CHIEF SENATOR REMI OKUNRIBOYE v. CHIEF KOFO ADEYEMI OSUMA (2016)

CHIEF SENATOR REMI OKUNRIBOYE v. CHIEF KOFO ADEYEMI OSUMA

(2016)LCN/8581(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 10th day of May, 2016

CA/AK/16/2014

RATIO

COURT: JURISDICTION; ESSENCE OF JURISDICTION
I shall determine the preliminary objection first, as the issue of the competence of a suit is a jurisdictional issue. This is because before a Court can exercise jurisdiction in a case whether at the trial or on appeal, it must have jurisdiction and the suit must have come to it by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Jurisdiction is a radical and crucial question of competence once there is a defect in competence, It is fatal and the proceedings are a nullity however well conducted and decided. Tanko V UBA Ltd. per Adekeye JSC at page 99 Paragraphs C ? D (2010) 17 NWLR Part 1221 page 80 at 98. See also (1) Okem Enter. Nig. Ltd V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517
See also my contribution judgment in the unreported ruling of this Court in Appeal No. CA/AK/98/2015, – Dangote Integrated Steel Plc. V. Alhaji (PA) Salami Nasiru Oyeniyi (Head of Sogbodede Royal Family of Oshogbo (2) Alhaji (PA) Salami Mogaji Head of Lahanmi – Oyepi (Royal Family of Oshogbo (3) Alhaji (PA) Ashiru Oyewole (Head of Matanmi Royal family of Oshogbo) PER MOHAMMED AMBI-USI DANJUMA. J.C.A.
PROCEDURE: PRELIMINARY OBJECTION; DUTY OF A PARTY INTENDING TO RELY ON A NOTICE OF PRELIMINARY OBJECTION
Although the law is that a party intending to rely on a notice of preliminary objection must comply with the rules of Court in that regard, such as by filing the copies of the notice in the required number at the Court of trial or the appellate Court see Oriorio Vs. Osain (2012) 16 NWLR Pt. 1327. Page 569 at 578 Paragraphs D – H. PER MOHAMMED AMBI-USI DANJUMA. J.C.A.
FAIR HEARING: WHAT CONSTITUTES THE BREACH OF FAIR HEARING
A hearing cannot be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case call witnesses. See Military Governor, Imo State V. Nwauwa (1997) 2 NWLR (Pt. 490) Pg. 675; Saley V. Monguno (2003) 1 NWLR (Pt. 2003) 1 NWLR (Pt. 801) Page 221; Bamigboye Vs. University of Ilorin (1999) 10 NWLR (Pt. 622) page 290 and Kotoye v. CBN (1989) 10 NWLR (Pt. 98) page 419. PER MOHAMMED AMBI-USI DANJUMA. J.C.A.
EVIDENCE: BURDEN OF PROOF; ON WHOM LIES THE BURDEN TO PROVE IN CIVIL MATTERS
it is elementary law that a plaintiff has the burden to prove the reliefs sought in the statement of claim for him to obtain judgment in his favour.
This burden does not shift. This is because he is the party who claims the reliefs in the statement of claim and so the onus pro bandi rests upon him. He must prove the affirmative content of his statement of claim.
Our adjectival law is as strict as that; see Okechukwu and Sons V. Ndah (1967) NMLR 368: Elemo V. Omolade (1968) NMLR 359: Frempong II V. Erempong II (1952) 14 WACA 13: and a host of cases referred to with approval in A. G. Anambra V. AG Federation (2005) 131 LRGN 2282 – 2584.
The burden of the plaintiff is however limited to the live issues which will determine the case one way or the other. In other words the plaintiff has no duty to prove issues which are not in any way related to the reliefs sought in the statement of claim as such issues are seen as merely gallivanting in the pleadings and to no issue. See AG Anambra V. AG Federation (Supra). PER MOHAMMED AMBI-USI DANJUMA. J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

CHIEF SENATOR REMI OKUNRIBOYE Appellant(s)

AND

CHIEF KOFO ADEYEMI OSUMA Respondent(s)

MOHAMMED AMBI-USI DANJUMA. J.C.A. (Delivering the Leading Judgment) : This is an appeal against the decision of the High Court of Ondo State which was delivered at Owo on 6th May, 2013 dismissing the plaintiffs claims in its entirety and granting the counter – claims of the defendant, thereat.
PRECIS OF THE FACTS LEADING TO THIS APPEAL
The appellant claimed to have been granted a piece of land by the 2nd defendant/2nd respondent’s father in 1992, whereat he erected the foundation of a shopping complex. Whilst laying the foundation, the 2nd respondent’s father PW1, PW2 and other Osuma family members were alleged to be in attendance. He was then at the Senate in Abuja.

The Senate and all democratic structures were then sacked following the Abacha coup; the appellant could not continue with his building project on the land.

The 2nd respondent’s father died in 1995 and then he – the 2nd respondent stepped into his father’s shoes as the Osuma IV. 2nd respondent sued the appellant over this land with 6 other persons. The Suits were amicably settled out of Court with the other parties and that involving the appellant was withdrawn. The

appellant claims that it was a withdrawal necessitated by the explanation to the 2nd respondent as plaintiff then that, that land had been granted to the appellant’s and re-granted in affirmation to him by the respondent’s father before his death

In 2008, the respondent purported to sell the land to 1st and 3rd defendants at the trial and who claimed to have erected structures on the land which were demolished.

The present appellant, as plantiff at the trial Court had sued in respect of the land and had claimed as follows:
1. A declaration that the defendants are trespassers on the land in dispute verged red more clearly delineated in the dispute survey plan——
The 2nd defendant now respondent counter – claimed against the plaintiff now appellant as follows:-
1…………..

The respondent raised some points of preliminary objection to the appeal in his brief of argument thus:
”A. Parties to this appeal are different from the parties at the trial Court.
B. Appeal is a continuation of the case at the trial Court and not a new case.
C. Appellant altered the names of parties to the case as sued at the trial Court.
D. Relief sought in this appeal is

against all the defendants, including 1st and 3rd defendants who are not made parties to this appeal.”

The appellants formulated a prolix 9 issues for determination; while the respondent posed 10 (ten) issues, an issue above those raised by the appellant!

It must be observed that in the same character of multiplicity of issues by the respective parties, the appellant who had initially filed 6 (Six) grounds of appeal, had obtained the leave of this Court and filed 5 additional grounds of appeal on 16th April, 2015, after which he filed an amended appellants brief of argument leading to a consequential amendment of the respondent’s brief of argument filed on 2nd of October, 2015.

The appellant also filed a reply to the respondent’s amended brief of argument. Now to the arguments in the appellants brief of argument which issues he tags as issues A to I (for the issues 1 – 9). Now to the issues.

