CHIEF THOMAS I. AGOM & ORS v. MR. NKONG UDAM & ORS (2015)

CHIEF THOMAS I. AGOM & ORS v. MR. NKONG UDAM & ORS

(2015)LCN/7798(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 4th day of March, 2015

CA/C/85/2013

RATIO

LAND LAW: TITLE TO LAND; WAYS OF ESTABLISHING A CLAIM OF TITLE TO LAND

It is now trite, that there are five ways to establish a claim of title to land. These are traditional evidence, production of title documents with proof of execution, acts of ownership extending over a sufficient length of time, numerous and positive enough to prove ownership, acts of long possession and enjoyment of land and proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent land would in addition be the owner of the land in dispute. See IDUNDUN VS OKUMAGBA (1976) NMLR 100 at 210 and PLATEAU INVESTMENT PROPERTY DEVELOPMENT CO. LTD VS EBHOR (2001) FWLR (PT 64) 374 at 415. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATE AND ASCRIBE PROBATIVE VALUE TO EVIDENCE

The position of the law was well stated by OGUNBIYI, JSC thus: “The law is further well pronounced that evaluation of evidence and the ascription of probative value to evidence are the primary functions of a Court of trial, which heard, saw and duly assessed the witnesses. The duty of the Court of Appeal is to find out whether there is evidence on record on which the Court could have acted. Appellate Court can also in perverse findings tamper with the evaluation of evidence or where on the face of the record it is clear that justice has not been done in the case…….. In other words, the Appellate Court will not interfere with the finding of fact made by the trial Court unless it is shown that such finding does not derive from the evidence before that Court or is not related thereto.”
See GBEMISOLA VS BOLARINWA (2014) 57 NSCQR 510 at 557. The testimonies of the two witnesses involved are on pages 182-187 of the record of appeal. The said testimonies were duly evaluated by the learned trial Judge on pages 201 lines 23-31 and 202 lines 1 – 24 of the record of appeal. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

JUSTICES:

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

Between

1. CHIEF THOMAS I. AGOM
2. CHIEF GODWIN I. UWODIA
3. MR MAKONG STEPHEN
4. MR MATHEW AKARAKPA – Appellant(s)

AND

1. MR NKONG UDAM
2. MADAM NTAJI UKAWU
3. MADAM SUSAN UKAWU – Respondent(s)

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is in respect of an appeal against the judgment of the High Court of Cross-River State sitting at Ogoja and presided over by Ita J. The appellants as claimants had taken out a writ of summons on behalf of themselves and the Ikajor-Adagom Community, Adagom, Ogoja, Cross-River State against the 1st respondent as the only defendant, claiming the following reliefs;
1. A declaration that the claimants are the owners from time immemorial of the three building plots lying and situate at Ikajor-Adagom, Ogoja more particularly lying behind Nomardic Primary School, Ikajor-Adagom, Ogoja.
2. A declaration that the act of the defendant entering into the claimants three plots of land to build and plant palms without leave, license, consent or authority of the claimants amounts to trespass by the defendant.
3. An order evicting defendant from the claimants’ land lying and situate at Ikajor-Adagom, Ogoja more particularly lying behind Nomadic Primary School, Ikajor-Adagom, Ogoja with a reversion to the claimants community.
4. N5,000,000.00 only being special, general and

aggravated damages for trespass.
5. Perpetual injunction restraining the defendant by himself, agents, privies or assigns from further entering claimants community land lying and situate at Ikajor-Adagom, Ogoja more particularly lying behind Nomadic Primary School, Ikajor-Adagom, Ogoja in violation of the claimants exclusive right to title and ownership thereof.

