MRS. CELILIA KANJAL v. MARY IFOP (2013)

MRS. CELILIA KANJAL v. MARY IFOP

(2013)LCN/6517(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 19th day of November, 2013

CA/C/132/2012

RATIO

WHETHER A DOCUMENT OR PIECE OF EVIDENCE RENDERED INADMISSIBLE MAY BE ADMITTED IN EVIDENCE

Once a document or any piece of evidence is rendered inadmissible by law, it cannot be admitted in evidence and relied on by a court either on the consent of the parties or non-objection to its admissibility at any stage of proceedings. Even if inadvertently or wrongly admitted in evidence, the court, trial or appellate, has a duty to disregard or expunge it in the determination of a case the moment it becomes aware of its inadmissibility in law. See N.S.I.T.F.M.B. v. Klifco Ltd. (supra); Owoyin v. Omotosho (1961) 1 ALL NLR, 304; Olukade v. Alade (1976) 2 SC, 183 at 187-8; Umar v. Bayero University (1988) 4 NWLR 85; Igbodin v. Obianke (1976) 1 NWLR, 212. Per MOHAMMED LAWAL GARBA, J.C.A.

DUTY OF COURT: WHETHER AN APPEAL COURT MAY INTERFERE WITH THE EVALUATION OF EVIDENCE BY A TRIAL COURT

This court would only be justified to interfere with the evaluation of evidence by a trial court where it is satisfied that that court had failed or did not properly evacuate the material evidence in the sense that it failed to draw the correct inferences from proved or/and accepted facts or has wrongly assessed the probative value of undisputed evidence. In such a situation, the court is not only entitled to but has a duty to interfere with the evaluation of evidence and the resultant findings by a trial court. See Sha v. Kwan (2000) 5 SC, 178; Bashaya v. State (1998) 5 NWLR (550) 357; Kalu v. Odili (1992) 5 NWLR (240), 130; Oko v. Ntukidem (1993) 2 NWLR (274) 124; Layinka v. Makinde (2002) 10 NWLR (775) 358; Fagbenro v. Arobaldi (2006) 7 NWLR (978) 714. Per MOHAMMED LAWAL GARBA, J.C.A.

WHETHER A FINDING BY A COURT NOT APPEALED AGAINST IS DEEMED ACCEPTED BY THE PARTY

The law is settled that any finding of fact by a court not appealed against by a party not satisfied with it, is deemed to have been accepted by the party. See Dabo v. Abdullahi (2005) 2 SC (Pt. 1) 75; Leventis Tech. v. Petrojessica (1999) 4 SCNJ, 121 at 127; Iseru v. Catholic Bishop (1997) 4 SCNJ, 10 at 115; Maduabum v. Nwosu (2010) 13 NWLR (1212) 623 at 656. Per MOHAMMED LAWAL GARBA, J.C.A.

WORDS AND PHRASES: CAUSE OF ACTION

Now, what in law amounts to or is a cause of action for the purposes of a limitation law? Put simply, a cause of action is a fact or combination of facts which when proved before a court of law would entitle a person to a judicial remedy against another person. So the moment a fact or facts happened or occurred which would entitle a person to seek for a legal or judicial relief in a court of law, a cause of action would be said to have arisen and accrued to that person since from then, whether or not to exercise the right to seek for such relief would entirely be at his discretion and will. See Bello v. A.G. Oyo State (1986) 5 NWLR (45) 828; Egbue v. Arika (1988) 3 NWLR (84) 598; Egbe v. Adefarasin (supra); Akilu v. Fawehinmi (No.2) (89) 2 NWLR (102) 122; Oshoboja v. Amuda (1992) 6 NWLR (250) 690; Ogbimi v. Ololo (1993) 7 SCNJ, 447. Per MOHAMMED LAWAL GARBA, J.C.A.

ESSENCE OF A LIMITATION LAW

I now turn to the applicability of the law to the case before the High Court. As a foundation, a limitation law generally, is an enactment or legislation which specifically prescribes time limits within which named accrued rights of action must be exercised through the judicial processes of a court of law. A person with an accrued right of an action against another is required by a limitation law or statute to exercise such a right by way of resort to the judicial process within the period of time stipulated or prescribed by the law if he chooses to utilize and exercise the right through the courts. The essence of a limitation law is to ensure that a person, as a matter of obligation, should promptly exercise a right of action by way of seeking a legal remedy through the court of law for the breach of his right within the period of time set out in the law. It therefore requires diligence and vigilance in the exercise of the right of action and prevents actions which may be stale by effluxion of time. Where the right of action through the judicial process was not exercised within the period of time stipulated, prescribed or limited in a limitation law, the right to the action, to a judicial relief and enforcement would be lost and can longer be exercised through the courts. The right of an action should not and does last forever by the operation of the limitation law and so it automatically comes to an end after the expiration of the period of time prescribed by the law for the exercise of the right because no legal action or proceedings may lawfully be initiated or commence by a person, then. An action initiated or commenced after the expiration of the time limited in a limitation law is said to be statute barred and so cannot be or is not maintainable in law. Such a statute barred action is incompetent in law on the ground of the absence of a right to initiate same in the court which therefore is robbed thereby, of the competence to entertain it. See Egbe v. Adefarasin (1987) 1 SCNJ 1; Adimora v. Ajugo (1986) 6 SCNJ, 18; Obeta v. Okpo (1996) 9 NWLR (473) 401; Sanda v. Kukawa Local Govt. (1991) 1 NWLR (174) 379; Egboigbe v. NNPC (1994) 5 NWLR (346) 649. Per MOHAMMED LAWAL GARBA, J.C.A.

jUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

Between

MRS. CELILIA KANJAL
(For herself & as representative of the family of late Chief Thomas Mogbe Uge)Appellant(s)

AND

MARY IFOP
(For herself & as representative of the family of late Chief Ifop

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Respondent in this appeal had commenced an action against the Appellant herein, at the High Court of Cross River State, sitting at Ogoja vide a writ of summons dated the 20/4/2004. The claims on the writ were as follows:
1. A declaration that the Plaintiff is entitled to the Statutory Right of Occupancy to all that piece of land and building thereon lying and situate at 1/2 Obudu Street, Igoli, Ogoja.
2. An order of perpetual injunction restraining the Defendant, her agents, servants or privies from further trespassing on the said land.
3. An order for an account of rents collected since 1981.

The case proceeded to trial under the 2008 Cross River State High Court Civil Procedure Rules and the Appellant in her final address, raised a preliminary objection to the jurisdiction of the High Court to entertain the action on the ground that it was statute barred. In the judgment delivered on the 30/4/2012, the High Court dismissed the objection and entered judgment in favour of the Respondent and being aggrieved by the decisions against her, the Appellant caused a notice and grounds of appeal to be filed on the 18/5/2012.

In line with the practice in the court, the appellant’s brief filed on the 22/11/2012 was deemed on the 25/3/13 and on the same date, the Respondent’s brief was filed.

The briefs were adopted and relied on by the learned counsel for the parties at the oral hearing of the appeal on the 7/10/2013, as submissions in support of their respective positions which the court was urged by them to uphold.

In the Appellant’s brief settled by E. A. Ubua, Esq., five (5) issues were set down for resolution by the court in the appeal as follows:-
i) Whether the trial court had jurisdiction to hear and determine the matter (Grounds 2, 3 and 6).
ii) Whether the trial judge was right to have suo motu raised the issue that Limitation Law is inapplicable to land under customary law without according the parties an opportunity to address thereon (Ground 5).
iii) Whether Claimant proved her claim by cogent and credible evidence to entitle her to judgment (Grounds 4, 7, 8, 12 and 13).
iv) Whether the trial judge was right to proceed to judgment without considering the objection by Defendant to the admissibility of Exh. ‘1’ (Ground 11).
v) Whether the trial court was right to reject the evidence of DW2 and DW3 in the circumstances it did (Ground 9 & 10).

For Mr. Mathew Ojua, Esq., who settled the Respondent’s brief, the issues for determination in the appeal are said to be thus:-

1. Whether the action was caught by the Limitation Law? And even if the answer is in the affirmative whether the defence of limitation of action is available to defendant who did not specifically plead same in his statement of defence? (Grounds 2, 3 & 6).
2. Whether the trial judge was entitled to hold that limitation law is inapplicable to land held under customary law? (Ground 5).
3. Whether the Respondent proved her claim on the preponderance of evidence?

The substances in the parties’ issues 1 – 3 are the same and since the Appellant’s issues (iv) and (v) derive from the grounds of the appeal and have been addressed in the Respondent’s brief, I intend to use the Appellant’s issues in the determination of the appeal.

