiju, JCA (as she then was) now JSC said:
“The doctrine of ‘quic quid plantatur solo solo cedit’ simply means ‘whatever is fixed to the land becomes part of it’. See Francis v. Ibitoye 1936 13 NLR 11. The purport of this doctrine is that if a party is declared owner of a land in dispute, he automatically owns whatever attachment is on the said land. No doubt, the doctrine is now an established principle in the Nigerian land law and it is of great importance in tenancy laws. By the application of the doctrine of ‘quic quid plantatur solo solo cedit’, any improvement made on the land by a tenant becomes the property of the landlord upon the expiration of the tenancy except agreed otherwise.”
See also AGBOOLA V. UBA PLC & ORS (2011) LPELR-9353(SC); BABATUNDE & ANOR V. BANK OF THE NORTH LTD & ORS (2011) LPELR 8249(SC) and BILLY V. BARKA (2018) LPELR-44082(CA).

The Respondents did not Counterclaim so the question

of the Appellants giving up the land to them presupposes that the Appellants had been in occupation. Meanwhile, DW2 told the Court below that the Appellants do not own any land, do not own ponds; there was no meeting of the elders and there was no agreement that all children of NINGEV should harvest the ponds. The same line of evidence by DW3 who denied joint harvest of the ponds and also that no meeting of elders took place. This evidence was reinforced by DW4 who said the Appellants never harvested the ponds and the ponds had never been jointly harvested by the children of NINGEV. This obviously created a contradiction in the case of the Respondents and the effect of a contradiction in the case of a party is settled, see MAKKAN V HANGEM & ORS (2018) LPELR-4401(CA) where Otisi, JCA held thus:
“When a party’s evidence on material facts is inconsistent or contradictory, it would cast serious doubt on the veracity of the party’s case and the Court would be justified to disbelieve the party. This is simply because the Court cannot pick and choose which piece of inconsistent evidence to believe and give effect to; Ige v. Akoju (1994) LPELR-1451(SC),

(1994) 4 SCNJ 288; Akpan v. Otong (1996) 10 NWLR (Pt. 476) 108; Nwokoro v. Onuma (1999) 9 S.C.59; Usiobaifo v. Usiobaifo (2005) 1 S.C. (Pt. 11) 60; Igabele v. The State (2006) LPELR-1441(SC); Taiwo v. Ogundele (2012) LPELR-7803(SC). What amounts to contradiction in evidence was recently restated by the Supreme Court, per Augie, JSC in Zakirai v. Muhammad (2017) LPELR-42349(SC) at pages 70-71 of the E-Report in this manner: “The law insists that where there are material contradictions in the evidence adduced by a party, the Court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting version to follow – Kayili v. Yilbuk & Ors (2015) LPELR-24323(SC). A piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts. Put another way, evidence contradicts evidence, when it says the opposite of what the other evidence says, not just on any point but on a material point.”
See also DAREGO V A.G. LEVENTIS (supra) where I adopted the definition of contradiction as follows:
“A contradiction or contradictory evidence is simply when a piece of evidence asserts or

affirms the opposite of what the other asserts or when they give inconsistent accounts of the same event, see EKE V THE STATE(2011) 3 LPELR-1133(SC); OKOIZIEBU V THE STATE (2003) 11 NWLR (Pt. 83) 327.”
On the effect of contradiction on a party’s evidence, I said that it destroys the case of the party, leaves it without discretion. This Court in the case of PATRICK GODDY EKWUNO & ORS v. BOSAH EKWUNO (2011) LPELR –9180 (CA) held as follows:
“Contradiction in the evidence of the Plaintiff’s witnesses is disastrous and has the effect of destroying the case of the Plaintiffs.” See AUDU v. GUTA (2004) 4 NWLR (Pt.864) 463.”
The contradictions in the evidence of the Respondents’ witnesses in the lower Court will impact on the veracity of their defence and I cannot pick and choose which of the evidence to believe because as observed earlier, the trial Judge did not evaluate the evidence properly and therefore did not make a finding, see KAYILI V YIBUK & ORS (2015) LPELR- 24323(SC). That leaves the evidence of the Appellants unchallenged. Furthermore, it means the pleadings are deemed abandoned as there is no evidence to

establish the averments.

