ISHOLA v. PEKE & ANOR (2022)

ISHOLA v. PEKE & ANOR

(2022)LCN/16912(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Wednesday, March 16, 2022

CA/EK/29/2021

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Abdul-Azeez Waziri Justice of the Court of Appeal

Between

MR. BABATUNDE ISHOLA APPELANT(S)

And

1. MR. MICHAEL PEKE 2. MR. AYO DARAMOLA (For Themselves And On Behalf Of Other Members Of Apelua Family Of Uro, Ikere-Ekiti, Ekiti State) RESPONDENT(S)

RATIO

THE CRITERIA FOR FAIR HEARING

The basic criteria and attributes of fair hearing include:
i) That the Court or Tribunal shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
ii) That the Court or Tribunal shall give equal treatment opportunity and consideration to all concerned via ADIGUN VS. A.G OYO STATE (1987) 1 NWLR (PT 53) 678.
iii) That the proceedings shall be heard in public and all concerned shall have access to and be informed of such a place of public hearing.
iv) That having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly seen to have been done. See DEDUWA VS. OKORODUDU (1976) 10 SC 329.
The rule of fair hearing is not a technical doctrine. It is one of substance. It is whether a party is entitled to be heard before a decision is taken. PER WAZIRI, J.C.A.

WAYS OF PROVING TITLE OF OWNERSHIP TO LAND

It is trite law that five methods or ways to prove ownership of land have been laid down in IDUNDUN VS. OKUMAGBA (1976) 9-10 (SUPRA) thus:
1. By traditional evidence.
2. By production of document of title duly authenticated and executed.
3. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
4. By acts of long possession and enjoyment.
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected land would in addition be the owner of the land in dispute.
Suffices to state that all the five methods do not have to be present before proof of the said ownership can be said to have been established as only one of the methods above stated is sufficient and this the Plaintiff must prove by cogent, satisfactory and conclusive evidence. PER WAZIRI, J.C.A.

ABDUL-AZEEZ WAZIRI, J.C.A. (Delivering the Leading Judgment): At the High Court of Justice holden in Ikere-Ekiti Judicial Division Ekiti State the Respondents as Plaintiffs beseeched the Court and tabled the reliefs as contained in the further amended writ of summons and further amended statement of claim filed on the 28th day of November, 2013 as follows:-
1. A DECLARATION that the Claimants are entitled to Statutory Right of Occupancy over the vast area of land situate, lying and being at Apelua family farmland Ajiya, Off Igbara Road Odo Road Ikere-Ekiti.
2. A DECLARATION that the Defendant is not a member of Apelua family, Uro Quarters Ikere-Ekiti.
3. The sum of N50,000,000.00 (Fifty Million Naira) as damages for the conduct of the Defendant in respect of the land.
4. AN ORDER of perpetual or permanent injunction restraining the Defendant, his agents, servants and privies from doing anything on the land or challenging the title of the Claimants on the land now forthwith and henceforth.
a. The sum of N50,000,000.00 (Fifty Million Naira) as general damages for trespass committed and still being committed by the Defendant on the Claimant’s family land situate, lying and being at Apelua family farmland, Ajiya, Off Igbara Odo Road, Ikere-Ekiti.
b. A DECLARATION that the Defendant is not a member of Apelua family, Uro Quarters, Ikere-Ekiti.
c. AN ORDER of perpetual or permanent injunction restraining the Defendant, his agents, servants and privies from further committing acts of trespass on the Claimants aforesaid vast area of land (pages 70-104 of the record of Appeal).

Appellant filed his further amended statement of defence/counter-claim on the 14th day of May, 2014 wherein he claims jointly and severally against the Claimants thus:-
(a) A DECLARATION that his family is entitled to the Statutory Right of Occupancy over the said farmland situate at Ayiya farmland off-Igbara, Odo Road Ikere-Ekiti, Ekiti State.
(b) Ten Million Naira (N10,000,000.00) only being general damages for act of trespass committed and still being committed on the said farmland by the Claimants, their agents, servants, privies etc. pleadings duly settled and exchanged.

