SIAKA ISEZUO & ANOR v. CHIEF J.A. SANNI & ANOR (2013)

SIAKA ISEZUO & ANOR v. CHIEF J.A. SANNI & ANOR

(2013)LCN/6536(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 26th day of November, 2013

CA/B/198/2012

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

1. SIAKA ISEZUO
2. OKOMAYIN ADELOYE ALOMAJA (ALIAS OKOMAYIN GENERAL) HEAD OF EZIAVI BRANCH OF ESHINAVAKA FAMILY (FOR HIMSELF AND ON BEHALF OF THE EZIAVI BRANCH OF ESHINAVAKA FAMILY OF IGARRA) Appellant(s)

AND

1. CHIEF J.A. SANNI
2. CHIEF L.A. OSHOMAH
(FOR THEMSELVES AND ON BEHALF OF ESHIMOZOKO FAMILY OF UGBOGBO QUARTERS, IGARRA) Respondent(s)

RATIO

WHETHER OR NOT THE TRIAL JUDGE IS BOUND TO CONSIDER THE ADDRESSES OF ALL PARTIES TO A CASE

There is no doubt that a learned trial judge is bound to consider the addresses of all the parties to a case. Addresses are of beneficial effect and are meant to streamline before the court, the case being made out by each party. S.294(7) of the 1999 Constitution guarantees the right of the parties to so present their cases. In Yusuf v. Adegoke (2007) 4 SCNJ 77; Obodo v. Olomu & Anor. (supra), the Supreme Court held that the right to address must not be denied where it exists as the denial of the right renders the proceedings a nullity if it had occasioned miscarriage of justice. PER OGUNWUMIJU, J.C.A

WHETHER OR NOT THE IDENTITY OF THE LAND IN DISPUTE IS REQUIRED TO BE PROVED IN AN ACTION FOR DECLARATION OF TITLE TO LAND

ACQUISITION OF LAND UNDER CUSTOMARY LAW

As far back as the judgments in WACA and as recent as Mogaji & Ors. v. Cadbury Nig. Ltd. & Ors., the Supreme Court per Obaseki JSC held that property is acquired under customary law either by settlement, by inheritance, by grant or by sale. The Respondents were able to plead and prove that they acquired the land by settling on it and conquering the Anubes (or Ogbes) whom they met on a portion of the land. PER OGUNWUMIJU, J.C.A

THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING

It is also settled law that it is the person who alleges the breach of the rules of fair hearing and or denial of fair hearing that has the burden of proving same, and in addition that whether a trial or proceeding had been fair or not, depends on the facts and circumstances of each case. See GBADAMOSI V. DAIRO (2007) 1 SC (PT. II) 151 at 171-172 and MAIKYO V. ITODO (2007) 3 SC (PT. II) 34 at 54. Indeed, in the case of MAGAJI V. THE NIGERIAN ARMY (2008) AII FWLR (pt. 420) 603; or (2008) 34 NSCQR 108 at pages 144-145, the Supreme Court per Tobi, JSC; reiterated the fact that breach of fair hearing where it is alleged must be seen to flow or arise from the facts of the case at hand. In this regard, his lordship (i.e. Tobi, JSC) reiterated what he said in the case of Orugbo v. Una (2002) 16 NWLR (pt. 792) 175 at 211-212 on the principle of fair hearing thus:-
“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial court. But it is not so it cannot be so. The fair hearing constitutional provision is designed for both parties in litigation, in the interest of fair play and justice. The courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.” PER LOKULO-SODIPE, J.C.A.

WHETHER OR NOT FAILURE TO ALLOW PARTY EXERCISE IS RIGHT OF ADDRESSING THE COURT IS TANTAMOUNT TO A BREACH OF FAIR HEARING

HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Edo State High Court delivered by Hon. Justice A.N. Erhabor on 19/3/2012. The facts that led to this appeal are as follows:
The Respondents who were claimants at the trial court sued the 1st Appellant over a small portion of land which they claimed was part of their vast land called Anjozote, Ugbogbo Quarters, Igarra in Edo State. On the application of the 2nd Appellant, he was joined in a representative capacity by order of the trial court dated 7th February, 2007 as the 2nd defendant (now 2nd Appellant).
The Respondents’ claim against the Appellants jointly and severally as contained in paragraph 50 of the Further Amended Statement of Claim thus:
(1) A declaration that the plaintiffs are entitled to the statutory right of occupancy in the said land in dispute the dimensions and abuttals whereof are more particularly shown on the survey plan No. V.P.S/EDO5/134 dated 12/12/2005 filed by the Respondents.
(2) N5 million general damages for the defendants’ repeated and/or continuing acts of trespass to the respondents’ said land in dispute.
(3) Perpetual injunction restraining the defendants whether by themselves, their agents, servants, privies or otherwise however from continuing or repeating any acts of trespass to the plaintiffs’ said land in dispute.
The case went to trial. The Respondents who were Plaintiffs during the trial claimed to be the owners of a vast land in a place called Anjozote, Ugbogbo Quarters, Igarra, which their family, Eshimozoko family of Igarra acquired long ago through the conquest of the original owners, the Anubes, under the leadership of Anjozote, the warrior who led his family to wage a fierce war with and eventually defeated the Anubes. Upon their conquest, the Anubes fled the land for good and it consequently became the property of the Respondents’ family, Eshimozoko family of Ugbogbo Quarters of Igarra.
The Respondents led evidence at the trial that to honour and immortalize Anjozote for his gallantry, his said family, Eshimozoko, named the land after him. Hence the land became known as Anjozote land owned and controlled from the time of the conquest of the Anubes by Eshimozoko family till today under Igarra native law and custom. Recently the Appellants trespassed on a portion of the said Anjozote land resulting in the institution of the action by the Respondents.
The Plaintiffs/Respondents called ten witnesses to prove their claims. The Appellants as defendants denied the claims and called five witnesses, namely, DW 2, 3 and 4 who swore that the land in dispute is part of Ekunche land owned by the Eziari family who gave same to the 1st Appellant. The parties tendered survey plans Exhibits C and G respectively. At the end of the trial, the parties filed their respective addresses. Judgment was entered by the learned trial judge for the Respondents against the Appellants granting the Respondents a declaration of title, injunction and N300, 000.00 damages for trespass.
Being dissatisfied with the judgment, the appellants have appealed against it by filing 10 grounds of appeal.
In the Appellants’ brief settled by Chief S.S. Obaro filed on 9/8/2012, six issues were identified for determinated as set out below:
1. Whether the failure of the learned trial judge to give any consideration to the defence (appellants) counsel’s written addresses at the close of evidence before him did not amount to denial of fair hearing and miscarriage of justice to the appellants.
2. Whether, on the pleadings and the evidence in this case, the learned trial judge was right in holding that the identity of the land in dispute (particularly the boundary between Respondents and the Appellants) was sufficiently established by the Respondents to justify the grant of declaration of title and injunction to them.
3. Whether the learned trial judge was right in granting declaratory and injunctive reliefs to the Respondents in respect of the land in dispute whose precise identity was misapprehended by the Respondents and the court and not pleaded and proved by consistent and credible evidence.
4. Whether the learned trial judge was right in holding that the respondents proved their root of title i.e. the traditional history of their ancestors’ acquisition of the land in dispute by conquest of the original owners thereof and the customary law regulating such acquisition, as pleaded by them and as required by law, to entitle them to declaration of title to the land in dispute.
5. Whether the learned trial judge was right when he suo motu raised the issue as to the respondents’ ownership of adjacent or adjoining lands to the land in dispute and, without inviting counsel to address him thereon, drew the inference, or came to the conclusion, that the respondents owned the land in dispute.
6. Whether, on the facts of this case, the respondents were entitled to the award of any damages at all or to the award of N300,000.00 general damages made by the learned trial judge to the respondents for trespass.
The Appellants also filed a reply brief on 9/4/2013. The Respondents’ brief was filed on 19/9/2012 and deemed filed on 26/3/2012. It was settled by C.D. Bello Esq. Therein the following issues were identified for consideration by this court.
1. Whether the learned trial judge was right in holding that the respondents proved the identity of the land in dispute.
2. Whether the learned trial judge was right in holding that the respondents proved their root of title to the land in dispute by traditional history and are so entitled to their claim against the appellants.
3. Whether the award of general damages of N300,000.00 by the learned trial judge against the appellants for trespass was not justifiable.
4. Whether the appellants’ complaint is justified concerning alleged denial of fair hearing and/or miscarriage of justice based on the alleged non-consideration of their address and reference by the learned trial judge to the properties indicated in the respondents’ plan adjoining and/or adjacent to the land in dispute vis-a-vis ownership of the said land.
Even though quite verbose and in my humble opinion inelegantly drafted, I will adopt the issues as identified by the appellants’ counsel. Counsel argued issues 2 and 3 together and Issues 4 and 5 together. I will so consider the arguments in the determination of this appeal.
ISSUE ONE
The complaint raised by learned Appellants’ counsel in this issue is that even though parties filed written addresses, the learned trial judge made no reference in the entire judgment to their addresses beyond an acknowledgment of them. Counsel complained that the learned trial judge gave no consideration to the said written addresses and went ahead to formulate issues outside the issues formulated for determination by the parties. He argued that the trial court was duty bound to consider and not shut its eyes to the appellants’ written address. He submitted that the failure of the trial judge to consider the appellants’ written address amounted to a denial of fair hearing which is guaranteed by S.294(1) of the 1999 Constitution (as amended). Counsel cited Obodo v. Olomu (1987) 18 NSCC Pt. 11 Pg. 824 at 831; Abuguja v. Azifuakwa (2008) All FWLR Pt. 411 Pg. 1004 at 1010-1011.
Learned Respondents’ counsel answered this point in their argument in their issue 4. Counsel urged this court to hold that the learned trial judge made references to various evidence of witnesses and the exhibits. He argued that the argument is a baseless one based on academic arguments which in turn is misleading and irrelevant.
I have considered the arguments of learned appellants’ counsel in this matter. There is no doubt that a learned trial judge is bound to consider the addresses of all the parties to a case. Addresses are of beneficial effect and are meant to streamline before the court, the case being made out by each party. S.294(7) of the 1999 Constitution guarantees the right of the parties to so present their cases. In Yusuf v. Adegoke (2007) 4 SCNJ 77; Obodo v. Olomu & Anor. (supra), the Supreme Court held that the right to address must not be denied where it exists as the denial of the right renders the proceedings a nullity if it had occasioned miscarriage of justice.
In the first instance, the acknowledgment of the written addresses by the learned trial judge on Pg. 25 of the judgment and Pg. 145 of the record is sufficient to show that the learned trial judge took cognizance of the parties respective written addresses. His Lordship praised the diligence and advocacy of both counsel.
The Appellants counsel had complained that the trial court ignored the issues as couched by the parties and formulated different issues. Let us look at the issues as formulated by the parties. In their address at Pg. 82 of the record, the issues formulated by the appellant’s counsel are stated thus:
(i) Whether or not the plaintiffs adequately established the identity, or the precise boundaries of the land in respect of which they are claiming declaration and injunction, as required by law.
(ii) Whether the plaintiffs have established their root of title to, and ownership of the land claimed by them to entitle them to the declarations sought by them.
(iii) Whether, on the evidence before your Lordship, the plaintiffs adduced evidence of sufficiently long possession of the land (if at all) to entitle them to the declaration and/or damages claimed by them?
At Pg. 104 of the record, the learned respondents’ counsel had also identified similar issues for determination. They are set below:
1. Whether the plaintiffs proved their root of title to the land in dispute by traditional history and are so entitled to their claim against the defendants.
2. Whether the plaintiffs proved the identity of the land in dispute.
The learned trial judge in the judgment at Pg. 145 of the record formulated his own issues thus:
“(a) Whether or not the plaintiffs have established the identity of the land in dispute as required by law.
(b) Whether the plaintiffs have proved their case as required by law on a preponderance of evidence or balance of probabilities.”