On issue four as donated by the Appellants, the contention is that having pleaded that the grandparents of the Appellants moved from the land in dispute in search of more land due to their growth in numbers (Paragraph 9 of the amended statement of claim, the Respondents responded by a general traverse (paragraph 11 of the statement of defence). It is trite that a general traverse has been held to be falling short of appropriate denial of specific facts, see BAMGBEGBIN & ORS V ORIARE & ORS (2009) LPELR- 733 (SC) where the apex Court said:
“The position of the law on a traverse of a general nature as held by this Court in the case of Lewis Peat (N.R.I.) Ltd. v. Akhimien (1976) 7 SC 167 is that in respect of essential and material allegations in the statement of claim, the GENERAL TRAVERSE ought not to be adopted and that such essential and material allegations should be specifically TRAVERSED. The decision in Lewis Peat’s Case was further adopted and applied by this Court in several cases that a general traverse is not enough to controvert MATERIAL and ESSENTIAL IMPORTANT averments in the statement of claim which are

the foundation of the plaintiffs’ case and that such averments are radical and must be specifically denied. See: AKINTOLA V. SOLANO (1986) 2 NWLR (PT.24) 598; LAGOS CITY COUNCIL V. OGUNBIYI (1969) 1 ALL NLR 297 AT P. 299; IBEANU V. OGBEIDE (1998) 9 SCNJ 77 AT P. 86; ADELAJA V. ALADE (1999) 4 SCNJ 225 AT P.240.”
Failure to traverse facts means the Respondents cannot adduce evidence since there are no facts to prove and that leaves the case of the Appellants uncontested with regards to the facts in issue.

The trial Judge alluded to uncertainty of the land in dispute. It is not for the Court to make a case of the parties. There was no dispute as to the identity of the land in dispute between the parties, a dispute on identity of land in dispute is discerned from the pleadings and here, the parties are agreed on the identity of the land. Furthermore, the Appellants by paragraph 4 of their Statement of Claim described the land in dispute and there was no traverse. The evidence of PW3 also explained why the Appellants do not live on the land in dispute. Having not joined issues, the issue of identity cannot arise at judgment stage, because there was no

express denial of the land described by the Appellants by the Respondents, see GBADAMOSI V DAIRO (2007) LPELR- 1315(SC) which held as follows:
“It is also now settled law that requires no citation of any authority, that the identity of land in a land dispute will only be in issue if and only if the defendant in his statement of defence makes it one. If he disputes specifically either the area or the location or the features shown in the plaintiff’s plan, then the identity of the land becomes an issue to be tried.”
See also ANYANWU & ORS V. UZOWUAKA & ORS (2009) LPELR-515(SC); OFFODILE V. OFFODILE & ORS (2019) LPELR 47851(SC) and ONUORAH & ANOR V. UBAIKE & ORS (2016) LPELR-42084 (CA).

The fact that the Appellants live in a different ward from where the ponds and the land is located cannot mean they are not owners, the legal duty is for them to prove title by credible evidence, the trial Court erred in concluding that the Appellants must have been on the land. An administrative unit set up by government cannot be a yard stick to judge ownership of land. It is evidence to establish any of the 5 ways of proving title to land that

determines who owns land.

The trial Court, as observed above failed to dutifully evaluate evidence and consequently arrived at a settlement and not a judgment, in doing so it occasioned a miscarriage of justice. Where the trial Judge fails in his duty to evaluate evidence, the Appellate Court must interfere to do so in the interest of justice, see BELLO V. FRN (2018) LPELR-44465(SC) where the Supreme Court held:
“This law is that it is only where and when a Court fails to evaluate evidence, that a Court of Appeal can intervene, and evaluate or re-evaluate such evidence. – See FATAI VS THE STATE (2013) 10 NWLR (pt. 1361) 1 at 21 SC. See ADELUMOLA VS THE STATE (1988) 1 NWLR (Pt. 73) 683 SC.” Per BAGE, J.S.C
See also the case of MINI LODGE LTD & ANOR V. NGEI & ANOR (2009) LPELR-1877(SC); UMESIE & ORS V. ONUAGULUCHI & ORS (1995) LPELR-3368(SC) and NYATI & ANOR V. GALADIMA (2015) LPELR-25693(CA).
It is a duty and not merely a discretion to be exercised whimsically and once the principles guiding the grant are satisfied, the Court is duty bound to grant the relief sought. Discretion is based on facts and guided by law

