CHIEF EKPENYONG EKPO ESSIEN & ANOR V. ETUBOM INYANG EKENG EFFANGA & ORS (2012)

CHIEF EKPENYONG EKPO ESSIEN & ANOR V. ETUBOM INYANG EKENG EFFANGA & ORS

(2012)LCN/5798(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 3rd day of April, 2012

CA/C/77/2007

RATIO

WORDS AND PHRASES: MEANING OF A SETTLER
The learned authors of Black’s Law Dictionary, 8th edition page 1405 defines “Settler” as “1. A person who occupies property with the intent to establish a residence. The term is usually applied to an early resident of a country or region.” 2. SETTLOR.” PER JOSEPH TINE TUR, J.C.A
LAND LAW: WHEN WILL A DECLARATION OF TITLE BE MADE BY THE COURT
A declaration of title will only be made when the court is fully assured first as to the precise nature of the title in respect of which a declaration is sought and secondly that there is evidence by which the court is satisfied that a title of the nature claimed has been established. PER JOSEPH TINE TUR, J.C.A
WORDS AND PHRASES: MEANING OF TITULAR OWNER
The West-African Court of Appeal thus held that the phrase “titular owner” or “titular ownership” is a vague expression which may mean no more than nominal ownership but not “absolute ownership” as distinguished from “original ownership.” PER JOSEPH TINE TUR, J.C.A
APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS EVALUATION OF EVIDENCE AND ASCRIBING PROBATIVE VALUE TO IT
It is thus the law that the duty of appraising evidence and ascribing probative value thereto is preeminently that of the trial court that saw and heard the witnesses. The appellate court will therefore not reverse a finding of a trial court unless such finding is not founded upon any evidence or runs counter to the evidence accepted by the trial court. See Ajiboye V. Ishola (2006) All FWLR (Pt. 331) 1209; Okonkwo V. Okonkwo (2010) 14 NWLR (Pt. 1213) 228. PER ISAIAH OLUFEMI AKEJU, J.C.A

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI ATEJU Justice of The Court of Appeal of Nigeria

Between

1. CHIEF EKPENYONG EKPO ESSIEN
2. ITA OKON OQUA Appellant(s)

AND

1. ETUBOM INYANG EKENG EFFANGA
2. ELD. CHIEF INYANG G.D. HENSHAW
3. CHIEF FRANCIS EFFANGA ARCHIBONG
4. CHIEF IGNATIUS EFFANGA ARCHIBONG
5. CHIEF B. E. BASSEY
(for themselves and as representing Effanga Offiong Family) Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A (Delivering the Leading Judgment): This appeal is against the decision of the Cross River State High Court delivered on the 31/3/06 in Suit No. HCA/4/2001 filed by the Respondents herein against the Appellants. The claims by the respondents were as follows:
i. An order of perpetual injunction restraining the defendants from selling, leasing or dealing in any way whatsoever with “the landed properties of Edik Idim Ikot Effanga village in Akpabuyo being the vested property of Effanga Offiong House in Calabar”.
ii. An order that the defendants render “an account of all monies and proceeds” that have come to into their hands from the landed properties of Edik Idim ‘being properties of Effanga Offiong House, Calabar’.
iii. An order compelling the defendants ‘to release all the documents, registers of all transactions pertaining to the landed properties’ and refund all ‘money misappropriated therein’ to the plaintiffs.
iv. N1 million as damages against the defendants ‘for selling, leasing, intermeddling or dealing with’ the land in dispute.
At the end of the trial, the High Court entered judgment in favour of the Respondents granting the following orders:-
“1. The defendants are hereby perpetually restrained by injunction from selling, leasing, apportioning, allotting or dealing in any way howsoever either by themselves workmen or agents with the landed properties of Edik Idim Ikor Efanga village in Akpabuyo being the vested property of and under the overlordship of Efanga Offiong House in Calabar.
2. For the defendants either by themselves or through their agents to render accounts of all monies and proceeds in respect of the said Edik Idim village, Ikot Efanga and to pay over to the Plaintiffs of the amount due.
3. This Court now awards nominal damages of N50, 000.00 against the Defendants for intermeddling with the Plaintiffs property.”
Not satisfied with the decision, the appellants caused the notice of this appeal to be filed on the 8/5/06 containing five grounds.
In the brief of arguments filed by the learned counsel for the appellants on the 10/07/2007, a lone issue was distilled from the grounds of appeal and submitted for decision by the court. The issue which is at page 2 of the Appellants’ brief is thus-
“Whether the plaintiffs in this case have established their title to the landed properties of Edik Idim Ikot Effanga village so as to justify the orders of injunction, account and damages made in their favour against the defendants by the trial court.”
From the record of the court in the file of the appeal, though the Respondent so were duly served with the Appellants brief of argument through their Counsel, no brief of argument was filed for them in the appeal. Following an application filed on 16/9/05 by the learned counsel for the Appellants, the court granted an order for the appeal to be heard on the appellants’ brief alone on the 17/11/2011 since the Respondents had not filed a brief of argument for consideration in the appeal.
On the 30/1/2012 when the appeal came up for oral hearing in court, there was a report of service of the Hearing Notice of the appeal by the Bailiff of court on the counsel for the Respondents at A. B. COBHAM & ASSOCIATES, 35
Bassey Duke Street, Calabar. The respondents were not represented by counsel at the hearing and no brief of argument was filed for them.
Consequently, Mr. Eke Edem, Esq., learned counsel who appeared for the appellants adopted the Appellants’ brief as the submissions in support of the appeal and urged us to allow the appeal and set aside the decision of the High Court.
Although the Respondents did not file a brief of argument to answer and respond to the issue canvassed by the appellants in the Appellants’ brief and so deemed to have conceded to the points raised therein, that does not automatically translate into the success of the appeal. The duty of the court in such a situation is to consider the arguments put forward by the appellants in support of the appeal and then determine if the appeal is sustainable in law. In doing so however, the fact that the appeal is uncontested and there are no submissions to be placed on one of the two sides of the scale of justice, cannot be completely ignored. SALAU V. PARA-KOYI (2001) 13 NWLR (731) 602; ONYEJEKWE V. NIG. POLICE COUNCIL (1996) 7 NWLR (403) 704; UGBOAJA V. SOWEMIMO (2008) 10 MISC 105.