ISSUE (i)
The submissions by the learned counsel for the Appellant on the issue are that for a court to competently exercise the power to adjudicate in respect of a matter before it, it must be clothed with the requisite jurisdiction to do so otherwise its exercise would be a nullity, citing Ajiboye v. Ishola (2006) 26 NSCQR 1240 at 1257, as authority. Relying on Agbitti v. Nigerian Army (2011) 45 NSCQR 388 at 430-1, learned counsel set out three factors which are considered on the question of jurisdiction of court and said that in the determination of the issue, a court looks at and considers the writ of summons and statement of claim as laid down in Elabanjo v. Dawodu (2006) 27 NSCQR 318 and Adekoya v. Federal Housing Authority (2008) 4 SCM 1 at 12. He then submitted that a perusal of the writ of summon in the Respondent’s case indicates that the cause of action arose in 1981 while the action was commended on 20th April, 2004. According to him, paragraphs 7, 8, 10 and 16(3) of the statement of claim recounted events which show that the cause of action arose in 1981 and he set out the provisions of Section 1 (part 1) of the Limitation Law of Cross River State, Cap. C14, 2004. It was contended that by the said provisions, the Respondent had no enforceable right at the time she took out the writ in 2004 because the time prescribed by the law for the action had expired. That it was elementary that once a claimant does not go to court within the period of limitation prescribed by statute, then he cannot competently bring an action thereafter to enforce such a claim. The cases of Otuonye v. Ugwuzor (2001) FWLR (52) 2118; Williams v. Williams (2008) ALL FWLR (433) 1245 at 1248 and PN Udoh Ltd. v Abere (2001) 4 SC 64 at 67 among others, were cited for the submission. It was also contended by counsel that being an issue of jurisdiction, it is a threshold question which can be raised at any stage of the proceedings and by any means, relying on Omojemi v. Kolawole (2008) 7 SCM, 95 at 104; Arabella v. Nig. Agric. Insurance Corporation (2008) 5 SCM, 39 at 59 and Olagunju v. PHCN (2011) 46 NSCQR (Pt. II) 583 at 603. He argued further that any challenge to the jurisdiction of a court is so fundamental that the procedure or manner by which it is raised becomes immaterial as the question is a constitutional one, citing Ukwu v. Bunge (no citation provided) reported in (1997) 8 NWLR (578) 527; Arabella v. Nig. Agric. Insurance Corp (supra) and Elabanjo v. Dawodu (supra).

Learned counsel said that the High Court was in error when it ignored these authorities cited to it by holding that because the Appellant did not plead it as a defence, she cannot rely on the limitation law. In further argument, he referred to the cases of Amadi v. INEC (2012) ALL FWLR (621) 1415 at 1450 and Ajayi v. Adebiyi (2012) ALL FWLR (634) 1 at 29-30 and said failure by a party to raise the objection in his pleadings or even acquiescing in the action cannot confer jurisdiction on a court to resurrect a cause of action that is for all purposes, dead. The case of F.A.B.S. Ltd. v. Ibiyeye (2008) 14 NWLR (1107) 375 at 406 was cited by counsel who contended that the objection by the Appellant was properly raised before the High Court.

In addition, it was submitted that the issue that the limitation law is not applicable to land held under customary law was not raised by any of the parties but suo motu by the High Court and did not afford the parties the opportunity to be heard on it before deciding it. Citing Shas v. Smith (2009) 40 NSCQR, 255 at 271, counsel said such a decision on the issue cannot stand in law. Because the objection by the Appellant was on the High Court’s jurisdiction to entertain the Respondent’s case, that court lacked the power to consider and rule on the abandonment of claim 3 which was part of the case, he argued. The court was urged to resolve the issue in Appellant’s favour, and uphold the objection that the High Court lacks the jurisdiction to entertain the claim.

For the Respondent, it was submitted on the issue that the action was not caught up by the limitation law since the cause of action in the case, which was the return of the 10 room building, arose in 2001 when the Appellant’s father died and the Respondent made a demand for it and the Appellant refused to hand it over. Paragraphs 8 – 11 of the statement of claim were set out by counsel who said that they show that the Appellant’s father never claimed ownership of the property in dispute but only said that it would be handed over to the Respondent after his demise. That the Appellant’s father died in 2001 and so the cause of action arose when the demand by the Respondent for the building was refused by the Appellant after the death of her father. Learned counsel had earlier cited Egbe v. Adefarasin (1987) 1 NWLR (47) 1 on when an action is in law, statute barred and Lasis v. Fadare (1982) 4 SC 1 as well as Adekoya v. FHA (2008) 12 NWLR (1009) (no page provided) on when time begins to run for the purpose of limitation of time for action. He then referred to the finding by the High Court at page 120 of the record of the appeal on when the cause of action arose and said the Appellant got carried away by the third and ancillary relief in the statement of claim for account from 1981. It was submitted that what determines jurisdiction is the principal and not ancillary relief placing reliance on Tukur v. Governor of Taraba State (1997) 6 NWLR (510) 549 and Egbuonu v. Borno Radio Television Corp. (1997) 12 NWLR (531) 29. Also, that there were no facts in the statement of claim to support the ancillary claim which would have constituted the cause of action that could have been used by the Appellant to say that the action was statute barred. That it was the absence of those facts that led to the withdrawal of the said ancillary relief.

In the alternative, it was submitted by counsel that even if the cause of action arose in 1981 as contended by the Appellant, because the action was founded on native law and custom, the limitation law is inapplicable, citing Ogunlana v. Bada (2010) 1 NWLR (1176) 534 at 559. Learned counsel said the High Court had made findings that the Appellant’s father took control of the property in dispute under customary law at page 121 of the record and the Appellant did not appeal against the finding and so deemed to have accepted it.

In another alternative, it was submitted by learned counsel that the defence of limitation of action is a special defence with a special procedure provided under Order 17 Rule 6 of the High Court Civil Procedure Rules (which were set out by counsel) and that a defendant cannot take advantage of the defence unless he specifically pleads it as provided therein. The decisions of this court in Ebenogwu v. Onyenuobim (2008) 3 NWLR (1004) 396 at 421 and A.D.C. Obitti. Imo State v. Okedi (2004) 1 NWLR (884) 369 at 385 as well as the Supreme Court case of Oyebanji v. Lawanson (2008) 15 NWLR (1109) 122 were relied on for the submission and it was argued that raising the issue of limitation law in a notice of preliminary objection does not meet the demands of Order 17 Rule 6 since it is different from a statement of defence. We are urged to resolve the issue in the negative and in favour of the Respondent.

Although in any event, being an intermediate appellate court, I have the duty to consider and make pronouncements on all the issues submitted by the parties for decision in the appeal, I choose to consider and resolve this issue first before a review of the submissions by the learned counsel for the parties on the other issues in the appeal.

I would start by saying that it is clear that from the submissions by the learned counsel for the Respondent on the issue, he is not disputing that the issue of the application of the limitation law to the action of the Respondent as raised in the preliminary objection by the Appellant in the final address, goes to touch and challenges the jurisdiction of the High Court to entertain or adjudicate over the claim made therein. Because the objection challenges the competence of the action on ground of law, it necessarily affects the competence of the High Court to adjudicate over it since the competence of a court depends on the competence of the action over which it is called upon to adjudicate. Where an action is not competent on any cognizable point or principle of law, there would be nothing over which a court of law can properly exercise its adjudicatory authority and power. A defect in competence of an action is not only intrinsic, but extrinsic to the entire process of judicial adjudication by a court of law and so deprives the court of the requisite competence to entertain the action. Recently, the Supreme Court in the case of Hassan v. Aliju (2010) 17 NWLR (1223) 547 at 590 per Onnoghen, JSC had stated that:-
“When an issue of limitation of time to institute an action is raised, it is a preliminary issue touching on the competence of not only the action, but of the court before which the action pends.”

Speaking generally, the law is now trite, because it has been settled a long a time ago, that due to the fundamental and crucial nature of the issue of competence or jurisdiction of a court to entertain an action before it, it can be raised at any stage and time of the proceedings of an action at the trial or the appellate courts in the judicial hierarchy in the country, by any of the parties or the court suo motu. The position of the law was put concisely by the Supreme Court in the case of State v. Onagoruwa (1992) 2 SCNJ 1 at 9 when it state that it is never too late or pre-mature to raise the issue of jurisdiction of a court to entertain an action. Again in the case of Ajayi v. Adebiyi (supra) also reported in (2012) LPELR 7811 the apex court had stated that:-
“As to the time when an issue of jurisdiction can be raised at any time and at any stage of proceedings even at this level on appeal. It cannot be said to have been brought too late however irritating the process may be”.
See also A.G. Lagos State v. Dosunmu (1989) 3 NWLR (111) 552; Ukwu v. Bunge (supra); Odofin v. Agu (1992) 3 NWLR (229) 350; Ezechigbo v. Governor, Anambra State (1999) 9 NWLR (619) 386; Nonye v. Anjichic (2005) 1 SC (Pt. II) 96. These authorities have also laid the law that once the issue of jurisdiction was raised or arose in the proceedings of an action, the court is required to consider and resolve it first before further steps therein in order to avoid what might turn out in the long run, to be an exercise in futility if jurisdiction was defective in the proceedings.

The mode or manner, by which the issue of jurisdiction can be raised in judicial proceedings is a matter of procedure usually regulated by the relevant Rules of the court conducting the proceedings which Rules do not vest the court with jurisdiction but only set out how the requisite jurisdiction vested in the court by statute, is exercised for convenient and orderly conduct of the proceedings. Since Rules of court are subsidiary legislations that derive or enure from the enabling statutes, they enjoy the force of law and are generally required to be obeyed, complied with and abided by both the parties and the court in the conduct of the proceedings to which they are applicable. See Aigbobahi v. Aifuwa (2006) ALL FWLR (303) 202; Agip Nig. Ltd. v. Agip Petrol Int’l (2010) 5 NWLR (1187) 348; Onagoruwa v. Inspector General of Police (1991) 5 NWLR (193) 593.