ISSUE A
Whether the lower Court was right in unilaterally amending the relief contained in the respondent’s counter claim to include the Osuma family members when no one prayed for such gesture.

?It was argued that the respondent

was not sued in a representative capacity but in his personal capacity and defended the suit in that capacity by filing a counter claim which is contained at page 177 of the records of appeal.

That the Osuma family did not pray to be joined nor claimed any relief in the suit before the Court.

That the trial Court was wrong to have amended the claims by giving judgment to a person who was not a party before the Court.

Learned counsel referred to Ogieva Vs. Igbinedion (2005) ALL FWLR (Pt. 250), Pg 85 at page 100 Paragraphs E ? H wherein this Court (at the Benin Judicial Division
“A Court cannot give and should never award a relief that is not sought or pleaded by a party. Courts of law are legal institution of matters and award of reliefs duly sought by the parties in the litigation process. To put it in a simple language, a Court should not award a relief not specifically pleaded or sought.”
See also Ikare Community Bank Nig. Ltd Vs. Ademuwagun (2005) ALL FWLR pg. 265 Page 1089 at 1106, Paragraphs A – C.

It was contended that the judgment was a nullity as a relief not prayed for was granted in favour of the Osuma

family, that was not a party before the Court. That such orders for or against a non – party to a case was a nullity.
Awonivi vs. Registered Trustees Amorc (2000) FWLR Pt.25 pg. 1592 at pg. 1604 Paragraphs D – G.
Wherein Mohammed JSC (as he then was, now CJN) stated thus:
“It is an elementary procedure in prosecuting Civil Claims that all parties necessary for the invocation of the judicial powers of the Court must come before it so as to give the Court jurisdiction to grant the reliefs sought. See Oloriode Vs. Oyebi (1984) 1 SC NLR 390; and Okafor V. Nnaife (1973) 3 SC 85. The failure of the applicants to make the Registrar General of the Corporate Affairs Commission and the Inspector General of Police as necessary parties has rendered the applicants motion incompetent.? Was relied upon

We have been urged to resolve this issue in favour of the appellant and to set aside the judgment of the trial Court on the basis of this issue.

ISSUE B
Whether the lower Court was right in unilaterally amending the reliefs of the respondent in view that there was no basis for it and there by descended into the arena of conflict?

Ground 10.

Learned counsel reiterated his argument on the first issue that the respondent was sued in his personal capacity and counter claimed in his personal capacity. That the Court can only amend the capacity of a party where it is evident from the pleadings and evidence that the suit was sought in a representative capacity that it is only in deserving cases in the interest of justice.

Learned counsel quoted the Supreme Court decision in Shell Petroleum Development Company Nigeria Limited Vs. Edamkue (2009) ALL FWLR Pt. 489 pg 407 at 428 Paragraphs E – H thus:
“Once pleadings and evidence establish conclusively a representative capacity and that the case has been fought throughout in that capacity, a trial or appellate Court can and will be entitled to enter judgment for or against that party in that capacity even if an amendment to reflect that capacity has not been applied for or obtained. It will be otherwise if the case is not made out in a representative capacity.?

That there was no basis for amending the respondents reliefs by the Court; that the respondent by his pleadings as well as his evidence and that of his witnesses did

not at any time or place state that the respondent represented the Osuma family in the suit.

The learned counsel, however, submits for his client that infact the respondent gave evidence to the effect that he is the all in all in the Osuma family as he claimed to be the head but that even the trial Court had not agreed to this stand.

That the suit was not fought by the respondent in a representative capacity and that the purported amendment to the respondent’s claims to include “the Osuma family” was erroneous. He relied on Sapo V. Sunmonu (2010) ALL FWLR Pt. 531. pg. 1408 at 1425, Paragraphs E – G and Shell Petroleum Development Company Nigeria Limited Vs. Edamkue (2009) ALL FWLR Pt. 489 at page 407 at 428 Paragraphs E – H.

Learned counsel contended that the trial Court amended the capacity of the Respondent/defendant/counter claimant with a view to providing an enabling platform for his action. That the capacity of the appellant remained unchanged and that is that, it was a suit or defence in personal capacity. That the respondent’s counter claim ought to have been dismissed for lack of jurisdiction, as the respondent lacked the

competence to maintain the action in that capacity. Oyewole vs. Lasisi (2000) FWLR pt. 1606 page 1619 Paragraph H referred.

Learned counsel contended that the trial Court merely propped up the case of the respondent when it had no jurisdiction so to do.. In NTA v. NPA (2013) ALL FWLR pt. 709, page 1149 where this Court at its Benin Division stated thus:
“It is not the duty of the Court to make out a case for the parties for a Court to make an order which no party has asked for and which the parties were not heard is a breach of the party’s constitutional right of fair hearing. It amounted to making a case out for the parties and the decision reached was over turned on appeal”
Counsel relied on the above decision and proceeded to argue that “since the Osuma Family as an entity was never in Court, the learned trial Judge was wrong to have made orders concerning and touching on the family.
Finally, the learned counsel referred us to the case of Hon. Justice Oladele Vs. Akintaro (2011) ALL FWLR Pt.590 pg. 1346 at 1361 Paragraphs B – 6 wherein it was held – thus:
“A Court or Tribunal will not make an order or give judgment that will affect the interest

or rights of a person or body that is not a party to a case and who was never heard in the matter.”

And contended that this issue be resolved in favour of the appellant and the judgment be set aside.

ISSUE TWO
Whether the trial Court was right in holding that the land in dispute was uncertain in view of the fact that the respondent and the other defendants and their witnesses claimed to know the land in dispute, it was argued that from the evidence of the defendants witnesses DW1,DW2, and 2nd defendant the land in dispute had been ascertained.

That the parties were all in agreement with the identity of the land claimed and therefore, that no clog should be placed on the path of justice by mischievously raising the issue of identity of land; Odofin Vs. Oni (2001) 1 Sc 129 at 136 referred.

That what was more is that the defendant filed a counter claim and wondered how that could be done if the identity of the land was not known. Anyanwu v. Uzowuaka (2009) ALL FWLR Pt. 419 Page 411 at 436 Paragraphs G – H.

?The learned counsel contended that Exhibits A, D and F existed in respect of the land; and the fact that they were of

different dimensions and an allegation in respect of that was explained by the surveyor PW5 called by the appellant. That the said explanation was not challenged. That the unchallenged evidence of PW5 that the land in Exhibits A, D and F were the same ought to have been relied upon rather than holding that the land was uncertain.