The 2nd and 3rd respondents at their instance were joined as 2nd and 3rd defendants to the suit and the three defendants jointly filed a defence and counter-claimed as follows:
1. A declaration that Madam Ntaji Ukawu and Madam Susan Ukawu are entitled to the deemed statutory right of occupancy of the land in dispute situate off Adagom Road, Ikajor-Adagom, Ogoja and bounded at the frontage by Nomadic Primary School Adagom, Ogoja, at the rear by the rice farm of Mr. Simon Iwong, at the right side by the palm plantation of Solomon Inyamagum and at the left side by the yam/cassava farm of Solomon Inyamagum.
2. An order of perpetual injunction restraining the claimants, their agents, servants, workers, privies etc from further trespassing and laying claims to the land in dispute described above and doing

any act adverse to the counter claimants interest.
3. The sum of N3,000,000.00 damages for trespass into the counter claimants’ land by bringing strangers to sell the land. 4. The sum of N50,000.00 only for cost of this action.

At the trial the claimants called 3 witnesses while the defendants called 5. In a considered judgment delivered on the 29th October, 2012, the learned trial Judge dismissed the claim of the claimants and found for the defendants/counter-claimants.

Dissatisfied, the appellants filed a Notice of Appeal on the 13th December, 2012 containing 2 grounds. The said Notice of Appeal was subsequently amended via the Amended Notice of Appeal filed on 7th October, 2013 this time containing 13 grounds.

At the hearing of the appeal Mr. Dibang the learned counsel for the appellants adopted his appellants brief filed on 7th October, 2013 and deemed properly filed and served on the 15th January, 2015. Therein he distilled and argued 4 issues for determination from the grounds of appeal as follows:
1. Whether the learned trial Judge was right in dismissing the claims of the claimants and declaring title in favour of the 2nd and 3rd

defendants/counter-claimants.
2. Whether the learned trial Judge did not misplace the burden of proof and thereby occasioned a miscarriage of justice.
3. Whether the findings of facts made by the learned trial Judge are not perverse and if the answer is in the affirmative, whether the perversity did not occasion a miscarriage of justice.
4. Whether the trial Judge properly assessed and evaluated the evidence adduced from the DW1 and DW2 in cross-examination.

For the respondents, Mr. Momba distilled and argued 3 issues from the grounds of appeal as follows:
1. Whether from the totality of the evidence on record, the learned trial Judge was right in declaring title to the 2nd and 3rd respondents in accordance with the Bakor/Adagom native law and custom of land ownership.
2. Whether the learned trial Judge was right in placing the onus of proof on the claimants/appellants who alleged that the custom of Ikajor Adagom permits all ancestral farm lands of families to be converted to residential area and leased out by the chiefs and elders of the community.
3. Whether the learned trial Judge properly assessed and evaluated the evidence of the parties in the case in

arriving at the decision and whether there exists any slip or perversity in the findings which occasioned a miscarriage of justice.

The issues for determination formulated by both sides are substantially similar but to ensure a more comprehensive resolution of the contending issues herein, I shall adopt the issues as formulated by the appellants. Issues 1 and 2 of the appellant were argued together by learned counsel and they correspond with issue 1 and 2 of the respondents also argued together by them. Thereon, the learned counsel for the appellants submitted that the learned trial Judge misapprehended and misapplied the relevant legal principles enunciated on land ownership by failing to presume in favour of communal ownership of the land in respect of the land in dispute.

He submitted that the respondents are members of Ikajor Adagom and that the applicable principle in respect of Ikajor Adagom is as stated in AMODU TIJANI VS SECRETARY SOUTHERN PROVINCES, NIGERIA (1921) 2 A.C. 399 at 404 and that the said principle had been confirmed in a number of cases. He referred to OMORAKA OVIE VS ONORIOBOKIRHIE (1957) WNLR 169, OTOGBOLU VS OKELUWA (1981) NSCC 275,

NWAKWO VS CHUKWUEKE (1972) 1 ECSNLR 96, OGUNLEYE VS ONI (1990) 2 NSCC 72, IBULUYA VS DIKIBO (1976) NSCC 272, BAMGBOSE VS OSHOKO (1988) 5 SCN 116, ADERAWOS TIMBER COMPANY LTD VS ADEDIRE (1963) ANLR 435 and UZOEGWU VS IFEKANDU (2001) 17 NWLR (PT 741) 49.