It is clear that all the learned trial judge did was to adopt and rephrase the issues as already set out by both counsel and his Lordship certainly did not formulate different ones. The fact that the judgment did not refer specifically to argument of counsel is of no moment. The learned trial judge was not bound to write the judgment in a particular way or to specifically refer to the arguments of counsel in their addresses. What is required is that the judgment should show that the learned trial judge took cognizance of the case made out by the parties, understood the case, considered all materials brought before the court in arriving and findings of facts on which he applied the law. I have read the judgment of the trial court and indeed the learned trial judge acquitted himself creditably and did not ignore the case as made out by any party to warrant the complaint of unfair trial. It is mere shadow boxing and hair splitting on the part of Appellants’ counsel to argue that the learned trial judge could not rephrase the issues in a more concise form so long as it to achieves the ends of justice. See Agbakoba v. INEC & Ors. (2008) 12 SCNJ 619. This issue is misconceived and is resolved against the appellant.
ISSUES TWO AND THREE
Both issues were argued together by learned appellant’s counsel. Counsel argued that from the state of the pleadings, the main issue in controversy with respect to the identity of the land in dispute is the boundary between the respondents’ family and the 2nd defendants’ family and that the law is well settled in such a case that the onus is on the Respondents (as plaintiffs) to prove that boundary.
Counsel complained that the Appellants in their pleading besides pleading that the land (part of which is the land in dispute) is a “vast land” and that it is called “Anjozote land”, nowhere did they plead the precise description of all the boundaries of the land in dispute, clearly delineated and demarcated from the “vast land”. Rather they identified and described the area in the disputed land allegedly trespassed on by the 1st Appellant.
Counsel drew our attention to the fact that throughout the proceedings before the learned trial judge, the Respondents, both in their pleadings and evidence, treated the area of the land allegedly trespassed upon by the 1st Appellant as “the land in dispute”; whereas on the issues joined by the parties in the pleadings, it was evident that the land in dispute between Respondents and 2nd Appellants was the land between the alleged seasonal stream which Respondents called “Orosi Yere yere” (and which they claim is their boundary with 2nd Appellants) and “Omokhide Street”, which the 2nd Appellant claim is their common boundary.
Counsel submitted that the onus was on the respondents to prove the land in dispute. He cited Udenze & Ors. V. Yuwosu & Ors (2008) 154 LRCN 110 at 140; Okochi v. Animkwo (2004) 114 LRCN 2924 at 2936; Udeze v. Chidebe (1990) 1 NWLR Pt. 125 Pg. 141 at 159; Elias v. Omo-Bare (1982) 5 SC 25 At Pg. 55. Counsel further submitted that a claimant to title must describe in the pleadings with accuracy and precision the land in dispute which description must not contradict their survey plan or evidence on oath. Where this occurs, the claim to title and injunction must be refused. He cited Ukaegbu v. Nwlolo (2009) All FWLR Pt. 466, 1852 at 1884C-1885B; Ogedengbe & Ors. V. Balogun & Ors. (2007) 153 LRCN 195 at 214JJ-215EE; Imah v. Okogbe (1993) 9 NWLR Pt. 316, 159 at 174-175; Awote v. Owodunmi (1987) 5 SC 1 at 15-16; Iyayi v. Eyigebe (1987) 3 NWLR Pt. 61, 523 at 529; Salami & 3 Ors. V. Oke (1987) 4 NWLR Pt. 63 at 17.
Learned counsel submitted that the learned trial judge was wrong in arriving at the conclusion that the land in dispute was well known to the parties given the fact that his lordship did not advert his mind to the various contradictions in the evidence of the respondents as plaintiffs which was well articulated in the written address of counsel at the trial as adumbrated by counsel in the appellants’ brief. Counsel argued that while the trial court summarized the evidence, he failed to evaluate the evidence.
Counsel made the complaint vociferously that the learned trial judge completely misapprehended the land in dispute by stating that the land in dispute measures 63ft 8 inches by 33ft 3 inches thus limiting the area covered by the land in dispute only to the small portion allegedly trespassed on by the 1st appellant which is the area verged red on Exhibit C the survey plan tendered by the respondents as plaintiffs at the trial court. Counsel submitted that in the face of this profound error on the part of the trial judge, the judgment must not be allowed to stand. He cited Adejugbe v. Ologunja (2004) All FWLR Pt. 201 Pg. 1652 at 1677 and Thompson Organisation Ltd. v. UNICAL (2004) 118 LRCN Pg. 4160 at Pg. 4177.
On this issue which is the Respondents issue one, learned Respondents’ counsel argued that there is no dispute or controversy regarding the identity of the land in dispute. He pointed out that both sides filed survey plans Exhibit C (by the respondents) and Exhibit G (by the appellants) with their respective pleadings showing, in many respects, the same features around or adjacent to the land in dispute. Some of the common features shown on both survey plans are, inter alia, the respective properties of Ama Penu or Ipenu’s mother, Adeche Ejibo and Ajokini/Siaka Ajokini Amune. Also shown on both parties’ survey plans is Majebi Onaivi’s (Shankey’s) property which prominently featured therein and was a reference point for both parties in their pleadings and evidence, being heavily relied upon by the parties respectively. Respondents’ counsel also argued that in their plans, (Exhibits C and G) both the respondents and appellants respectively show Majebi Onaivi’s (Shankey’s) property as being located near the land in dispute. In both plans, the parties respectively show Omokide Street. Counsel maintained that the land in dispute is similarly located on the eastern side of the seasonal stream Orosi Yereyere shown in the appellants’ plan, Exhibit G. He submitted that the location of the land in dispute on the said Exhibit G gives credence to the respondents’ position as to the identity of the land in dispute.
Counsel submitted that the Respondents as plaintiffs were only required by law to prove the precise area of land to which their claim relates and that the respondents discharged that burden of proof in this case. Counsel argued that contrary to the appellants’ argument in their brief, the land in dispute in this case is clearly delineated and demarcated in the respondents’ survey plan, Exhibit C, describing the land in dispute as “area in dispute” and “cause of action” with the measurement thereof clearly indicated therein, i.e. 19.40m in length and 10.45m in width situate within a larger parcel of the respondents’ land at Anjozote. Thus the only part of the respondents’ said vast land at Anjozote in dispute in this case is the said land delineated and demarcated in red in the said Exhibit C, the respondents’ plan.
Learned Respondents counsel argued that it was the Appellants who misapprehended the case of the Respondents while the learned trial judge did not at all misapprehend the case made out by the Respondents as plaintiffs during the trial. Counsel then argued on this issue that the appellants’ argument concerning “total area owned by Eshimozoko family” on the respondents survey plan, Exhibit C, is misleading and that the area verged green shows features of developments by members and grantees/customary tenants of the respondents’ family as copiously pleaded in the further amended statement of claim, particularly paragraphs 21, 22 and 28 thereof. Counsel insisted that the averments were duly proved by the respondents at the trial. The said area of the respondents’ land verged green serves the purpose, as it were, of showing such features without equivocation. Counsel argued that all the same, the said land verged green was never made part of the land in dispute in this case. Counsel cited Okonkwo v. Okwonkwo & Ors. (2010) 5-7 Pt. IV M JSC 45; Awoyoolu v. Aro (2006) 4 MJSC 123 at 148; Omoregbe v. Lawani (1981) 3-4 SC 108 at 177. He urged the court to hold the parties bound by their pleadings. He urged the court to disregard arguments based on technicalities which would wreck injustice. He cited Fagunwa v. Adibi (2004) 12 MJSC 1 at Pg. 20-21.
Let us look at the findings of the trial court in relation to the identity of the land in dispute. At Pg. 146 of the record, his Lordship held thus:
“I am of the candid view that the disputed land is well known to both parties and has been sufficiently described in evidence to be ascertainable by oral evidence and the survey plans tendered in court. The 2nd plaintiff in his testimony in court sufficiently described the land in dispute. He said the land is 63 feet 6 inches long and 33 ft 3 inches wide or 19.40 meters and 10.45 meters respectively.”
At Pg. 147 of the record, his Lordship held thus:
“The parties and their witnesses in my view are quire aware of the disputed land. Now to the survey plans, I have looked at both survey plans tendered in court. The plaintiffs’ survey plan exhibit ‘C’ graphically shows the land in dispute.”
At Pg. 148, his Lordship concluded thus:
“I am of the view that the land in dispute has been sufficiently identified and described by the ipse dixit of the plaintiffs in court and by the survey plans tendered in court as to leave no room for speculation, hypothesis or conjective (sic).”
In the writ of summons filed by the respondents appearing at pp. 1-2 of the record, the respondents’ (then plaintiffs’) claim for declaration of title to the statutory right of occupancy was in respect of the land in dispute measuring about 63.75 ft in length and 34.25 ft in width (approximately 2,183.44 sq ft) opposite the house of Mr. Majebi Onaivi (also called Shankey) on which the respondents alleged that the 1st appellant (before the 2nd appellant was joined by order of court as 2nd defendant) had trespassed.
It is also emphasized in paragraphs 20 and 41 of the Further Amended Statement of Claim. Paragraph 20 of the Further Amended Statement of Claim is set out below as found on Pg. 19 of the record.
The land in dispute, which is situate at and forms part of the plaintiffs’ said vast land at Anjozote, Ugbogbo Quarters, Igarra, within the jurisdiction of this Honourable Court, is together with its abuttals and dimensions more particularly delineated in red in survey plan No. VPS/ED 05/134 dated the 12/12/2005 drawn by V.I.P. Aghimien, a Licensed Registered Surveyor, at the instance of the plaintiffs and filed by them in this suit. The plaintiffs shall rely on the plan at the trial of this case.
Paragraph 41 of the statement of claim.