That the appellant was not unmindful of the evidence of PW5 and PW6 respecting Exhibits A and D as forgeries but that the appellant had not been shown to be linked to it, red copy of the exhibits with the surveyor General did not render the survey a nullity. Section 4 (3) Survey Law of Ondo State refers

That the appellant ought to have been non ? suited in line with the case of EPI V. Aigbedion (1972) ALL NLR 805 rather than dismiss the case over the fault of the surveyor the appellant did not partake in. In Olumolu V. Islamic Trust (1996) 2 SCNJ 29 the Supreme Court ordered a retrial where the boundaries of the land were not satisfactorily proved. That a reconsideration of the boundary issue be made as the appellant was an innocent client of the surveyor.

?Counsel contended that the fact that the survey

plans were fraudulently made did not warrant that they be shoved aside as they were still evidence of the identity of the land claimed and that it was not in tandem with justice to shove them aside.

ISSUE 3
?On whether the Court below had the jurisdiction to grant the respondents counter claim: it was contended that the Court lacked the jurisdiction as the counter claim was prosecuted in a personal capacity. That it ought to have been dismissed for lack of proper parties. That the defendant had no locus standi to prosecute the counter claim and therefore the Court had no jurisdiction. Oyewole V. Lasisi (2000) FWLR Part 10 Page 1606 at 1619 Paragraph H.

Counsel argued that the land in dispute was described such that it never included the supermarket which was on the land since 1992 unchallenged. Was surprised that the Court granted more than what was asked for by including an order that the supermarket be removed.

The 1st and 3rd defendants had filed a plan showing the land in dispute and the plaintiff/respondent relied on the said plan did not file any counter plan. That the Court was not a Father Christmas and should not grant what

was not asked for. NTA V. NPA (supra)

Learned counsel further argued that though the land was granted to the appellant in 1992 and he immediately built the shopping complex on it and fenced a part behind it, which was sold out by the respondents to 1st and 2nd defendants, he commenced an action against them leading to the counterclaim of 2008. That the action was brought outside the 12 year limitation of action period for declaration of title to land. That the trial Court was wrong to have said the grant was in 2005 by appellant and in contradiction.

ISSUE E
Whether it was proper for the trial Court to hold that there was no proof of appellant’s root of title, it was argued that having pleaded and testified that the land was granted to appellant by respondent father, it was wrong to hold that the root of title was not proved. Akaniyemi V. Etim (2013) ALL FWLR Part 709 Page 1167.

That title having been traced to the respondent’s father, it was encumbent on the respondents to show how their possession ousted the title of the respondent’s father.

ISSUE F
Whether the lower Court was right in refusing to grant the

appellants claims despite the fact that the grant of the land in dispute to him was proved on the balance of probabilities; that the PW1 ? a junior sister of the respondent gave evidence unchallenged of the grant made by their father. That their father took the appellant to the land, gave and witnessed the foundation laying ceremony of the shopping complex, all in her presence. That she was the one who took their father to the land that date and in the presence of other members of the Osuma Family.

That when the respondent sued the appellant, he was told by the Osuma Family Members that the appellant was given the land by their father and respondent then withdrew his suit in 2005. PW2, PW3 and PW4 all corroborated this evidence.

That both the respondents and the 1st and 2nd defendants were not cross – examined on this aspect of evidence led. Daggash V. Bulama (2004) ALL FWLR Part 212. Page 1666 at 1745 Paragraphs E – G thus:
“The consequence or effect of failure of a party to cross – examine a witness called by his adversary means the acceptance in its entirety the evidence of the witness as true where an adversary does not accept a

witness testimony as true, and fails to cross -examine him on that fact or facts a Court can take his silence as an acceptance that the adversary does not dispute the fact or facts.”

That as vital as the evidence of those witnesses were, they were not challenged on that issue of grant. Exhibit ‘B’ – a letter to the respondent’s father thanking him of the grant was not denied.

The respondent did not produce the original copy said to be with the father, whose bulk file of documents were testified to be with him per (PW2) and inspite of the notice to produce the original copy thereof.

There was no cross examination on the authenticity of Exhibit B either! That the evidential value of the letter was not considered as the trial Court kept mum over it. That rather than cross -examine on the grant, the respondent called DW4 who gave evidence that no grant was made to the appellant.

This, the appellants counsel submitted, was a wrong way of challenging a witness, refers to Offorlette V. State (2000) FWLR (PART 12) Page 2081 at 2102 Paragraphs D – F wherein the Supreme Court held thus:
“A party also fails to cross – examine a witness upon a particular matter in respect of which it proposed

to contradict him or impeach his credit by calling other witnesses tacitly accepts the truth of the witnesses evidence in chief in that matter, and will not thereafter be entitled to invite the jury to disbelieve him in that regard.”

Achike JCA (as he then was at Pages 2098 – 2099 Paragraphs H ? A stated thus:
“Plainly, it is unsatisfactory if not suicidal bad practice for counsel to neglect to cross examine a witness after his evidence – in – chief to contradict him or impeach his credit while being cross – examined but attempt at doing so only by calling other witness or witnesses thereafter. That is demonstrably wrong and will not even feebly dent that unchallenged evidence by counsel leading evidence through other witnesses to controvert the unchallenged evidence.”

It was, therefore, on the above authority submitted that the failure of cross examine PW1 , PW2 and PW3 on the grant to PW3 by the respondent’s father was fatal to the case of respondents and the DW4’s evidence to the contrary should be discountenanced.

We are urged to resolve this issue in favour of the appellant and to set aside the decision of the trial Court and grant the

claims of the appellant.

ISSUE G
Whether the Court was right in dismissing the appellant’s claims when facts and evidence favourable to appellant were neither considered nor evaluated.

Learned counsel contended that the decision was perverse as the evidence was completely not considered or disregarded. He referred to the unchallenged evidence of the suit in 2005 that was withdrawn by the respondent on being told of the grant to him in 1992,
2. The fact that no terms of settlement was extracted from the appellant in 2005 when suit was withdrawn although terms were extracted from other defendants.
3. The non – tender of diary pleaded as containing the names of persons respondent’s father granted land to and without any excuse.
4. The unchallenged evidence Exhibit B – letter thanking the respondent’s father for the grant.
5. The non challenge to the evidence of PW1, PW2 and PW4 of grant made in their presence.
6. Respondent father did not chase the appellant on the land when he Returned from lagos in 1985.
7. The contradiction in DW2 and respondent?s evidence on why no terms of settlement was extracted

while withdrawing suit in 2005 was not evaluated.
8. The DW4 never confirmed that his father was ever bed ridden.
9. None proof of respondents father being bed ridden.

For the facts enumerated supra, counsel argued that it was the duty of a the Court to consider all evidence adduced before it and failing which the decision reached should be set aside as perverse. Dantata V. Mohammed (2013) ALL FWLR Part 673 Page 279 at 309 Paragraphs G – D: Jegede V. Oluwasesan (2013) that such failure also amounted to the breach of the appellant’s right to fair hearing.
International Beer of Beverages Industries Ltd. V. Muntunti Co. Nig. Ltd. (2013) ALL FWLR Part 670, Page 1253 at 1281 Paragraphs A- B and Etajata V. Ologbo refered.

