A. O. ASUQUO & ANOR v. MRS. ANNE MARIE OMOLE & ANOR (2019)

A. O. ASUQUO & ANOR v. MRS. ANNE MARIE OMOLE & ANOR

(2019)LCN/13539(CA)

In The Court of Appeal of Nigeria

On Monday, the 24th day of June, 2019

CA/L/645/2012

RATIO

LOCUS STANDI: MEANING

The term locus standi denotes the legal capacity to institute proceedings in a Court of law. It is often used interchangeably with terms like standing, or title to sue. In order for a person to have locus standi, he must show that his civil rights and obligations have been or are in danger of being infringed and that he has sufficient legal interest in seeking redress in Court. See generally ADESANYA vs. PRESIDENT OF NIGERIA (1981) 5 SC 112 or (1981) 2 NCLR 358, ADENUGA vs. ODUMERU (2003) 8 NWLR (PT 821) 163 and ETALUKU vs. NBC PLC (2004) 15 NWLR (PT 896) 370 at 398. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CAUSE OF ACTION: HOW IT CAN BE DETERMINED WHETHER A PARTY HAS SUFFICIENT INTEREST TO MAINTAIN AN ACTION

It is from the cause of action that it can be determined whether the person has a sufficient interest to maintain the action by considering the totality of the averments in the statement of claim. See OWODUNNI vs. CELESTIAL CHURCH OF CHRIST (2000) 6 SC (PT III) 60 at 97, 101-102. The test of sufficient legal interest is whether the person seeking redress or remedy will suffer from injury or hardship arising from the litigation. Where the Court is satisfied that he would so suffer, then he has the requisite locus standi: ODELEYE vs. ADEPEGBA (2001) 5 NWLR (PT 706) 330. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WHERE THERE IS A MISCONCEPTION AS TO THE NATURE OF FINDING MADE BY A COURT, A WRONG CONCLUSION WILL MOST LIKELY TO BE ARRIVED AT

Post-haste, it is an established principle of law arising from the logic of reasoning that where there is a misconception as to the nature of finding made by a Court, then in all probability, a wrong conclusion will invariably be arrived at as a result of the said misconception. See UDENGWU vs. UZUEGBU (2003) 13 NWLR (PT 836) 136 at 192 and LADEJOBI vs. OGUNTAYO (2004) 7 SC (PT 1) 159 at 169.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

THE PRIMARY DUTY OF THE TRIAL COURT

It is the primary duty of the trial Court to evaluate and ascribe probative value to the evidence adduced. The evaluation of evidence is basically the assessment of the facts by the trial Court to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. See ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182 at 208-209, OYADIJI vs. OLANIYI (2005) 5 NWLR (PT 919) 561 and AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

DUTY OF THE TRIAL COURT

A Court of trial has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of how the evidence preponderates and then make logical and consequential findings of facts. See ADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451 and STEPHEN vs. STATE (1986) 5 NWLR (PT 46) 978 at 1005.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WHEN THE APPELLATE COURT WILL NOT INTERFERE IN THE DISCRETION OF THE TRIAL COURT
The settled legal position is that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the view of the trial Court, however, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 69-71, EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT589) 1 or (1999) LPELR (1248) 1 at 47-48.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JUSTICES

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

TOBI EBIOWEI Justice of The Court of Appeal of Nigeria

Between

1. A.O. ASUQUO
(For himself and on behalf of the entire family of Late Mrs. Edak Etim Asuquo)
2. CHIEF EKPENYONG FULLER Appellant(s)

AND

1. MRS. ANNE MARIE OMOLE
2. DAVID ADESOLA OMOLE
(For themselves and on behalf of the entire family of late Henry Adeleke Omole) Respondent(s)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): No. 52 Palm Avenue Mushin, Lagos is the property the subject of this matter. The property was owned by Mrs. Edak Etim Asuquo in her lifetime. The 1st Appellant is the sole surviving child of Late Mrs. Edak Etim Asuquo and he is the Administrator of the Estate of Mrs. Edak Etim Asuquo by virtue of Letters of Administration (Without Will) issued by the High Court of Cross River State.