He submitted further that the appellants by their pleadings and evidence admitted to by the respondents exercised ownership rights over the land in dispute without let or hindrance and that the respondents failed to show how the land became personally owned by them as evidenced in the manner various portions of the said land were appropriated.

He further submitted that in customary law, where the contest is between communal and individual exclusive ownership of land in the same community, there is always a presumption in favour of communal ownership with onus of proof on the party asserting individual ownership and that the learned trial Judge fell in error by summarily dismissing the appellants’ case. He referred to EKENNIA VS NKPAKARA (1997) 5 NWLR (PT.504) 152 and UDEZE VS CHIDEBE (1990) 1 NWLR (PT 125) 141.

He further submitted that the long possession of an individual cannot displace the title of the

community as he must belong to a community before occupying a piece of land. He referred to ONWUKA VS ABRIBA CLAN COUNCIL 1 ENLR 17.

He further submitted that the learned trial Judge was in error to have adopted the decision of an inferior Court, a district Court to hold that it was the custom of Ikajor Adagom people that land is held individually. He referred to Section 14 (2) of the Evidence Act, OLABANJI VS OMOKEWU (1992) 6 NWLR (PT 250) 671 at 687, ADEGBOYEGA VS IGBINOSUN (1969) ALLNLR 1 at 7 and LARINDE VS AFIKO (1940) 6 WACA 108 at 110.

He urged the Court to resolve the two issues in favour of the appellants. For the respondents, their counsel outlined the principle of customary land tenure in AMODU TIJANI VS SECRETARY SOUTHERN PROVINCES NIGERIA (supra) and submitted that depending on the community, there could be exclusive private holdings. He referred to CASES AND MATERIALS ON NIGERIAN LAND LAW by NIKI TOBI, Mabrochi Books (1992) pages 46-47, MODERN LAND LAW OF NIGERIA by R.W. JAMES, University of Ife Press, (1973), page 22, TITLE TO LAND IN NIGERIA by C.O. OLAWOYIN, Evans Brothers (Nigeria Publishers Ltd) (1974) 22-23, ADEWOYIN VS ADEYEYE (1963) ALL

NLR 52, ORAGBAIDE VS ONITIJU (1962) 1 ALL NLR 32 at 37- 38 and ASIYANBI VS ADENIJI (1966) 106.

He submitted that the situation presented in the present case was distinguishable as by the pleadings and adduced evidence, the original ownership was exclusive individual ownership and that the appellant who asserted subsequent communal ownership had the onus to prove it as held by the learned trial Judge.

He further submitted that the appellants by their pleadings and adduced evidence having admitted to the existence of individual ownership failed to show how ownership subsequently accrued to the community. He also submitted that contrary to the submissions of the appellants, the judgment of the District Customary Court, exhibit 18 was not solely used to determine the prevailing custom on land holding in Ikajor Adagom but that the trial Court also considered available evidence adduced by various witnesses on both sides. He referred to HASKE VS MAGAJI (2009) ALL FWLR (PT 461) 887 at 892.

He submitted that the judicial authorities referred to by the learned counsel for the Appellants, were inapplicable as unlike those cases, ownership of land was originally in

the families with the community later coming into the picture and that the respondents never admitted to communal ownership of the land.

He urged the Court to resolve the two issues in favour of the respondents. The first part of the contentions between the two sides is whether the learned trial Judge was right in dismissing the claims of the claimants and declaring title in favour of the 2nd and 3rd defendants/counter-claimants. In dismissing the claims of the appellants/plaintiffs the learned trial Judge stated thus in his judgment on page 201 lines 20 to 30 and lines 1 to 6 on page 202:
“The pleadings of the claimants postulate communal ownership of land in Adagom, either from time immemorial by the claimants or originally by families. Either way, in order to succeed in a claim for title to land based on traditional history, like this one, it is incumbent on the party relying on it to plead;
(a) How his ancestors derived title to the land,
(b) The person who founded the land and exercised original acts of ownership over the land, and
(c) The person or persons on whom title in respect of the land devolved since its founding unbroken.
In the instant case, the

claimants had to plead the above in respect of the families who originally owned the lands before handing over to this community or how the community got the land from time immemorial as in their claim (A). The claimants did not plead any of these.
There is no need to look for evidence where there is no pleading to prop and support evidence. The claimants’ claim failed on their pleading and is hereby dismissed.”