A full-blown trial was conducted. The Respondents/Claimants proffered evidence by calling four witnesses to prove their case while the Appellant as Defendant/Counter-Claimant equally lined up four (4) witnesses in support of his case. The witnesses were duly cross-examined by the respective learned counsel to the parties. Respective counsel filed and exchanged final written addresses at the lower Court and in a considered judgment the learned Judge wherein on page 18 of the judgment and on the printed Record of Appeal pages 719 to page 19 and the printed Record of Appeal page 720 stated thus:
“The Claimants having established a better title to the land in dispute, they are in possession and can sue for trespass.
A sum of N100,000 is hereby awarded as damages against the Defendant for his trespassory act on the land, to be paid to the Claimants.
On the whole, the Claimants are entitled to the Statutory Right of Occupancy over the land located at Apelua family farmland, Ayiya, Igbara Odo Road, Ikere-Ekiti.
Going by the patrilineal line of tracing one’s origin, the Defendant is not a member of the Apelua family, but he is a member of Ojumu family, Iro, Ikere-Ekiti.
A sum of N100,000 is awarded as damages against the Defendant in favour of the Claimants”.

The learned lower Court Judge proceeded to dismiss the Appellant’s/Defendant’s counter-claim.

Disturbed by the above judgment the Appellant approached this Hon. Court by filing a Notice of Appeal against the said judgment. The judgment is contained on pages 702-724 of the Record of Appeal. The Notice of Appeal was filed on the 22nd September 2021 as can be seen on pages 725-733 of the Record of Appeal. The Record of Appeal was transmitted to this Court on 12/3/2021 and deemed properly transmitted on 16/3/2021. The Additional Record of Appeal was transmitted to this Hon. Court on 19/3/21 while the supplementary Record of Appeal was transmitted on 19/1/2022 and deemed on 15/2/2022.

In compliance with the extant Rules of this Hon. Court the respective learned counsel to the parties filed and exchanged briefs that were further deemed.

The Appellant’s brief of Argument was filed on 26/3/2021, deemed on 11/11/2021.

Appellant’s reply brief of Argument was filed on 17/1/2022, deemed on 19/1/2022 and further deemed on 15/2/2022.
Respondents’ Brief of Argument was filed on 14/12/2021 and further deemed on 15/2/2022.

The Appellant’s Brief of Argument was settled by Sunday J. Ochayi Esq. of counsel wherein he decoded four (4) issues as arising for the determination of this appeal thus:-
(a) Whether the learned trial Judge accorded and afforded the Appellant fair hearing and fair trial before arriving at its decision? Ground one of the Notice of Appeal.
(b) Whether the Respondents adduced sufficient evidence of traditional history to justify the decision of the lower Court in their favour. (Grounds two and four of the Notice of Appeal).
(c) Whether the learned trial Judge considered the pleadings and evidence led vis-a-vis the Exhibits tendered and admitted before it particularly Exhibit C1-20 series (Grounds three, five and six of the Notice of Appeal),
(d) Whether, the decision was not against the weight of evidence, thereby occasioning a miscarriage of justice (Ground seven of the Notice of Appeal).

The Respondent’s Brief of Argument was settled by Ebenezer Gbenga Alabadan Esq. wherein he wholesale adopted the four issues decoded by the Appellant’s learned counsel.

I shall repeat the issues herein having been set out elsewhere in the course of this Judgment.

APPELLANT’S SUBMISSIONS ON THE DECODED ISSUES SERIATIM
ISSUE ONE — Whether the learned trial Judge accorded and afforded the Appellant fair hearing and fair trial before arriving at its decision (Ground one of the Notice of Appeal).
It is the submission of learned counsel to the Appellant that fair hearing is fundamental to every judicial preceedings in Nigeria’s legal system. This he submits is encapsulated in Section 36(1) of the 1999 Constitution (as amended). That the breach of the Section renders the whole proceedings a nullity placing reliance on the following cases:- (1) TRANSNAV P.N LTD VS. VELCAN E.H.D LTD (2020) 7 NWLR (PT 1723) P. 293 at 323 PARAS E-G PER OKORO JSC: (2) AWONIYI VS. REGISTERED TRUSTEES AMORC (2000) 10 NWLR (PT 676) P. 522: (3) EZENWAJI VS. UNN (2017) 18 NWLR (PT 1598) P. 485 at 507 PARAS G-H PER EKO JSC: (4) ISIYAKU MOHAMMED VS. KANO NA (1968) ALL NLR 424 at 426: (1968) SCNLR 558 PER ADEMOLA CJN: EZE VS. UNIJOS (2017) 17 NWLR (PT 1593) P. 1 at 16 PARA H and 17 PARA A PER RHODES VIVOUR JSC.

