MR. OSIBAKORO OTUEDON v. MR. UCHENNA LIVINUS OFOR (2019)

MR. OSIBAKORO OTUEDON v. MR. UCHENNA LIVINUS OFOR

(2019)LCN/13089(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/B/493/2017

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

MR. OSIBAKORO OTUEDON
(For himself and on behalf of PRINCE OTUEDON family of Ugbolokposo) Appellant(s)

AND

MR. UCHENNA LIVINUS OFOR Respondent(s)

RATIO

TYPES OF LEGAL OWNERSHIP OF LAND

In the celebrated case of ELEGUSHI V. OSENI (2005) 14 NWLR (Pt. 945) @ 348 the Supreme Court laid out the five types of legal ownership as follows:
1. By traditional evidence.
2. By production of a document of grant or title.
3. By proving acts of possession and ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the plaintiff is an exclusive owner.
4. By proving acts of long possession and enjoyment of the land; but this only raises a presumption of ownership.
5. By proof of possession of connected or adjacent land in circumstances which make it probable that the owner of such adjacent or connected land is probably the owner of the land in dispute.
Again in the recognized case of ADEOSUN V JIBESIN (2001) 11 NWLR (Pt. 724) 290 and also the case of OTUEDON V OLUGHOR (1997) 9 NWLR (Pt. 521) 355 the apex Court has this to say:
?Proof by evidence of traditional history is one of the 5 ways laid down by this Court in IDUNDUN V OKUMAGBA(1976) 9 ? 10 SC 227 of proving title to land. Declaration of interest in land can be founded upon each proof Thus with the conclusion that plaintiff?s traditional history ought to have been accepted by the Courts below, it follows that on that alone, judgment ought to have been entered in plaintiff?s favour on their claims. PER EKPE, J.C.A.

THE BURDEN OF PROOF IN CIVIL CASES

In general legal parlance, the burden of proof in civil cases is on the party who asserts the claim; and it is usually based on the preponderance of evidence. The purport of the above principle is that the evidence adduced by the parties is placed on the imaginary scale of justice and the scale would naturally tilt to the side with the weightier and better piece of evidence. See BUBA VS BUKAR (2003) FWLR PT. 183, 38 @ 71. In the case supra, the Court had this to say:
?The burden of proof in civil cases rests upon the party, whether Plaintiff or Defendant, who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings and it is settled as a question of law remaining unchanged throughout the trial exactly where the pleadings place it and never shifting in any circumstances whatsoever. PER EKPE, J.C.A.

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Delta State High Court delivered on the 5th Day of July, 2017 in Suit No: EHC/305/2015 by Honourable Justice G. E. Gbemre in the Effurun judicial division.

FACTS OF THE CASE:
The Appellant was the Claimant at the Lower Court while the Respondent was the Defendant.
The Appellant is the purported head and accredited representative of the Prince Otuedon family of Ugbolokposo Town. The Appellant?s claim against the Respondent was that sometime in November 2013 in the course of a routine check on his family land at Ugbolokposo, he discovered that the Respondent and his work men and privies had trespassed on a portion of his family land. All efforts to stop the Respondent and his privies from further trespassing thereon proved abortive hence this action at the lower Court with the following claims:
?1. A Declaration that the piece of land lying and situate along Uti Road, Ugbolokposo, close to the DSC Express Road by DPR Warri Staff MPCS Filling Station more particularly measuring approximately 460.932 Square

Meters where the Defendant built upon and is carrying out business thereon belongs to the Prince Otuedon family of Ugbolokposo.
2. A Declaration that any conveyance, title or interest obtained thereon by the Defendant from any person(s) whatsoever without the consent and approval of the Claimant is void ab initio.
3. A Declaration that the purported Deed of Transfer made between Donald Otuedon, Emmanuel Oleju, Johnson Enetsemi, Emmanuel Atseruboma Kelly Otuedon and Hyginus Ikechukwu Okeke is a nullity and it is void ab initio.
4. The sum of N100,000,000 (One Hundred Million Naira) only as general damages against the Defendant for the brazen and wanton acts of trespass committed by him when he, without the consent and approval of the Claimant first sought and obtained, broke and entered Claimant?s family land, commenced and built a house thereupon inspite of repeated warnings to stop and desist from same.
5. A Declaration that the building erected on Claimant?s family land by the Defendant be forfeited by the Defendant to the Claimant?s family on the principle of quic quid plantatur solo solo cedit.
6. Any other suitable relief.