and not an indulgence of a judicial whim. In doing so, to exercise discretion judicially and judiciously, the import of the term and how it should be exercised was considered in the case of KHALIFA V ONOTU & ANOR (2016) LPELR-41163(CA) where my learned brother, ABIRU, JCA said as follows:
“It is trite that when a Court is called upon to exercise its discretion in favour of an application, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations – First Fuels Ltd v. N.N.P.C. (2007) 2 NWLR (Pt. 1018) 276. Discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it – Bello v. Yakubu (2008) 14 NWLR (Pt. 1106) 104. The Court’s discretion must be exercised so as to do what justice and fair play may require having regards to the facts and circumstances of each particular case – Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 478. A Court must always exercise its discretion only on the basis of the materials placed before it and on no

extraneous considerations – CFAO (Nig.) Plc v. Sanu (2008) 15 NWLR (Pt. 1109) 1. Thus, for a party to succeed in showing that a trial Judge exercised his discretion wrongly he has the onus to justify the fact that the discretion was not exercised judicially, i.e. that the discretion was exercised in an arbitrary manner and without due regard to all relevant considerations of necessary factors or on reliance upon wrong principles – National Bank of Nigeria Ltd v. Guthrie (Nig.) Ltd (1993) 3 NWLR (Pt. 284) 643 and Statoil (Nig.) Ltd v. Star Deep Water Petroleum Ltd (2015) 16 NWLR (Pt. 1485) 361.”
It is obvious that the learned trial Chief Judge did not exercise discretion judicially and judiciously, he failed to evaluate and ascribe value to the evidence adduced by the parties and weigh on the imaginary scale for a decision. It appeared he wanted to maintain the unity of the family because both sides traced their roots to Ningev. Even at that, one side gave an unbroken chain while the other side presented a contradictory defence. In such a situation, the Court has a duty to determine the case before it and ensure justice is served and not to give a

judgment that result in failure of justice. The judgment appealed against did not demonstrate that evidence before the Court was fully considered, consequently this Court shall interfere and ensure that the decision is based on evidence adduced and not arbitrary consideration.

Flowing from the findings made earlier on and considering that the evidence adduced by the Appellants weighed heavier because it was uncontradicted and furthermore the Respondents could not shift the evidential burden back to the Appellants. They presented a contradictory defence which watered down their defence and made the Appellants case stronger. It is trite that a Claimant for a declaratory relief succeeds on the strength of his case and not on the weakness of the defence but when the case for the defence supports the case for the Claimant, the Court will use such for the Claimant, see what my lord OKORO, JSC said in IFEDIORA & ORS V OKAFOR & ORS (2019) LPELR-49518(SC):
“Since the decision of Webber, C.J. in Kodilinye V. Odu (1935) 2 WACA 366 and a plethora of subsequent decisions by this Court, it is now trite that in an action for declaration of title to land,

the onus is on the plaintiff to satisfy the Court that he is entitled on the evidence adduced by him to a declaration by the Court. The law is very clear that he must rely and succeed on the strength of his own case and not on the weakness of the case of the defendant. Again if the plaintiff fails to discharge the onus of proof of his case, the weakness of the defendant’s case will not support the case of plaintiff. See Efetiroroje & Ors V. Okpalefe II & Ors (1991) 5 NWLR (Pt 193) 517, Elufisoye V. Alabetutu (1963) NMLR 298, Oladimeji V. Oshode (1968) 1 AU NLR 417. The law is also settled that where however, the evidence of the defendant tends to establish the title of the plaintiff and supports his case, the plaintiff is entitled to take advantage of such evidence to establish his title. See Piaro V. Tenalo (1976) 12 SC 31, Egonu V. Egonu (1978) 11/12 SC.111, Nkanu V. Onun (1977) 5 SC 13, Idundun V. Okumagba (1976) 9/10 SC 227, Momoh & Ors V. Umoru & Ors (2011) 15 NWLR (Pt 1270) 217, Civil Design Construction Nig Ltd V. SCOA Nig. Ltd. (2007) 6 NWLR (Pt 1324) 538 Oyinloye V. Esinkin & Ors (1999) 5 SCNJ 278.” Per OKORO, J.S.C

The Appellants in this case are entitled to rely on the evidence adduced by the Respondents which supports their case to further reinforce their claim to title and I so find.