The mode, manner or way of raising the issue of jurisdiction, threshold as it is, is not at large or left to the whims of the parties in the proceedings even if it could be raised at any time or stage of proceedings. Where a specific manner or mode of raising the issue was prescribed or required in the Rules of a court, then the proper manner or mode of raising it would be in accordance or compliance or obedience with such Rules. This must be so because Rules of courts are not made for fun or to merely decorate the libraries of the courts or bookshelves of counsel for the parties, but to be obeyed and complied with and their purpose be given effect in the conduct of judicial proceedings. Where a party fails, neglects or ignores the Rules of Court in any step he takes in the conduct of his case, he should be ready and be made to bear the risk and consequence of such neglect or failure. At no time should a party particularly represented by counsel in the conduct of proceedings be encouraged to take the Rules of court for granted and be allowed to take advantage of or benefit from his failure or neglect to obey or comply with the Rules of court as an officer of the court. Our courts are courts of law pursuant to which Rules are specifically enacted to govern and regulate the practice and procedure in the conduct of their proceedings with the primary object of attaining justice according to the law applied to the peculiar facts and circumstances of a case. For the attainment of justice according to the law, Rules made under the law to regulate the procedure for the purpose, must be complied with or obeyed by the parties and enforced by the courts.

The above notwithstanding, I am aware of the law that an objection to the jurisdiction of a court can be raised or taken, on inter alia, the basis of evidence received at the trial. For instance in the case of G.T.B. Plc v. Fadco Ind. Ltd. (2005) ALL FWLR (287) 913, it was held that an objection to jurisdiction can be raised in any one of the following situations:-
a) on the basis of the statement of claim,
b) on the basis of the statement received at trial,
c) by a motion supported by an affidavit setting out the facts relied on,
d) on the face of the writ of summons where appropriate, as to the capacity in which action was brought or against whom it was brought.
See also Kasiwu Farms Ltd. v. A.G. Bendel State (1986) 1 NWLR (19) 695; A.G. Kwara State v. Olawole (1999) 1 NWLR (272) 645; Arjay Ltd. v. Airline Mgt. Support Ltd. (2003) 2 SCNJ, 148. The community effect of the principles of law stated and restated in the above authorities that the issue of jurisdiction can be raised at any time and stage of proceeding and in any of the situations set out, is that the issue need not to have been pleaded by the party raising it. It can for instance, be raised by way of a motion at any stage of the proceedings, setting out the facts in an affidavit on which the issue is premised. Whether by way of a motion or an objection, supported by facts on which it is premised, the primary purport of the issue is to challenge the jurisdiction of the court to entertain the action in which it was raised. Both a motion and an objection supported by the facts relied on to support the issue filed and served on the parties provide them the opportunity to know the nature of the issue and to react to it as they may deem fit in the circumstances of the case, thereby eliminating the element of surprise on any of them. In the present appeal, it may be recalled that the contention of the Respondent is that the objection by the Appellant was too late in the day for being raised at the address stage and that it did not comply with the provisions of Order 17, Rule 6 of the High Court Rules.

I have demonstrated before now, that the law is that the objection being an issue challenging the jurisdiction of the High Court to entertain the case before it, can properly be raised at any time in the course of the proceedings in case and it is never too late to do so, no matter how irritating the process may be. Order 17, Rule 6 of the High Court Rules have made the following provisions:-
“(1) All grounds of defence or reply which make an action not maintainable or if not raised will take the opposite party by surprise or will raise issues of facts not arising out of the preceding pleading shall be specially pleaded.
(2) Where a party raises any ground which makes a transaction void or voidable or such matters as fraud, Limitation Law, release, payment, performance, facts showing insufficiency in contract or illegality either by an enactment or by common law, he shall specifically plead same.”
The Supreme Court dealt with a similar situation as we have here in the case of Ajayi v. Adebiyi (supra) also reported in (2012) LPELR 7811, where it considered the provisions of Order 22, Rule 2 of the Lagos State High Court Rules, which are impari materia with the above provisions, Adekeye, JSC in the lead judgment of the apex court had held that:-
“Limitation Law and locus standi are both threshold issues which can be raised anytime or for the first time in the Court of Appeal or in the Supreme Court. It is not limited to being raised as a special defence and pleading them specifically as required by the Rules of Court under Order 22, Rule 2 of the Lagos State High Court Civil Procedure Rules. It transcends any High Court Rules. It can be raised by preliminary objection at any stage of the proceedings by any of the parties or even suo motu by the court.”
See also Adegun v. Ayinde (1993) 8 NWLR (313) 576.
The above position of the law would appear to have overtaken the earlier position of the apex court that, as a special defence, the statute or law of limitation of action must be specifically pleaded by a defendant before he could take advantage of the protection provided by it. The decision was delivered by the apex court on the 4th day of May, 2012 and so more recent and later in time than the cases of Ebenogwu v. Onyemaobin (supra); Obitti, Imo State v. Okedi (supra) and Oyebamiji v. Lawson (supra) cited by the learned counsel for the Respondent on the earlier position by the Nigerian judicial oracle.

The apex court in the case of Osakwe v F.C.E. Asaba (2010) 10 NWLR (1201) 1 at 29, per Ogbuagu, JSC in the lead judgment, had earlier exhorted thus:-
“I wish to stress that the fact that in the hierarchy of the courts, where there are conflicting judgments, the Court of Appeal is bound by the latter or last decision of this court. It has no choice however brilliant and knowledgeable the justices of that court may think….”
Again at page 34, paragraphs B-C of the report, his lordship had restated that:-
“It is now settled that where there are two conflicting judgments of this court, the lower court or courts is or are bound by the latter decision and must follow and apply it. See the case of Chief Okpozo v. Bendel Newspaper Corporation & Anor. (1990) 5 NWLR (Pt. 153) 652 at 661, 663.”
In the premises of the above position of the law, which is a restatement of the provisions of Section 287 (1) of the 1999 Constitution (as altered), I am bound by the last decision of the apex court that Limitation law, being a threshold issue, transcends the Rules of the High Court and so not limited to being a special defence that must be pleaded by a defendant and can be raised by way of a preliminary objection at any time of the proceedings.

Apparently, the decision of this court sitting at Port Harcourt in Amadi v. Amadi (2011) 15 NWLR (1271) 437 at 454 relied on by the High Court in its judgment at page 119 of the record of the appeal to hold that the limitation law must be pleaded specifically by a defendant before he could rely on it, is no longer the extant position of the law in view of the above more recent decision by the apex court which binds that court and which I believe, was not brought to the attention of the High Court. Limitation law now needs not be specifically pleaded as a special defence by a defendant and can be raised by way of preliminary objection at any stage of proceedings being a threshold issue of jurisdiction that can be raised at any time. It transcends and so cannot be limited by Rules of court, to being so pleaded. For that reason, the objection raised by the Appellant premised on the limitation law of Cross River State was properly raised in the proceedings of the case before the High Court and the Appellant was entitled to the protection of that law if it applied to the case.

The law is now common place that in order to determine whether an action was commenced or initiated outside or after the expiration of the period of time limited by and prescribed in a limitation law, the court would look at and consider the writ of summons and the statement of claim setting out the facts relied on in support of the action. The court then compares the date on which the cause or right of the action was said to have arisen and accrued as stated in the statement of claim and the date on which the writ of summons, which is the initiating process of the action, was filed in the court. If the date on the writ of summons shows that it was filed outside the period prescribed in the limitation law from the date the right of action accrued, then the action is statute barred. The time begins to run for the purpose of a limitation law, from the date the cause of action arose and accrued to the person entitled to a remedy. See Ekeogu v. Aliri (1991) 3 NWLR (179) 258; Iweka v. SCOA (2000) 7 NWLR (664) 325; Arolowo v. Ifabiyi (2002) 7 SC (Pt. 1) 71; Owie v Ighiri (2005) 1 SC (Pt. II) 16; Aremo II v. Adekanye (2004) ALL FWLR (224) 2113, (04) 7 SC (Pt. II) 28.

It is common ground in the present appeal that the Respondent’s writ of summons which is at pages 1 and 2 of the record of appeal, was dated and filed on the 20/4/2004. That is settled.

The learned counsel for the Appellant had argued that the writ clearly indicates that the cause of action arose in 1981 and that paragraphs 7, 8, 10 and 16(3) (sic) of the statement of claim at pages 4 – 6 of the record of appeal, enforce the position that the cause of action arose in 1981. The writ of summons contains the following endorsements as the claims by the Plaintiff:-

1. A decoration that the plaintiff is entitled to the statutory right of occupancy to all that piece or parcel of land and building thereon lying and situate at 1/2 Obudu Street, Igoli, Ogoja.
2. An order of perpetual injunction restraining the defendant, her agents, servants or privies from further trespassing on the said land.
3. An order for an account of rents collected since 1981.

Apparently, the year 1981 was mentioned in claim 3 above to be from when the rents collected should be accounted for by the Defendant. However, the claim alone, does not provide or contain the facts which are material and essential to support it and if proved would entitle the Respondent to a judicial order to account against the Appellant as claimed therein. Without more, the claim does not show or indicate any fact which if proved would entitle the Respondent to the relief claimed and so has no indication that the cause of action arose in 1981.

Paragraphs 7, 8, 10 and 16(3) of the statement of claim said to reinforce that the cause of action arose in 1981, would speak for themselves, at my discretion. Here they are:-

“7. It was when the plaintiff’s father died on 18/5/81 that the defendant’s late father (late Chief Thomas Mogbe Uge) took control of the now disputed property of late Chief Victor Ifop Iyeje. Among the children of late Chief Victor Ifop Iyeje are plaintiff, late Anna Ifop Iyeje, late Angelina Ifop Iyeje, Martina Ifop Iyeje, Philomena Ifop Iyeje; Patrick Ifop Iyeje, Mercy Ifop Iyeje. Apart from late Anna Ifop Iyeje and Angelina Ifop Iyeje, the rest of the children were of tender ages when their father died.