Now to the submissions by the learned counsel for the appellants on the issue formulated for determination in the appeal. It was submitted that from the claims by the Respondents in the suit at the High Court, it is clear that the title to the land in dispute was the main issue in contention between the parties. Since the law is trite that whenever a claim for trespass is coupled with a claim for perpetual injunction, title is automatically put into issue. The case of MORENIKEJI V. ADEGBOSIN (2003) FWLR (163) 45 was cited on the position. Learned counsel then said for the Respondent to be entitled to the claims they had to prove a better title than that of the Appellants in any one of the five recognized ways of proving title to land set out in the case of ALLI V. ALESINLOYE (2000) FWLR (15) 2010. According to him, the Respondents, from their pleadings and evidence at the trial had adopted proof by traditional evidence and acts of ownership to prove their title to the land in dispute. On traditional evidence, it was submitted that there are three (3) essential elements which a party relying on traditional history must establish in his pleadings and evidence. These are (i) who founded the land, (ii) how the land was founded, and (iii) the names of all the intervening owners or trustees from the original founder down to the present claimant: ACHIAKPA V. NDUKA (2001) FWLR (71) 1804 was referred as authority for the submission. It was argued that all that the Respondents said in respect of the above elements is to be found in paragraph 7 of the statement of claim in line with which their sole witness testified without more. Further, that in both pleadings and evidence, the Respondents had failed to state any of the essential elements of the traditional history of the land. On the other hand, it was contended that the Appellants traditional history evidence has contained the elements through DW2, who named the founder of the land, DW1 who testified as to the devolution of the land from the founder of the land to present day. It was the further argument of counsel that an evaluation of the Respondents’ traditional history evidence was even not necessary in the case because the Respondents were to succeed on the strength of their case and not as the weakness of the Appellants’ defence. He said the High Court therefore erred when it applied the principle laid down in KOJO II V. BONSIE (57) 1 NWLR, 1223 by testing the appellants’ evidence against contemporary events because the principle only applies where both parties have adduced to equally credible versions of traditional history evidence in support of their claims. In further argument, he said since the Respondents’ traditional history evidence lacked the basic ingredients for credibility then there was no need for the resort to the principle, relying on the case of EZE V. ATASHIE (2000) 79 LRCN, 19-980 which is said to be on all fours with the case before the High Court. It was also submitted that the traditional history evidence by the Appellants stood unrefuted and the High Court was wrong to disbelieve it.
On the acts of ownership said to have been adopted by the Respondents, it was contended that they had thereby acknowledged that they did not in fact know the history of the land in dispute on the authority of BALOGUN V. AKANJI (2005) ALL FWLR (262) 405. Furthermore, that the acts of ownership capable of proving title to land must be taken by the Respondents openly to the knowledge of the Appellants without their consent and resistance or objection, citing ACHIAKPA V. NDUKA (supra) at p. 1826. Learned counsel then considered the acts of ownerships taken by the respondents such as leasing e portion of the land to one David Ekanem, vide Exhibit I which was said not to be authentic, the right install, reject or approve headship in Edik Idem, which was said not to have been substantiated, that appellants were agents to respondents proof of which was a single hand written document dated 30/9/1993 denied by the 1st Appellant and the alleged custom of respondents’ consent for any burial and payment of tribute vide Exh. 2 which was said not to have been proved as required by authority of OYEDIRAN V. ALEBIOSU II (1992) 7 SCNJ 187 and ADEOGUN V. EKUNIRIN (2003) FWLR (170) 1326.
In addition, it was contention of counsel that the acts of ownership relied on by the Respondents were not numerous and over a period of time long enough to compel an inference of title, Once more the case of ACHIAKPA V. NDUKA (supra) was cited along with ENANG V. EFFERE (2007) FWLR (345) 346 as authorities for the submission. Restless
On the whole, it was the submission of learned counsel for the Appellants that from the totality of the evidence before the High Court, the Respondents did not establish or prove better title to the land in dispute and so were not entitled to the reliefs granted by that court. We were urged to allow the appeal and set aside the decision of the High Court once again.
By way of restating the law, it is now common knowledge that a party claiming title to any piece of land before the court may prove such title in any of the following five ways:-
a) By traditional evidence – See EZEAKABEKWE V. EMENIKE (1998) 62 LRCN, 4855; EZENWA V. AGU (2004) 3 NWLR (361) 431 at 456.
b) By documents of title – See NNABUIFE V. NWIGWU (2001) 9 NWLR 710 at 723 – 4.
c) By various acts of ownership, numerous and positive and extending over a length of time so as to warrant the interference of ownership – See ACHIAKA V. NDUKA (supra) EBEVUCHE V. UKPAKARA (1996) 7 NWLR (460) 254 at 277.
d) By acts of long enjoyment and possession of the land. See section 143 of the Evidence Act 2011 (as amended); AGBARA V. AMARA (1995) 7 NWLR (410) 712 at 734.
e) By proof of possession of adjacent land in circumstances which render it provable that the owner of such adjacent land would in addition be the owner of the land in dispute. See AGU V. NNADI (1999) 2 NWLR (589) 131 at 146; MOGAJI V. CADBURY (1985) 2 NWLR (7) 393 at 431.
Generally, see ATANDA V. AJANI (1989) 3 NWLR (111) 511; ADENIRAN V. ALAO (1992) 2 NWLR (223) 350; NDUKWE V. ACHA (1998) 6 NWLR (552) 25; OKAFOR V. IDIGO (1984) 1 SCNLR 481. As stated earlier, a party is only required to prove any one of the five ways in order to be entitled to the claim for title in respect of a disputed land- FASORO V. BEYIOKU (1988) 2 NWLR (76) 263; MOGAJI V. CADBURY (supra).
From the statement of claim filed by the Respondents which is at pages 39 – 41 of the record of appeal, particularly paragraphs 1, 7, 8 and 14 thereof, the claim they made in the suit against the Appellants clearly involved and put the title of the disputed land in issue in the pleadings. The averments in paragraphs 1, 7 and 8 of the statement of claim on ownership and overlordship of the land and the call for accounts and injunction in paragraph 14 together bring or raise the issue of title of the Respondents to the land in dispute even though not coupled or joined with a claim in trespass.