He submits that the Appellant was not accorded fair hearing and fair trial before the decision/judgment was delivered/arrived at.

He proceeds to set out the examples, (1) The lower Court delivered a ruling on the 17th January 2020 in Motion Number HCR/50M/2018 but all efforts to appeal against same were thwarted despite the Notice of Appeal filed by the Appellant and the payment of money for settlement of Record of Appeal. He refers us to pages 648-652 of the Record of Appeal. The ruling was not signed and made available for the compilation and transmission of the Record of Appeal pages 568-572 of the Record of Appeal.
2. Hearing Notice of the Courts sitting of 7th February 2020 being the next adjourned date was not served on the Appellant and his counsel and there was no affidavit of service of the Hearing Notice in the Court’s file but still the lower Court proceeded in the absence of the Appellant and his counsel and the Court suo motu closed the Appellant’s case and struck out Appellant’s pending motion No. HAD/6M/2020 and ordered parties to file their respective addresses and accorded 14 days to do so. The suit came up on 24/6/2020 and counsel to the Appellant was absent as no Hearing Notice was served on him. There was no affidavits of service of the Hearing Notices of the dates referred to. He calls in aid the case of C.M & ES LTD VS. PAZAN SERVICES (NIG) LTD (2020) 1 NWLR (PT 1704) P. 70 at 91 PARAS B-D – GALINJE, JSC. He submits that failure to serve/give Notice of proceedings is a fundamental defect which renders the proceedings void as the Court lacks the jurisdiction to entertain the suit. Placing reliance on the following cases of DARMA VS. ECO BANK (NIG) LTD (2017) 9 NWLR (PT 1571) P. 480: NUT TARABA STATE VS. HABU (2018) 15 NWLR (PT 1642) P. 381 at 391 PARA H PER EKO, JSC. He further submits that the Appellant was denied the right to file his final written address in the suit placing reliance on Section 294(1) of the 1999 Constitution (as amended). ACCESS BANK PLC VS. Y.K.M CO. LTD (2021) NWLR (PT 1757) P. 388 at 404 PARAS C-E: FRN VS. AKUBUEZE (2010) 17 NWLR (PT 1223) 525. He submits that the proceedings at the lower Court and the decision amounted to a miscarriage of justice and urges us to declare it a nullity.

He urges us to resolve issue one in favour of the Appellant and against the Respondents.

ISSUE TWO: Whether the Respondents adduced sufficient evidence of traditional history to justify the decision of the lower Court in their favour. (Grounds two and four of the Notice of Appeal).
Learned counsel submits that a Court has a duty to look at all the documents and processes filed in a case and make use of them in doing substantial justice placing reliance in the following cases:- SALISU VS. MOBOLAJI (2016) 15 NWLR (PT 1535) P. 242 at 287: EROMOSELE VS. FRN (2018) 11 NWLR (PT 1629) P. 60 at 76 and 77: SHARING CROSS E.S. LTD VS. U.A ENT LTD (2020) 10 NWLR (PT 1733) P. 561 at 588 PARAS D-F.

He submits that in paragraph of the statement of claim filed on 23rd October, 2008 wherein the Respondents averred that “The land in dispute was granted to the Plaintiff by Osagburu family from time immemorial”.

Again in paragraph 5 of the amended statement of claim filed by the Respondents on 2nd June 2009 Respondents averred thus: “The land in dispute was granted to the Plaintiffs by Osagburu family from time immemorial”.