From the reliefs sought and the pleadings, it is beyond dispute that the appellants as claimants had premised

their claims to community ownership of the land in dispute on traditional history.

The task before a claimant predicating his claim to title to land on traditional history was well stated by UWAIFO, JSC thus; “It cannot be too often said that a party who relies on traditional history (which a claim to the founding of a village or town implies) would need to plead the names of his ancestors to narrate a continuous chain of devolution, not allowing there to be any gap of gaps defying explanation or leading to a prima facie collapse of the traditional history, The history must show how the land by a system of devolution came to be owned by the plaintiff.” See LEBILE VS THE REGD TRUSTEES OF C & S CHURCH OF ZION OF NIGERIA UGBONLA & ORS (2003) 13 NSCQR 19 at 28.
This postulation was further emphasized by ONU, JSC as follows:
“To establish traditional evidence of title by conclusive evidence, the plaintiff must plead and prove such facts as who founded the land in dispute; how the founded the land and the particulars of the intervening owners through whom they claimed.” See OBA ELEGUSHI & ORS VS OSENI & ORS (2005) 23 NSCQR 193 at 209.

The pleadings of the appellants as claimants however failed to contain any averment as to how the land in issue was founded and any narrative on how it came to devolve in an unbroken chain to them,
According to MUKHTAR, JSC as she then was;
“It is settled law that litigation is fought on pleadings of the parties, as it forms the foundation from which it is developed and tackled to the stage of judgment. It is pleadings that form the basis of the plank of a case and the evidence that is adduced in support therefore.”
See NWOKOROBIA VS UCHECHI & ORS (2009) 38 NSCQR 142 at 161.

In view of the fatal deficiencies in the pleadings of the appellants/claimants which led yawning gaps upon which their case abysmally fell, I cannot fault the findings of the learned trial Judge in this respect.

Learned counsel for the appellants made heavy weather of the position of the law stated in AMODU TIJANI VS SECRETARY SOUTHERN NIGERIA (supra) on the presumption in favour of communal ownership in the face of individual ownership claim.

This position was restated with approval by UWAIFO, JSC in LEBILE VS THE REGD TRUSTEES OF C & S CHURCH OF ZION OF NIGERIA UGBONLA & ORS (supra) at 30

as follows:
“It has long been recognized as a principle that when communal ownership of land is established or known to exist, it must be presumed to remain the customary practice of the community particularly throughout the coast of West Africa until the contrary is proved in the context of the circumstances in which an individual successfully claims and proves ownership of a particular portion of the land.”

What the learned counsel with due respect to him, failed to point out was that the claimants must plead and lead evidence on the communal ownership of the land in issue as a prelude to the defendant claiming personal ownership having to discharge the onus of proving his claims. According to IGHU, JSC;
“The principle of law is well established that where a plaintiff, as in the present case, leads evidence to the effect that a land in dispute is communal, the onus is squarely on the defendant who claims ownership thereof to establish that the land belongs to him exclusively.”
See OJENGBEDE VS ESAN (LOJA OKE) (2001) 8 NSCQLR 461 at 475 relying on UDEAKPU EZE VS IGILIEGBE & ORS (1952) 14 WACA 61 and ATUANYA VS MBAJEKWE (1975) 3 SC 161 at 167.

The appellants’ counsel in making his submissions relied on the case of EKENNIA VS NKPAKARA (1997) 5 NWLR (PT 504) 152. What he failed to point out was that in that case, the defendants who claimed communal ownership in that case pleaded and gave evidence to show that the land which they called “OKAHIA UMUGA’ was communally owned by the community which included the plaintiffs. Their evidence included the judgment in a suit previously instituted by the plaintiffs against the community which they lost.