There is no doubt that in an action for declaration of title to land, the identity of the land in dispute is required to be proved before proof of title to land becomes relevant. See Michael Odunze & Ors. V. Nwosu Nwosu & Ors. (2007) 5 SCNJ 234. The court will not make a declaration or an injunction where the area in dispute is not certain or clearly delineated.
There is no doubt that in an action for declaration of title to land, the identity of the land in dispute is required to be proved before proof of title to land becomes relevant. See Michael Odunze & Ors. V. Nwosu Nwosu & Ors. (2007) 5 SCNJ 234. The court will not make a declaration or an injunction where the area in dispute is not certain or clearly delineated.
In this case, at the trial court, the Respondents claimed for declaration of title and damages only in respect of a small portion of the vast area of land which they laid claim to. They described with particularity the small portion on which they claimed that the 1st appellant had trespassed for which they sought for declaration and damages. We must take note that the writ of summons was first issued only against the 1st appellant as defendant. The 1st defendant/appellant never claimed or pretended to be the owner of the land in dispute but said the small area was granted to him by the family of the 2nd Appellant. It was the 2nd Appellant who later sought and obtained leave to join and defend the suit as a representative of his family. Let us remember that it is the statement of claim in an action for declaration that determines the land in dispute. While the Respondents described in paragraph 41 with particulars their vast area of land, they indicated quite clearly in paragraph 20 and in their evidence on oath that the quarrel was in respect of the small portion on which the 1st Appellant had allegedly trespassed. If the appellant deliberately or mischievously decided to misapprehend the case of the Respondents, that is neither here nor there. If the vast area of land between the two families is the disputed area or the land in dispute as claimed by the 2nd Appellant, why did he not after being joined as a defendant file a counter-claim for title to the vast area of land which he now claims is the land in dispute. With the greatest respect, the learned trial judge understood the case as made out by the Respondents claiming title, damages in trespass and injunction at the trial. They laid claim generally to be the owners of a vast area of land but for the purposes of the declaration of title and trespass, they laid claim only to part of the vast area measuring 63.75 ft (19.4 metres) long and 34.25 ft (10.45) metres wide with an area of approximately 2,183.44 sq ft lying and situate off Omokide Street and being opposite the house of Mr. Majebi Onaivi (also called Shanky or Shankey) at Anjozote. It would have been wrong of the learned trial judge to give them more than they asked for, since they were only claiming damages in trespass in respect of a small part of what they claim to be their vast portion of land.
I agree with the learned Respondents counsel that it is erroneous for the appellants to assume that the land in dispute in this case is the land between the seasonal stream, Orosi Yereyere and Omokide Street which the 2nd appellant claims is their common boundary with the respondents. The dispute plan or survey plan filed in this suit Exhibit C says it all. I looked at Exhibit C. The exhibit showed a vast area of land verged green in which there are several developments. Just inside the said vast area of land, is a small portion verged Red described on the survey as “Area in Dispute” and “cause of action”. Thus it is clear, at least to me, that the claim of the Respondents was limited to that area verged Red. In Exhibit G filed by the Appellant which I also examined, the Appellants as Defendants at the lower court claimed the large area of 2,391 hectares verged green while it shows that the area in dispute is only the 343 sq. metres verged red. I agree that Exhibit G supports Exhibit C in relation to the location and approximate size of the land in dispute. Also a reading of the record shows that in unequivocal words, in his evidence, the 2nd Respondent said during cross-examination at page 41 lines 28-30 of the record, that the land in dispute is directly opposite Majebi Onaivi’s (Shankey’s) house. This evidence came after the 2nd Respondent’s (PW1’s) evidence in-chief enumerating some of the respondents’ numerous customary tenants including the said Majebi Onaivi also known as Shankey.
It is my firm view that all the arguments of learned appellants counsel on this issue is an attempt to throw dust into the eyes of the court and becloud the issue. That tactic has failed. If the 2nd Defendant/Appellant’s family was not sure of the area disputed, why did they seek to join the 1st Defendant/Appellant to defend the claim. Confirming his knowledge of the identity of the land in dispute in this case, the 1st appellant said in his evidence in chief at pg. 77 line 30 “I know the land the subject of this case”. At cross examination this same witness said at pg. 79 line 14, “It is a small piece of land” and at the same pg. 79 line 22, “I cleared it before laying foundation”. Thus, the land in dispute is undoubtedly known to both sides. I am of the firm and humble view that these issues are completely misconceived by the appellant and it is hereby resolved against them. I must also emphasis that it is immaterial whatever name the parties choose to call the land in dispute so long as the site is known to both parties.
ISSUES FOUR AND FIVE
On these two issues, the learned counsel for the Appellants want us to set aside the findings of fact by the trial judge in relation to how the Respondents came to own the vast area a portion of which is claimed to be in dispute. Counsel is urging on us the view that the findings and conclusions were perverse on the basis that his Lordship did not evaluate the evidence of the parties and he failed to consider address of counsel. Counsel argued that while PW2 in his evidence-in-chief said that Anjozote had acquired the land and that while farming thereon he discovered that the Anubes settled on a part thereof and that this resulted in a war between him and the Anubes, under cross-examination he said that the Anubes were the original owners of the land whom they fought, defeated and took over the land from them. PW2’s evidence-in-chief also contradicts the Respondents’ pleading in paragraph 14 of their Further Amended Statement of Claim quoted supra. Counsel argued that the evidence of PW1 and PW2 on this issue was contradictory, at variance with their pleading and totally discredited and the learned trial judge ought not to have relied on them at all.
Counsel argued that the court should have believed the evidence of DW1 and DW2 and disregarded the story of acquisition of the land by conquest since the Respondents did not call a single independent witness to support the story of conquest. Learned appellants’ counsel further argued that on the totality of the evidence before him, the learned trial judge was clearly wrong when he said (at page 150 of the record) that the evidence of DW1 and DW2 was “merely an exhibition or confession of ignorance of the war between the plaintiffs family and the Anubes” and that their evidence did not “constitute a contradiction of plaintiffs evidence” and thereafter proceeded to treat plaintiffs “evidence of traditional history” as uncontradicted and not in conflict.
Counsel complained that the evidence of PW1 and PW2 were at variance with their pleadings with regard to how the land was acquired by their family. Counsel argued that the Respondents never led evidence to prove that under Igarra native law and custom, land can be acquired by conquest. He argued that the evidence of Igarra custom was not pleaded and proved by the Respondents to establish the existence of such a custom as required by law since at least one independent witness knowledgeable in the custom must be called to testify on the alleged custom. He cited Queen Ex Parte Chief Ekpanga v. Chief Ozogula II (1962) 1 All NLR 265 at 268; Odutola v. Sanya (2008) All FWLR Pt. 400 Pg. 780 at 796.
Learned appellants’ counsel further argued that the issue of ownership of adjacent or adjoining lands was raised by the learned trial judge suo motu. It was neither pleaded nor otherwise raised by either party. Counsel submitted that in this case where the trial court raised an issue suo motu the law requires that counsel for the parties must be invited to address the court on the issue so raised suo motu. He cited Ojo-Osagie v. Adonri (1994) 6 NWLR Pt. 349, 131 at 155 and Shasi v. Smith (2010) 179 LRCN 35; Shitta-Bay v. Federal Public Service Commission (1981) 1 NSCC P. 19 at Pg. 30 lines 48-54; Carlen (Nig) Ltd. v. UNIJOS (1994) 1 NWLR Pt. 323, 631 at 665 and Irom v. Okimba (1998) 3 NWLR Pt. 540, 15 at 25.
Counsel finally submitted that the Respondents having founded their root of title on traditional history the learned trial judge can only determine their claim on the basis of their successful proof of that history. Once they failed to prove that traditional history it is not open to the court or the Respondents to turn round to rely on another mode of acquiring title to land which they did not plead. He cited Odunukwe v. Ofomata & anor. (2011) 197 LRCN 175 at 214; Ayorinde v. Kuforiji (2007) All FWLR Pt. 362, 1966 ratios 4 and 5; Anukam v. Anukam (2008) All FWLR Pt. 413, 1255 ratio 6; Mogaji & Ors. V. Cadbury (Nig) Ltd. (1985) 16 NSCC Pt. 2, 959 at 989-990.