Further in paragraph 9 of the further amended statement of claim dated 28th November, 2013 Respondents averred thus: “Claimants aver that their forefather was late Apelua Osanimokun a great hunter who founded and settled on the large piece of land situate, lying and being at Apelua family farmland Ajiya Off Igbara Odo road, Ikere-Ekiti, Ekiti State”.
He posits that the traditional history of the Respondents is inconsistent. Under the furnace of cross-examination CWI, CW2 and CW3 testified that the land in dispute originally belonged to the Osagburu family from time immemorial however, CW4 under cross-examination stated that it was late Pa Osanimokun who founded and first settled on the land in dispute. He submits that the Appellant had consistently maintained that the land originally belonged to Late Pa Eleyinmi from the Osagburu family of Ikere-Ekiti, Ekiti State who granted it as a gift to the Appellant’s forefather — Late Pa Osanimokun.
He submits that a Plaintiff who claims ownership of land through inheritance must plead and give evidence of the person who held title or on whom title devolved in respect of the land before the Plaintiff took control of the land. He posits that the Plaintiff to succeed must place and establish the following facts:-
i. Who founded the land.
ii. How he founded it and
iii. The particulars of the intervening owners through whom it came down to him placing reliance on the following cases: AJIBULU VS. AJAYI (2014) 2 NWLR (PT 1392) P. 483 at 497 PARAS B-C: OMISORE VS. AREGBESOLA (2015) 15 NWLR (PT 1482) P. 205 at 297-298 PARAS F-A: A.G RIVERS STATE VS. A.G BAYELSA (2013) 3 NWLR (PT 1340) P. 123 at 160-161 PARAS G-B: ANYAFULU VS. MEKA (2014) 7 NWLR (PT 1406) P. 39 at 416-417 PARAS F-F.

He submits as a result of the inconsistencies in the pleadings of the Respondents/Claimants they have failed to prove their traditional history to the land in dispute placing reliance on the following cases: ETIM VS. AKPAN (2019) 1 NWLR (PT 1654) P. 451 at 467 PARAS B-D: MOHAMMED VS. FARMERS SUPPLY CO (KDS) LTD (2019) 17 NWLR (PT 1701) P. 187 at 202 PARAS D-F PER EKO JSC: IRONBAR VS. FMF (2009) 15 NWLR (PT 1165) P. 506 at 534-535 PARAS H-A.

Learned counsel also set out the five methods to prove title to land judicially noticed and calls in aid the following cases:- ZIREGBE VS. EYEKPIMI (2020) 9 NWLR (PT 1729) P. 327 at 346 PARAS A-E: GARBA VS. TSOIDA (2020) 5 NWLR (PT 1716) P. 165 at 181: MANAKE VS. MANEKE (2020) 13 NWLR (PT 1741) P. 311 at 331-332 PARAS H-B: IDUNDUN VS. OKUMAGBA (1978) 9-10 SC P. 227.

He submits further that the evidence led by DW1, DW2, DW3 and DW4 as well as Exhibits C1-20 series admitted without opposition by the Respondents counsel shows that the Appellant and his family members are in possession of the land in dispute over a long period of time they have been exercising various acts of ownership over the land coupled with satisfactory evidence of traditional history. He urges us to resolve issue two in favour of the Appellant and against the Respondents.

ON ISSUE THREE — Whether the learned trial Judge properly considered the pleadings and evidence led vis-a-vis the Exhibits tendered, admitted before it particularly Exhibits C1-20 series (Grounds three, five and six of the Notice of Appeal).
It is settled law that a Court is bound to make use of documentary evidence admitted in a proceeding and give due consideration to same placing reliance in the following cases:- SHARING CROSS E.S LTD VS. UMARU ADAMU ENT LTD (2020) 10 NWLR (PT 1733) P. 561 at 589 PARAS E-G: JIMOH VS. AKANDE (2009) 5 NWLR (PT 1135) P. 549 at 583 PARA H.

He posits that parties are bound by their pleadings and evidence led on them placing reliance on the cases of: OYEWUSI VS. OLAGBAMI (2018) 14 NWLR (PT 1639) P. 297: BABALOLA VS. AKINSINDE (2018) 17 NWLR (PT 1649) P. 577.

He submits that Exhibits C1-20 series admitted in evidence show that he and his family members are in possession of the land in dispute farming, living and exercising various acts of ownership over the said land over a long period of time. He urges us to give the Exhibits C1-20 series probative evidential value. He also urges us to resolve issue three (3) in favour of the Appellant and against the Respondents.

ISSUE FOUR — Whether the decision was not against the weight of evidence, thereby occasioning a miscarriage of justice (Ground seven of the Notice of Appeal).
It is the submission of Appellant’s counsel that in determining the weight of evidence the factors to be considered are admissibility, relevance, credibility of the evidence by which the weight of evidence of both parties is determined. He calls in aid the case of: MOGAJI VS. ODOFIN (1978) 4 SC P. 91: NWOKIDU VS. OKANU (2010) 3 NWLR (PT 1181) at 362: EKELE VS. IWODI (2014) 15 NWLR (PT 1431) P. 557 at 586 PARAS B-D.