The other judicial authority relied on by the learned counsel for the appellants was UDEZE VS CHIDEBE (supra) not only did the defendants/respondents who relied on communal ownership of the land in dispute plead and lead evidence of ownership and possession of the said community excluding the plaintiff/appellants who were strangers to the said community, they went further to plead and establish res judicata at the trial.

In the present case, the appellants/claimants pleaded that the land belonged to the community exclusive of the respondents/defendants who were in possession but failed to plead the necessary elements of the traditional history validating their claim.

A conclusion without premises, placing something on nothing therefore an exercise only feasible in the illusory world of magic but doomed to failure in the realms of reality.

Furthermore, unlike the cases referred to by counsel where communal ownership predated any subsequent alienation, the appellants/ claimant veered off the usual pattern, stating that family ownership were converted or surrendered to communal ownership without proving either.

On page 206 of the record of appeal, the learned trial Judge stated on lines 14-19 as follows:
“The case of the claimants is not consistent. In one breadth claimants say communal farm land owners surrendered their farm lands to the community. In another breadth the claimants say their farm lands were converted by custom to the community. The 2 do not mean the same. In this case however neither conversion nor surrender has been proved.”

On the other hand the respondents/counter-claimants pleaded copiously how their progenitor founded the land in dispute which was adequately described and how their family had exercised ownership rights undisturbed for over a hundred years thereon.

They adduced evidence showing the

existence of family land ownership within the Ikajor Adagom community in line with their pleadings, including evidence elicited from the 3rd appellant/claimant as PW1 under cross-examination on page 175 of the record of appeal, lines 25- 31 and 176 lines 1-3 as follows:
“Farmlands were to be converted to residential areas. The farmlands were previously owned by families. That started in 1976. My father came from Igodo, Nkum and lived at Adagom, I inherited all my father’s farm lands. A great farmer is measured by how many farm lands he clears and farms. My father owned many farm lands. Father of 2nd and 3rd Defendants was also a famous farmer in Adagom, Adagom people are buried on their family lands.”

This is an admission that ancestral family ownership predated communal ownership in Akajor Adagom.
Family ownership is not strange to land ownership within the Nigerian land jurisprudence.
According to UWAIFO, JSC:
“Another way is to establish that the system of family ownership of land has evolved by tradition or otherwise and is recognized and practiced in the community as is the position in some part of Lagos State where there are some well known land owning

families.”
See LEBILE VS THE REGD TRUSTEES OF C & S CHURCH OF ZION OF NIGERIA UGBONLA & ORS (supra) at 31.
To arrive at his conclusion on the prevailing Nkim custom among the Nkim people of Adajor Adagom, the learned trial Judge made use of the benefit of various oral testimonies of witnesses on both sides and considered alongside, the judgment of the District Customary Court exhibit 18 in which that Court distributed the estate of a deceased Nkim man according to Nkim custom sharing not just buildings but also farm lands.

There was nothing in the said judgment to support the contention of counsel for the appellant that the learned trial Judge relied solely on the said judgment, exhibit 18.

I therefore have no difficulty in agreeing with the unassailable findings of the learned trial Judge. I accordingly resolve the two issues against the appellants and in favour of the respondents.

The next issue to be resolved is whether the findings of facts made by the learned trial Judge are not perverse and if the answer is in the affirmative, whether the perversity did not occasion a miscarriage of justice. On this issue, the learned counsel for the appellants

highlighted 4 findings of the learned trial Judge which he considered perverse and submitted that they led to a miscarriage of justice. He referred to OVERSEAS CONSTRUCTION CO. NIG. LTD VS CREEK ENTERPRTSES (NIG) LTD (1985) 3 NWLR (PT 13) 407, QUEEN VS OGODO (1961) 2 SC 366, MOGAJI VS ODOFIN (1978) 4 SC 91 and EBBA VS OGODO (1984) 1 SCNLR 372.