Appellant at the Court below claimed that the Respondent came to be on the land by virtue of a Deed of Assignment between Defendant and Hyginus Ikechukwu Okeke dated 3rd day of June 2013. Appellant claimed that the land was not a communal land but a family land and thus the persons who sold it to Hyginus Ikechukwu Okeke did not possess the right to do so.

The Appellant fielded one witness, Mr. Johnson Malemi, who was not cross-examined by the Respondent and the second witness was never brought forth.
The Appellant tendered three documentary exhibits.

The Respondent stated in his defence that the Appellant was neither the Chairman nor the accredited representative of Prince Otuedon?s family but that the true and lawful Chairman was Mr. Donald Otuedon (the Olare-Aja) who did not delegate his powers to the Appellant. The Respondent on the other hand stated that the piece of land in dispute was a communal land and that the document appointing the Appellant as accredited representative was a concoction.

?The Respondent further stated that Mr. Hyginus Ikechukwu Okeke had a block of stores on the land wherein the

Respondent was a regular patron of one of the restaurants. That during the course of the erection of his building, the Appellant was always coming to him to request for supply contracts which he declined.
The Respondent tendered two exhibits (Page 52 of Record) and fielded one witness, Mr. Hyginus Ikechukwu Okeke.

After hearing both sides, his Lordship held that on the balance of probability and preponderance of evidence, the case of the Respondent stands firmly on ground whilst that of the Claimant crumbles. This was applying the five ways of proving title to land as enacted in a long line of cases. He stated that the Defendant had established his title to land by documentary evidence and various acts of ownership both by his witness and himself as against the Appellant who had nothing to offer.

His Lordship thus entered Judgement in favour of the Respondent and dismissed the case with N50,000 (Fifty Thousand Naira) only costs in favour of the Respondent.
Dissatisfied with the decision, hence this appeal.

?The notice of appeal was filed on the 6th of September 2017, raising 4 grounds of appeal. From the grounds of appeal, the

Appellant distilled a sole issue for determination to wit:
Given the materials placed before the Court, whether the learned trial Judge was right when he held that the Appellant was not able to establish his case as required by law. (Framed from ground one of the notice of appeal).

The Respondent on his part also raised the following issues for determination:
1. Whether the learned trial judge was right when he held that the appellant was not able to establish his case as required by law.
2. Whether appellant has adduced sufficient and credible evidence to be entitled to judgement of the trial Court.

From all the issues raised by both learned counsel, it is my view that this appeal can be determined based on a sole Issue to wit:
Whether the learned trial judge was right when he held that the appellant was not able to establish his case as required by law.

On this Issue, the argument of Appellant?s counsel is that the lower Court was wrong in concluding that the Appellant was unable to establish his case as required by law, as the Appellant predicated his case on the fact that the land in

dispute belonged to the Prince Otuedon family of Ugbolokposo. Appellant stated that he traced his genealogy in his Statement of Claim to Prince Otuedon, the founder of a large tract of land which encompassed the land in dispute.

The Appellant anchored his case on traditional evidence and that he was not cross-examined by the Respondent?s counsel on the traditional history of ownership of the land in dispute. Appellant stated that the legal effect of the failure of the Defendant to cross-examine the Claimant on such germane material fact was that it was deemed admitted. The case of GAJI & ORS. V. PAYE (2003) LPELR-1300 (SC) was referred to where the Supreme Court stated:
?It has been said that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness.?

Appellant further stated that the written Statement on Oath of CW1, Mr. Johnson Malemi was also not challenged by Defendant nor was he cross-examined by Defendant on his depositions. Thus Appellant stated that the legal effect and consequence of Defendant?s inaction was that the Defendant

admitted those facts. See Section 123 of the EVIDENCE ACT, 2011. Appellant stated that from the pleadings and evidence in this case, the land in dispute was well known to the litigating parties and that it is settled law that when the land in dispute is well known to the litigating parties, tendering of a survey plan in any form or giving oral evidence thereof was unnecessary. OBICHE V. ADETONA (2008) LPELR-8472 (CA).