However were the averments of the Respondents in the statement claim and their ownership and overlordship of the land in dispute effectively traversed or challenged by the Appellants averments on the statement of defence as to require put of by the respondents? The law is settled that until averments in a plaintiffs pleadings are effectively traversed in their essential materials by the pleadings in a defendants statement of defence, no issue would be joined by the parties that would call for proof, Proof presupposes disputed facts contained in the parties’ pleading which require to be established by evidence in order to ground a claim made by a party. Consequently where material facts in averments of a party are not specifically and effectively traversed or challenged by the other party, by the rules of pleadings, no issue would have been joined by the parties on such facts and so the need for proof would not arise. A cardinal principle in the rules of pleadings is that in order to raise an issue of fact that would require proof there must be a proper traverse in defendant’s pleadings. A defendant who does not admit an averment of fact in plaintiff’s pleadings must expressly state and set out facts which support a general denial in order to effectively traverse such pleadings and thereby join issues of fact that would make proof necessary. He does not satisfactorily do so by a general denial and saying that he will at the trial, put the plaintiff to the strictest proof thereof. In the case of YEKINI V. SUNMONU (19S7) 2 NWLR 587 at 592, the Supreme Court has held that:-
“A denial in a statement of defence that “the defendants deny paragraphs …. of the statement of claim and put the plaintiffs to the strictest proof thereof “amounts to insufficient denial or insufficient traverse to put the matter thus denied in issue.”
Similarly, the apex court had emphasised that a half hearted or weak denial of specific facts contained in pleadings of a party would be regarded as insufficient and ineffective traverse of such facts capable of joining issue that calls for proof. See ADEMORA V. AJUFO (1988) 3 NWLR (80) 1; NIG. GENERAL INSURANCE V. EMOH (1990) 3 NWLR (138) 314; OSAFILE V. OBI (1994) 2 SCNJ 1.
At this stage, it is expedient to set out the relevant averments of the Respondents on the claim for ownership of the land in dispute. The paragraphs are 1, 5, 7, and 8 of the statement of claim which are as follows:
1. The 1st plaintiff is the Etubom of Etinyin Effanga Offiong House which is the titular owners of all lands and landed properties in Akwa Ikot Effanga, Ikpri Ikot Effanga, and Edik Idim Ikot Effanga which is the village wherein the defendants are exploiting and dealing recklessly. The 1st plaintiff is the highest title holder and head of all the villages under Etinyin Effanga Offiong House.
5. The 1st and 2nd Defendants are settlers in Edik Idim village and time immemorial from Essien Abasi Stock of Okobo and Idua Oron in the present Oron Local Government Area of Akwa Ibom State and have no heritage at all in Effanga Offiong House.
7. Also from time immemorial Edik Idim Ikot Effanga is the exclusive property of Etinyin Effanga Offiong House which is under the dominion and authority of the 1st plaintiff, Etubom Inyang Ekeng Effanga and now passed unto 2nd plaintiff as the acting Etubom.
8. The Effanga Offiong House as titular owners of the land from on set safeguard and exercises all proprietory rights over their lands and all other landed properties therein without any hindrance whatsoever; which is therefore obligatory that tenants in Edik Idim Ikot Effanga pay traditional tributes, rents from farm, lands and oil palms to the plaintiffs through the village head and secretary. The 4th plaintiff’s late father Etubom Archibong even leased part of the village land to one David Ekanem in 1976. The agreement shall be relied on during trial.
By virtue of Effanga Offiong ownership and dominion, the plaintiffs exercises the right to approve, install or reject the headship of the Edik Idim village as the 1st defendant’s headship was rejected due to unilateral sales of village lands and palm bushes to stranger elements without appropriate account of the Proceeds to the plaintiffs house.
The Appellant so statement of defence at pages 45 -6 of the record of appeal in the following terms:
STATEMENT OF DEFENCE
1. Save as hereinafter expressly admitted the Defendants deny each and every allegation of fact contained in the Statement of Claim as though same were herein set out and traversed seriatim.
2. Paragraphs 1 and 2 of the Plaintiffs’ Statement of Claim are contradictory, false and thus denied.
3. Paragraph 3 of the Statement of Claim is true only to the extent that the 3rd and 5th plaintiffs are retired civil servants that they are principal members of Effanga Offiong House is entirely within the knowledge of the plaintiffs.
4. Paragraph 4 of the Statement of Claim is only true to the extent that the 4th Plaintiff is both a retired civil servant and formerly a Customary Court president, the rest of the averment is false as he was never at anytime selected/elected to the post of the Village Head of Edik Idim Village, Akpabuyo as required by both law and custom.
5. Paragraphs 5, 6, 7, 8, 8(b), 9, 10 of the Statement of Claim are false and are vehemently denied; the plaintiffs shall be put to the strictest proof thereof. The 1st Defendant, though, admits of the existence of the letter referred to in paragraph 10.
6. In further answer to paragraph 10(b) of the Statement of Claim, the Defendants rightly assert all the documents referred to were legitimately issued by the Defendants as they were exercising proper authority over land properly belonging to them and within their jurisdiction.
7. In answer to paragraphs 11 and 12 of the Statement of Claim, the 2nd Defendant admits the existence of the said Solicitor’s letter but denies defrauding the community as well as alleged by the plaintiffs. The plaintiffs shall be put to the strictest proof thereof during the trial.
8. The Defendants are rightly resisting this claim brought by the plaintiffs because Edik Idim Village, Akpabuyo is an autonomous and independent entity duly recognized by the relevant law (Traditional Rulers’ Edict 1978) and the Defendants are permanently resident there and the defendants happen to be the elders in the said village and custodians of its customs and traditions. The Plaintiffs, apart from not being instrumental to its development, have never resided in the said village neither have they ever visited the village to actually assess the state of affairs therein.
9. It has always been the erroneous opinion of the Plaintiffs that residents of Edik Idim Village, Akpabuyo Local Government Area are sub-humans, slaves and their affairs ought to be managed from Calabar. The plaintiffs expect undemocratic and unquestioning obedience to their authority hence this misguided lawsuit.
10. Apart from admitting that Edik Idim village is large and fertile, the defendants contend that paragraphs 13 and 14 of the Statement of Claim are false, misleading, and abuse of court’s process, frivolous and the defendants shall urge the Honourable Court to dismiss the suit on the following ground:
1. The plaintiffs have not disclosed a reasonable cause of action neither do they have the locus standi to initiate the present action.
I set out the statement of defence in full for a complete appreciation of the averments of the Appellants’ in the case.