One Henry Adeleke Omole, deceased, was the tenant at the said No. 52 Palm Avenue, Mushin Lagos. The Respondents herein are the widow and son of said Henry Adeleke Omole. The core of the contest is whether there was an agreement between the 1st Appellant and the Late Henry Adeleke Omole for the said No. 52 Palm Avenue Mushin Lagos to be sold to Henry Adeleke Omole. The contention of the Respondents is that there was such an agreement in respect of which late Henry Adeleke Omole paid some instalments to the 1st Appellant towards the purchase price. The contention of the 1st Appellant is that there was no such agreement and that the payments made were the rents due on the property and that there

were still outstanding rents owed on the property.

The parties dug in their respective trenches and ultimately resorted to litigation. The Respondents, as Claimants instituted proceedings at the High Court of Lagos State in SUIT NO: ID/254/2008: MRS. ANNE-MARIE OMOLE & ANOR vs. A. O. ASUQUO & ANOR. The Respondents maintained the action in a representative capacity, for themselves and on behalf of the entire family of late Henry Adeleke Omole. They equally sued the 1st Appellant in a representative capacity, for himself and on behalf of the entire family of Late Mrs. Edak Etim Asuquo. The 2nd Appellant who was sued as 2nd Defendant at the lower Court was sued as the 1st Appellant?s agent who led thugs and hoodlums to attempt to unlawfully evict the occupants of No. 52 Palm Avenue, Mushin, Lagos. It was this attempted unlawful eviction that precipitated the Respondents? cause of action for which they claimed the following reliefs at the lower Court:
?(i) A declaration that the agreement between the 1st Defendant and the deceased Henry Adeleke Omole is for the sale of all that property situate, lying and being at 52, Palm

Avenue, Mushin, Lagos State and which said property is otherwise known as plot 14 in the survey plan attached to the Deed of Lease dated the 11th day of July 1955 between Sunmola Agaran & seven others as representatives of the Ojuwoye people and the Ikeja Cooperative Building Society Limited and which is registered as No. 51 at page 51 in volume 21B of the Register of Deeds kept at the Lagos State Land Registry, Lagos State.
(ii) Specific performance of the said agreement for the sale of the property subject matter of this suit situate, lying and being at 52, Palm Avenue, Mushin, Lagos State and which said property is otherwise known as plot 14 in the survey plan attached to the Deed of Lease dated 11th July 1955 and registered as No. 51 in volume 21B of the Register of Deeds Kept at the Lands Registry, Lagos State.
(iii) An order of the Honourable Court directing the 1st Defendant herein to receive from the Claimants the balance of the purchase price that is the sum of N490,000.00 (Four Hundred and Ninety Thousand Naira) only and execute in favour of the Claimants herein a deed of assignment and such other documents as are necessary to vest in

the Claimants herein the legal title in the said property.
(iv) An order of the Honourable Court that in the event the 1st Defendant fails to receive the balance of the purchase from the Claimants, the claimants shall be at liberty to pay the said sum into Court and such payment shall be a conclusive proof of the sale agreement.
(v) The sum of N20,000,000.00 (Twenty Million Naira) only being general damages against the 1st and 2nd Defendants jointly and severally when 2nd Defendant acting as agent of the 1st Defendant with thugs and hoodlums invaded the property subject matter of this suit threw out into the street the properties of the claimants staff and relatives living in the property thereby exposing the Claimants to shock, ridicule and embarrassment.
(vi) A perpetual injunction restraining the Defendants either by themselves, their servants, privies and or agents from evicting, disturbing and or interfering with Claimants? rights and enjoyment over the property subject matter of this suit.?

The 1st Appellant set up a Counterclaim against the Respondents for the following reliefs:
?a) Possession of the

property.
b) An order of perpetual injunction restraining the claimants, their servants privies and agents from selling, disposing of, letting or otherwise dealing with the property in any manner whatsoever that negates the rights of the First Defendant/Counterclaimant.
b. Damages for use and occupation of the premises from 28th August 1995-27th August 2008 at the rate of N 1,000,000.00 (One Million Naira Only) per annum.
c. Mesne profits at the rate of N 83,333.33 (Eighty Three Thousand, Three Hundred and Thirty Three Naira, Thirty Three Kobo Only) from 1st of September 2005 until possession is given up.
d. Interest for such period and at such rate as the Court thinks fit pursuant to the rules of Court.?