He posits that the learned trial Judge failed to conclusively, properly and rightly evaluate the documents (Exhibits) and facts placed before it which occasioned a miscarriage of justice. On the whole, we are urged to allow the appeal, set aside the decision of the lower Court and grant the reliefs sought by the Appellant.

RESPONDENTS’ SUBMISSIONS ON THE ADOPTED ISSUES SERIATIM
ON ISSUE ONE — Learned Respondent’s counsel submits that the Appellant was accorded and afforded fair hearing and fair trial but the Appellant and his counsel deliberately refused or neglected to make use of the ample opportunity as they wishes. He submits that the Respondents’ amended originating processes and the accompanying documents were served on the Appellant personally. Further pleadings were filed and exchanged between the parties. That the Respondents opened their case and closed same on the 20th of June, 2016. The Appellant opened his case on 11th July, 2016 and called his last witness on 14th day of June 2017. Learned counsel refers us to the additional record of appeal to buttress the fact, there were series of evidence of service of hearing notices on the counsel for the Appellant. There are affidavit of service deposed to by the bailiff of the lower Court. He posits that the Appellant was not denied fair hearing and fair trial. He further submits that the Appellant was not denied the right to file his final written address. He posits that a party who is given opportunity to present his/her case but for whatever reason fails to do so has waived his/her right to complain of want of fair hearing placing reliance in the following cases: ADEBAYO VS. T.S.G (NIG) LTD (2011) 4 NWLR (PT 1238) 493 at 508 PARAS G: BILL CONSTRUCTION CO. LTD VS. IMANI & SONS LTD/SHELL TRUSTEES LTD (2006) NWLR (PT 1013) 1 at 14: A.G RIVERS VS. UDE (2006) 17 NWLR (PT 1008) 436 at 436-456 PARAS E-G.

On a final note, we are urged to follow the above cited decisions of the Apex Court. He urges us to resolve issue one in favour of the Respondents.

He submits that the Respondents relied heavily on traditional evidence. He equally submits that in order to succeed in a claim for title to land based on traditional history, it is incumbent on a party relying on it to plead and lead evidence to show:
(a) The person who founded the land and exercised original acts of possession.
(b) How his ancestors derived title to the land and
(c) The person or persons on whom the title in respect of the land devolved since its founding. Placing reliance in the case of KOLAPO VS. ALADE (1985) 3 NWLR (PT 12) 352: KASUMU VS. ABEO (1972) 2 SC 69.

He further submits that the pleadings and the Respondents’ line of evidence are credible and convincing enough so as to warrant this Hon. Court to affirm granting a declaration of title to the land in dispute in their favour placing reliance in the cases of: ANYANWU VS. MBARA (1992) 5 NWLR (PT 242) 388: ADEJUMO VS. AYANTEGBE (1989) 3 NWLR (PT 110) 417: OLUJINLE VS. ADEAGBO (1988) 2 NWLR (PT 75) 238.

Learned counsel submits that a counter-claim is a separate and distinct action which usually put the same burden of proof on the Counter-Claimant like that of the Claimant in proving his counter-claim the Appellant relied on traditional evidence but failed to meet the requirements of same in that the Appellant did not sufficiently plead and prove the name and particulars of the founder of the land in dispute, how the land was founded and the names and particulars of intervening owners to whom the land devolved and through whom they claimed. Placing reliance in the case of NWACHUKWU VS. ONUOHA (1995) 9 NWLR (PT 421) 603: ELIAS VS. OMO-BARE (1982) 5 SC 25 at PAGES 57-58.

He submits that the Appellant admitted against his interest under cross-examination that he was/is a member of Apelua family Ikere-Ekiti. Having said that the Appellant admitted that the Apelua family is the owner of the land in dispute. Placing reliance on the following cases:- ALON VS. DANDRILL (NIG) LTD (1997) 8 NWLR (PT 517) 495 at 502 PARAS C-D: OJIEGBE VS. OKWARANYIA (1962) 2 SCNLR 385.

Furthermore, the Appellant pleaded in paragraph 26 of his further amended statement of defence and counter-claim thus:
“26 Defendant strongly avers also that he is not in any way related to the Claimants and/or their family and puts the Claimants to the prove of their assertions”.