Appellant stated that the Respondent?s allegation that the land in dispute was a communal land was not backed by any evidence. He stated that no member of Ugbolokposo community was called by the Respondent to give evidence on that allegation. He pointed out that no community member who executed the Deed of Transfer between them representing Ugbolokposo community and Hyginus Ikechukwu Okeke was called upon as a witness. Appellant stated that the law was very clear that once a party pleads and traces his root of title to land to a particular person or source and his averment is disputed and challenged, that party, to succeed in the suit, must not only establish his own title to such land, he must also satisfy the Court on the

validity of the title of that particular person or source from whom he claims to have derived his title.IGE V. FAGBOHUN (2002) FWLR Part 127 Page 1140 at Pages 1160-1161, Paragraph H-B.

Appellant stated that the Court cannot take judicial notice of communal ownership of land Section 122, EVIDENCE ACT. Appellant stated that the following finding of the learned trial Judge at page 129, paragraph 4 of the Record was not founded on law and the pleadings of the parties thus:
?At the time of the sale, Donald Otuedon, the eldest man in the community who was also the head of Otuedon family signed for the Community and also Senior to Claimant. One Kelly Otuedon also signed for the Otuedon family. This presupposes that the Otuedon family is aware of this transaction; otherwise Claimant would have brought either Donald or the Kelly Otuedon to Court to say that they signed the said 2011 document in error.?

Appellant stated that the burden of proving that the land in dispute was a communal land rests on the Respondent and thus he had the burden of calling those who executed Exhibit D (Deed of Transfer). Appellant further stated that

DW1 (Hyginus I. Okeke) could not tell/identify personally to the Court, those who executed the Deed of Transfer by virtue of his interchange of Exhibit ?D? and Exhibit ?F? from evidence elicited during cross-examination, thus:
?I don?t know personally those that signed Exhibit F.?

Appellant also stated that Respondent failed to specifically state the areas of manipulation in Exhibit A which was the document purportedly declaring him the head of Prince Otuedon?s family. Appellant stated that allegation of manipulation of a document was criminal in nature and by Section 135 of the EVIDENCE ACT, it should be proven beyond reasonable doubt.

Appellant also stated that there was no evidence brought forth in Court to the effect that Donald Otuedon was the head of Otuedon family but the Claimant testified to the effect that he was the current head of the Otuedon family. Appellant further stated that he never patronized any restaurant nor solicited for contracts from the Respondent. Appellant stated that it was clear that the Appellant joined issues with the Respondent on this point. Appellant stated that in the said

?Exhibit E/G? (Deed of Assignment) there was no mention of any block of store nor building approval tendered. Appellant also stated that the alleged owner of the Restaurant was never called to testify.

Appellant also stated that the learned trial Judge failed to take into account his pleading that he discovered the trespass on the property in November 2013, when the learned trial Judge inquired rhetorically, why the Claimant sat by idly and waited for the Respondent to finish erecting the building after purchase from DW1 in 2013. Appellant stated that he filed Suit No. EC/110/15 after his solicitor wrote a letter to Chief Ofor, but that the suit was discontinued when it was discovered that it was the Respondent in this suit who was developing the property. Appellant also stated that there was no evidence put before the Court to the effect that rubber trees could not be on a land measuring 460.932 squares metres, in response to his Lordship?s finding that it was improbable for rubber plantation to be isolated on a small plot of land measuring 460.932 square meters.

?Appellant concluded by stating that the learned trial Judge

could not pick parts of the testimonies adduced that were seemingly favourable while deliberately ignoring the others.

Appellant stated that from the pleadings and evidence adduced, he adduced credible evidence in proof of his case and that the judgement of the lower Court was perverse and thus should be set aside and all reliefs sought by the Appellant granted.

In reply, learned counsel for the Respondent submitted that the learned trial Judge was right in Law in holding that the Appellant was unable to establish his case as required by law. Respondent stated that the Appellant was neither the head nor the accredited representative of the Otuedon family and that the land sold was originally owned by Ugbolokposo community who divested its interest in the land to DW1 vide a Deed of Transfer (Exhibit F) to Mr. Okeke, who further divested its interest in the said land via a Deed of Assignment (Exhibit G).