As can clearly be seen from the above pleadings by the Appellants, the averments in paragraphs 1, 5, 7 and 8 of the Respondents’ statement of claim were nor specifically but half heartedly, casually and generally denied by the Appellants by merely saying that they are false, denied and that respondents shall be put to the strictest proof thereof. This manner or way of denial by a defendant of specific facts in a plaintiff’s statement of claim is what the Supreme Court in the authorities cited above said is/are regarded as insufficient and ineffective traverse to raise an issue that would require proof. As a result, the Appellants did not in law properly and effectively challenge the claim of ownership and therefore title to the land in dispute by the Respondents to impose a duty of proof on them.
In the circumstances, the Respondents owed no legal duty of proof of title to the land in any of the judicially established and recognised ways of proving such title since their claim was not traversed by the Appellants. Because the Respondents did not seek for declaration of the title to the land, they were entitled to judgment even without the need to call evidence in proof of the claims they made against the Appellants in the suit.
The above apart, the learned counsel for the Appellants had conceded at least in line, that the sole witness called by the Respondents at the trial had testified in line with the averments contained in their pleadings. In particular, the evidence of PW1 was in line and support of the averments in paragraphs 1, 5, 7 and 8 of the Respondents statement of claim on their ownership of the in dispute. This evidence was not discredited under cross-examination by the learned counsel for the Appellants and it was sufficient on the balance of probability to entitle the Respondents to judgment on the claims they made. The Appellants did not in their pleadings make averments of facts claiming to be owners or title holders of the land in dispute and so whatever evidence, traditional or otherwise they purported to give to prove title to the land was of no moment as it goes no issue in the case.
The law is known that a piece of evidence that is not based or supported by the pleadings or pleadings not supported by evidence, would go to no issue deemed abandoned, as the case may be. See ADIMORA V. AJURO (supra) also reported in (1988) 6 SCNJ 18; BAMGBOYE V. OLANREWAJU (1991) 3 LRCN 897 at 913; ANYEBE V. ADESIYIN (1997) 5 NWLR (505) 403 at 423: OKEKE V. AONDOAKAA (2000) 9 NWLR (673) 501 at 525 – 6.
In the above circumstances, the Respondents had proved the claims they made against the Appellants by the evidence of DW1 and the High Court was right to have entered judgment in their favor.
In the final result, I find no merit in the submissions of the Appellants on the sole issue raised by them for determination in the appeal. I resolve the issue against the Appellants and dismiss the grounds from which it was distilled. The appeal is dismissed for want of merit. I make no order on costs.

JOSEPH TINE TUR, J.C.A: I read in advance the judgment delivered by my Lord Mohammed Lawal Garba, JCA but I dissent as to the order made by my Lord hence I shall put down my thoughts as to why I have dissented.
The Respondents were the claimants before the High Court of Justice, Calabar, Cross River State of Nigeria in Suit No. HCA/4/2001 they instituted against the Appellants/defendants. The writ of Summons was taken out on 11-06-1999. Paragraphs 1-13 of the Statement of claim filed with leave of Court reads as follows:
“1. The 1st Plaintiff is the Etubom of Etinyin Efanga Offiong House which is the titular owners of all lands and landed properties in Akwa Ikot Effanga, Ipri Ikot Effanga, and Edik Idim Ikot Effanga which is the village wherein the Defendants are exploiting and dealing recklessly. The 1st plaintiff is the highest title holder and head of all the villages under Etinyin Effanga Offiong House.
5. The 1st and 2nd Defendants are settlers in Edik Idim village and time immemorial from Essien Abasi Stock of Okobo and Idua Oron in the present Oron Local Government Area of Akwa – Ibom State and have no heritage at all in Effanga Offiong House.
6. The plaintiff aver that due to the 1st and 2nd Defendants long settlement in Edik Idim and their active participation in running the affairs of the village, both were once secretaries of Edik Idim Ikot Effanga village without more and by virtue of their position were singularly in charge of collecting all accrued rents, contributions, tolls, and monies collected from sales of communal palm fruits, etc, und passed such to the Effanga Offiong House Council.
7. Also from time immemorial Edik Idim Ikot Effanga is the exclusive property of Etinyin Effanga Offiong House which is under the dominion and authority of the 1st plaintiff, Etubom Inyang Ekeng Effanga and now passed unto 2nd plaintiff as the acting Etubom.
8. The Effanga Offiong House as titular owners of the land from on set safeguard and exercises all proprietory rights over their lands and all other landed properties therein without any hindrance whatsoever; which it therefore obligatory that tenants in Edik Idim Ikot Effanga pay traditional tributes, rents from form lands and oil palms to the plaintiffs through the village head and secretary. The 4th plaintiff’s late father Etubom Archibong even leased part of the village land to one David Ekanem in 1976. The agreement shall be relied on during trial.
b) By virtue of Effanga Offiong ownership and dominion, the plaintiffs exercises the right to approve, install or reject the headship of the Edik Idim village as the 1st defendant’s headship was rejected due to unilateral sales of village lands and palm bushes to stranger elements without appropriate account of the proceeds to the plaintiffs house.
9. The Effanga Offiong family to farther demonstrate its over and exclusive ownership of Edik Idim Ikot Effanga would not permit any burial in that village without its consent and adequate traditional tributes being paid. The 1st plaintiff had written a letter dated 29-08-1997 to one it Defendant’s cohorts to desist from burying his wife without traditional tributes to plaintiffs, which shall be relied upon at trial.
10. The plaintiffs shall over that the 1st and 2nd defendants used their positions in the village to indiscriminately intermeddle with the village landed properties, thus collecting moneys from sales of palm bushes, lands from strangers without returns or accounting to the Effanga Offiong House. The 1st defendant had once reported these dubious transactions by the 2nd defendant through unwanted sales of village lands to the Etinyin Offiong House Council. The said report of 30-09-1993 shall be relied upon during trial.
b) The plaintiffs shall during trial also rely on all lease agreements and other transactions entered with various tenants by the 1st and 2nd defendants which include:
i) Authority paper given by the y defendant on 03-02-1998 to one Madam Atim Nsa to collect rents from non-indigenes trading in Edik Idim beach for which returns have not been accounted to the house till date.
ii) Agreement dated 20-05-1993 leasing portions of Edik Idim land to one Mrs. Esther Willie Akpan.
iii) Cash receipt of payment of one Madam Eneanwan Nsa as levy by the 1st defendant.
iv) Natural resources lease agreement made on 18-01-1993 with one Elder Peter O. Ntong which the 2nd defendant received as secretary of the village.
v) And other leases sales of lands, palm bushes for which plaintiff shall rely on during trial.