The parties filed and exchanged pleadings and the matter went to trial. Testimonial and documentary evidence was adduced at the trial at the end of which the lower Court entered judgment in the following terms:
?1. It is hereby declared that the agreement between the 1st Defendant and the deceased Henry Adeleke Omole is for the sale of all that property situate, lying and being at 52, Palm Avenue, Mushin, Lagos State

and which said property is otherwise known as plot 14 in the survey plain attached to the Deed of Lease dated the 11th day of July 1955 between Sunmola Aganran & seven others as representatives of the Ojuwoye people and the Ikeja Cooperative Building Society Limited and which is registered as No. 51 at page 51 in volume 21B of the Register of Deeds kept at the Lagos State Land Registry, Lagos State.
2. The Court hereby decree specific performance of the said agreement for the sale of the property subject matter of this suit situate, lying and being at 52, Palm Avenue, Mushin, Lagos State and which said property is otherwise known as plot 14 in the survey plan attached to the Deed of Lease dated the 11th day of July 1955 and registered as No. 51 at page in volume 21B of the Register of Deeds kept at the Lagos State Land Registry, Lagos State.
3. The Court hereby order of the 1st Defendant herein to receive from the Claimants the balance of the purchase price, that is, the sum of N490,000.00 (Four Hundred and Ninety Thousand Naira) only and execute, in favour of the Claimants herein a deed of assignment and such other documents as are necessary to

vest in the Claimants herein the legal title in the said property.
4. The Claimants are awarded sum of N100,000.00 (one hundred thousand naira) only being general damages against the 1st and 2nd Defendants jointly and severally when the 2nd Defendant acting as agent of the 1st Defendant with thugs and hoodlums invaded the property subject matter of this suit threw out into the street the properties of the Claimants? staff and relatives living in the property thereby exposing the Claimants to shock, ridicule and embarrassment.
5. The Defendants are hereby restrained perpetually either by themselves, their servants, privies and or agents from evicting, disturbing and or interfering with the Claimants? rights and enjoyment over the property subject matter of this suit.
6. Claim 4 is hereby struck out.
7. The counter-claim of the 1st Defendant is hereby dismissed.?

?The Appellants were dissatisfied with the judgment of the lower Court which was delivered on 17th May 2012. They appealed against the same by a Notice of Appeal filed on 29th June 2012. The Judgment of the lower Court is at pages 260-271 of the Records, while

the Notice of Appeal is at pages 272-276 of the Records.

In strict adherence to the stipulations of the adjectival law, the Records of Appeal were compiled and transmitted and the parties filed and exchanged briefs of argument. The Appellants? Brief was filed on 8th October 2012 while the Respondents? Brief was filed on 6th November 2014 but deemed as properly filed on 16th January 2018. The Respondents, even though duly served with a hearing notice, were absent at the hearing; the appeal was therefore treated as argued by them pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules. The Appellants? learned counsel then adopted and relied on the Appellants? brief in urging the Court to allow the appeal.

The Appellants crafted four issues for determination as follows:
?1. Whether the learned trial Court was correct in affirming the reliefs of specific performance, possession and injunction over the property situate at No. 52, Palm Avenue, Mushin, Lagos when there was irrefutable evidence that the property did not belong to the appellant and when the Respondent?s pleading was not supported by the evidence

led in the trial Court.
2. When does a cause of action accrue to a claimant and in the instant case, was the action of the Respondent statute-barred?
3. What is the claimant?s relationship vis ? a ? vis exhibit D and the issue of Robbery in this suit and whether the Respondents who ordinarily are not resident in Nigeria can allege crime against the appellants.
4. Whether the learned trial judge misdirected himself in any way as to the standard of proof of crime of Armed Robbery.?