Respondent stated that it was trite law that a claim for declaration of title to land can only succeed on the strength of the Claimant?s case and not on the opponent?s case.

?Respondent stated that Appellant?s contention that CW1

was not cross-examined by Defendant?s counsel after giving evidence, goes to no issue. Respondent stated that the law was clear that for an unchallenged and uncontroverted fact deemed admitted to survive, it must be cogent and strong enough to sustain the case of the applicant. OGOEJEOFO V. OGOEJEOFO (2006) LPELR-2308 (SC) Page 14 at paragraphs B-D was referred to, thus:
?It is also the law that the unchallenged and uncontroverted facts deemed admitted in the affidavit must be capable of proving and supporting the case of the appellant as the applicant. In other words, the evidence contained in the unchallenged affidavit must be cogent and strong enough to sustain the case of the applicant.?

Respondent stated that the evidence of the Appellant by itself goes to no issue because it was not rationally persuasive, cogent or strong enough to give judgement to the Appellant at the trial Court. The case of IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227 amongst others were referred to regarding the different ways title to land could be proven, thus:
1. By traditional evidence.
2. By production of title documents.

3. By acts of ownership over sufficient length of time unknown and positive enough to warrant the inference that the person is the true owner.
4. By long possession.
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent lands would be the true owner of the land.

Respondent stated that the Appellant was unable to prove by any of the ways aforementioned, its title to the said land in dispute and that he did not know the identity of the land, because in Suit No. EHC/110/2015, Appellant claimed a portion of land measuring approximately 55ft x 130ft, and that in reply the Appellant gave a general traverse which was not sufficient a rebuttal.MTN COMMUNICATION LTD V. AMADI (2012) LPELR-21276 (CA). Respondent said that Appellant failed to present a composite layout plan or litigation plan showing the Otuedon family land and failed to call a boundary witness.UDENZI & ORS. V. NWOSU & ORS (2008) Vol. 154 LRCN 110 at Page 122, Paragraph 17 was referred to where the Supreme Court held thus:
?However it is settled law that for the Plaintiff to

succeed in a claim of title to land, he must establish with certainty, the identity of the land he claims. This is usually done by calling as witnesses, those with whom the Plaintiff shares common boundary marks along the boundary of the land in dispute in addition to tracing his root of title to the said disputed land. Where the Plaintiff fails to do so, his action must fail particularly as there would be no land to which the/a declared title could relate or be attached to with any degree of certainty.?

Respondent submitted that the Appellant relied solely on traditional evidence in trying to prove its title to the land in dispute but Respondent relied on documentary evidence which has been held to be the best evidence in civil proceedings. EGHAREVBA V. OSAGIE (2009) 18 NWLR (Part 1173) 299.

Respondent also stated that Appellant failed to call any member of the Otuedon family to testify in his favour. Respondent stated that Appellant?s contention that the failure of the Respondent to cross-examine CW1 shows that Appellant?s evidence was uncontroverted, goes to no issue because CW1 was not even a member of the Otuedon family.

Respondent also stated that the rules of pleadings do not require that the evidence with which the party is to prove its case is to be in pleadings OVIAWE V. IRP (NIG.) LTD (1997) 3 NWLR (Pt. 492) 126.Order 15 Rule 2 of the High Court of Delta State (Civil Procedure) Rules 2009. Respondent stated that the Appellant did not tender any document appointing/declaring him the head of the Ugbolokposo community or the Otuedon family. Respondent thus urged this Court to resolve this issue in favour of the Respondent as the Appellant failed to advance credible/cogent evidence.

Respondent further submitted that Appellant had not adduced any compelling evidence to be entitled to Judgment. Respondent stated that Appellant was only able to quote with exactitude the correct measurement of the property because he came to be in possession of Respondent?s Exhibits ?F? and ?G? (Deed of Transfer and Deed of Assignment) by virtue of the dismissed Suit No. EHC/110/2015, but was unable to give the dimension, description/survey plan of the said property. Respondent stated that Appellant did not know the identity of the land he is litigating over by virtue of his

statement under cross-examination that he does not know the size of the family land but that the land ?owned? by Livinus Ofor (Respondent) has an area of 460.392 square metres.