12. The accrued money meant for community developments and payment of legal services was misappropriated by the 1st defendant consequent of which the 1st defendant was suspended secretary of the village Council and mandated to prepare and submit to the house all account of the community’s fund including the documents, receipts, the village registers for which defendants have failed or refused to give account of all the necessary documents in their possession and to render account or illegal sales of all eh communal palm fruits and sales of land and have vowed openly that they would not render account of same. Plaintiffs shall during trial rely on a letter written to 1st defendant dated 20-02-1997 to submit accounts of community’s fund.
13. The plaintiffs further aver that Edik Idim village is a large and fertile area with wild palm crops, and extensive land which plaintiffs depends on for village development and if 1st and 2nd defendants and all other cohorts, privies are not perpetually restrained they would eventually succeed in exploiting the area and destroy the relevant record of accounts books with them.
14(i) The plaintiff therefore claims perpetual injunction restraining the 1st and 2nd defendants from selling, leasing, apportioning, allotting or dealing in any way however either by themselves, their agents, privies, servants, or workmen with the landed properties of Edik Idim Ikot Effanga village in Akpabuyo being the vested property and under the over lordship of Effanga Offiong House in Calabar.
ii. For the defendant either themselves, agents, privies, servants to render an account of all monies and proceeds which has come to the hands of the defendants in respect of the landed properties in Edik Idim Ikot Effanga in Akpabuyo being properties of Effanga Offiong House, Calabar.
iii. An order of this court mandating the 1st and 2nd defendants to release all the documents registers, in respect of the sales, lease of all transaction pertaining to the landed properties in Edik Idim village and money misappropriated therein refunded to the house.
iv. N1, 000,000.00 (one million Naira) only damages for selling, leasing intermeddling or dealing with the Etinyin Effanga Offiong House property.”
From the statement of claim the following facts emerged; the 1st claimant is laying claim to the lands in dispute on the grounds he is the Etubom of Etinyin Effanga Offiong House; that the Effanga Offiong House are the “titular owners” of all lands and landed properties in Akwa Ikot Effanga, Ikpri Ikot Effanga and Edik Idim Ikot Effanga which are villages the 1st and 2nd defendants have by long settlement occupied and have been participating in running her affairs in diverse manner. The plaintiffs have conceded that the 1st and 2nd defendants have lived on the land in dispute for a long period of time, namely, from time immemorial though as settlers.
The learned authors of Black’s Law Dictionary, 8th edition page 1405 defines “Settler” as “1. A person who occupies property with the intent to establish a residence. The term is usually applied to an early resident of a country or region.” 2. SETTLOR.”

The Respondents have by their pleadings conceded early residency to the appellants arising from settlement. In Chief Kehinde Onadehin & Ors V. J.S. Sonuga & Anor (1974) 1 All NLR (Pt.2) 452 the plaintiffs and defendants founded their respective action on first settlement. The Supreme Court defined the meaning and purport of settlement at page 461-462 as follows:
“…it is clear that the issue of settlement, which is nothing more than actual physical occupation of the land by the plaintiffs, was thoroughly dealt with by the learned trial judge.
…After all, the traditional history given in support of the title of a family to its land usually traces the title to an individual founder who first acquired the land. This acquisition might be by settlement which, in that con, is no more than a permanent occupation of the land by the founder and the clearing of part of it for his own use and, if he has a family, for the use of his family as well Consequently, when the plaintiffs averred in their statement of claim that their ancestor, Ogbodo “had settled on and farmed the land for many years before his death” and that “the family have been in possession of the whole land since it was settled upon by their said ancestor”, all they meant was that the Ogbodo family had been in continuous possession of the land since it was occupied by their ancestor Ogbodo. Therefore, any finding as to the plaintiff’s possession of the land in dispute would, in these circumstances, obviously include a finding as to the settlement.”
The effect of pleading that the 1st and 2nd defendants have settled on the land in dispute for long is that the claimant have conceded actual physical occupation of the land in dispute in favour of the Respondents define to a long period of time. To oust the defendants from the land the claimants had to trace their title to an individual founder or ancestor and further plead how the land became situate in a village before the defendants became settlers on the land. In Piaro V. Tenalo (1976) 1 FNLR 229 the dispute involved land in the village. The Supreme Court held at page 234 that:
“We find however in the pleadings and the evidence a total absence of facts about (1) the founding of Bomu village in general and Kporo, the land in dispute, in particular; (2) the persons who founded the land and exercised original acts of ownership, and (3) the persons who have held title of on whom title has developed in respect of the land since the founding before the 1st plaintiff/respondent acquired control of the land on behalf of the community.
All these facts which are necessary for the proper determination of the issue raised are not provided by the sweeping assertion that “the land is communal land of Bomu people.” This leaves the traditional evidence in the air and it is fatal to plaintiffs claim. See F.M. Alade V. Lawrence Awo (1975) 4 SC 215 at 229. The demeanour of witnesses giving traditional evidence is no test of the truth or falsity of the evidence.
That statement that the land is the communal land of Bomu people can only be a conclusion or finding by the Court after proper assessment and evaluation or appraisal of the evidence adduced before it The proper approach is to consider the activities of the parties in the exercise of their right and decide whether it accords with the evidence of traditional history (Adenle V. Oyegbade (1967) NMLR 136 at 138).”
See also Osafile V. Odi (1994) 2 SCNJ 1 at 15; Kalio V. Woluchem (1985) 1 NWLR (pt.4) 572 at 628.
Nowhere did the plaintiffs plead the names of their original ancestor who founded the lands in dispute and how the land devolved till the Etiniyin Effanga Offiong House became the “titular owners” of all the lands in these villages. See Ohiaeri V. Akabeze (1992)2 SCNJ (pt.1) 76; Igbojimadu V. Ibeabuchi (1998) 1 NWLR (Pt.533) 179 at 190-191. Worst of all the claimants root of title is founded upon the ground that they are “titular owners” whatever that may mean. In Emegwara V. Nwaimo 14 WACA 347 “titular ownership” was pleaded as the root of title to the land in dispute. The West African Court of Appeal held at page 348-349 of the judgment as follows:
“In regard, however, to the respondents’ claim for a declaration of title I indicated in the course of the hearing of this appeal that I entertain the gravest doubts as to whether any declaration should be made having regard to the statement of the respondents’ claim both in the endorsement on the summons and in the statement of claim subsequently filed and having regard also to the nature of the evidence in the case and to the statements made by counsel for the respondents in the course of the hearing of the appeal.