We have also been urged to evaluate the evidence indicated as the facts did not involve the credibility of witnesses. lreugbu V. Mpama (2010) ALL FWLR Part 549. Page 1146 – 1147, Paragraphs G – C; Nwokearu V. State (2010) ALL FWLR Part 542. Page 1659 at 1677, Paragraph A and Nini Lodge Limited V. Ngie 2010 FWLR Part 506 at Page 1506 at 1834. Paragraph D – G referred.

Whether the lower Court was right to refuse to attach

weight to the evidence of PW1, PW2 and PW4. It was argued that there was no evidence on record to show that PW1 and PW2 had an axe to grind with the respondent to warrant that view and to hold their evidence unreliable. That the PW1 neither supported appellant or respondent but was a truthful witness who took the middle course.

Learned counsel wondered where the judge got that impression of “axe to grind” when the respondent never said so. Counsel argued that there were no contradictions in PW1, PW2 and PW4’s evidence. Relies on lwachukwu V. Onwunwanne (2011) ALL FWLR Pt. 589. pg. 10. that in any case it was only material contradictions that have occasioned miscarriage of justice that could lead to the rejection of evidence. Relied on Bassey v. The State (2012) ALL FWLR Pt. 633 pg. 1816 at 1832. That what the trial Court held as contradictions were infact nothing more than discrepancies not warranting the rejection of their evidence.

That it was unfair to dump the evidence of PW4 merely because he had a long relationship with the appellant.
1. Whether the lower Court was right in refusing to grant appellants claims to the land in dispute in

view of the fact that the respondent and his family members had acquiesced to the grant of the land to him.

It was argued that the respondent and his Osuma family had acquiesced to the grant and occupation of the land by the appellant. That they knew of their rights, delayed in instituting the suit and the circumstances were such that they could be taken as having abandoned such right. lge V. Fagbohun (2002) FWLR p. 91, Page 1545 at 1568 be referred.

That the appeal be allowed and the judgment set aside and the claims of the appellant be allowed granted and counter claim of the respondent be dismissed

On his part, the respondent by his brief of argument dated and filed on 2 – 10 – 2015 and deemed filed on 21-10-2015 raised a point of preliminary objection to the competence of this appeal. The notice of the objection is found on page 4 Paragraph 2.01 of the brief and the argument thereon is contained at pages 5 – 6 Paragraphs 2.02 – 2.09 thereof.

The objection is taken on the following grounds:
A. Parties to this appeal are different from the parties at the trial Courts.
B. Appeal is a continuation of the case

at the trial Court and not a new case.
C. Appellant altered the names of parties to the case as sued at the trial Court.
D. Relief sought in this appeal is against all the defendants, including 1st and 3rd defendants who are not made parties to this appeal.

Counsel draws our attention to the writ of summons and the statement of claim and the notice of appeal, pointing out that 3 defendants were sued by the appellant and he claimed reliefs against them at the trial and before this Court. And yet has appealed against only one respondent.

Learned counsel argued that the appropriate thing to do is to file the appeal against all the parties/defendants as they were sued at the trial Court and then apply for the discountenance against those respondents not intended to be proceeded against after the appeal has been entered. Contracts & Anor. Vs. Uba (2011) 10 SCM 1 at 9 ? 10 F ? I, A ? B; Monday Edet & Ors V. INEC & Ors, (2011) 3 SCM, 63 AT 81 ? 82 1, A ? D.

?It is contended that the names on the notice of appeal must remain the same as in the writ of summons, unless it has been formally withdrawn

Shinning Star Ltd. V. Ask Steel Nig. Ltd. (2011) 3 SCM 196 at 219. B – D.

Furthermore, that the relief sought is against the defendants, including the 1st and 3rd defendants who have been excluded.

That the appeal herein is different from the case at the trial Court as the parties are not the same. That the implication is that there is no foundation for this appeal, as an appeal lies from the decision of a lower Court. Urges that the appeal be struck out/dismissed for being incompetent.

That the 1st and 3rd defendants against whom reliefs are sought in this appeal are not parties in this appeal. The respondent herein was sued as 2nd defendant and 1st and 3rd defendants were joined and reliefs sought against them.

Learned counsel queried whether this appeal as constituted can be entertained without breaching the right of fair hearing of the 1st and 3rd defendants unilaterally dropped by the appellant.

We have been urged to uphold the preliminary objection and to act accordingly. Proceeding on the merit of the appeal in the event of non success in the preliminary objection raised

?He formulated 10 (ten) issues for

determination all of which are strikingly similar to the appellants’ issues. It should be noted that the Courts have frowned at the practice of respondent framing or formulating more issues than the appellant.

It is the appellants appeal as he is the dissatisfied party; it is he that formulates the issues he complains or thinks are germane and recondite to address his points of grievance as epitomized or as highlighted in his grounds of appeal.

How then can a respondent raise more issues than him, a respondent may adopt the appellant’s issues or raise same or less/fewer number in different or modified form. I can conceive of no other practice that will not offend common sense and lead to the contradictory fusion of the position of the parties in an appeal.

On issue No. 1 the respondent countered that it was obvious from the amended statement of defence and the counterclaim of the defendants that the defendants defended the suit and also counter claimed in a representative capacity as the land in issue was testified to as a family land which the respondent is the head and exercised control for and on behalf of the Osuma family.

?It

was argued that where pleadings and evidence led in support of a demonstrates conclusively a representative capacity, the trial judge can justifiably and properly enter judgment for or against the party in that capacity even where an amendment to reflect that capacity has not been sought and obtained. Mbane V. Molokwu (2014) ALL FWLR (Pt. 742) 1665 at 1681, BC Sapo & Anor. V. Sunmonu (2010) 2 SCM 204; Salisu & Ors V. Odunmade & Anor (2010) 2 SCM 219; Haastrup Wines Ltd V. Wiche (2006) ALL FWLR (Pt 304) 483 AT 497; KYARI v. Alkali (2001) 5 SC (Pt.11) 191 at 291,220; Ayeni V. Sowemimo (1982) 5 SC 60; Obiode V. Orewere (1982) 1 ALL NLR (Pt. 1) 12; Ndidi V. Osademe (1971) 1 ALL NLR 14 and Shell V. Asajen (1957) 2 FSC 68 were relied upon.

Counsel also referred to pages 178-192 of the written address of the appellant at the trial Court and as admitted of pages 180 – 181 of the record of appeal.

Learned counsel argued that parties must be consistent with their cases at the trial and appeal and must not approbate and reprobate as the appellant’s counsel seeks to do on appeal now. Urges that the issue be resolved in favour of the

respondent.