Respondent also pointed that in Paragraph 5 of the Appellant?s Statement of Claim, he claimed that the Claimant?s had been exercising maximum right of ownership over the said property by farming, building, letting and leasing, but that in Paragraph 20 of the same document, Appellant averred that prior to the purported sale and the eventual trespass thereupon by the Respondent, the said parcel of land had his rubber plantation thereon before same was wantonly destroyed by Respondent and his privies. Respondent corrected the Appellant?s assertion that he did not deny the Appellant?s averment that there was rubber plantation on the land by referring to Paragraph 18 of his Statement of Defence.

?Respondent also alleged that the Plaintiff was a regular patron of one of the stores on the land which was used as a restaurant prior to the assignment of title to the land. Respondent also stated that when he commenced work on

the land, neither Appellant nor any member of Ugbolokposo challenged his title to the land even though Appellant claimed he performs routine checks on the property.

Respondent stated that Appellant filed an action against Respondent because his site engineer refused to oblige him with a supply contract. Respondent asked why it took the Appellant two years from the date of being aware (November 2013) to initiate this suit in December 2015. Respondent submitted that the submission of Appellant that the improvement on the land in dispute before DW1 transferred same to the Respondent, was not part of the evidence before the trial Court was a deliberate attempt to mislead this honourable Court and pervert the course of justice because Respondent pleaded in Paragraph 11 of his Statement of Defence the improvements on the land before it was transferred to him by DW1. Respondent referred to the case of OTUEDON & ANOR. V. OLUGHOR & ORS. (1997) 7 SCNJ, stating that the Transferor of the land to DW1 traced their history of ownership in the Supreme Court case aforementioned wherein the land was re-affirmed to have been derived from their ancestors, all members of Ugbolokposo community.

Respondent stated that since Appellant had failed to show that his evidence was weightier than those adduced by Respondent, this appeal should be resolved in favour of Respondent.

These aforestated instance are ways of proving title to land and they are the only recognized ways before the Nigeria Courts. One of the ways most common is the production of a document of grant or title. This method entails providing any of the following documents; Deed of Assignment/Conveyance, a Legal Mortgage, a Deed of Gift and a Certificate of Occupancy.

RESOLUTION:
In the celebrated case of ELEGUSHI V. OSENI (2005) 14 NWLR (Pt. 945) @ 348 the Supreme Court laid out the five types of legal ownership as follows:
1. By traditional evidence.
2. By production of a document of grant or title.
3. By proving acts of possession and ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the plaintiff is an exclusive owner.
4. By proving acts of long possession and enjoyment of the land; but this only raises a presumption of ownership.
5. By proof of possession of connected or

adjacent land in circumstances which make it probable that the owner of such adjacent or connected land is probably the owner of the land in dispute.
Again in the recognized case of ADEOSUN V JIBESIN (2001) 11 NWLR (Pt. 724) 290 and also the case of OTUEDON V OLUGHOR (1997) 9 NWLR (Pt. 521) 355 the apex Court has this to say:
?Proof by evidence of traditional history is one of the 5 ways laid down by this Court in IDUNDUN V OKUMAGBA(1976) 9 ? 10 SC 227 of proving title to land. Declaration of interest in land can be founded upon each proof Thus with the conclusion that plaintiff?s traditional history ought to have been accepted by the Courts below, it follows that on that alone, judgment ought to have been entered in plaintiff?s favour on their claims?

weightier and better piece of evidence. See BUBA VS BUKAR (2003) FWLR PT. 183, 38 @ 71. In the case supra, the Court had this to say:
?The burden of proof in civil cases rests upon the party, whether Plaintiff or Defendant, who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings and it is settled as a question of law remaining unchanged throughout the trial exactly where the pleadings place it and never shifting in any circumstances whatsoever

In the instant case, the Appellant claimed that the Patriarch Prince Otuedon founded the land in dispute and that they had been in possession. No doubt, this is obviously one of the ways of establishing title to land. However, the evidence adduced has to be cogent and credible. See the case of AMAYO V ERINMWINGBOVO (2006) 11 NWLR (Pt. 992) 699 where the Supreme Court thus stated:
?Generally speaking, a claim for trespass to land is rooted in exclusive possession. The Onus on the Plaintiff is to prove by credible evidence that he has exclusive possession, or that he has the right to such

possession of the land in dispute. Where however a defendant claims to be the owner of the land in question, title to it is put in issue and in order to succeed therefore, the plaintiff must show a better title than that of the defendant?.