It is as well that it should always be borne in mind that the marring of such a declaration is discretionary and in the exercise of the Court’s equitable jurisdiction. A declaration of title will only be made when the court is fully assured first as to the precise nature of the title in respect of which a declaration is sought and secondly that there is evidence by which the court is satisfied that a title of the nature claimed has been established.
In my view the case put forward by the respondents both at the trial and before us satisfies neither of these conditions. It is not clear from the pleadings nor from the evidence nor from the argument of counsel what precisely is the nature of the right or title in respect of which a declaration is sought. It is impossible therefore to hold that the evidence establishes any title at all which would justify the court in making a declaration. The most that can be said is that by the endorsement upon the summons the respondents claimed “titular ownership”, a vogue expression which may mean no more than nominal ownership. The statement of claim hesitates between allegations of absolute ownership from “time immemorial” which is in my view, indistinguishable from original ownership and the acquisition of title “several generations ago” by grant from the appellants’ predecessors in title. These allegations are inconsistent, but Counsel assures us that it is the latter allegation which is the real basis of the respondents, claim. It is beyond doubt that such grants may take many forms, ranging from an absolute gift to a mere tenancy or right of occupation subject to conditions.
Lying between the two extremes there may be a grant of such complete user without payment of tributes or other term or condition that all that is reserved to the grantor is a right to reversion should the grantee abandon his right of occupation or succession to that right fail. It is essential before any declaration is made that the party seeking it should state specifically what is the nature of the right he claims and that he should prove that the terms of the grant under which he claims conferred such a right unless these two factors are present the Court cannot properly exercise its discretion in his favour and make any declaration.
Nowhere in the present case have I been able to find that the nature of the right is specified, nor have I been able to find evidence as to the precise terms of the grant upon which any such specific claim could be based. I cannot conceive that it is the duty of the Court to endeavour by examination of the evidence to deduce what ought to be or might be the true nature of the claim and then proceed to make a declaration which the plaintiff has not specifically sought and may not in fact desire. It would indeed be improper for the court so to do unless it were prepared to order an amendment of the pleadings, in which case it would be necessary to give the defendant an opportunity of meeting what would be on entirely different case. Such a course if followed at all would only be followed with great reluctance and upon the clearest possible evidence.
In my view the learned Judge had before him neither a claim nor evidence which would justify him in making the declaration sought and he erred in making it…”
The West-African Court of Appeal thus held that the phrase “titular owner” or “titular ownership” is a vague expression which may mean no more than nominal ownership but not “absolute ownership” as distinguished from “original ownership.” That this did not constitute a precise nature of title upon which the Court should grant to a claimant declaration of title to disputed land found to be in possession of defendants.
In my humble opinion the Respondents had failed to set out in clear terms in their pleading the nature of their root of title and the terms of settlement to warrant the learned trial judge granting them relief as prayed. See Okonkwo V. Okoto (1988) 5 SCNJ 128; Fasoro V. Beyioku (1988) 4 SCNJ 13; Bamgbose V. Oshoko (1988) 5 SCNJ 166. The defendants are in possession of the lands in dispute. The plaintiffs had the onus of proving a better title to oust the defendants from the land. See Ukpa V. Utong (1991) 6 NWLR (Pt. 197) 258; Ibuluya V. Dikibo (1976) 6 SC 97 at 108. Traditional history as to how the lands in dispute were founded was not pleaded. Besides, the Court should have had recourse to acts of actual user of the land. Thus the Respondents conceded in favour of the appellants. See Lawal V. Dawodu (1972) 8-9 SC 83 at 121; Aseimo V. Amos (1975) 2 SC 57 at 64; Alade V. Awo (1975) 5 U.I.L.R. (pt.1) 31 and Kojo v. Bonsie (1957) 1 WLR 1223. The Respondents pleaded in their statement of Defence as follows:
“1. Save as hereafter expressly admitted, the Defendants deny each and every allegation of fact contained in the statement of claim as though same were herein set out and traversed seriatim.
2. Paragraphs 1 and 2 of the Plaintiffs statement of claim are contradictory, false and thus denied
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4. Paragraph 4 of the statement of claim is only true to the extent that the 4th plaintiff is both a retired civil servant and formerly a Customary Court President, the rest of the averment is false as he was never at anytime selected/elected to the post of the village Head of Edik Idim village, Akpabuyo as required by both law and custom.
5. Paragraphs 5, 6, 7, 8, 8(b), 9 and 10 of the statement of claim are false and are vehemently denied; the plaintiff shall be put to the strictest proof thereof. The 1st defendant, though, admits of the existence of the letter referred to in paragraph 10.
6. In further answer to paragraph 10(b) of the statement of claim, the defendants rightly assert all the documents referred to were legitimately issued by the defendants as they were exercising proper authority over land properly belonging to them and within their jurisdiction.
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8. The Defendants are rightly resisting this claim brought by the plaintiffs because Edik Idim village, Akpabuyo is an autonomous and independent entity duly recognized by the relevant law (Traditional Rules’ Edict, 1978) and the defendants are permanently resident there and the defendants happen to be the elders in the said village und custodians of its customs and traditions. The plaintiffs, apart from not being instrumental to its development, have never resided in the said village neither have they ever visited the village to actually assess the state of affairs therein.
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10. Apart from admitting that Edik Idim village is large and fertile, the defendants contend that paragraphs 13 and 14 of the statement of claim are false, misleading, an abuse of court’s process, frivolous and the defendants shall urge the Honourable Court to dismiss the suit on the following ground:
I. The plaintiffs have not disclosed a reasonable cause of action neither do they have the locus standi to initiate the present action.