In reply to the points raised by learned counsel for the Appellants, learned Respondents’ counsel argued that the fact that the Eshimozoko family of Ugbogbo Quarters, Igarra, acquired by conquest of its original owners – the Anubes or Ogbes their Anjozote land and that the land in dispute forms part of the said vast land was pleaded in paragraphs 14, 15 and 16 of the Further Amended Statement of Claim. In paragraph 27 of the said pleadings, the Respondents had pleaded the names of their successive leaders who had managed and controlled to date Anjozote land since the time of Anjozote, after the conquest of the Anubes, in the exercise of their right of ownership and possession of Anjozote land in accordance with Igarra native law and custom.
Counsel insisted that the respondents gave evidence of the matters of traditional history they pleaded in the paragraphs of their pleading referred to above. He explained that in their evidence in chief, the respondents (2nd respondent as PW1) and PW2 (1st respondent) gave cogent account of their root of title in line with their pleading showing how their ancestors had managed and controlled their Anjozote land following its capture from the Anubes. In their evidence PW1 and PW2 at pg. 34 lines 14-19 and pg. 53 lines 13-19 respectively of the record gave the genealogy of members of their family who had managed and controlled Anjozote land in line with paragraph 27 of their pleadings. He insisted that PW1 (2nd Respondent) and PW2 (1st Respondent) were both cross-examined on their evidence of genealogy and, in deed, other matters concerning their root of title and they remained unshaken.
Counsel argued that the attempt to debunk the story by the appellants through DW1 and DW2 who both said they never heard of the story of conquest is totally futile as their evidence was not a denial of the story of the respondents but an acknowledgment of their ignorance of the Igarra history in general and that of the respondent’s family in particular. He urged that since there was no direct evidence challenging the traditional history of acquisition by conquest given by the Respondents, this court should not interfere with the findings. He cited Associated Discount House Ltd. v. Amalgamated Trustee Ltd. (2001) 10 MJSC 49 at Pg. 67; Omoregbe v. Lawani (1980) 3-4 SC 109 at 117; Mainagge v. Gwamma (2004) 12 MJSC 34 at Pg. 45.
Counsel submitted that traditional evidence is one of the ways of proving title to land, and having given cogent evidence, the court was entitled to believe the Respondents. In reply to the argument by the Appellants that there was contradiction in the evidence of traditional history given by the Respondent, learned Respondents’ counsel argued that the said evidence of PW1 and PW2 is consistent with paragraphs 14, 15 and 19 of the respondents pleading. He insisted that the bottom line of the respondents’ pleading and evidence is that the respondents’ family under the leadership of their leader and warrior, Anjozote, acquired their vast Anjozote land by their family’s (Eshimozoko family’s) conquest of the original owners, the Anubes.
Finally on these issues learned Respondents’ counsel argued that clearly in paragraph 10 of the Further Amended Statement of Claim at page 1 of the record, the respondents averred that each of the families of Igarra, including the respondents’ family, which migrated from Idah to Igarra started to acquire land down-hill of Igarra according to its capability and foresight. This averment was admitted by the appellants in paragraph 2 of their pleading at page 28 of the record. He further argued that it was therefore too late for the appellants to argue that Igarra custom for acquisition of land by the respondents’ family was not proved.
Learned Respondents’ counsel insisted that unlike the respondents, the appellants neither pleaded nor gave evidence of traditional history as to who founded the land in dispute, how it was founded and the successive ancestors or persons through whom the land devolved on them contrary to the principle laid down in a long line of cases. He cited Akinloye & Anor. v. Eyiyola & Ors. (1968) NMLR 92 at Pg. 95; Owoade v. Omotola (1988) 2 NWLR Pt. 77, 413 at Pg. 424-425; Akanbi v. Salawu (2003) 10 MJSC 188 at Pg. 197; Ewo & Ors. V. Ani & Ors. (2004) 3 NWLR Pt. 861, 610 at Pg. 638. He submitted that what the appellants pleaded in paragraph 11 of the Amended Joint Statement of Defence as their root of title is not traditional history but events which happened, if at all, which are denied, within living memory. He cited Ewo & Ors. v. Ani & Ors. (supra) at Pg. 628-629. He submitted that the appellants’ arguments are of no moment whatsoever and we should disregard same. These issues are an attack on the findings of the trial court. Let us examine the said findings.
At Pg. 149 of the record, the learned trial judge held thus:
“One of the ways the plaintiffs tried to establish their title and ownership by their pleading was traditional history. The plaintiffs are expected to narrate the genealogical tree from the original owner, the ancestor in generations appurtenant to him down the line to the plaintiff or plaintiffs. See Odi v. Iyala & Ors. (2004) 6 MJSC 93. I think the plaintiffs did just that by showing how the plaintiffs came into the larger area of land by conquest and how the headship of the family has passed from generation to generation to the present first plaintiff. Evidence of traditional history where this is not contradicted or in conflict and is found by the court to be cogent can support a claim for declaration of title to land. See Alade v. Lawrence Awo (1975) 4 SC 215 at 228; Olujebu of Ijebu v. Oso (1975) 5 SC 143 at 151; Ezeokonkwo & Ors. v. Okeke & Ors. (2002) 9 MJSC 789.”
I have to agree with the learned trial judge after a thorough reading of the record that the pleadings of the Respondents is not at variance with the evidence of their principal witnesses PW1 and PW2 on oath.
In paragraph 14 of the Further Amended Statement of Claim, the Respondents averred thus:
Thus the plaintiffs aver that their family’s said vast land at Anjozote, Ugbogbo Quarters, Igarra of which the land in disputes but a part, became vested in them as owners under Igarra native law and custom long ago by conquest of its original owners, the Anubes by the plaintiffs’ family, Eshimozoko of Ugbogbo Quarters, Igarra led by its leader/head and a warrior called Anjozote long ago.
In paragraph 27 of their said pleading, at page 20 of the record the respondents went further to aver thus:
After the death of Anjozote the warrior, the following descendants/members of Eshimozoko family leading other members of the family as its heads have exercised in succession right of control, ownership and management of Anjozote land for and on behalf of the entire Eshimozoko family, namely: (1) Aikewe Anjozote, (2) Oziopezu Aikewe, (3) Antaye Oziopezu, (4) Efo Aikewe, (5) Ukana Oyeji, (6) Ukana Okacha, (7) Okara Ojeva, (8) Bajemito Oshireku, (9) Ukana Omokide, (10) Samuel Jeyifus Ukana, (11) Oshomah Bajemito and (12) Chief Josiah Adefarati Sanni (J.P.), the 1st plaintiff in this case who is the present head of Eshimozoko family and Oshemi Onanyimi of Igarra.
PW1 in his evidence showed clearly how the land was acquired by conquest and how it had descended from family heads through generations from the original warrior Anjozote. This evidence was amply corroborated by PW2 on Pg. 50 of the record. Even though DW1 and DW2 tried to debunk the traditional history by the plaintiffs of conquest of the land by denying that they never heard such a story, I quite agree with the reasoning of the learned trial judge at Pg. 150 of the record where his Lordship held as follows:
“I did not see a contrary or contradictory version of traditional history adduced or proffered by the defendants which traversed contradicted, impugned, or is inconsistent with the version adumbrated by the plaintiffs. I must at this juncture subscribe to the views expressed by the plaintiffs counsel that the evidence of DW1 and DW2 is merely an exhibition or confession of ignorance of the war between the plaintiffs family and the Anubes. This cannot constitute a contradiction of the plaintiffs evidence.”
Since the appellants never proffered any other contradictory traditional history of how the land was acquired, the mere fact that they claimed ignorance of the history of the land as pleaded and proved by the respondents is of no moment.
The appellants argument that an independent witness needs to give evidence of the custom of Igarra to the effect that land at Igarra can be acquired by conquest is also completely misconceived. As far back as the judgments in WACA and as recent as Mogaji & Ors. v. Cadbury Nig. Ltd. & Ors., the Supreme Court per Obaseki JSC held that property is acquired under customary law either by settlement, by inheritance, by grant or by sale. The Respondents were able to plead and prove that they acquired the land by settling on it and conquering the Anubes (or Ogbes) whom they met on a portion of the land. There is no doubt that there is a clear distinction between methods of proving ownership or title to land and mode of acquisition of title to land. See Ajiboye v. Ishola (2006) 13 NWLR Pt. 998 Pg. 628. As I said earlier, the mode of acquisition pleaded by the Respondents was acquisition through conquest. The mode of proof used by them was traditional evidence. Since it is settled that by the native law and custom of Southern Nigeria acquisition of land by conquest is one of the modes of acquiring title to land, it would be ridiculous to expect a litigant to prove village by village whether or not the custom of that village recognises acquisition of land by conquest. It is a notorious traditional fact that has been proved to be of general application in Southern Nigeria. In Ajiboye v. Ishola supra, following Idundun v. Okumagba, it was held that settlement is one of the ways of acquiring land. Settlement includes deforestation of virgin land and conquest of previous people thereon to settle on said land. I cannot subscribe to the view that the Respondents needed to prove particularly the native law and custom of Igarra in relation to acquisition of land by conquest. All they needed to prove by traditional history is that their ancestors acquired the land by conquest and the land had devolved to them from generations. I am persuaded on reading the record that the Respondents did so.