Furthermore, the trial Court did not consider the totality of the evidence adduced by the parties in arriving at the final decision and that is perverse and must be redressed. I find that the Appellants by the undisputed facts highlighted earlier in the judgment have proved their claim for declaration of title to land by traditional history.

I shall now consider the reliefs sought, the first relief which is the principal relief is the one for declaration of title to the land described and situate at Idye Ukor, Adaka bounded to the North by Zaki Emberga Kyav, (Mbaku Family land) to the South by Iorchor Atsega, (Mbanyum Family land) to the east by lower Benue River Basin Fishery/farm and to the west by the Mbatyam family land. In the light of my findings above, the first relief is made out and I make a declaration that the Appellants are entitled and are owners of the land described above. I disagree with the Respondents when they submitted that the evidential burden on the

Appellants was not discharged, they discharged it and rather, it was the Respondents who failed to shift back the evidential burden. The relationship between burden of proof and evidential burden was explained in the case of NDUUL V. WAYO & ORS (2018) LPELR-45151(SC) thus:
“The first question to consider in resolving this issue is: on whom does the burden of proof lie Section 133 (1) and (2) of the Evidence Act 2011 provides: 133 (1) In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to presumptions that may arise on the pleadings. (2) If the party referred to in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively until all the issues in the pleadings have been dealt with. The meaning of “burden of proof” was explained by this Court in: Odukwe vs. Ogunbiyi (1998) 8 NWLR (pt. 561) 339 @

353 D – H, as follows: “…the phrase “burden of proof in civil cases has two distinct and frequently confused meanings. This comprises, firstly, of the burden of proof as a matter of law and the pleadings, usually referred to as the legal burden or the burden of establishing a case and, secondly, the burden of proof in the sense of adducing evidence, usually described as the evidential burden. While the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates. As Aniagolu, JSC explained the issue in Felix O. Osawaru Vs. Simon Ezeiruka (1978) 6 & 7 SC 135 at 145, “In civil cases, while the burden of proof in the sense of establishing the case, initially lies on the plaintiff …, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses.” Thus, the general rule is that he who asserts must prove. The burden is therefore on the plaintiff to first adduce prima facie evidence in support of his case. Where a prima facie case is made out, the

burden shifts to the defence to adduce counter evidence to sustain their defence. Where an allegation is made, positively or negatively and it forms an essential part of a party’s case, the proof of such allegation rests on him. See also: Plateau State of Nig. & Anor. Vs A.G. Federation & Anor. (2006) 3 NWLR (Pt. 967) 345 @ 417 D – F; Imana Vs Robinson (1979) 3 – 4 SC (Reprint) 1. However, the evidential burden of proving particular facts may shift throughout the proceedings. See: Buhari vs. INEC (2008) 19 NWLR (pt. 1120) 246; Okoye vs. Nwankwo (2014) 15 NWLR (pt. 1429) 93; Odukwe vs. Ogunbiyi (supra).” Per KEKERE-EKUN, J.S.C
See also the case of ODOM & ORS V. PDP & ORS (2015) LPELR-24351(SC); OKOYE & ORS V. NWANKWO (2014) LPELR-23172(SC) and ONI V. OJOGBOGBO & ORS (2015) LPELR-41741(CA).

The second relief is for perpetual injunction against the Respondents, when a party proves his title to land, the law will protect his interest by the grant of an injunction. It has been established and agreed by the Appellants that the Respondents were let in to the land being relations, the children of their female relation, they did not

ask that they be ejected and the quarrel arose from the attempts by the Respondents to sell parts of the land to third parties without the consent of the Appellants. Indeed, the Respondents have a limited right of occupation which does not include disposing any part of the land to a third party, the order of injunction is therefore necessary to restrain them from such acts and any act of trespass on the land. Relief two is granted.