8. Before the plaintiff’s sister (late Anna Ifop Iyaje) died on 16/5/2000 she requested the defendant’s father for the 4th time to return control of her later father’s property to her to manage on behalf of her brothers and sisters but the defendant’s father refused saying that the property will only be handed over to his late brother’s children after his death. He later surrendered the six rooms house leaving that of ten rooms until his demise

10. The plaintiff further avers that the defendant’s father refused to sponsor his late brother’s children in school in spite of the rents he collected from the property.

16. (3) An order for an account of rents collected since 1981 totaling Two Hundred and Seventy-Eight Thousand, Six Hundred and Forty Naira (N278,640.00) only.

These averments are in simple and every day English language such that they are do not require or need any interpretation. In brief, they show that when the Respondent’s father died in 1981, his brother; the Appellant’s father took control of his landed property including the one in dispute as the children were of tender age at the time of his death. The Appellant’s father released a six rooms building to the Respondent’s family but said the building in dispute would be released on his death. The claim for rents collected since 1981 was repeated. Do these facts support that the cause of action in respect of the 10 rooms building in dispute in the case, arose in 1981 because the Appellant’s father was said to have taken control of his late brother’s property as the latter’s children were of tender age at the time of his death?

I have no hesitation in saying that the mere act of taking over of a late brother’s property, whose children were minors at the time of his death, by his brother in our traditional way of life, cannot seriously be said to be a fact that gave the right of action to the children to claim a judicial relief against their uncle, who traditionally, was also a father to them. From the facts in the averments, the property was taken over by the Appellants’ father to be managed for his brother’s children until such a time they became adults and could properly be able to take care of it. The Appellant’s father had released part of the brother’s property he took control of in 1981 to his children, but retained the part in dispute to be released to them, on his demise. When these facts are considered along with the other facts deposed to in the statement of claim, which the court should look and consider as a whole and not in isolated bits and pieces or piece meal, as the learned counsel for the Appellant has done in his arguments, it would be clear that no cause of action as defined earlier, had arisen and accrued to the Respondent in 1981. In this regard, the High Court was right when it found in its judgment, at page 120 of the record of appeal as follows:-

“The claimants contend that their late father, Victor Ifop Iyeje, got the land in dispute from Ishibori Community in 1950, and build two houses thereon; one building of six rooms and another building of ten rooms. They say after the death of their father in 1981, his brother by the same mother, defendants father, Thomas Mogbe Uge, took control of both buildings. The claimants asked Thomas Megbe Uge to return their father’s property to them. Thomas returned the six room building to the claimants and said the ten room building will be returned to them after his (Thomas) death. So far no cause of action arose because it looks like the claimants agreed to allow Thomas enjoy the ten room building until Thomas died. Thomas died in 2001 and Thomas’ children refused to release the ten room building to the claimants. To my mind that was when the cause of action arose. From the pleadings in the statement of claim it is clear that Thomas at no time laid claim to ownership of the ten room building. He only said he will hold onto and enjoy it till his death. (See paragraphs 7, 8 & 11 of the Statement of Claim). Before an action for declaration to title can be properly constituted there must be some denial of a claimant’s title by the defendants. There was none between the claimants here and Thomas Uge evinced on the statement of claim.”

I am in complete agreement with the High Court in the above finding that the cause of action arose in the case when the Appellant’s father died in 2001 and his children refused to return or release the property in dispute to the Respondent, on demand. That was when the case of action arose and the right accrued to the Respondent and her other siblings.

Section 1 (Part 1) of the Limitation Law, Cap. C14, Laws of Cross River State 2004 has the following provisions:-
“1. No action shall be brought by any person to recover land after the expiration of 10 years from the date on which the right of action accrued to him. Or if it first accrued to some person through whom he claims to that person.”
These statutory provisions are very clear, plain and unambiguous and the court’s only duty is to accord them their ordinary and clear meaning without any interpolation. The provisions bar an action to recover land after the expiration of ten (10) years from the date on which the right to initiate or commence the action had accrued. Under the provisions, a person wishing to utilize the judicial process to recover land in Cross River State has to do so by initiating or commencing an action to do so within the period of ten (10) years from the date his right to recover the land arose and accrued to him either directly or through another person by whom he is entitled to claim the recovery of such land. If such an action was not initiated or commenced within the prescribed period of ten (10) years, then the right to recover the land through or by the use of the judicial process of a court in the State, would be lost for all times as it would no longer be enforceable in the courts. The purport of the provisions and indeed all similar limitation laws, is that a claimant either exercises the right of action within the stipulated period of time in the law or he holds his peace for ever because once the right is lost by the effluxion of the limited time, it cannot in law, be redeemed or recovered. See Obiefuna v. Okoye (2004) 1 ALL NLR, 96; Egbe v. Adeferasin (No. 1) (1985) 1 NWLR (3) 549; Odubeko v. Fowler (1993) 7 NWLR (308) 637; Ibrahim v. J.S.C., Kaduna State (1998) 14 NWLR (584); Adeosun v. Jibesin (2001) 11 NWLR (724) 290.

Now the question that arises is whether the Respondent’s action was initiated or commenced within the period of ten (10) years stipulated in the limitation law above so as to be competent for the High Court to have the requisite competence or jurisdiction to entertain it.

I have noted that the writ of summons was dated and filed on the 20/4/2004 to initiate or commence the action. I have also found that from a wholistic consideration of the facts contained in the statement of claim, the cause of the action arose and the right of action accrued to the Respondent and her siblings in 2001 when the Appellant’s father died and his children refused to return the property in dispute to them on demand. It is clear therefore that since the right of action accrued to the Respondent and her siblings in 2001 and the writ of summons was filed in 2004 to initiate or commence the action, the action was brought three (3) years from the date the right of action accrued and so within the period of the ten (10) years limited by the provisions of the limitation law above. For that reason, the Respondent’s action was competent since it was not brought after the expiration of the period of time stipulated in the law from the date the right of action accrued to the Respondent and the High Court had the requisite competence or jurisdiction to adjudicate over it.

In the result, I find no merit in the submissions by the learned counsel for the Appellant on the issue which is therefore resolved in favour of the Respondent.

ISSUE 2
As a reminder, the issue is whether the High Court was right to have suo motu raised the issue that the limitation law was inapplicable to land under customary law without hearing the parties.

Learned counsel for the Appellant had referred to page 121 of the record of appeal and said that neither of the parties had alluded to the issue which the High Court on its own motion raised and decided in its judgment. He submitted that it amounted to making a case for the parties which the High Court lacks the competence to do, relying on Shasi v. Smith (supra); Asesa v. Ekwenem (2009) 40 NSCQR, 51 at 82 and Olufeagba v. Abdul-Raheem (2009) 40 NSCQR, 684 at 727-8. Learned counsel conceded that a court has the powers to raise issues not specifically placed before it by the parties but when it does, it cannot proceed to decide such issues without hearing the parties, placing reliance on Stirling Ltd. v. Yahaya (2005) 11 MJSC, 138 and Chami v. UBA (2010) 41 NSCQR, 656 at 679 – 80. He then submitted the decision by the High Court on the application of the limitation law to land under customary law which was raised and decided by the High Court suo motu, cannot be allowed to stand as is the statement in Shasi v. Smith (supra) at 271 by Muntaka-Coomassie, JSC. We are urged to resolve the issue in favour of the Appellant.

The learned counsel for the Respondent had submitted that the issue of limitation law was not raised suo motu by the High Court but raised by the Appellant in the final address by the preliminary objection at page 55 of the record of the appeal. He said it was uncharitable for the Appellant to accuse the High Court of raising the issue suo motu and that the Appellant seems to mistake the application of the law to established facts in resolving the issue with raising fresh issue in a case. It was argued that the High Court was entitled to go beyond the address of counsel in the application of the law in the course of deciding issues formulated by the parties and that was what the High Court did in the case before it. In further argument, counsel said the Appellant has not appealed against the finding of fact by the High Court at page 121 of the record of appeal that the Appellant’s father took control of the land in dispute under customary law as brother of Victor (the Respondent’s father) who died leaving children of tender ages. Based on the finding it was submitted, it was inevitable for the High Court to apply the law in respect of the land as, was stated in Ogunlana v. Dada (supra). The court is urged to resolve the issue against the Appellant.

Generally, the law is that a court, trial or appellate, in the determination of matters before it, is to confine itself to the issues submitted to or placed before it by the parties whose dispute it was called upon to resolve. See Jozebson Ind. Co. Ltd. v. R. Lauwers Import-Export (1988) 7 SCNJ, 93; Adediran v. Interland Transport Ltd. (1991) 9 NWLR (214) 155; Wilson v. Oshim (2000) 9 NWLR (673) 442; Dada v. Bankole (2008) 3 MJSC 1. In fact, the Supreme Court in the case of Ogoh v. Kamalu (2005) 18 NWLR (958) 523 at 556 had held that both the court and the parties are bound by the issues placed before it for decision by the parties. See also Osaghie v. Adari (1994) 6 NWLR (349) 131; Adah v. NYSC (2004) ALL FWLR (223) 1850; Ohochukwu v. A.G. Rivers State (2012) 2 MJSC (Pt. 55) 67 at 956. Again in the case of Anie v. Uzorka (1993) 8 NWLR (309) 1 at 16 the apex court had held that it is not right for a court to suo motu formulate or single handedly raise issues for the parties. This principle applies to both trial and appellate courts and also stated in such cases as Nwokoro v. Onuma (1990) 3 NWLR (136) 22 at 35; Ugo v. Obikwe (1989) 1 NWLR (119) 566; Labiyi v. Arantiola (1992) 8 NWLR (258) 139.