There is also the complaint that the learned trial judge suo motu raised the issue of ownership of adjacent lands, and without inviting counsel to address on it decided the case on proof of acts done in recent history. The Respondents in paragraph 28 of the Further Amended Statement of Claim had pleaded thus at Pg. 20 of the record:
The plaintiffs aver that since the people of Igarra came from the hill-top to live on the plains down-hill of Igarra on the advice of the colonialists numerous members of the plaintiffs’ family and their customary tenants have with the authority and consent of the plaintiffs’ family built numerous houses on parts of the plaintiffs’ said vast land which they use for residential and commercial purpose without let, hindrance or challenge from any person or persons or family.
The Respondents then proceeded to prove that they had customary tenants on lands adjourning the land in dispute by calling PW3 – Shafe Dirisu Braimoh, PW4 – Mrs. Mabel Ajayi; PW5 Ramatu Shaibu; PW6 Alake Jatto; PW7 Onaivi Majebi aka Shanky; PW8 Mrs. Elizabeth Ologbonyo; PW9 Jimoh Siaka; PW10 is Yusuf Ologbonyo. All of them described themselves as customary tenants of the Respondents living on plots of land granted to them next to, or opposite the land in dispute which was found to have been devised by the 2nd Appellant to the 1st Appellant. On the Appellants’ side, they pleaded in paragraph 10 at Pg. 27 of the record grants of land around the land in dispute. The Appellants called as witnesses DW2 – Samuel Emah; DW3 – Yanuwa Dongo Okumayin. Both of them described themselves as customary tenants of the Appellants being in possession of land they called Ekunche land. Both learned counsel in their written address before the trial court addressed the court extensively on their differing claims about previous exercise of control over the large area of which the land in dispute forms part. This issue was copiously adumbrated on as Issue 2 by the Appellants’ counsel in their address at the trial court. It can be found from Pg. 99 of the record. In this case, both parties pleaded and called evidence of grants of adjacent/adjoining lands to the land in dispute and their counsel addressed the court on that point. I will therefore not be wrong in stating with respect that learned appellants counsel was being economical with the truth when he claimed that the learned trial judge raised the issue of acts of possession in recent years suo motu without allowing counsel to address on it. Nothing can be gained by deliberately raising a distorted version of the record of proceedings on the wrong assumption that learned appellate justices would not perform their duty to read the record transmitted.
Let us now go to the complaint against the judgment on the basis that the learned trial judge should not have utilized the principles laid down in Kojo II v. Bonsie 14 WACA 242 in the circumstances of this case. The reasoning of the learned trial judge is on Pg. 150-151 of the record.
“This cannot constitute a contradiction of the plaintiffs evidence. The court should therefore accept their evidence. See Arabambi v. A.B.I. Ltd. 2006 3 MJSC 61 at 96; Omoregbe v. Lawani (1980) 3-4 SC 109. Evidence of traditional history which is not contradicted or in conflict and is found to be cogent can support a claim for declaration of title to land. See Alade v. Awo (1975) 4 SC 215 at 228; Idundun v. Okumagba (1976) 9-10 SC 227. But assuming though not conceded that the defendants had their own version of traditional history especially through the rather scanty testimony of DW4, on their traditional history which contradicts that of the plaintiff’s then we have to resort to recent events to establish where the preponderance of evidence tilts. When there are competing versions of the traditional evidence led in a case the principle laid down in Kojo v. Bonsie (1957) 1 WLR 1223 which is simply that the trial judge should evaluate the competing versions of the traditional evidence led and test the veracity thereof by reference to recent facts and see which is more probable and therefore applicable. See Ajukwuara v. Sevature Izuoji (2002) 9 MJSC 129.”
I have to say that I agree totally with the learned appellants counsel that the learned trial judge having held at the beginning of Pg. 150 of the record that there was no inconsistency in the evidence of traditional history proffered by the appellants which impugned the evidence of the respondents, his consideration of the principle laid down in Kojo II v. Bonsie supra, in the judgment should not have arisen. For the principle in Kojo II v. Bonsie (supra) to apply, the learned trial judge must be faced with a situation where there are two believable but contradictory and competing evidence of traditional history from the two parties. In such a case, not being a diviner or soothsayer who can see the past or future, the learned trial judge must resort to resolving the issue of who has proved title by reference to recent proved acts of possession to see which is more probable in the conflicting traditional history. The learned trial judge with the greatest respect should have stopped at the point when his Lordship accepted the evidence of the Respondents not having been properly impugned or contradicted by the Appellants and his Lordship was satisfied that the Respondents had proved their case. Be that as it may, it is not every mistake by a trial judge that can lead to a reversal of the judgment. A mistake can lead to a reversal only where it has occasioned miscarriage of justice. See John Owhonda v. Alphonso Ekpechi (2003) 9 SCNJ 1; S.O. Adue v. Boniface B. Gwar (2008) 4 SCNJ 1.
In this case, the mistake was made while the court was trying to exercise abundance of caution (if you will) and has not caused any miscarriage of justice in view of the findings of the trial court and the findings of this court. This issue is resolved against the appellants.
ISSUE SIX
On this issue, learned appellants’ counsel argued that the respondents merely described the land as measuring 63.75ft by 34.25ft long being in Igarra a rural area of Edo State. He argued that even though the respondents pleaded that the 1st appellant caused grievous damage to the land, the nature of the grievous damage was not indicated. The only evidence of trespass was the allegation that the 2nd appellant granted their land illegally to the 1st appellant.
He argued that the learned trial judge was wrong to have awarded N300,000.00 general damages against the appellants for trespass as only nominal damages should have sufficed in the circumstances.
In reply, learned respondents’ counsel argued that trespass to land is a wrongful entry by one party into the land of another. The appellants trespassed on the land in dispute, the respondents being in actual and constructive possession thereof. He cited Anyanwu v. Uzowuaka (2009) 7 MJSC 1 at Pg. 46. Counsel argued that in his evidence in-chief at page 42 lines 21-22 of the record, PW1 said the appellants trespassed on the land in dispute several times. PW2 said the same thing in his evidence in chief at page 55 lines 19-20 of the record.
These pieces of evidence were neither contradicted nor controverted by the appellants in their own evidence. The trial judge therefore had no option but to rely on it in awarding the damages: Arabambi v. A.B.I. Ltd (2006) 3 MJSC 61 at Pg. 90. Counsel insisted that the award is paltry considering the respondents’ claim of general damages of N5,000,000.00.
After resolving that the Respondents had proved their case against the Appellants, the learned trial judge held as follows on Pg. 153 of the record:
“The defendants are to pay the sum of N300,000 (Three Hundred Thousand Naira) to the plaintiffs their repented and/or continuing acts of trespass to the plaintiffs said land in dispute.”
I agree with learned Respondents’ counsel that an appellate court will not interfere with the award of damages by a trial court unless it is shown that the award was made on wrong principle of law or that there was any injustice in making the award. See Ibrahim v. Mohammed (2003) 4 MJSC 1 at Pg. 21.
I am of the humble view that given the circumstances of the persistent and continuous trespass on the land in dispute by the Appellants, the award of N300,000 is not outrageously high as argued by learned counsel. The respondents had taken several steps to warn off the 1st Appellant before resorting to this protracted litigation. The amount awarded as damages is proper in the circumstances. This issue is resolved against the appellants.
In the circumstances the judgment of the High Court of Edo State in Suit No. HIG/3/05 is hereby affirmed. Appeal Dismissed. I award N50,000.00 costs to the Respondents against the Appellants.