Relief three is for special damages, special damages is a special claim which requires the Claimant to specially plead, particularize and prove same before it can be granted. It is not like general damages that the trial Judge could award at his discretion, the apex Court in the case of NIGERIAN BANK FOR COMMERCE & INDUSTRY & ANOR V. ALFIJIR (MINING) NIG LTD (1999) LPELR-2015(SC) thus:
“…It is trite law that a Court has an absolute and unfettered discretion to award or refuse costs in any particular case but that discretion must be exercised judicially and judiciously.” Per KALGO, J.S.C
The apex Court in the case of G.K.F INVESTMENT (NIG) LTD V NITEL PLC (2009) LPELR-1294(SC) described the two categories of

special and general damages as follows:
“It must be stressed that in the law of contract, there is no dichotomy between special and general damages as it is the position in tort. The narrow distinction often surmised is one without a difference. In contract, it is damages simpliciter for loss arising from breach. Such loss must be in contemplation of the parties. The loss must be real, not speculative or imagined. See Barau v. Cubitts (Nig.) Ltd. (1990) 5 NWLR (Pt. 152) 630, PZ Co. Ltd. v. Ogedengbe (1972) 1 All NLR 202 at page 210.” Per FABIYI, J.S.C.
The pleading for special damages is at paragraph 18 of the amended statement o claim and it states thus:
“The Plaintiffs shall contend that the economic loss incurred as a result of the defendants’ activities in the form of special damages are:
a. Yearly sale of fish and other amphibians from the Ber Anuma in the sum of one Million Five hundred thousand Naira (N1,500,000.00);
b. Yearly sale of fish and other amphibians from Ber Kugh in the sum of Two Million Naira (N2,000,000.00);
c. Yearly sale of fish and other amphibians from Agabi in the sum of Two Million

Naira(N2,000,000.00);
d. Yearly sale of fish and other amphibians from Tyo Ukoor in the sum of Two Million Two Hundred Thousand Naira(N2,200,000.00);
e. Yearly sale of fish and other amphibians from Uaai in the sum of Eight Hundred Thousand Naira(N800,000.00);
f. More than Three hundred (300) economic trees cut down and removed from the Plaintiffs land in the sum of Seven Million Five Hundred Thousand naira (N2,000,000.00)
Total sum of Seven Million Five hundred thousand naira (N7,500, 000.00) only.
As it can be seen from the pleadings, the Appellants did not particularize the claim for special damages under the various heads. The requirement of law is for the Appellants to give details of how they arrived at the figures claimed under each head. To just name a lump sum amount without showing how it was arrived at falls short of the requirement for a claim for special damages. I find that relief (iii) was not proved, it cannot be granted.

Relief (iv) is a claim for general damages in the sum of Ten Million Naira (N10,000,000.00). The principle of general damages was explained in the case of ROCKONOH PROPERTY CO. LTD V NITEL PLC

(2001) LPELR 2951(SC) as follows:
“General damages are always made as a claim at large. The quantum need not be pleaded and proved. The award is quantified by what, in the opinion of a reasonable person, is considered adequate loss or inconvenience which flows naturally, as generally presumed by law, from the act of the defendant. It does not depend upon calculation made and figure arrived at from specific items: see Odulaja v. Haddad (1973) 11 SC 357; Lar v. Stirling Astaldi Ltd.(1977) 11-12 SC 53; Osuji v. Isiocha (1989) 3 NWLR (Pt.111) 623. When general damages are sought on the basis of trespass to land, they would represent payment for the tort of trespass, not the value of the land; and the land remains at least under the possessory ownership or right of the plaintiff claimant.” Per UWAIFO, J.S.C.
See also the cases UBN PLC V. AJABULE & ANOR (2011) LPELR-8239(SC); MAIDARA V. HALILU (2000) LPELR-10695 (CA) and EKEBELU & ORS V. EJIDIKE & ORS (2017) LPELR-42835(CA)
Since general damages means such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate,

direct and proximate result or such as necessarily results from the injury, or such as did in fact result from the wrong, directly and proximately and without reference to the special character, condition or circumstances of the Claimant. General damages are such as the Court may give when the Judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. General damages is quantified or calculated by relying on what would be the opinion and judgment of a reasonable man in the circumstances of the case and since general damages is always at large. An award of general damages is not given as a matter of course, but on sound and solid legal principles, and not on speculation or sentiment. It is not awarded at large or out of sympathy borne out of extraneous considerations, but rather on legal evidence of probative value adduced for the establishment of an actionable wrong or injury, see EFFIONG V. ATA ISI SUPPLIES SERVICES LTD (2011) 6 NWLR (PT. 1243 266. Determination of quantum calls for some measure of quantification and a careful exercise of judicial discretion and it is not an exercise of judicial

discretion if the basis for the award is not demonstrated, see UNITED BANK FOR AFRICA PLC V. SAMBA PETROLEUM CO. LTD (2002) 16 NWLR (Pt. 793) 361. See also ACCESS BANK PLC V UGWUH (2013) LPELR 20735(CA).
Based upon above, the Court assesses general damages in the sum of N350,000.00 because damages follow events and Appellants having succeeded are entitled to some measure of damages and the quantum here has taken into account the relationship between the parties and that the judgment should not create a gulp between them. The Appellants having accommodated the Respondents all along should be more interested in the declaration of title.