To the above general principles is the exception that in order to determine the real and crucial issues in dispute between the parties, a court has the inherent discretionary power to identify such issues from the cases presented by the parties even if outside those formulated by them for the proper and complete determination of a case. Where such issues raised by the court on its own motion are different and so new or fresh and were not addressed by the parties in their arguments of the issues they formulated, the court would be required by the dictates of the constitutional principle of fair hearing, to afford the parties the opportunity to be heard on such issues before being decided by the court. See Din v. African Newspapers of Nig. Ltd. (1990) 3 NWLR (139) 392; Mohammed v. State (1991) 5 NWLR (192) 438; Egwunewu v. Ejeagwu (2006) ALL FWLR (324) 1893. As an impartial umpire whose only duty and interest is to decide and resolve the dispute between the parties on the basis of the cases presented by them fairly and equitably, on no account should a court of law, suo motu, raise a new or fresh issue in a case before it and proceed to decide it without affording the parties the opportunity to be heard on the said issue. If it does so, that would manifestly be in breach of the constitutionally guaranteed and so sacrosanct principles of fair hearing in the determination of the parties’ right and obligations by courts in Nigeria. In addition, it would amount the court setting up, making and deciding a case or issue different form that presented or placed before it by the parties which by established principles of law, it lacks the requisite power or and jurisdiction to do. See Iriri v. Erhurhobara (1991) 3 SCNJ, 1; UBN Plc v. Ozigi (1994) 3 SCNJ, 42; Oshodi v. Eyifunmi (2000) FWLR (8) 1271; Martchem Ind. Nig. Ltd. v. M. F. Kent (W.A.) Ltd. (2005) 5 SC (Pt. 11) 121; Ishola v. UBN Ltd. (2005) 2 SC (Pt. II) 80; Haruna v. University of Agric. Makurdi (2006) ALL FWLR (304) 432; Ejezie v. Anuwu (2008) 6 MJSC, 86.

In the case before the High Court, the learned counsel for the Respondent is right that the issue of the application of the limitation law to the Respondent’s action was raised by the learned counsel for the Appellant in his preliminary objection filed on the same date with the final address in which it was argued. The grounds on which the objection was premised as contained on the notice which is at page 51 of the record of the appeal, are as follows:-

“GROUNDS OF OBJECTION
1. The cause of action arose in 1981
2. The claimant instituted the present action in 2004
3. By virtue of the provisions of S.1 of the Limitation Laws of Cross River State, action relating to title to land must be brought within 10 years from the date the cause of action arose.
4. The presentation relates to declaration of title to land.”

The arguments proffered in support of the objection in the final address by the learned counsel for the Appellant before the High Court are the same as contained in his brief under issue No. 1 in this appeal. The fulcrum of the objection before the High Court and the issue 1 in this appeal, is that the action was initiated or commenced after the expiration of the period of ten (10) years stipulated in the limitation law and so was statute barred. This was the issue reacted to and addressed by the learned counsel for the Respondent in his final address before the High Court. It can therefore be said that it was the issue raised and placed before the High Court by the parties for its determination in the case. Since there is no complaint on it here, I need not say more on it.

In its judgment, the High Court after deciding the above issue had in addition, found thus, at page 121 of the record of appeal:-

“In Ogunlana v. Dada (2010) NWLR (Pt. 1176) 534/559 paragraph ‘H’ the Lagos Division of the Court of Appeal held that statutes of limitation are not applicable to tenures held under native law and custom. What was the tenure of Thomas over the land in dispute. Thomas was not holding the land by letters of Probate or letters of Administration.
At paragraph 7 of the statement of claim, it is averred that when the claimant’s father died on 18/5/1981, the Defendants father (Thomas) took control of the property of Victor (claimant’s father) now in dispute. In the absence of either letters or Probate or letters or Administration I find and hold that he so took control under customary law as brother or Victor who died leaving children of tender ages (paragraph 7 statement of claim).”

The above is what the learned counsel for the Appellant calls a new or fresh issue raised and decided by the High Court suo motu without according the parties an opportunity of a hearing thereon.
It can easily be observed that the finding of fact made in the above passage by the High Court was that because Thomas, (the Appellants’ father) did not take control and hold the property of his late brother through letters of probate or administration, granted to him by a court of law, he took control and held the property under customary law. This is the specific finding of fact in respect of and to which the principle of law enunciated in the case of Ogunlana v. Dada (supra) was referred to by the High Court. Learned counsel for the Respondent is right that there is no appeal against the above finding of fact by the High Court. The law is settled that any finding of fact by a court not appealed against by a party not satisfied with it, is deemed to have been accepted by the party. See Dabo v. Abdullahi (2005) 2 SC (Pt. 1) 75; Leventis Tech. v. Petrojessica (1999) 4 SCNJ, 121 at 127; Iseru v. Catholic Bishop (1997) 4 SCNJ, 10 at 115; Maduabum v. Nwosu (2010) 13 NWLR (1212) 623 at 656.

In the absence of a ground of appeal from the Appellant against the above finding of the fact that her father took control and held his late brother’s property including the building in dispute, under customary law, she is deemed in law to have accepted it as correct and so learned counsel cannot be heard now to complain on it simply because the High Court had referred to the statement of law in the case of Ogunlana v. Dada in its judgment. Perhaps, I should point out that the High Court did not specifically hold that the limitation law of Cross River State was not applicable to the Respondent’s case because the land in dispute was held in tenure under native law and custom as was held in that case which was decided under the provisions of the Limitation Law of Lagos State. There is therefore no basis whatsoever to say that the High Court had suo motu raised a new or fresh issue in the case which it decided without affording the parties the opportunity to be heard on it.

But the above apart, the learned counsel for the Respondent is right and so I agree with him, that the High Court in the determination of the issues of facts in the case, was entitled to and has the authority to refer to and rely on any statutory provisions or established principle of law that is relevant and applicable to the case before it even if not referred or alluded to by any of the parties. The primary duty of the High Court and indeed all courts of law is to interprete and apply the relevant laws to the facts and circumstances of a case in the determination of disputes between parties and it is not restricted in so doing to the laws specifically mentioned or referred to by the parties. In these premises, if the limitation law of Cross River State provides that the provisions of its Section 1 (Part 1) would not apply to land held under native law and custom tenure, the High Court would have a duty to say so even if none of the parties had alluded to it in their respective cases. The application of the provisions of an existing and extant statute or law by a court which is relevant and applicable to the facts of a case before it would not amount to suo motu raising and deciding a new or fresh issue in the case that required address from the parties. I find no merit in the Appellant’s submissions on the issue and resolve it in favour of the Respondent.

ISSUE 3
Whether the claimant (Respondent) had proved her claim by cogent and credible evidence. Learned counsel for the Appellant had submitted on the issue that the Respondent had the duty to prove her claims since the Appellant did not make a counter-claim. Section 135 (1) of the Evidence
Act and the cases of Archibong v. Ita (2004) 3 MJSC, 158 at 168 and Abiola v. UBA (2011) ALL FWLR (574) 158 at 169 were cited on the submission, as well as inter alia, Elema v. Akenzua (2006) 6 SC (Pt. iii) 26 at 29 on proof for declaration of title to land and injunction.

It was further submitted that the Respondent had the duty to plead and prove clearly, the area of the land to which her claims relate relying on Dada v. Dosunmu (2006) 2 NSCQR, 485 at 508 and Agbeje v. Ajibola (2002) 2 MJSC, 50. According to learned counsel, the Respondent did not specifically plead the area and boundaries of the land she claimed because paragraph 3 of the statement of claim relating to the identity of the land was denied in paragraph 14 of the Appellant’s statement of defence, thus putting the identity of the land in issue. Paragraph 2 of the Respondent’s reply to the statement of defence was referred to by him and said to have made matters worse in the uncertainty of the land claimed. It was his contention that the mere mention of the plot number does not satisfy or identify and define the specific boundaries of the land; citing Otanma v. Youda Bagba (2006) 1 SCM, 76 as authority. Counsel said that the High Court erred by saying that the evidence of DW3 supports the case of the Respondent because the law is that the Respondent can only take advantage of such evidence if she clearly established the identity of the land. The case of Momoh v Umoru (2011) 46 NSCQR 312 at 321 was referred to.