In the instant case, all that the Appellant had so far shown is that the Otuedon family had exercised acts of ownership alone. The Respondent on the other hand relied on documentary evidence to show how he came to possess the land. He went further to show that it was the Ugbolokposo Community that sold the land to one Hyginus Ikechukwu Okeke in 2011 and the said document of sale was signed by a number of persons including DONALD OTUEDON, the eldest member of the community who was also the head of the Otuedon Family. He was older than the Appellant and therefore signed for the community. Again, the Appellant claimed that the Respondent destroyed his rubber trees on the land while trespassing to erect his building on the said land. It is on record that the Appellant could not have had a rubber plantation on a small plot of land of 460, 932 square metres as he originally claimed. Also it is noteworthy that it

took the Respondent about two years to clear the area in dispute and erect a storey building which he moved into before the Appellant woke up from his deep slumber to come to Court.
?In law, acquiescence occurs when a person knowingly stands by without raising any objection to the infringement of his or her rights, while someone else unknowingly and without malice aforethought acts in a manner inconsistent with their rights. As a result of acquiescence, the person whose rights are infringed may lose the ability to make a legal claim against the infringer, or may be unable to obtain an injunction against continued infringement. The doctrine infers a form of “permission” that results from silence or passiveness over an extended period of time.?
See MOSES V KENROW (NIG) LTD (1992) NWLR (Pt. 264) 207.
On the assumption that the Appellant was indeed the accredited head and representative of the Otuedon family, and that the land in question belonged to the Otuedon family, the doctrine of acquiescence would be deemed to have operated against him as it took him over two years to institute this action to a declaration of title to land. Any

reasonable man would as soon as an act of trespass is discovered, apply to Court for an injunction and declaration of title to the said land.

It is my firm but ardent view that on the balance of probability, and preponderance of evidence, the case of the Respondent had been well established. This follows the fact that in applying the five ways of proving title to land as has been enacted in a long line of authorities, the Respondent has established his title to land by documentary evidence, various acts of ownership through his sole witness and his own testimony in the lower Court as against the Appellant whose evidence had crumbled and had failed to sway the mind of the Court in his favour.
In sum, the Appellant has failed to establish his case according to law and therefore not entitled to any of the reliefs sought.
From the totality of all of the above summation, I hold the view that the Appellant?s case has failed.
Accordingly, this appeal has no scintilla of merit; it fails and is therefore dismissed in its entirety.

The Judgment of the lower Court delivered on the 5th day of July 2017 by Hon. Justice G. E. Gbemre in Suit No.

FHC/305/2015 is affirmed. Cost of N100,000.00 is awarded in favour of the Respondent against the Appellant.
Appeal Dismissed.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have had the privilege of reading hitherto the judgment just delivered by my Learned Sister HON. JUSTICE PHILOMENA MBUA EKPE, JCA. I am in complete agreement with the reasoning and conclusion therein that the appeal is completely without merit and should be dismissed with costs.

To prove a claim wherein a declaration as an action in rem is sought as in this case, the Claimant is obliged to prove the case on a balance of probabilities and reliance cannot be placed on the weakness of the Defendant’s case. Having not proved the claim on the preponderance of evidence, or balance of probabilities, the Claimant/Appellant claim was bound to fail at trial and consequently in this Court. Appeal Dismissed. I abide by the order as to costs.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read before now a draft copy of the lead judgment just delivered by my learned brother, P.M. EKPE, JCA.

?I agree with the reasoning and conclusion contained therein

to the effect that the appeal is devoid of any merit. I have nothing more to add. I also hold that the appeal should be and is hereby dismissed.
I abide by the consequential orders made in the lead judgment inclusive that of costs.

Appearances:

D. E. Agbaga, Esq.For Appellant(s)

S.A. Atabere with him, G.E. Oyor and I.N. OseghaleFor Respondent(s)

Appearances

D. E. Agbaga, Esq.For Appellant

AND

S.A. Atabere with him, G.E. Oyor and I.N. OseghaleFor Respondent