IBRAHIM MOHAMMEND MUSA SAULAWA, J.C.A: I was privileged to have read, before now, the judgment prepared and just delivered by the Hon. Justice H.M. Ogunwumiju, JCA. Having equally read the briefs of argument of the respective learned counsel and the record of appeal, I cannot but concur with the reasoning and conclusion reached in the said judgment, to the effect that the appeal is meritotious. Having adopted the reasoning and conclusion in question as mine, I hereby allow the appeal. The judgment of the High Court of Edo State delivered by A.N. Erhabor, J; on 19/3/12 is hereby affirmed by me.
I abide by the consequential order of N50,000.00 awarded as costs to the respondents, against the appellants.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A: I have had the privilege of reading in draft the lead judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. His lordship has painstakingly dealt with the issues raised for the determination of the appeal and I am in complete agreement with the reasoning, exposition of the law, and conclusions in the lead judgment. I however wish to add a few words in respect of the issue of denial of fair hearing raised by the Appellants.
It is now not in doubt that the provision of section 36 (1) of the amended constitution has entrenched the common law concept of natural justice with its twin pillars namely:-
that a man shall not be condemned unheard or what is commonly known as ‘audi alteram patem’, and that a man shall not be a judge in his own cause or ‘nemo judex in causa sua’.
See BILL CONSTRUCTION CO. LTD V. IMANI & SONS LTD/SHELL TRUSTEES LTD (A JOINT VENTURE) (2006) 11-12 SC 90 at 93-94.