The evidence of Etuborn Ignatius Effanga Archibong (PW1) at page 56 lines 12 to 30 and page 57 lines 1 of the printed record is as follows:
“Pw.1: Etubom Ignatius Effanga Archibong of No. 10 Edik Idim Road, Ikot Effanga-Akpabuyo. I am a pensioner – Retired Civil Servant. I know the other plaintiffs. I also know the defendants. The defendants from time are settlers in Idim Ikot Effanga village. They are from Essien Abasi Stock. 1st Defendant is from that stock of Idua Oron. 2nd Defendant is from among Okobo-Oron. They are long term settlers, because of their long settlement and active participation in the affairs of the village both were once secretaries of Edik Idim Ikot Effanga village. They have no heritage whatsoever in Effanga Offiong family who are the titular owners of Ikot Effanga. The 1 and 2 defendants used their position to indiscriminately intermeddle with the Effanga Offiong land and landed properties. Their duties were merely to collect rents and proceeds from sales of communal palm fruits. They had been collecting with no accounts made to the family head of Effanga Offiong House is 1st plaintiff. Elder Etubom Inyang Duke Henswa. 1st and 2nd defendants as secretaries their with the village head were supposed to collect these proceeds and pass on to Effanga Offiong family.”
Even in the course of adducing oral and documentary evidence no attempt was made to name the first ancestor who founded the land in dispute before the appellants came to settle there. Pw1 admitted under cross-examination he could trace the genealogy of the appellants. He admitted that the appellants had been resident in Edik Idim village all their lives. But Chief Ekpenyong Ekpo Essien (Dw1) denied that they were settlers on the land. That by 1953 his late father was the village head of Edik Idim. He was born and bred in that village where he still lives. That only an indigene can be a village head, not a settler. Dw1 further testified that the village started over centuries ago. Cross-examined Dw1 admitted he was from Effanga Offiong House in Henshaw Town because he is Efik by tribe. That the land was given to his ancestors by Offiong Effanga and Obutong. These unpleaded facts were extracted from the Dw1, Dw2, Dw3, under cross-examination. It has been held that a defence or evidence obtained from a party by his adversary during cross-examination cannot be used against the party if the material fact relating to the evidence or defence was not pleaded by the party seeking to use it. See Wayne V. Ekwunife (1989) 12 SCNJ 99 at 112; Dina V. NNN Ltd. (1986) 2 NWLR (Pt.22) 353 at 364; George V. Dominion Flour Mills Ltd, (1963) 1 All NLR 731 Okagbue V. Romane (1982) 1 All NLR (Pt.1) 103 at 112-115 Slee Transport Ltd. V. Oluwasegun (1973) 3 ECSLR 1176 at 1183 and Iheanacho V. Chigere (2004) All FWLR (Pt.226) 204.
Nevertheless, the learned trial judge held at page 79 lines 26 to page 81 lines 1-4 of the printed record as follows:
“It is however clear from the state of the pleadings and the evidence adduced in Court, that the parties joined issues on a number of points. The plaintiffs pleaded and led evidence to show that they are the original owners of Edik Idim Ikot Efanga. They tendered a number of exhibits to show their various transactions in connection with the land in question Pw1 traced the history of Edik Idim Ikot Efanga to their original founders who are the Efunga Offiong family which culminated in the fact that Pw1 was later made the village head of Edik Idim, Ikot Efanga. The defendants however traced their own history to a certain Essien Abasi who they claim got the land from the people of Obutong. They rejected the plaintiffs’ claim and even the fact Pw1 was the recognized village head of Edik Idim…”
The Respondents did not plead the history of the founder of Edik Idim Ikot Efanga Ofiong family and when or how the lands in dispute were founded. Neither did the appellant plead that a certain Essien Abasi got the land from the people of Obutong. The evidence extracted from the Respondents and the appellants as to which of their ancestors first founded the land, extracted under cross-examination goes to no issue. The evidence is at variance with the pleadings of the Respondent and the appellants.
There is no pleading that indigenes of Edik Idim Ikot Efanga emanate from Efanga Offiong House hence Pw1 was made a village head of Edik Idim. Nowhere was it pleaded that the ownership of Edik Idim Ikot Efanga could be traced back to one single founding family of Efanga Offiong far the traditional history of the Respondents to be preferred as against that of the appellants.
The lone issue for determination posed by the appellants in their brief reads as follows:
“Whether the plaintiffs in this case have established their title to the landed properties of Edik Idim Ikot Effanga village so as to justify the orders of injunction, account and damages made in their favour against the defendants by the trial Court.”
Learned Counsel took this Court through the pleadings and oral testimony of the parties. Relying on decided authorities, example, Morenikeji V. Adegbosin (2003) FWLR (Pt.163) 45; Alli V. Alesinloye (2000) FWLR (pt.15) 2610; Achiakpa V. Nduka (2001) FWLR (pt.71) 1804; Eze V. Atasie (2000) 79 LRCN 1998; Balogun V. Akanji (2005) All FWLR (Pt.262) 405 and a host of others, counsel came to the conclusion that the Respondents did not prove they were entitled to the reliefs granted by the learned trial judge. Besides, only Pw1 testified to prove their claim to the land in dispute, citing Oyediran V. Alebiosu II (1992) 7 SCNJ 187 where Kutigi, JSC held at pages 193-194 that:
“In areas of customary law… it is desirable that a person other than the person asserting it should also testify in support thereof. This is only common sense because native law and custom must be strictly proved. It will therefore be unsafe to accept the statement of the only person asserting the existence of a custom as conclusive.”
See also Adeogun V. Ekunirin (2003) FWLR (Pt.170) 1326. Learned counsel urged that the appeal should be allowed.
On 17-11-2011 this court granted leave to the Respondents to file Respondents, brief of argument out of time. Two issues were formulated in the Brief for the determination of this appeal and are couched as follows:
“2.1 Whether there was sufficient evidence by the Respondents to establish title to the land in dispute located at Edik Idim Ikot Efanga village.
2.2 Whether the Respondents in this appeal have established their title to the landed properties located at Edik Idim Ikot Efanga village so as to justify the consequential orders of injunction account and damages made against the appellants by the trial Court.”
Learned Counsel to the Respondents argued the two issues simultaneously in the Respondents’ brief drawing this Court’s attention to the five methods of proving title to land; the oral and documentary exhibits as showing they were in tandem with the decision of the Supreme Court in Olukoya V. Ashiru (2006) 26 NSCQR 691 at 707-708. Furthermore, that the appellants’ case supported that of the Respondents, citing Okafor V. Idigo (1984) 15 NSCC 360; Ukwu V. Atasie (2002) 2 SCNQR 1136 at 1139. Learned Counsel urged that this appeal should be dismissed and the judgment of the learned trial judge affirmed.