Learned counsel posits that the Appellant who testified as DW4 gave evidence in line with the above quoted averment in his statements on oath under examination in chief but contradicted himself under cross-examination to the effect that he was/is a member of Apelua family Ikere-Ekiti. He posits that a party cannot approbate and reprobate at the same time.

Learned counsel submits that the Defendant in his further amended statement of defence paragraph 16 thereof pleaded thus:
“16 Defendant further avers that his progenitors/forefathers who founded and settled on the said farmland now in dispute are:
(a) Pa Osanimokun
(b) Late Pa Osanimokun’s children
(c) Late Pa Jegede
(d) Late Pa Jedege’s children
(e) Late Pa Ishola
(f) Defendant and his siblings”

But under cross-examination the entire traditional history being relied upon by the Appellant collapsed on arrived when DW1 stated thus:
“Eleyinmi founded the land in dispute. I do not know the persons that inherited the land from Osanimokun. I do not go to the land. I have never farmed on the land in dispute. I do not know the history of the Defendant’s family. I do not know the boundaries of the land”.

DW2 destroyed the Appellant’s case under cross-examination thus: “I do not know the history of Apelua family of Ikere-Ekiti Babatunde Ishola is from Jegede’s family. I do not know the name of the Defendants family. I do not know the exact boundary men to the land in dispute. I do not know the traditional history of the land in dispute. I do not know the founder of the land in dispute”.

Learned counsel went on to say that DW3 somersaulted under cross-examination thus: “The founder of the land in dispute is Osanimokun. Pa Osanimokun was from Apelua family. I am not a member of Apelua family Babatunde Ishola is a member of Osanimokun family. Yes, I do not know the historical background of Apelua family because I am not a member of the family”.

He posits that the last straw that broke the camel’s back was the legless evidence given by the Appellant as DW4 under cross-examination thus:
“My father’s names are late Pa Ishola Jegede. He was a member of Ojumu family. Ojumu family is not the owner of the land in dispute. He submits that the Appellant further destroyed his case under cross-examination thus:
“Late Pa Osanimokun was a member of Apelua family. The land in dispute has not been partitioned. Claimants are members of Apelua family Ikere-Ekiti. I am a member of Apelua family Ikere-Ekiti, There is only one Apelua family in Ikere-Ekiti. The land in dispute was initially founded by Late Eleyinmu from Osagburu family. Eleyinmu was the only founder. I do not know how the land was founded. I know that Rotimi Ogunyemi felled some economic trees on the land on my instructions. I should have asked for the authority or approval of Apelua family members before Rotimi Ogunyemi could feel the trees. Nigeria’s society is a patrilineal society. Apelua family has head of family. I do not know the names of the heads of Apelua family, but I know the present head of the family, Mr. Micheal Peke. The two secretaries of the Apelua family that I know are Abiodun Ilesanmi and Ayo Daramola, the second Claimant herein. I have not been attending Apelua family meetings”.

He submits that the pieces of evidence given by the Appellant’s witnesses are not reliable and fatal to Appellant’s case, He urges us to resolve issue two in favour of the Respondents.

ON ISSUE THREE — “Whether the learned trial Judge properly considered the pleadings and evidence led vis a vis the Exhibits tendered and admitted before it particularly Exhibits C1-20 series. (Grounds three, five and six of the Notice of Appeal)”.
Learned counsel posits that the Appellant tendered the samples of the signatures of CW2 and CW4 as Exhibits A and B respectively under cross-examination. He submits that the two documents support the case of the Respondents and no more. On the Exhibits Cl-20 series tendered there is nothing to show that the pictures were taken on the land in dispute by the Appellant or any other person. He posits that the pictures do not qualify as title documents. He further submits that the Appellant tendered a purported English and Yoruba versions of acclaimed letter of a plots dated 30th day of January 1991 as Exhibits ‘D’ and ‘E’. But under cross-examination DW4 admitted thus:
“Exhibits D and E do not indicate or contain the name of the land in dispute Mrs. Omoboja Oluyede who testified as CW4 strongly denied making Exhibits D & E and same were fabricated by the Appellant. We are urged to discountenance Exhibits D & E accordingly and resolve issue three in favour of the Respondents”.
ON ISSUE FOUR (4) — Whether the decision (sic) was not against the weight of evidence, thereby occasioning a miscarriage of justice (Ground seven of the notice of Appeal).
Learned in arguing this issue adopted his arguments and submissions in respect of issue one, two and three above. He posits that a trial Court or Judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon placing reliance in the case of ADELEKE VS. IYANDA (2001) 13 NWLR (PT 729) 1 at PAGES 20 PARA B-D: MOGAJI VS. RALIATU ODOFIN (1978) 4 SC 91, 93-95. He posits that the trial Court/Judge properly evaluated and appraised the entire evidence adduced by the parties. There was no infringement to the right of fair hearing of any of the parties. We are urged to resolve issue four in favour of the Respondents, He urges us to dismiss this appeal and affirm the judgment of the lower Court delivered on 26/6/2020.