The last item of claim is legal fees. There is no pleading in support of legal fees nor evidence adduced in support, it is also another item that is akin to special damages and therefore it must be strictly pleaded and proved. Having not been so proved, it fails and is dismissed.

It is gratifying that the Respondents as relation of the Appellants are allowed to remain in occupation but without the rights of title holders and cannot therefore transfer their interest to third parties.

In the light of the findings above, the appeal is meritorious and succeeds in part. The judgment of the trial Court is hereby set aside and in its place I make the following awards:
i. A DECLARATION is hereby made that the Plaintiffs are entitled to and are the owners of the subject matter of this suit, to wit; all that vast parcel of land lying, being and situate at Idye Ukor, Adaka bounded to the North by Zaki Emberga Kyav, (Mbaku Family Land) to the South by Iorchor Atsaga, (Mbayum Family and) to the East by Lower Benue River Basin Fishery/Farm, and to the West by the Mbatyam Family Land.
ii. AN ORDER of perpetual injunction is hereby made restraining the Respondents, jointly, and severally, whether by themselves, heirs, family, servants agents, privies of whatever description or whosoever from further harassing disturbing the Plaintiffs, their family agents, servants, privies and or any person(s) acting on their behalf on the land, subject matter of this suit and from committing further acts of trespass on the said land.
iii. The sum of Three Hundred and Fifty Thousand Naira (N350,000.00) only is awarded as general damages in favour of the Appellants.

The judgment of the trial Court delivered on the 21ST SEPTEMBER, 2018 by HON. JUSTICE A. O. ONUM-CHIEF JUDGE (now retired) is hereby set aside and in its place I make the awards named above.
I make no order as to cost.

IGNATIUS IGWE AGUBE, J.C.A.: I have read an advance copy of the Lead Judgment delivered by my learned Brother, Hon. Justice Yargata Byenchit Nimpar, JCA. I agree with the reasoning and conclusions reached in the lead Judgment.

It is trite that in a claim for declaration, the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the defendant. The plaintiff must therefore satisfy the Court that upon the pleadings and cogent and credible evidence adduced by him that he is entitled to the declaration of right in his favour. See C.P.C. vs. INEC & Ors. LPELR- 8257 (SC).
Sections 131-134 of the Evidence Act, 2011 stipulate thus:-
“131(1) Whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of which he asserts shall prove that those facts exist.
(2) When a person is

bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the Judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to, in subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom Judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.
134. The burden of proof shall be discharged on the balance of probabilities in all civil proceeding.
In Ibrahim Kano vs. Gbadamosi Oyelakin (1993) 9 SCNJ 65, Ogundare,

JSC held at page 83 paragraphs 34 to 43 as follows:
“It is the duty of a plaintiff to prove his case and in so doing he must rely on the strength of that case rather than on the weakness of the defence. He is, however, entitled to take advantage of any admission by the defence favourable to his case. In the instant case, if it was the case of the plaintiff that the defendant was his customary law tenant then he must plead this and prove it. This, the plaintiff has not done, and it is wrong in my respectful view, to suggest, without production of the agreement pleaded in paragraph 6, that the transaction between the parties to it was in the nature of a customary law transaction.”
In Alhaja Sabiriyu Shittu & Ors. vs. Otunba Oyewole Fashawe (2005) 7 SCNJ 337, Musdapher, JSC (as he then was) held at page 351 a, follows:
“Now, there is doubt that in an action for declaration for title to land such as in this ease, a plaintiff can only ordinarily succeed on the strength of his case and may not rely on the weakness of the case of the opposing party to obtain judgment. The grant of a declaratory relief has always been dependent on the discretionary