On the 2nd issue; the respondent contended that the identity of the land claimed by the plaintiff had not been proved as held by the trial Court. Counsel posited that the argument by the appellant that Exhibits A, D, F (Survey plans) had been accepted by the parties as relating to land in dispute was not correct as a party succeeds or losses on the strength of his own case. That it was the appellant that must lead credible evidence as a plaintiff to succeed and that the weakness of his opponents case was not material. Ogunjemila V. Ajibade (2010) 11 NWLR (Pt. 1206) 539 at 582 C- D; Odunze V. Nwosu (2007) ALL FWLR (PT. 379) 1295; Akinduro V. Alaya (2007) ALL FWLR (Pt. 381) 1653; Eya & Ors V. Olapade & Anor, (2011) 6 SCM, 13; Michael Eyo V. Onuaha & Anor. (2011) 2 SCM 178; Audu Otukpo V. John & Anor, (2012) 6 SCM 149.

Learned counsel proceeded to argue that a plaintiff for a declaration of title must prove his case not minding any admission on the part of the defendant or default of pleadings. Okonkwo V. Okonkwo (2010) 10 SCM 209.

?That it was firmly established that the onus on the plaintiff seeking declaration of title

is to show clearly the area to which his claim relates. This can be by oral description of the land in such a way that any surveyor acting on such description can produce a plan of the land he claims or by tendering a plan. Nwokidu & Ors. v. Okanu & Anor. (2010) 1 SCM 126. Nwokorobia V. Nwoqu & Ors (2009) 5 SCM 110 and Okworonkwo v. Okworokwo Supra were referred to.

Counsel, relying further on Ekpemupolo & Ors. V. Edremoda & Ors. (2009) 4 SCM 63. at 80 says the land was not identified precisely and accurately.

That the record did not bear out the claim of counsel for the appellant that the defendants and their witness admitted knowing the land in dispute when Exhibit A, D & F were tendered. That the defendants/respondent put the identity of the land in dispute by their further amended statement of defence and counter claim Paragraphs 8 and 31 on pages 169 – 177 of the record.

Additionally that fraud was pleaded and testified to by PW3, PW5 and DW6. That parties who were defendants and not before this Court now had put the identity of the land in dispute and had tendered Exhibits ‘G and ‘M’ as counter plans

disputing the plaintiff/appellants Exhibits A, D and F.

After a reference to a host of authorities the respondent?s counsel urged that the identity of the land had not been proved and the issue be resolved against the appellant.

ISSUES 3
On whether the trial Court granted more than what was claimed by the respondent, it was argued that Exhibit M, covering the land of Chief Emmauel Adeyemi Osuma was tendered and without objection and in evidence as the land counter claimed. That the Exhibit ‘M’ had proved the boundaries of the land claimed. That the said Exhibit ‘M’ also proved the area and or size of the land he counterclaims with certainty.

Counsel argued that by his argument on his issue ‘C’ the appellant had admitted/conceded that the respondent tendered Exhibit ‘M’ which showed the land.

ISSUE 4
Whether from the totality of the pleadings and evidence on record (oral and documentary) the counterclaim of the 2nd defendant now respondent is statute barred, thus robbing the Court of jurisdiction.

Counsel contended that the writ of summons and statement would be looked at with a view to determining whether an

action is statute barred and that in this case, it was the counter claim which stood as an independent action commenced by the counter/claimant as a plaintiff – Bilante V. N. D. I. C. (2011) 8 SCM 40.

Counsel referred to Paragraphs 16,18,19 and 20 of the statement of defence and counterclaim pages 171 -172 of the record and submitted that the cause of action arose in 2005 by his pleadings. That the appellant had put paid to that fact by his admission that “the whole transaction that brought us here commenced in 2005.”

That this admission under cross – examination sealed the issue of the action being statute barred. Citing Godwin & Ors. V. Okwey & Ors. (2010) 11 SCM.55: Anyanwoko v. Okoye & Ors. (2010) 1 SCN 21 he prayed that this issue be resolved in favour of the respondent.

ISSUE 5
Whether the refusal to ascribe probative value to the testimonies of PW1, PW2, PW3, PW4 and PW5 had occasioned a miscarriage of justice.

Learned counsel pointed out inconsistencies in the evidence of the appellant and his witnesses and contended that the trial judge was right in not placing weight on them.

ISSUE 6
Whether the

respondent had acquiesced to the appellants possession of the land, it was argued that the appellant having sued, it presupposes that he was not in possession and therefore was using the defence wrongly as a defence, rather than a shield. He cannot while in possession use the defence of long possession as a sword to found an action, but only as a defence.
Atunrase V. Sunmola (1985) 1 NWLR (Pt. 1) 105 at 113, Kawu, JSC cited with approval the case of Olayioye V. Oladeinde (1959) 1 ALL NLR 281 at 285 thus.. ”he was in error in employing the plea of long possession as a sword instead party in long possession is entitled to resist the claims of a rightful owner by pleading long possession but understandably, he cannot make that a basis of a claim in an action instituted at his instance for a declaration of title as against the true owner”.

There is no record of any grant by the respondent’s father. The evidence of PW1 and PW2, were said to contradict PW3 and PW4 and PW1 and PW2 contradict themselves and were rightly held by the trial Court as unreliable. That the trial judge observed the demenour of PW2 and his utterances and rightly found that he

had an axe to grind with 2nd defendant.

That PW2 was self contradictory and unreliable and that PW1 and PW2 had an axe to grind with their blood brother, the 2nd defendant.

Referring to the findings of the trial judge that PW1 would have temptingly be relied upon particularly as to the alleged grant to the plaintiff, but her admission that she did not know how many plots of land were given to the plaintiff by her father even though she purportedly witnessed the grant, raised doubt whether she actually witnessed the grant, as she could not identify the boundaries of the land, nor identify Exhibits A, D and F.

That the trial judge was right in disregarding the evidence of PW1 , PW2, PW3 and PW4 for having their interests to serve and for their inconsistency and unreliability on whether the judgment of the trial Court is against the weight of evidence.

The learned counsel reviewed the evidence of all the plaintiff/appellants’ witnesses and agreed that the trial Court rightly found them contradictory and unreliable. That PW1 said she did not know how many plots her father gave the plaintiff/appellant.

?Appellant as PW3 in

Cross examination gave damaging evidence that “my mother had five of us and she gave me this land because I took care of her” and in cross examination by counsel for respondent – said his father who gave the land to me was alive then.

Counsel referred to the different dimensions of the land testified to and the admission of appellant that by simple mathematics the land in Exhibits A and D have different measurements and are different.

Counsel relying on the case of Olly v. Tunji (2012) ALL FWLR (Pt. 654) 39 at 65 C – D submitted that self contradictory evidence destroys the facts intended to be proved.