APPELLANT’S REPLY BRIEF
The Appellant’s counsel filed a reply brief to the Respondents Brief of Argument and I wish to state that the aim of a reply brief is to respond in a concise form to new points of law raised by the Respondent(s) and not a re-argument of the appeal. A reply brief is limited to finding answers to the questions raised in the Respondent’s brief, which the Appellant has not addressed or dealt with in the main brief.
It is not the forum for the Appellant to strengthen his main brief by repeating or expanding the arguments contained therein. In the instant appeal, there was nothing new in the Respondents’ brief that necessitated the manner of reply from the Appellant’s learned counsel. The reply brief was nothing more than a repeat of the Appellant’s argument in his brief of argument This cannot be allowed in law. I therefore discountenance all the arguments in violation of the above principle. See STATOIL (NIG) LTD. VS. INDUCON (NIG) LTD (2018) 9 NWLR (PT 1625) 586.

In the light of the above, this appeal would be considered based on the Appellant’s Brief of Argument and Respondents’ Brief of Argument only.

RESOLUTIONS OF THE ISSUES DECODED AND ADOPTED SERIATIM BY COUNSEL TO THE PARTIES
ON ISSUE ONE — Appellant’s counsel made a copious submission on the breach of Appellant’s right to fair hearing and fair trial as encapsulated in our grundnarm the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 36(1) thereof and Section 294(1). He posited that the Appellant was shut out in the proceedings of the Lower Court on certain occasions and even his counsel appearing for him as Hearing Notices were not issued and no affidavit of service even in the Court’s file. He called in and numerous judicial authorities in support of this assertion, In response to this. Respondents counsel posited that the Appellant was accorded and afforded fair hearing and fair trial but chose not to utilize same. He also calls in aid several decisions of this Court and the Apex Court to buttress his submission.
The term fair hearing is also fair trial which implies that every reasonable and fair minded observer who watches the proceeding should be able to come to the conclusion that the Court or other Tribunal has been fair to all the parties concerned.’ See MOHAMMED VS. KANO.

The rule of fair hearing is not a technical doctrine. It is one of substance. It is whether a party is entitled to be heard before a decision is taken.

Learned counsel for the Appellant insinuated the cry of lack of fair hearing and fair trial in view of the fact that judgment went against him. I have to agree with the argument of learned counsel to the Respondents that in general, the entire trial was fair in that equal opportunity was given to both sides to present their case. The Appellant called four witnesses DW1-DW4 whilst the Respondents called four witnesses, CW1-CW4. All the witnesses of both parties adopted their respective written statements on oath and opposing counsel were allowed by the lower Court to cross-examine the witnesses of the other party. Documentary Exhibits were also tendered and admitted in evidence. In PAM VS. MOHAMMED (2008) 16 NWLR (PT 1112) PG 1 at PG 48, the Supreme Court held as follows:
“The question of fair hearing is not just an issue of dogma whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant is the necessity to afford the parties equal opportunity to put their case to the Court before the Court gives its Judgment…….”.
The main complaint in this issue by the Appellant is that the lower Court sat in his absence and his counsel. Also, he was deprived of filing his final written address as required by Section 294(1) of the 1999 Constitution (as amended). Respondents’ counsel holds a contrary opinion that the Appellant was accorded and afforded fair hearing but chose not to utilize it.
I have paid an unexpected visit to the residence of the printed Record of Appeal as well as the Additional Record of Appeal. I find and hold that hearing notices were issued and served on the Appellant’s counsel as there was proof of Affidavits of Service on the Appellant’s counsel. It is also in the Record of Proceedings of the learned lower Court Judge that the Appellant’s counsel was served with hearing notices and also the order made by the lower Court to the respective counsel to the parties to file their final written addresses. In the light of the above, I discountenance the argument of learned counsel for the Appellant and resolve issue one against him and in favour of the Respondents.