In Abraham Essel V. Rebecca Davis (1929) 2 WACA 5 the Respondent claimed as the owner of the land an account against the appellant as caretaker thereof of the tributes, tolls and rents the appellant had been collecting since 1911 and an order for payment of the amounts found due to her. The appellant defended on the ground that the respondent was not the owner of the land, but that ownership thereof vested in one Sara Quaqrainie, the devisee thereof of the will of her deceased father for whom and for whose devisees the appellant was caretaker. The Judicial Committee of the Privy Council held at page 5 of the judgment that, “It is common ground that the question of title is properly raised and may be determined in such an action.” It was held that the appellants would be ordered to render account only if there was credible evidence that title to the disputed land resided in the Respondents. In J.M. Kodinlinye V. Mbanefo Odu (1935) 2 WACA 336 Webber C.J. of Sierra-Leone held at page 337 that:
“… The onus lies an the plaintiff to satisfy the Court that he is entitled an the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant, he not having sought the declaration.”
Only the Respondent testified at the lower Court a Pw1. It would be unsafe to accept his evidence as proving the alleged traditional history upon which he seeks to found his root of title. See Oyediran V. Alebiosu supra and Adeogun V. Ekunirin supra. In no traditional history as to the founding of the villages in dispute was pleaded not to talk of the land in dispute. The findings of the learned trial judge do not support the facts award made in favour of the Respondents. See African Continental Seaways Ltd. V. Nigeria Dredging Road and General Works Ltd. (1977) 5 SC 235 at 250; Temco Engineering & Co. Ltd. V. S.B.N. Ltd. (1995) 5 NWLR (pt.397) 607. Where the judgment is not related to the pleadings, the appellate courts usually set it aside. See Incar Nig. Ltd. V. Benson Transport Ltd. (1975) 3 SC 117; Fashanu V. Adekoya (1974) 6 SC 83 at 91 and Misr v. Ibrahim (1974) 5 SC 55 at 62.
On the whole I allow this appeal, set aside the judgment and orders of the learned trial judge and I hereby dismiss the Respondents’ claim before the lower Court. I award N50, 000.00 costs to the Appellants.

ISAIAH OLUFEMI AKEJU, J.C.A: I have had the privilege of reading before now the lead judgment of my learned brother, Mohammed Lawal Garba, JCA just delivered.
The respondents were the plaintiffs in Suit No HCA/4/2001 commenced at the Akpabuyo Division of the High Court of Cross River State through the Writ of summons filed on 11th June, 1999. By paragraph 14 of the Statement of Claim filed on 9th April, 2001, they sought the following reliefs against the defendants, who are now appellants.
(i) Perpetual injunction restraining the defendants from selling, leasing, apportioning, allotting or dealing in anyway howsoever with the landed properties of Edik Idim Ikot Effanga village in Akpabuyo being the vested property and under the over lordship of Effanga Offiong, House Calabar.
(ii) An account of all monies and proceeds which have come to the hands of the defendants in respect of the landed properties of Edim Ikot Effanga village in Akpabuyo being properties of Effanga Offiong House, Calabar.
(iii) An order mandating the defendants to release all the documents, registers in respect of all transactions pertaining to the landed properties in Edix Idim village and money misappropriated therein and to refund such monies to the plaintiffs.
(iv) N1, 000,000.00 (One Million Naira) damages for selling, leasing, intermeddling or dealing with the land in dispute.
In response to the statement of claim, the appellants filed their statement of defence on 7th January, 2002. The pleadings of the parties have been elaborately stated by my learned brother and. I need not repeat them here.
After taking the evidence of the parties in line with their said pleadings, the learned trial judge evaluated the evidence before finding at page 80 of the record of appeal as follows:
“The traditional history of the plaintiffs is, therefore preferable to that of the Defendants. The plaintiff’s claim is further buttressed by the fact that PW1 is the recognized village head of Edik Idim Ikot Effanga which fact now puts the village under his supervision and control. I further agree with learned counsel for the plaintiff that proof of one single root of title is sufficient to sustain the plaintiff’s claim for title to land. Plaintiffs evidence has gone beyond a mere prima facie case based on speculation and conjecture.”
Against the above findings of the learned trial judge, the appellants filed their Notice of Appeal on 8th May, 2006 with five grounds of appeal, and the Brief of Argument prepared on their behalf by Essien H. Andrew of counsel and filed on 10th July, 2007, the lone issue formulated for determination is:
Whether the plaintiffs in this case have established their title to the landed properties of Edik Idim Ikot Effanga village so as to justify the orders of injunction, account and damages made in their favour against the defendants by the trial court.
It is abundantly clear from the records of appeal that the trial judge who had the singular opportunity and advantage of not only seeing, but also hearing the witness did perform the duty of assessing, and evaluating the evidence of the witnesses before arriving at the findings of fact made in the case. In such circumstance, the appellate court must be quite loath in interfering with the findings of the trial court.
In Chief O. Odofin V. Isaac Ayoola (1984) 11 SC 72, Oputa JSC stated the role of an appellate court in his following words at pages 120-121:
“Trial courts as their name implies try issues, appellate courts do not. They do not evaluate evidence, they do not believe or disbelieve witnesses and they do not make findings of fact. Their main duty is to oversee the trial court and ensure that they have utilized the right procedure and applied the right law to the facts found by them. An appellate court does not inquire into disputes rather it inquires into the way in which disputes have been tried and decided by trial courts… With regard to issues of credibility and the confidence to be reposed on the testimony of witnesses, an appellate court may take the view that not having seen or heard the witnesses, it cannot on the printed evidence usurp this essential function of the trial court. With regard to findings of fact, unless there is a case of misdirection made out, an appellate court should not come to a different conclusion from the trial court on the evidence. If there is any evidence to support a particular conclusion of the trial court, an appellate court which would have come to a different conclusion on the same evidence should restrain itself and respect the conclusion of the court that saw, heard and believed.”
It is thus the law that the duty of appraising evidence and ascribing probative value thereto is preeminently that of the trial court that saw and heard the witnesses. The appellate court will therefore not reverse a finding of a trial court unless such finding is not founded upon any evidence or runs counter to the evidence accepted by the trial court. See Ajiboye V. Ishola (2006) All FWLR (Pt. 331) 1209; Okonkwo V. Okonkwo (2010) 14 NWLR (Pt. 1213) 228.
I therefore find no cause to interfere with the findings of the trial court in the instant appeal, and it is for this and the fuller reasons given by my learned brother that I agree that the appeal should be dismissed. I consequently dismiss the appeal without the award of costs.