Harping strongly on PW5 who was a surveyor called by plaintiff, but who advised the Court not to rely on the Exhibits A, D and F as they were fraudulent and not having been re – examined even when the Court prompted, counsel contends that the plaintiff/appellant’s case was unproved and he had no defence to the counter claim.

ON ISSUE 9
Whether there was a unilateral amendment of the reliefs of the respondent and a descent into the arena of conflict by the Court:
That the finding to that effect that plaintiff/appellant

claimed the land as belonging to the Osuma Family as a whole and not as a personal property and that he is the head of the family had not be appealed against and therefore deemed accepted. That the appellant had agreed with this stand at the trial Court but now on appeal argues differently.

Counsel therefore argued that where the pleadings and evidence led in support of a case demonstrate conclusively a representative capacity that trial Court can justifiably and properly enter judgment for or against a party in that capacity. Sapo & Anor. V. Sunmonu (2010) 6 SCM 204 at 220 D – E.

That the trial judge was therefore right to have entered judgment for the entire members of the 2nd respondent’s family which the 2nd respondent is the head. Submitting that facts are sacred and parties should not approbate and reprobate, that the issue be resolved in favour of the respondent.

ISSUE 10
Whether the appellant had successfully proved the alleged grant of the land to him by the respondents’ father to warrant the grant of the claims sought by him.

?The learned counsel reviewed and repeated the submissions in a nutshell in the issues

1 – 9 and urged that appellant did not prove the alleged grant to him by the respondent’s father. He therefore urged that the issue be resolved in his favour and the trial judgment be affirmed and the appeal dismissed.

Of course, as expected, the appellant filed an appellant’s reply brief dated 15/10/2015 and filed on 16/10/2015

By the said, reply brief, submitted that the preliminary objection was incompetent as it had been raised and decided at the trial Court; when the challenge was taken to the competence of the motion for stay of execution filed by the appellant/judgment creditor/plaintiff/respondent to the counter – claim on the ground that the respondent ought to include the other respondents. Who were not part to the counter claim.

Referring to page 4 of the additional record of appeal which is the ruling on the objection taken to the non joinder of the 1st and 3rd defendants to the motion as respondents and the overruling thereof or dismissal of same on the ground that the claim against 1st defendant had been dismissed and 3rd defendant’s counter claimed had also been dismissed. They had not appealed and their journey in the

case had ended.

The application for stay was in respect of the judgment in the counter claim of the respondent wherein the 1st defendants were not parties. Therefore, there was no alteration of parties and objection rightly overruled.

However, the respondent contended that the ruling was a finding that subsisted so long as there was no appeal against it; that on the authority of the case of Onafowokan V. Wema Bank Plc. (2011) ALL FWLR Pt. 585. Page 201 at 225. D – F and Oseni V. Bajolu (2010) ALL FWLR Pt.511 Page 813 at 829. Paragraphs E – G. That it was on attempt to reargue the issue through the back door rather than through an appeal.

That the authorities cited were not apposite and distinguishable. That the 1st and 3rd defendants who chose not to appeal cannot be compelled or be made so by the appellant and likewise that they cannot be made respondents as the judgment was against them. That the role of a respondent is to defend the judgment and that the judgment was against the said respondent and how they could cope as respondents was unimaginable, as they were not interested in the appeal.

That the preliminary objection be

dismissed with substantial costs.

On the merit of the appeal there was only a repeat of the submission in respect of issues 1 and 9 on issues 2 on identity of the land, it was contended that it was not addressed by the respondent and should be deemed to have been conceded on the authority of Bottling Industry Limited v. Union Bank of Nigeria Plc. (2010) ALL FWLR 510, Page 786 at 804 . Where this Court Benin Division said “where a material point canvassed in an appellants’ brief is not contained in the respondent’s brief, the point is deemed to have been conceded to the appellant.? Adeyeye & Anor. V. Governor, Ekiti State & Ors. (2012) ALL FWLR Pt. 652. Page 1744 at 178 Paragraphs C – F

On issue 6 on laches and acquiescence, being used as a sword rather than a shield, counsel said no more than that —-“it was pleaded in the Appellant’s reply to 2nd defendant’s amended statement of defence and defence to counter claim”. On page 110/147 of the record.

That since the defence was pleaded in the appellant’s defence to counter claim, it will be misconceived to allege that the defence was used as a sword. That the issue be resolved in the appellant’s favour.

?I shall determine the

preliminary objection first, as the issue of the competence of a suit is a jurisdictional issue. This is because before a Court can exercise jurisdiction in a case whether at the trial or on appeal, it must have jurisdiction and the suit must have come to it by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Jurisdiction is a radical and crucial question of competence once there is a defect in competence, It is fatal and the proceedings are a nullity however well conducted and decided. Tanko V UBA Ltd. per Adekeye JSC at page 99 Paragraphs C ? D (2010) 17 NWLR Part 1221 page 80 at 98. See also (1) Okem Enter. Nig. Ltd V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517
See also my contribution judgment in the unreported ruling of this Court in Appeal No. CA/AK/98/2015, – Dangote Integrated Steel Plc. V. Alhaji (PA) Salami Nasiru Oyeniyi (Head of Sogbodede Royal Family of Oshogbo (2) Alhaji (PA) Salami Mogaji Head of Lahanmi – Oyepi (Royal Family of Oshogbo (3) Alhaji (PA) Ashiru Oyewole (Head of Matanmi Royal family of Oshogbo)

?Although the law is that a party intending to rely on a

notice of preliminary objection must comply with the rules of Court in that regard, such as by filing the copies of the notice in the required number at the Court of trial or the appellate Court see Oriorio Vs. Osain (2012) 16 NWLR Pt. 1327. Page 569 at 578 Paragraphs D – H.

In the instant appeal, the objection relates to jurisdiction and jurisdiction has been held to be the spinal cord of every litigation and, once raised, it must be resolved before any further step is taken in the matter. It is a thresh hold matter. See Odedo V. INEC (2008) 17 NWLR Pt. 1117 Page 554: Oriorio V. Osaain (supra).

So it shall be considered no matter how it is brought to the notice of the Court so long as the appellant is seized of the objection as raised in the brief of argument filed by the respondent.

There is no doubt that the appellant?s complaint is against the judgment in suit No HOW/5/2008 delivered on 6th of May, 2013 which dismissed in its entirety the plaintiff/appellants claims and allowed the counter claim of the respondent herein respondent herein.

?Any appeal against the composite decision as made in this instance must reflect

all the parties as sued at the trial Court i.e. in the 2 in 1 suit. In this wise, the 1st and 3rd defendants must be joined as respondents for there to be a properly constituted appeal against the decision in which they were parties and had claims made against them or made by them. This is absolutely so as, the findings made in their favour or against them that led to the judgments cannot be altered without them being heard.