For the respondents, the learned counsel submitted that the findings of the learned trial Court were based on proper evaluation of the pleadings and evidence adduced by the parties and that they were not perverse in any way or manner. He referred to DOHERTY VS DOHERTY (2010) ALL FWLR (PT 519) 1145 at 1153 and OLODO VS JOSIAH (2010) 11-12 MJSC 130 at 144.

He highlighted the constituent of perversity and how it would lead to miscarriage of justice and submitted that instances referred to by the appellants in the present case did not fall into such a category. He referred to JODI VS SALAMI (2009) ALL FWLR (PT 458) 390-391 and OGUNTAYO VS ADELAJA (2009) ALL FWLR (PT.495) 1626 at 1635.

According to the Supreme Court coram ADEKEYE, JSC:
“The findings of fact of a Court will be perverse where; a. It is speculative and runs

counter to the evidence.
b. Where the trial Court took into account a matter which it ought not to have taken into account and shuts its eyes to the obvious.
c. When it has occasioned a miscarriage of justice”.
See OTUKPO VS JOHN & ANOR (2012) 49 NSCQR 1304 at 1334 relying on ATOLAGBE VS SHORUN (1985) 1 NWLR (PT.2) 360, ADIMORA VS AJUFO (1988) 3 NWLR (PT.80) 1 and AGBOMEJI VS BAKARE (1998) 8 NWLR (PT 564) 1.

The findings of the learned trial Judge which the appellants submit are perverse are as follows;
“I find and hold that the pleading that the ancestral farm lands got to the claimants in 1970 is inconsistent with the claim that they were owners of the land from time immemorial.”
“The onus is on the claimants who allege that ancestral land owners surrendered their lands to the community to prove the same…The case of the claimants is not consistent’ fn one breadth (sic) claimants say communal farmland owners surrendered their farm lands to the community’ In another breadth (sic) the claimants say their farm lands were converted by custom to the community.”
“The pleading is that the custom started between 1970-1980’s. I am afraid that is not long enough

to ripen (sic) and qualify to be referred to as a custom. So I find and hold that it is not a custom.”
“By their pleadings the claimants (defendants to the counter claim) have admitted that ancestral farm lands once belonged to families.”

In paragraph 3 of the statement of claim on page 4 of the record of appeal, the claimants state as follows;
“(3)The Claimants own the entire land known as Ikajor-Adagom, Ogoja, which of old were ancestral farm lands. Leases to both indigenes and non-indigenes started cropping up in the 1970s and 1980s to which most of the ancestral farm lands were converted to residential and business premises today called Ikajor-Adagom, Ogoja. The Claimants know their lessees and have documents of all legal lessees and leaseholds. Copies of Leasehold Agreements and payments receipts are hereby pleaded. Evidence shall be led at the hearing.”

In paragraph 5 of the Amended Reply to Statement of Defence and Defence to Counter-claim on page 110 of the record of appeal, the same claimants pleaded as follows;
“(5) Paragraphs 9 and 10 are false. The practice and custom of Ikajor Adagom people of Ogoja permits that all ancestral farm lands of

families be converted to residential areas and leased out by the Chiefs and Elders of the Community. The Community leased out such lands to Assemblies of God Church, Roman Catholic Church, Nomadic School, Basin Development Authority, Industrial Development Centre and Christ for the World Mission International.”

Meanwhile the same claimants by the 1st relief sought before the Court, claim as follows:
“A declaration that the claimants are the owners from time immemorial of the three building plots lying and situate at Ikajor-Adagom, Ogoja more particularly lying behind Nomardic Primary School, Ikajor-Adagom, Ogoja.”

Having clearly pleaded that exercise of rights to grant leases by the community on ancestral family lands commenced in the 1970s and 1980s it is contradictory to seek a declaration that the ownership of the community is from time immemorial.