Furthermore, it was argued that the Respondent did not prove the arbitration she claimed was in her favour because she did not produce the proceedings but only to whom it may concern which was not admissible to prove the arbitration. Reference was made to Oparaji v. Ochanu (1999) 6 SC (Pt. 1) 41 at 53. In further submissions, Counsel said the Respondent also failed to prove her assertion that her father’s name was altered to that of Appellant’s father on the title document by producing the document and that the High Court had failed to invoke the provisions of Section 167 (d) of the Evidence Act. In addition, it was submitted that no cogent and credible evidence was adduced by the Respondent to entitle her to judgment and that the Exh. ’13’ record of the testimonies of CW1 and CW2 in another case, and their evidence before the High Court, show that they are not witnesses of truth. That there were conflicts in the evidence of the Respondent and CW2 and that the High Court improperly admitted and relied on the evidence of CW3 and CW4 in previous proceedings as they did not appear at the trial; reliance was pleaded on Ayorinde v. Sogunro (2012) ALL FWLR (636) 403 at 414. We are urged to discountenance the evidence of the witnesses for being inadmissible on the authority of Allied Bank v. Akabueze (1997) 6 SCNJ, 116 at 132 and Onochie v. Odogwu (2006) 2 SCM, 95 at 105. It was the further submission by counsel that the Respondent was to rely on the strength of her case and not the weakness of the defence and the cases of Nkwo v. Iboe (1998) 6 SCNJ, 73 at 80 and Olokotintin v. Sarum (2003) 1 MJSC, 156 were referred to.

Learned counsel then said the Appellant had produced documents and called witnesses whose evidence show the gift of the land and participated in building the property in dispute. Conceding that the High Court had the duty to evaluate evidence and ascribe probative value to it, the law is said to be that where it failed to discharge that duty, this court has a duty to interfere on the cases of Okezie v. Chairman. M.D.D. DT (2011) ALL FWLR (585) 370 at 384; Bunge v. Gov. of Rivers State (2006) 46 at 80 (sic). It was counsel’s submission that the High Court did not properly evaluate the evidence and so made perverse findings by reference to pages 120 and 122 as instances of such findings, urging the court to interfere with them and resolve the issue in Appellant’s favour.

For the Respondent, it was submitted that the Respondent had pleaded and gave evidence which established her claims on the balance of probabilities as required by law. Learned counsel said the Appellant had admitted that the land in dispute belonged to the respondent’s father but alleged that the portion on which the building in dispute was built was given to her father as a customary gift; referring to paragraphs 5, 6 and 7 of the amended statement of defence and evidence of DW2. He argued that since the Respondent had denied such a customary gift in the Reply to the statement of defence and stated in paragraph 7 thereof the circumstances in which the Appellant’s father got possession of the land, the burden of proving the customary gift was on the Appellant. That the Appellant failed to plead the names of the witnesses to the gift and to prove same in evidence. The evidence of Appellant as DW1 and DW2 and DW3 was referred to by counsel and was said to have been thoroughly evaluated by the High Court at page 125 of the record of appeal before arriving at the conclusion that the gift was not proved by the Appellant. Counsel then said the finding was not appealed against by the Appellant and so deemed accepted by her, relying on inter alia, Calabar Co-Op. v. Ekpo (2005) 1-2 SC, 229 at 246 – 7 and Alakija v. Abdullai (1998) 6 NWLR (552) 1. Further, that section 35 of the Evidence Act, 2011 creates a presumption in favour of the Respondent since it was admitted that the six rooms building on the same plot of the land belonged to her father and we are urged to invoke the section to hold that the building in dispute equally belonged to the owner of the undisputed building. The cases of Alli v Alesinlove (2000) 6 NWLR (660), 177; Anyawu v. Mbara (1992) 5 NWLR (242) 381 and Atanda v. Ajagi (1989) 3 NWLR (111) 511 were referred to. It was in addition submitted by counsel that the evidence by PW2, and PW4 who were physically involved in the construction of the building in dispute was more credible to prove the fact that it belonged to the Respondent’s father. Also that PW3 was a tenant in the building who paid rents to the Respondent’s father in 1969.

On the identity of the land on which the building is, counsel argued that the identity of the land was known to both parties and so was not in issue since the Appellant had been collecting rents from the tenants of the house in dispute which was even a subject of arbitration between the parties. He referred to paragraph 3 of the statement of claim and paragraph 3 of the amended statement of defence and maintained that the identity of the land on which the building in dispute is, was not in doubt as it was not made an issue by the Appellant in the statement of defence. Reference was also made to the evidence of the Appellant under cross examination at page 104 of the record of appeal and Exhibit 4 and it was submitted that the High Court was on firm grounds when it held that it was satisfied with the identity of the land is dispute. We are urged to resolve the issue against the Appellant.

The complaint in the issue is one on evaluation of the evidence adduced before the High Court by the parties. Learned counsel are right that the evaluation of relevant and material evidence adduced by the parties in a case and the ascription of probative value to it are the primary functions of a trial court before which the witnesses appear. The position of the law is that where a trial court had fully and properly assessed or evaluated the relevant evidence placed before it and drew the right inferences from the facts by ascription of the appropriate probative value to such evidence, an appellate court would have no reason to interfere with such an evaluation. This is because an appellate court does not try a case and does not see and hear witnesses testify and as a result, does not experience the subtle and often influencing nuances of the physical appearances of such witnesses. The appellate court’s limited function in an appeal is concerned with whether or not a trial court has or has not made some substantive or procedural errors or has failed to make any or proper findings which the evidence available deserves. It is not the function of this court to try a case on the printed notes or record of evidence and interfere with the assessment or evaluation by a trial court merely because it would have reached a different conclusion on some or even all the facts in the case.

Let me also say that the law is elementary now, that:-
a) In civil cases, the initial burden of proof is on the party who desires that judgment be entered in his favour based on certain facts which he assert, to prove those facts as required by law. See Elias v. Omo-Sare (1982) 5 SC, 25; Okobule v. Oyagbola (1990) 21 NSCC (Pt. 3) 193; NEPA v. Akpata (1991) 2 NWLR (175) 536; sections 131,132 and 133 (1) of the Evidence Act, 2011.

b) The burden of proof in civil cases is not static but shifts depending on the state of pleading by parties. See sections 133(2) and 135(1) of the Evidence Act, 2011; Ebong v. Ikpe (2002) 17 NWLR (797) 504; Buhari v. Obasanjo (2005) 7 SC (Pt. 1) 1; Ogbu v. Wokoma (2005) 7 SC (Pt. II) 123.

c) The standard of proof in civil cases is on the balance of probabilities or preponderance of evidence. See section 134 of the Evidence Act, 2011; Braimoh v. Abasi (1998) 13 NWLR (581) 167; Itauma v. Akpe-Ime (2000) 7 SC (Pt. II) 24; Eno v. Ani (2004) 1 SC (Pt. II) 115,

d) In actions for declaration of title to or ownership of land, the plaintiff is to succeed on the strength of his own case and not the weakness of the defendant’s case. See Animashaun v. Olojo (1990) 21 NSCC (Pt. 3) 306; Okelola v. Adeleke (2004) 7 SC (Pt. 1) 35; Nkwo v. Iboe (1998) 7 NWLR (558) 354.

e) That where in an action for declaration of title to or ownership of land, the identity of the land claimed is in dispute, not certain and so made an issue by the parties in their pleadings, the burden is on the plaintiff to prove clearly and accurately, the identity of such land. Failure to prove the identity of the land claimed where necessary is fatal to such an action. See Awole v. Owodunni (1987) 5 SCNJ, 1; Onuwaje v. Ogbeide (1991) 3 NWLR (178) 147; Ogun v. Akinyelu (2004) 11-12 SC, 4; Daagir v. Kwaghkar (2006) ALL FWLR (306) 959; Adeniran v. Ashabi (2004) 2 NWLR (85) 375.

The complaint of improper evaluation of evidence by the High Court is on the above principles of law. I would start with the principle (e) above on the identity of the land on which the building in dispute is situate and which the learned counsel had argued was made an issue by the parties and not proved by the Respondent. In its judgment, particularly at page 121 – 122 of the record of appeal, had found as follows:

“I agree with the Defendants that the boundaries of the land in dispute must be made clear to the court. The reasons is so that it is clear on what land the orders and decrees of the court will act. The claimants case is that their late father owns all the land on which he built two houses; one of six rooms and another of ten rooms. That land was known as No. 1, Obudu Street Ogoja. When one Charles Adegha developed a building at the beginning of Obudu Street, the original land, No. 1, Obudu Street, the land on which the six room building stood remained No. 1, while the land on which the ten room building stood became No. 2, all of Obudu Street, Igoli, Ogoja. It is the ten room building now known as No. 2, Obudu Street, Igoli, Ogoja, which is in dispute here. The defendants themselves fully understand that as evinced at paragraphs 3 of their further amended statement of defence. However, should I run into any difficulties, I will refer to the one as the land on which the six room building stands and to the other as the land on which the ten room building stands. For now, I am happy with the identity of the land I am dealing with in this matter.

The Defendants witness DW3, said thus about the land during cross-examination on 26/1/2013:-
“The land in dispute is No. 1, Obudu Street, Igoli, Ogoja. It is not known as No. 2. One piece of land was divided into two. The one in dispute is No. 1, the other part is No. 2.”
At paragraph 7 of the further amended statement of defence filed on 19/5/2011 the Defendants state that the land on which both the six room building and the ten room building stand belonged to the father of the claimants.

Without the need to waste verbiage, the above position of the pleadings and evidence of the parties leaves no doubt however that they clearly and precisely know and are one on the identity of the land in dispute in their case. Paragraphs 3 and 7 of the Appellant’s Amended Statement of Defence mentioned by the High Court are thus:-

“3. Defendant denies paragraph 3 of the plaintiff’s claim and states that the piece and parcel of land and the building thereon situate, lying, known, called and addressed for postal services as No. 1, Obudu Street, Igoli – Ogoja belonged to the Defendant’s father which on his death devolves on the defendant and other children of late Chief Thomas Mogbe Uge, while the piece and parcel of land and the building thereon lying, situate, known, called and addressed for postal services is No. 2, Obudu Street, Igoli, Ogoja, belonged to the plaintiff’s father (Late Chief Victor Ifop Iyeje).