To do so, will be in violation of their right of fair hearing, as the relief sought in the appeal is to set aside the decision entered in the suit involving the 1st and 3rd defendants who have not been joined in the notice of appeal herein.

I agree with the respondent/preliminary objector, therefore, when he argued that an appeal is a continuation of the hearing at the trial Court. Where a party or parties have not being withdrawn or struck out by the leave of Court upon an application to that effect, he shall continue to be a party to the suit as constituted by the Originating process, which is the writ of summons.

?The appellant as indicated in the notice of appeal i.e. the new originating process being the

aggrieved party is correctly reflected. This cannot however be said in respect of the lone/sole sole respondent indicated in the said notice of appeal. He may be the main respondent and the other defendants may be thought to be ?Nominal? but must be so reflected, as in this matter, it cannot be heard to say that they are not necessary and desirable parties; reliefs against them having been sought.

The appellant wants the claim against them as trespassers and injunction granted by setting aside the trial decision that dismissed his claims against them inclusive of the present appellant.

There is, therefore, no nexus shown between the notice of appeal initiating the hearing culminating to this ruling and the decision at the trial as regards parties. Shining Star Ltd. Vs. Ask Steel Nig. Ltd. (2011) 3 SC 196 at 219, B ? D; see also Awoniyi V. Registered Trustees Amorc 2000 FWLR Pt.25. Page 592.

The appellant has curiously tried to raise an objection within an objection. It is not the law that an objection can be taken to an objection, such as a preliminary objection. All that is known to law and practice is that an answer

is proffered to an objection.

This strange genre of objection is, therefore discountenanced, by me. The preliminary objection raised is in order. Accordingly, I shall and do strike out the notice of appeal in this suit as filed between the parties indicated thereon as incompetent.

As a corollary, the proceedings and judgment arising therefrom are set aside and quashed as the right of fair hearing is a fundamental Constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria 1999 and a breach of it particularly in trials, vitiates such proceedings rendering them null and void.

A hearing cannot be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case call witnesses. See Military Governor, Imo State V. Nwauwa (1997) 2 NWLR (Pt. 490) Pg. 675; Saley V. Monguno (2003) 1 NWLR (Pt. 2003) 1 NWLR (Pt. 801) Page 221; Bamigboye Vs. University of Ilorin (1999) 10 NWLR (Pt. 622) page 290 and Kotoye v. CBN (1989) 10 NWLR (Pt. 98) page 419.

That is the natural effect of the non – joinder in this case. This Court will have no jurisdiction to entertain the appeal as relating

to the main suit of the appellant at the trial that was dismissed as the parties thereat as defendants have not been joined in this appeal.

This Court can have no jurisdiction to determine and make any order let alone the type sought by the appellant in respect of that suit. Since, we cannot sever the appeal of the appellant to deem the appeal as one against the respondent alone as relating to his counter claim that was allowed, the only reasonable order to make shall be one striking out the appeal for the two claims are interwoven and cannot be severed, hence the order. They were heard in the one single proceeding. See Tanko V. UBA Plc. (2010) 17 NWLR 80.

In addition, upon a perusal of the record of appeal, I note that the grounds of appeal concern questions of facts and issues of mixed law and fact as the appellants complaints against the findings of facts or evaluations of evidence as done at the trial Court. All those instances raise the issue of facts or mixed law and facts. issue of facts is the crux and a common denominator in all the ground of the appeal.

?In accordance with Section 243 of the Constitution of the Federal Republic

of Nigeria, 1999, leave of the trial Court or the Court ought to have been secured before appealing as the appeal would not have been as of right, in view of the grounds there of. See Opuipyo V. Omoniwari (2008) 156 LRCN 229 Page 240.

Accordingly, the appeal must be and is hereby struck out.

Notwithstanding my order striking out the notice of appeal and appeal, for incompetence and consequential lack of jurisdiction in this Court; I am mindful that as an intermediate Court and not being the final Court, the decision of this Court on the basis of jurisdiction or incompetence of an appeal should not make me to end or terminate the matter, as after all the Supreme Court could review it to a contrary view.

I shall, therefore, proceed in brief to consider all the issues as argued by the appellant on their merit. Before I set sail, it must be understood that it is elementary law that a plaintiff has the burden to prove the reliefs sought in the statement of claim for him to obtain judgment in his favour.
This burden does not shift. This is because he is the party who claims the reliefs in the statement of claim and so the onus pro

bandi rests upon him. He must prove the affirmative content of his statement of claim.
Our adjectival law is as strict as that; see Okechukwu and Sons V. Ndah (1967) NMLR 368: Elemo V. Omolade (1968) NMLR 359: Frempong II V. Erempong II (1952) 14 WACA 13: and a host of cases referred to with approval in A. G. Anambra V. AG Federation (2005) 131 LRGN 2282 – 2584.
The burden of the plaintiff is however limited to the live issues which will determine the case one way or the other. In other words the plaintiff has no duty to prove issues which are not in any way related to the reliefs sought in the statement of claim as such issues are seen as merely gallivanting in the pleadings and to no issue. See AG Anambra V. AG Federation (Supra).

On issue one, it is my view that there was no unilateral amendment of the reliefs claimed at the trial Court in the counter claim. Evidence emerged at the hearing and which was in line with the pleadings of the respondent that he defended the suit and also counter claimed on behalf of the Osuma Family in respect of the family property.

?In the circumstances, therefore, there is no basis for this

contention to the contrary in his issue one as argued.

The Osuma family could not have appeared in Court as an entity as suggested by the appellant’s counsel, as that would have been an impossibility. A corporation aggregate as in the nature of a family can only act by or defend through representatives so authorized and approved by the Court.
The respondent had so done and was allowed without any objection at the trial Court. It is rather too late in the day to now complain.
Nonetheless, the law is that once evidence led shows indisputably that the respondent defended in a representative capacity, judgment for or against may be entered in that capacity. See Mbanfor V. Molokwu 2014 ALL FWLR (Pt. 742) 1665 at 1681. BC; Supo & Anor Vs. Sunmonu (2010) 2 SCM 204 and a host of other cases in line as cited by the respondent’s counsel in his address.

Appellant’s counsel had in his written address admitted that the respondent defended and counter claimed in a representative capacity. What better facts are needed for the trial Court to arrive at the conclusion that the relief was sought against the Osuma family whilst the relief in the

counter claim was for the benefit of the said Osuma family? See pages 178 – 192 of the record of appeal. This issue is resolved in favour of the respondent.

On the issue of identity of the land as claimed by the plaintiff/appellant herein, that is issue 2, it is obvious that the respondent had put the identity of the land in dispute by his further amended statement of defence and counter claim. See Paragraphs 8 and 31 on pages 169 – 177 of the record. He pleaded fraud and testified thereto by PW3, PW5 and in particular PW6.