As stated by the Supreme Court per UWAIFO, JSC:
“The alleged history of the founding relied on by the plaintiff can hardly be regarded as traditional history, It is too recent judging from the time the action was filed in 1988, because it was about 70 years (from 1914). That was clearly within living memory; or

in any event, as already said, it was inconsistent with an averment of immemoriality in paragraphs 7, 8 and 11 of the statement of claim. Conceptually, it is when an event is beyond human memory or is ancient beyond record, or happened at a time out of mind that it qualifies to be immemorial. See LEBILE VS THE REGD TRUSTEES OF C & S CHURCH OF ZION OF NIGERIA UGBONLA & ORS (supra) at 28.

The learned trial Judge was well guided by this judicial authority as evident on page 201 of the record of appeal, his lordship had good and solid grounds for his said findings from the pleadings and adduced evidence before him and I find no basis to disturb the said findings.

I therefore resolve this issue as well against the appellants in favour of the respondents. The remaining issue formulated by the appellant is whether the trial Judge properly assessed and evaluated the evidence adduced from the DW1 and DW2 in cross-examination.

Arguing the said issue, Mr. Dibang highlighted portions of the testimonies of the two witnesses involved under cross-examination and urged the Court interfere and evaluate the said testimonies vis a vis the issues in dispute herein.

I find no basis to interfere with the evaluation and findings of the learned trial Judge in respect

of the witnesses in issue vis a vis the issues in contention in this case. I accordingly resolve this issue also against the appellants and in favour of the respondents.

In totality, I find no merit in this appeal and I accordingly dismiss it. The judgment of the learned trial Judge is hereby affirmed. Parties shall bear their respective costs.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had a preview of the Judgment delivered by my learned brother, J. O. K. OYEWOLE, JCA. I agree with his reasoning and conclusions.

I adopt the facts of this case as set down in my learned brother’s lead Judgment. I agree that there is no merit in this appeal and I also dismiss same. The Judgment of the learned trial Judge Ita, J. Delivered on 29th October, 2012 is hereby affirmed. I endorse the order as to costs made by J. O. K. OYEWOLE, JCA.

ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading in advance a draft copy of the Judgment delivered by my learned Brother, J.O.K. Oyewole, JCA, dismissing this appeal. The issues raised in this appeal have been comprehensively addressed. I am in agreement with his reasoning and conclusion, which I adopt as mine. I will only add few

comments for emphasis.

It is the established position of the law that each party gives notice of the case the other side is coming to meet in its pleadings; Ukaegbu v. Ugoji (1991) 6 NWLR (PT 196) 127: Agala v. Okusin (2010) 10 NWLR (Pt.1202) 412. Evidence is then adduced to give life to the pleadings.
A plaintiff cannot prove his case on inconsistent or non-existent pleadings; Akinsuroju v. Joshua (1991) 6 S.C. 27. This is simply because no Court can grant what a party to a case has not made out in his pleadings and which he has not led in evidence: Yusuf v. Oyetunde (1998) 9-10 S.C. 123; Chabasaya v. Anwasi (2010) 10 NWLR (Pt.1201) 163.

Parties are bound by their pleadings.

It is trite law that evidence adduced on facts not pleaded goes to no issue; Bamgboye v. University of Ilorin (1999) 6 S.C. (Pt.11) 72: Calabar Central Co-Operative Thrift & Credit Society Ltd v. Ekpo (2008) 1-2 S.C. 229. The learned trial Judge was therefore correct in his conclusion at page 202 of the Record of Appeal, that
“There is no need to look for evidence where there is no pleading to prop and support evidence.”

For these reasons and for the fuller reasons given in the lead

Judgment, I also find no merit in this appeal. The judgment of the learned trial Judge is affirmed by me. I abide by the orders made in the lead Judgment.

Appearances:

Mr. F. Dibang For Appellant(s)

Mr. L.U. Momba For Respondent(s)

Appearances

Mr. F. Dibang For Appellant

AND

Mr. L.U. Momba For Respondent