7. Defendant states that upon presentation of the wine and yams to his elder brother, plaintiff’s father took defendant’s father, his wife (defendant’s step mother and a few others to the land where he apportioned the piece of land into two equal halves and gave Defendants the empty half while he kept the other with the six room mud house there.

Being satisfied and even happy with the definite and undoubtful identity of the land in dispute, the High Court was right to have found that the identity was not made an issue or in dispute such as would require additional or further proof by the Respondent. On the state of the pleadings and evidence referred to by the High Court in the above finding, proof of the identity of the land in dispute was unnecessary since it was clearly known by the parties and not in doubt. See Osho v. Ape (1998) 8 NWLR (562) 492 at 496; Ogun v. Akinyelu (supra) also reported in (2004) 18 NWLR (905) 362; Otanma v. Youdubagha (2006) 2 NWLR (964) 337; C.G.C. Nig. Ltd. v. Baba (2004) 10 NWLR (882) 658.

With the identity of the land being certain, clear and known to the parties, the case of the Respondent in paragraphs 3 and 4 of the statement of claim at page 4 of the record of appeal, was that the land was given to her late father by the Ishibori Community in 1950 and he built two (2) houses including the building in dispute, on it. Her evidence and that of witnesses that included people who participated in the construction of the said buildings, i.e. CW2 at page 13 of the proceedings of 25/3/2011 by the High Court in the record of the appeal and PW4 as well as PW3 who was a tenant in the building in dispute and paid rents to the Respondent’s father, was not effectively discredited under cross examination. That evidence supports the pleadings of the Respondent that the building in dispute and the land on which it stands, belonged to her father. Then in paragraphs 3, – 7 of the Amended Statement of Defence, the Appellant tacitly admitted that the land on which the building in dispute stands belonged to the Respondent’s father but he gave that portion to her father who built it up. In its judgment at page 122 of the record of appeal, the High Court relying on Orlu v. Gogo-Abile (2010) 8 NWLR (1196) 307, holding 7 at page 333 of the report, said rightly in law, that the burden was the Appellant to prove the gift of the land asserted by her since she had admitted ownership and title in the Respondent’s father. Eventually, the High Court found that the Appellant did not plead the names of the witnesses to such customary gift and did not provide evidence to prove it as required by law, stated in the case of Cole v. Folami (1956) 1 FSC, 66, cited by it. It may be recalled that the burden of proof in law is not static in civil cases but would shift depending on the state of the pleadings during the trial. Section 136 (1) of the Evidence Act, 2011 makes the following provisions in that regard:-

“36 (1) The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other.”

It was the Appellant who asserted that the land in dispute, admittedly belonging to the Respondent’s father, was given to her father as a customary gift and wished and desired the High Court to believe in the existence of the gift. The above provision imposes a legal duty and burden on her to prove the existence of the said gift as required by law. In addition, section 133(2) of the Evidence Act provides that:-

“133(2) lf the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be give if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.”
Subsection (1) mentioned in the above provisions deals with the initial burden of proof by a party against whom judgment would be given if no evidence were produced on either side.

Because the evidence adduced by the Respondent supported her pleadings on the building in dispute on the balance of probabilities in the case, by the above provisions of subsection (2) if no more evidence was adduced at that stage, judgment would be entered against the Appellant and so the burden of proof was on the Appellant to adduce evidence of the customary gift she asserted. In the above circumstances, the High Court is right to have found that the burden of proof had shifted in the case, to the Appellant and that the burden was not discharged by her as required by the law.

On the whole, after a perusal of the evidence adduced by the Respondent in support of the case made in her pleadings, I find that the evidence was cogent, credible and sufficient to prove the case on the balance of probabilities. That the High Court fully and properly evaluated the evidence before it correctly appraised the facts and drew the right inferences from such facts in ascribing the probative value to the evidence. For that reason, this court has no justification to interfere with the evaluation of the evidence by the High Court. The issue is resolved against the Appellant.

ISSUE 4
Whether the High Court was right not to have considered the objection to Exhibit ‘1’. Learned counsel for the Appellant has said that he had objected to the Exh. ‘1’ a document titled “to whom it may concern,” and that the High Court did not rule on it but relied largely on it in its judgment. He said, relying on Peter v. Okoye (2002) FWLR (110) 1864 and Ovunwo v. Woko (2011) 46 NSCQR, 517 at 538, that a court is under a duty to consider all relevant issues placed before it by the parties. That it was wrong for the High Court not to pronounce on the objection as the failure not only leads to a miscarriage of justice but also breaches the right to fair hearing. Citing the cases of Morenikeji v. Adegbosun (2003) 12 MJSC, 139 at 160 and Onyedibe v. Madueke (2012) ALL FWLR (630) 1342 at 1371, learned counsel said since the High Court had failed to pronounce on the objection, the issue should be resolved in favour of the Appellant and allow ground 11 of the appeal.

On his part, the learned counsel for the Respondent had submitted on the issue that the said Exh. ‘1’ was admitted without objection during the pre-trial sessions and referred to page 87 of the record of appeal. That it was in the final address that the learned counsel for the Appellant had urged the High Court to expunge it on the ground that it is not the appropriate document to prove customary arbitration. Counsel defined what customary arbitration is and said that there is no defined or stipulated procedure for it and that it can be in writing or oral. The case of Agu v. Ikwebe (1991) 3 NWLR (180) 385 was cited and it was argued that the case of Oparaji v. Ohanu (1999) 9 NWLR (618) 291 cited by the Appellant in the final address before the High Court did not decide that the appropriate document to prove customary arbitration is the proceedings. Learned counsel contended that the Appellant did not object to the admissibility of the Exhibit when it was tendered or even in the final address but only urged the High Court to expunge it in the address which does not amount to an objection to the admissibility.

I have found at page 1 of the proceedings conducted by the High Court on the 25/3/2011 which is part of the record of the appeal that has no page numbers indicated, that at the pre-trial, the document dated 19/4/2004 was marked as Exh. 1. Then at page 117 of the record of appeal, the High Court had in its judgment state that:-
“At the pre-trial conference the claimants tendered Exhs. 1-7.”

There is no record that the said exhibit ‘1’ was tendered at the hearing or that any objection whatsoever was raised before it was admitted and marked. The learned counsel for the Respondent is therefore right that the Exhibit was admitted at the pre-trial sessions without any objection from the learned counsel for the Appellant.

In the final address by the Appellant in the High Court, under issue 2, at pages 60 – 61 of the record of the appeal, this was what was said on the Exhibit;

“We further submit that claimant who acknowledge that Defendant is in possession has not done anything to show that she has a better title. She alleged that her claim was submitted to arbitration and an award was made in her favour. Rather than producing the record of proceedings of the arbitration, she chose to produce a document entitled “to whom it may concern”. We submit that this is not tenable in law. The evidence of arbitration is the record of the arbitration proceedings. What was tendered constitutes secondary evidence which was tendered without the necessary foundation. See Oparaji v. Ohanu (1999) 6 (Pt. 1) SC 41 at 53. We urge My Lord therefore not to use the said document which is exhibit 1. It should be expunged from the records.”

All that counsel said above is that Exh.’1’was secondary evidence tendered without necessary foundation, placing reliance on Oparaji v. Ohamu and so urged the High Court to expunge it from the record. The above is not an effective objection to the admissibility of the Exhibit in evidence because the law is that the appropriate stage at which the admissibility of a document can be raised is at the time it was tendered for admission as evidence in a trial. See Lawson-Jack v SPDC Nig. Ltd. (2002) 13 NWLR (783) 180; Avong v. K.R.P.C. Ltd. (2002) 14 NWLR (788) 504; N.S.I.T.F.M.B v. Klifco Ltd. (2010) 13 NWLR (1211) 307 at 326.

I am aware of the law that where an inadmissible evidence in law, was admitted without objection at a trial, the failure to object to its admissibility at that stage will not prevent its admissibility from being raised in this court. That is position of the law established in cases such as Ogidi v. Egba (1999) 10 NWLR (621) 42; Okonji v. Njokanma (1991) 7 NWLR (202) 131; Alao v. Akano (2005) 4 SC, 25.

The arguments by the learned counsel here on Exh. ‘1’ are not that it is inadmissible in law, but that being secondary evidence, foundation for its admissibility was necessary, but not laid before it was admitted in evidence. There is a difference between a document or piece of evidence that is inadmissible in law and so not admissible at all and one for which the law requires certain conditions to be met or satisfied before it becomes admissible. While the former cannot be admitted at all for the purpose of proof in a case, the latter can and is admissible on the fulfillment of the conditions laid down for its admission or if the parties consent to its admission, thereby waiving the conditions to be satisfied. Where the parties to a case consented to the admissibility of a document, which is otherwise inadmissible, none of them will thereafter be allowed to resile from the consent and later raise objection to its admissibility. See Ibori v. Agbi (2004) 6 NWLR (868) 78; Alade v. Olukade (1976) 2 SC, 183; H.M.S. Ltd. v. First Bank (1991) 1 NWLR (290) 307; Akunne v. Ekwuno (1952) 14 WACA 59.