True, it is that our judicial system pursuant to the constitution has given addresses of parties primacy of place and there are authorities galore that the failure to allow a party to exercise his right of addressing the court tantamount to a breach of fair hearing and vitiates the proceedings in which the infraction has been committed.
It is not the case of the Appellant that they were denied the right of placing their written address before the lower court. The grouse of the appellants is that the lower court did not consider their written address but went ahead to formulate issues outside those formulated by the parties. It is obvious form the printed record that the lower court countenanced the written addresses of the parties in the instant suit. I cannot but also say that it is a total misapprehension of the position of the law for the Appellants to hinge the denial of fair hearing they have alleged, on the fact that the lower court formulated issues for determination that were outside those formulated by the parties. Decided cases are many that approve the vires of superior courts of record to re-formulated issues formulated by parties in order to achieve precision and clarity. See MPAMA V. F.B.N. PLC (2013) 5 NWLR (PT. 1346) 176; and PLATEAU STATE HEALTH SERVICES MANAGEMENT BOARD V. GOSHWE (2013) 2 NWLR (1338) 383. The instant case was tried on pleadings before the lower court. It is settled law that issues are joined by parties in pleadings in a trial conducted on pleadings. The Appellants have not remotely suggested that the issues which the lower court from the record apparently re-formulated from the three issues formulated by the Appellants and the two issues formulated by the respondent respectively in their written addresses do not arise from the pleadings before the said court; talk less of establishing this to be the case in the instant appeal. Without doubt the denial of fair hearing as alleged by the Appellants in this appeal is tenuous or unsubstantiated and must be resolved against them and is hereby so resolved.
Having earlier stated that I am in complete agreement with the reasoning, exposition of the law, and conclusions in the lead judgment, I too find the instant appeal to be unmeritorious and dismissed the same. Accordingly, I affirm the judgment of the lower court delivered on 19/3/2012 in suit No. HIG/3/2005.
I abide by the costs awarded in the lead judgment.

Appearances

CHIEF S.S. OBAROFor Appellant

AND

C.D. BELLOFor Respondent