RESOLUTION OF ISSUE TWO
I have considered the canvassed arguments rendered by the line of divide in respect of this issue. It must be pointed out that both the Appellant and Respondents have pegged their roots of title on traditional evidence and act of long possession that is in the main claim/counter-claim. It is trite law that five methods or ways to prove ownership of land have been laid down in IDUNDUN VS. OKUMAGBA (1976) 9-10 (SUPRA) thus:
1. By traditional evidence.
2. By production of document of title duly authenticated and executed.
3. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
4. By acts of long possession and enjoyment.
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected land would in addition be the owner of the land in dispute.
Suffices to state that all the five methods do not have to be present before proof of the said ownership can be said to have been established as only one of the methods above stated is sufficient and this the Plaintiff must prove by cogent, satisfactory and conclusive evidence.

From the avalanche of the Evidence adduced before the lower Court it is beyond equivocation that the Respondents/Claimants were consistent in stating their case and consistent in proving same. Having proved their case the lower Court was on a sound footing to have found for them in their main claim against the Appellant.

On the other side, the Appellant who also relied on traditional evidence/history had the same burden of proof to establish his claim as he was in the Court not only to defend the Respondents’ suit but also to prove his counter-claim being a separate and distinct claim. I have given due consideration to the state of pleadings as well as the evidence led thereto and I am of the view that the Appellant was not consistent in stating his case and consistent in proving it. He will not be allowed to take one stance in his pleadings, then turn somersaulted during trial. I find and hold that the learned lower Court Judge was presently correct to have dismissed the Appellant’s counter-claim as his traditional evidence was disjointed. Issue two stands resolved against the Appellant and in favour of the Respondents.

ON ISSUE THREE
I have dutifully considered the legal arguments canvassed by the respective learned counsel to the parties in this appeal. I have also taken a hard but a calm look at the state of pleadings filed by the parties as well as Exhibits C1-20 series.

Appellant’s major complaint is that the lower Court did not consider them to give them probative value. This learned counsel to the Respondents debunked this. I have resorted to the printed Record of Appeal as well as the Exhibits referred to by the Appellant and I am on one with the Respondents counsel that the lower Court did consider the state of pleadings as well as the evidence led thereto both orally and documentary and found out that the case of the Appellant was irredeemably bad. Moreso, Exhibits C1-20 series were found not to have any probative value in the eyes of the law. Without much ado, this issue stands resolved against the Appellant and in favour of the Respondents.

ISSUE FOUR: I have considered the respective arguments canvassed by the contending learned counsel to the parties herein in respect of this issue. I have also examined the judgment of the lower Court. I am of the view that the evaluation and assessment of evidence in a case and the ascription of probative value of such evidence are the primary functions of the lower Court that saw, heard and assessed the witnesses. It is also the business of the lower Court to put evidence with probative value as adduced by both parties on an imaginary scale to ascertain who has an upper hand. See the cases of MOGAJI VS. ODOFIN (1978) 4 SC 91: BELLO VS. EWEKA (1981) 1 SC 101: ABUBAKAR VS. JOSEPH (2008) 13 NWLR (PT 1104) PG 307. I find and hold that the lower Court from the printed Record of Appeal considered the case of both parties by resorting to the totality of the entire case on all issues in controversy.

I cannot fault the learned lower Court Judge on this issue. Issue four is accordingly resolved against the Appellant and in favour of the Respondents.

Having resolved all the four issues decoded for the determination of this appeal, the destiny of this appeal is more than clear. The appeal is devoid of merit and it is hereby dismissed. I affirm the judgment of A.A Adeleye (J) in Suit No. HCR/26/2008 delivered on the 26th day of June, 2020. I endorse all the orders made therein with N100,000 costs awarded to the Respondents against the Appellant.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading before now, the draft of the judgment just delivered by my learned brother ABDUL-AZEEZ WAZIRI JCA.

I fully agree with the sound exquisite reasons given in the lead judgment. I have nothing more to add.

I agree that the appeal lacks merit and should be dismissed. I abide by the consequential orders.