Since the Appellant had freely acquiesced to the admission of exhibit ‘1’ without any objection at the pre-trial session, and learned counsel did not challenge its admissibility in his final address on the ground that it was inadmissible in law but only that the necessary foundation for its admissibility was not laid, the High Court was right to have ignored the objection for being an after-thought. Ordinarily, a court has a duty to make pronouncement on all relevant and material issues or points canvassed by the parties before it in its decision or judgment in a case, but it is not every omission or failure to do so that would necessarily result in a miscarriage of justice or even be prejudicial to any of the parties. Each case is to be considered and determined in the light of its peculiar facts and circumstances.

In the case of the Respondent even without exhibit ‘1’, the High Court had ably demonstrated in its judgment that the evidence of the Respondent along with her witnesses and other pieces of documentary exhibits admitted in the case, was sufficient to prove her claims against the Appellant on the balance of probabilities as required by law. Section 251(1) of the Evidence Act, 2011 makes the following provisions:-
“251.(1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.”

In the premises of these provisions the mere fact that Exhibit ‘1’ was admitted, used and relied on by the High Court in its judgment would not and did not reasonably affect its decision that the Respondent had proved her case as required by law. The decision would have been the same even if the Exhibit was not used in the judgment. I find no merit in the Appellant’s arguments on the issue which is, as a result, resolved against her and in favour of the Respondent.

ISSUE 5
Whether the High Court was right to reject the evidence of DW2 and DW3. It was submitted on the issue that DW2 was a competent witness and that her relationship with the Appellant was no reason in law for the rejection of her evidence, citing the case of Chukwu v. State (1992) 1 SCNJ 57 at 61. Learned counsel for the Appellant also said that evidence of DW2 and DW3 was not in conflict as to who were present when the land in dispute was given to the Appellants’ father and that was if there was, it was not material but a mere discrepancy which did not vitiate the evidence. He cited inter alia, Wachukwu v. Owunwanne (2011) 46 NSCQR, 1 at 23 and Salawu v. State (2011) 47 NSCQR, 276 at 319 and urged us to intervene because according to him, the rejection of the evidence of the witnesses was “improper, appretiation of same”. The court is finally urged to resolve the issue in favour of the Appellant.

For the Respondent, it was submitted that the witnesses required to be pleaded and called to prove a customary gift are those expected not to be beneficiaries of the gift like DW2 and that the High Court rightly rejected the evidence of the witnesses after thorough evaluation. We are urged to so hold.

On the evidence of DW2 and DW3 called by the Appellant to prove her claim or assertion of the customary gift of the land in dispute, the High Court stated and found thus in its judgment at pages 123 – 125 of the record of appeal:
“In Erinosho v. Owokoniran (1965) NWLR (Pt. 479) it was held that in order to transfer an absolute title under native law and custom it is necessary that such a transfer should be concluded in the presence of witnesses who saw the actual handing over of the property. In Cole v. Folami (1956) 1 FSC 66, the court held that the names of the witnesses is the transfer ought to be pleaded and proved.

At paragraph 6 & 7 of the further amended statement of defence on 19/5/2011, the Defendants state that the gift and letting Thomas into possession was made in the presence of “one of Thomas” wives and a few others”. As stated in the legal authority of Cole v. Folami (supra) the defendants did not plead the names of those persons. Without pleading her name, Dw2 was called as that wife of Thomas who accompanied Thomas for the gift of land. The witness was also lucky to have survived all the other wives of Thomas who were alive during the gift of land. The witness herself said she was third of his five wives during cross examination, and that only two of them (wives) were left with Thomas when the land transaction took place.
Testifying in Chief, DW2 said on Exhibit 15 thus:
“There in company of some persons he divided the land into two and gave my husband the empty one while he took the one with the six room mud house. After that we returned to his residence in Ishibori where Chief Ntaji has now built a house to eat and drink in celebration.”
During cross examination the witness said:
“Those present were claimant’s father, my husband and myself… I carried six yams and a jar of palm wine with grass cutter meet to claimant’s father the day he gave his brother, my husband, the land.”
On the evidence of DW2, I make the following observations:
1. The pleading at paragraphs 6 & 7 of the further amended statement of defence is that the gift and handing over was done in the presence of one of Thomas wives and a few others. In her evidence, DW2 said the “few others” were her late husband, Thomas and the giver/donor; Victor. If that was so why did the defendants not state their names in their pleadings. That would have presented the defendants to me more seriously than to just say “and a few others” as they did in their pleadings.
2. It sounds rather strange to me that Victor did not involve any of his own wives, children or relatives in the transaction. Even the recipient, Thomas, involved his wife, DW2.
3. Because DW2 was wife of Thomas, the beneficiary of the gift, and is now a beneficiary of the gift as a beneficiary of the estate of her husband, Thomas, I am very wary to believe and act on her evidence only, on this point. But even if I believe DW2, I would have required the evidence of an independent and neutral person who witnessed the gift transaction to uphold it, but that was not forthcoming.

On this point DW3 said thus during cross examination:
“My father in law took yams and palm wine to CW1’s father in the presence of Chief Ishang Gregory Ayung. CW1’s father showed him land beside his own six rooms mud house. Apart from Ishang, my father-in-law said there was another man also present, and that DW2, PW1’s father’s wife, was also present. All of them are dead now except DW2.”

Firstly, that evidence goes to nought as it was not pleaded.
Secondly, it contradicts the evidence of DW2 who said she was present when the gift of land was made. DW2 said those present were claimant’s father, Thomas (her husband), and herself (DW2). That was a very material point in the case of the defendants. No foundation was laid to enable me believe the one and disbelieve the other. As I stand I cannot and do not believe any of them. Where there are conflicting and irreconcilable evidence given by different witnesses for one party, it strengthens the case of the other party. That is the effect that conflict in the evidence given by DW2 & 3 on this point has on this case. This story of gift of land is thereby greatly weakened.

“It is clear as crystal” and so can easily be seen from the above portion of the High Court judgment that it did not reject the evidence of DW2, on the sole ground that she was a beneficiary of the gift in question as was argued by the learned counsel for the Appellant in his brief. Primarily, relying on the authority of Cole v. Falami, the High Court had found that the Appellants did not plead the names of the witnesses to the gift as required by law and their evidence was neither here nor there as proof of the said gift. Other reasons were then set out by that court for saying that the evidence of the witnesses did not help the case of the Respondent. There is no appeal on the finding that the names of the witnesses were not pleaded as people who were present and witnessed the gift of the land in question to the Appellant’s father. The Appellant is deemed to have accepted that finding as correct and cannot now be heard to complain of the rejection of their testimony in respect of that gift which was the pith of her case. The record of the appeal; particularly the judgment of the High Court, does not bear out the allegation that the evidence of DW2 was rejected because she is a beneficiary of the gift in question. Furthermore, the conflict of the evidence of DW2 and DW1 pointed by the High Court in the judgment is a material one on who were the actual witnesses to the gift claimed by the Appellant. As I have stated above, the Appellants’ case, which was in essence a counter claim, was entirely predicated on the gift in respect of which the two (2) witnesses testified.

The High Court was perfectly right in the circumstances of the case to have held that the conflict in the evidence of the witnesses on the point was material and not a mere discrepancy and had weakened the Appellant’s case. Learned counsel for the Appellant is right on the authorities he cited and more, on the differences in meanings and legal effect of minor discrepancies and material conflicts in evidence of witnesses called by a party in a case.

In addition, the law is also that the evidence of a witness in a case is not rejected on the mere ground of his relationship with the party calling him or that he may benefit from the outcome of a case. Evidence of any witness in a case is either accepted, believed and acted or relied upon, or is rejected and discountenanced by a court on very well known and established principles of law which do not include personal relationship with the person calling the witness.

This issue is undoubtedly unmeritorious and I have no difficulty in resolving it against the Appellant.

In the final result, because all the five (5) issues formulated and canvassed by the learned counsel for the Appellant have been resolved against the Appellant, the appeal is lacking in merit on all the grounds from which the issues were distilled. It fails and is dismissed by me accordingly.
Parties shall bear their respective costs of prosecuting the appeal.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. I agree that, the issues articulated by the Appellant are unmeritorious and have all been resolved against him. I do not hesitate to dismiss this appeal, it lacking in merit. I also abide by all the consequential orders contained in the lead judgment.

CHIMA CENTUS NWEZE, J.C.A.: My Lord, Garba, JCA, obliged me with the draft of the leading judgment just delivered now. I agree with the reasoning and conclusion. This contribution is limited only to the question of the lower court’s evaluation of evidence which the appellants agitated in issue three.

I, entirely, agree with the leading judgment that an appellate court would only be justified to interfere with the lower court’s evaluation of evidence if the said court failed to evaluate, or did not properly evaluate, the material evidence placed before it. Indeed, appellate courts always advise themselves that they are not permitted to embark upon their own evaluation of the evidence of the parties in a case and proceed to make their own findings thereupon.

It is settled that this can only be done when it has been established that the trial court’s findings on the issues were perverse or otherwise faulty, Okpiri v. Jonah (1961) All NLR 102, 104-105; (1961) 1 SCNLR 174; Maja v. Stocco (1968) 1 All NLR 141,149; Woluchem v. Gudi (1981) 5 SC 291, 295 and 326; Ikoku and Ors v. Ekeukwu and Ors (1995) LPELR-SC.211/1989; [1995] 7 NWLR (Pt. 410) 637 etc.
It is for these. And the more detailed, reasons in the leading judgment that I too shall enter an order dismissing this appeal as unmeritorious. I abide by the consequential orders in the said leading judgment.

Appearances

B. JohnsonFor Appellant

AND

Matthew Ojua with Uche OrisakeFor RespondeNT