Exhibits ‘G’ and ‘M’ were counter plans tendered by parties, i.e the defendants who are not parties in this appeal now, showing the land as being different from what the appellant claimed. Exhibits ‘A’, ‘D’ and ‘F’ tendered by the appellant are contradictory in the dimension of the land claimed and as against the respondent who tendered Exhibit ‘M’ showing the entirety of the land, which appellant agreed was claimed by the respondent.

?In the law of real property, there is no doubt that difficulty in establishing the identity of the land in dispute has always been the bane of otherwise successful

claims.
The appellant’s claim to a specific land having been denied, it was encumbent for him to have a survey plan that showed clearly and specifically the land claimed and its boundaries. See Epi V. Aigbedion (1973) NMLR Page 31 at 35 if the land is a vacant land, it is desirable to have a plan to show the portion. See Ibuluya V. Dikibo (1978) 1 ALL NLR Page 395 at 408.

The appellant said the parties and their witnesses knew the land in dispute. However, the boundaries have not been testified to and the Exhibits tendered by him, have been shown to be contradictory and allegedly a fraud. How, then can the Court hold that the identity of the land had been proved?

A party wins on the strength of his case and therefore the failure to prove the identity of the land claimed disentitles a claimant to a declaration of title and/or damages in trespass and injunction. These were the claims or reliefs sought by the appellant.
As I stated in Karimu V. Lagos State Government (2012) 1294 5 NWLR part 1295, Page 620 the lack of proof of the identity of the land made it impossible for any declaration or injunction to issue.

?Issue No. 2

resolved in favour of the respondent.

ISSUE 3
The respondent defended and counter claimed in a representative capacity. The evidence copiously disclosed that fact. The counter claim was proved strictly and the Court had the jurisdiction to enter judgment for the counter claimant/respondent as the land was clearly proved by the counter claimants Exhibit ‘M’ and his root of title was traced to his father whom the appellant acknowledged. He had a herculean task to dislodge the respondent’s title in the circumstances.

I agree with the respondent that the appellant did not prove his root of title. The purported grant to the appellant by the respondent’s father, was demolished as the identity of the land granted was not shown.

The Pw1 could not show the land despite allegedly being an eye witness to the grant; so also all other witnesses called by the plaintiff/appellant.

There was also a contradictory evidence of a grant by plaintiffs father and also a gift purportedly made by the appellant’s mother of the same land.

?The documents in proof of the land and its size were shown to be forgeries and unreliable. The amorphous

root of title could not be said to have been proved, therefore.
Issue 4 is resolved against the appellant.

On issue 5 there was no proof of grant as all the evidence in that regard had been demolished.

Whilst it is correct that the correct procedure is to demolish a witness’s evidence by cross – examination rather than calling a witness to testify to the contrary, as that will not be an effective rebuttal but be taken as admitted, however, the preponderance of evidence in demolition of the appellant’s case overwhelmed the self destruct case built by him.

ISSUE 6
The learned counsel for the appellant had contended that the respondent had acquiesced to the plaintiff/appellant possession of the land. I do not agree.

The appellant was the claimant and not a defendant and cannot raise the defence of acquiesce as a sword. He could only use it as a defence, as he claimed he did to the counter claim. But could he do that in the circumstances?

?Trespass, being a continuing act in the circumstances of the occupation that only became an issue in 2005 when the respondent sued the appellant and others over the land, the cause

of action only arose then and was not limited by time yet, nor could the respondent be said to have acquiesced as he complained before taking out his action. His suit preceded the appellant’s claim (suit), the precursor of this purported appeal.

ISSUE 7
The appellant had argued that on the totality of the evidence led, he had made out a case whilst the judgment was against the weight of evidence.

The totality of the evidence led by the appellant at the trial was largely self defeating such that his claims could not be made out; to the contrary there was a self destruct evidence led that was rightly evaluated by the trial Court.

ISSUE 8
The counter claim was simply proved with ease as it had no serious challenge thereto.

In the circumstance, I do not find any reason to interfere with the findings and conclusions leading to the judgment complained against.
Technicality shall not take over or be allowed to defeat justice. See Tsokwa Motors Ltd. V. UBA Plc.(2008) SC 1.

?The appellant’s learned counsel propped up some isolated principles of law and suppositions/ assumptions and argued thereon; such as the

fact that he had written a letter of gratitude to the respondent?s father expressing gratitude for the grant of the disputed land and wondered why the original was not tendered by the respondent, the respondent shall suffer no peril as the duplicate had not been tendered In the face of the failure to tender the original. Secondly, the said letter was not a document of title or letter of grant.

It is therefore not necessary for this Court to consider all matters raised and argued which are not issues material to the proof of the appellant?s claim or defence as made. Indeed matters or issues that only gallivant and do not determine the appeal are not necessary issues and may not be considered. They may be safely and rightly jettisoned. However, the material issues relevant for the determination of this appeal have been sufficiently addressed, in my humble view. I shall stop here.

Although a Court has no jurisdiction to embark on an advisory expedition but it may make remarks as I shall do.

?The suit leading to this appeal is a family matter that appears to have been triggered by perceived ego – flexing and hurt feelings over

manners of relationship and supposed over stepping of bounds.

Home grown resolutions are not impossible for these parties who are family relations, as disclosed by the evidence led and on record.

The essence of law is to build a harmonious and safe society, and not to break bonds. Alternative dispute mechanism may be explored after all is said and done.

Nevertheless, in view of my resolutions of the issues as made, I hold that the appeal lacks merit; however, for the incompetence of the appeal, herein, as resolved relating the preliminary objection, I should rather strike out the appeal. See my decision in Appeal No. CA/B/288/2006 Between CHIEF M. I. KUDEHINBU & ANOR VS. MR. NEWTON OLUWOLE & ORS. Delivered on Friday 6th May, 2016.

Accordingly, Appeal No. CA/AK/16/2014 between Chief (Senator) Remi Okunrinboye and Chief Kofo Aderemi Osuma is hereby struck out for being incompetent.

Parties to bear their respective costs of prosecuting and defending the paralytic appeal.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read before now in draft the judgment just delivered by my learned brother Mohammed A.

Danjuma, JCA. The issues raised in this appeal were dealt with and effectively resolved. For the reasons contained in the lead judgment, I too strike out the appeal for being incompetent.

I abide by the consequential order(s) contained therein including order as to costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother Danjuma, JCA. He has exhaustively dealt with the issues for determination.

For the reasons contained in the lead judgment, I too strike out the appeal.
?I abide by the order as to costs

Appearances

O. S. Aderibigbe, Esq.For Appellant

AND

Emmanuel Rotji, Esq. with him,
I. Ifedayo (Miss)For Respondent