power or the Courts. The burden is on the plaintiff to prove his case on the preponderance of evidence or balance of probabilities. it is elementary law that the burden of proof in a civil matter is always on the party makes the assertion and he must satisfy the Court that he is entitled to the declaration sought as it relates to the land in dispute. This means that the parties give evidence as to the claim before the Court, judgment will be given to the party in whose favour the evidence tilts in the case.”
However, traditional evidence is to be tested by traditional evidence or acts of actual user of the land in dispute or by employing both methods. In Lawal vs Dawodu (1972) S.C 83 Coker JSC at page 121-122 as follows:
“In a case of declaration of title to land, the onus is on the plaintiff to prove by traditional evidence or actual acts of possession or both that he is the owner the land in dispute. If the evidence of tradition fails and indeed if it is proposed to test the probability of such traditional evidence, recourse must be had to the evidence of actual user and possession of the land dispute.”
Land is usually founded by

an individual, at times from time immemorial “original ownership, and the acquisition of title several generations ago”- See Emegwan vs Nwaimo 14 WACA 347 at 348 and Elias vs Suleiman (1973) 12 SC 113 at 116. The descendants or the original founder may, as the years or generations pass by, may divide into clans, lineages or communities with distinct and separate land. See also Amodu Tijani vs The Secretary, Southern provinces (1921) 3 NLR 36 at pages 59 to 60.

The Appellants claimed general damages in their pleading as contained in Relief (iv). In Haastrup Lines (WA.) Ltd. vs. Wiche (2006) All FWLR (Pt.304) 483, the Court held at page 496 paragraphs C-F as follows:
“General damages are those damages implied in every breach of contract and where no real damage has been suffered, the amount to be awarded is always trifling. From the point of view of proof, general damages are classified into two categories: (1) That in which they (damages) may either be inferred (e.g. in cases of defamation or of personal injury to plaintiff when pain and suffering may be presumed); and (2) That in which they will not be inferred but must be proved (for instance, damages

arising by way of general loss of business following an injury)…”
General damages had been held to be the natural consequences that flow from the wrongful act of the Defendant which is the cause of action of Plaintiff (in this case the Counter-claimant/Appellant). Such damages do not need to be pleaded or strictly proved as the Court can suo motu at its discretion award same after calculating whatever sum of money will be reasonably justified to compensate the Plaintiff for the wrong he or she had suffered in the hands of the Defendant after taking into consideration the facts and circumstances of case. S.P.D.C. (Mg.) Ltd. V. Tiebo VII (2005) 9 NWLR (Pt.901) 439; Mobile Oil Nig. Ltd. vs. Akinfosile (1969) 2 SCRLR 322; Beecham Group vs. Essdee Food Products (Nig.) Ltd. (1985) 3 NWLR (Pt.11) 112; A-G. Oyo State vs. Fairlakes Hotel Ltd (No.2) (1989) 5 NWLR (Pt 121) 255 and O.M.T. Co. Ltd. vs. Imafidon (2012) 4 NWLR (Pt. 1290) page 932.
On the general principles governing the award of general damages, it was variously held in Taylor vs. Ogheneovo (2012) 13 NWLR (Pt 1316) 46; Garba vs. Kur (2003) 11 NWLR 280; Ijebu-Ode Local Government vs. Adedeji Balogun co. Ltd.

(1991) 1 NWLR (Pt.166) 136: that in awarding general damages, the Court will be guided by the opinion and judgment of a reasonable man for as had earlier been stated above, general damages are losses which flow naturally from the Defendant’s act and that each quantum need not be pleaded or proved as same is generally a presumption of law.

Based the foregoing, it is my humble opinion that the Plaintiff/Appellant herein have established that there was a substantial wrong or miscarriage of justice in the Court below which warrants this Court to interfere with the Judgment of the learned Trial Judge delivered on the 21st September, 2018 by Hon. Justice A.O. Onom, J. (as he then was) in favour of the Defendants/Respondents. Therefore, the decision of the Lower Court cannot stand as the Appeal is meritorious in part. Consequently, the proper order to make is to allow this Appeal and set aside the Judgment of the learned trial Judge. I abide by the Order as costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I was privileged to read in advance a copy of the lead Judgment just delivered by my learned Brother Yargata Byenchit Nimper, JCA.

I totally agree with the reasoning and conclusion reached therein. I abide by the consequential orders as made in the judgment. The judgment of the trial Court delivered 21st September, 2018 by Hon. Justice A. O. Onum — Chief Judge (retired) is hereby set aside and with no cost.

Appearances:

TERNA J. YAJI For Appellant(s)

CHIEF J.J. IGBABON with him, A.T. ORTWAV and M.M. ONUM. For Respondent(s)