The Respondents on their part nominated a sole issue for determination, namely:
?Whether the findings of facts and the assessment of evidence by the trial Court are based on the evidence adduced by both parties before the lower Court and the learned trial judge properly evaluated such evidence before entering judgment in favour of the Respondents

Paucis verbis, let me deal with some preliminary issues. The Respondents submitted that the Appellants only argued three of the four issues they formulated. This is only correct to the extent that the Appellants did not set out as a sub-head, their issue number four before

they proffered their submissions thereon. However the said issue was duly argued in paragraphs 6.03 to 6.04 on pages 20-22 of the Appellants? Brief. The Respondents further submitted that the Appellants issue number two raising the question of whether the Respondents? action was statute barred was a fresh point of law which was not raised at the lower Court and which they did not obtain leave of Court to raise for the first time on appeal.

Brevi manu, the issue of an action being statute barred goes to the jurisdiction of the Court: INEC vs. OGBADIBO LOCAL GOVERNMENT (2015) LPELR (24839) 1 at 35, MILITARY ADMIN., EKITI STATE vs. ALADEYELU (2007) LPELR (1875) 1 at 37-38 and OLAGUNJU vs. PHCN (2011) LPELR (2556) 1 at 11. Being an issue of jurisdiction it can be raised at any time, even for the first time on appeal, with or without leave of Court, provided that it is raised in a manner that the opposite party is not taken by surprise. See ONI vs. CADBURY PLC (2016) ALL FWLR (PT 827) 605 at 621-622,OSIGBEMEH vs. EGBAGBE (2014) ALL FWLR (PT 744) 58 at 73, ELABANJO vs. DAWODU (2006) 15 NWLR (PT 1001) 76 and OLUTOLA vs. UNILORIN (2004) LPELR (26632) 1 at 10.

The settled legal position in this regard was explained by Rhodes-Vivour, JSC in the following words in C.G.G. NIG LTD vs. AMINU (2015) 7 NWLR (PT 1459) 577 at 592:
?Jurisdiction is a question of law that can be raised for the first time in the Court of Appeal or the Supreme Court and there is no need to seek leave before raising it for the first time on appeal. It can be raised informally, but it is desirable that some process is filed so that the adverse party is not taken by surprise.
The issue on jurisdiction can thus be filed and argued with or without the leave of Court, even if it is raised as a fresh issue on appeal. The defendant/appellant was right to raise the issue of jurisdiction in the Court of Appeal without obtaining leave.?
The question of jurisdiction raised by virtue of the operation of the statute of limitation has been raised formally in ground 7 of the grounds of appeal (See page 275 of the Records). The Respondents have not been taken by surprise. The Appellants? issue number two is therefore competent.

Even though the Respondents stated that they did not agree with the issues

formulated by the Appellant and proceeded to distil their sole issue, they still made issue-specific submissions on the issues distilled by the Appellants. This being so I would proceed to review the submissions of learned counsel on the appeal en bloc and thereafter seamlessly resolve the appeal.

SUBMISSIONS OF THE APPELLANTS? COUNSEL
The Appellants submit that the case depended on the proper construction of Exhibit C-13 and that the lower Court was wrong in holding that Exhibit C-13 was an instrument of land transfer, when it did not contain all the requirements of an instrument of land transfer. Megarry and Wade, Law of Real Property, 3rd Edition, 1967 page 552 was referred to. It was argued that Exhibit C-13 raises the issue of fraudulent misrepresentation as the purported agreement was entered into by one Ansa Asuquo and not the Estate of Edak Asuquo.

It was maintained that the property in issue belongs to the Estate of Madam Edak Asuquo (deceased) and that the Appellant had no property to pass to anyone on the principle of nemo dat quod non habet vide MOHAMMED vs. KLARGESTER (NIG) LTD (2002) 7 SCNJ 443 or (2002) 14 NWLR (PT 787)

335. It was stated that the Respondents did not prove that they actually purchased the property and that they had been diligent and did proper investigation before the purchase. The case of BISHOPSGATE MOTOR FINANCE CORPORATION LTD vs. TRANSPORTS BREAKS LTD (1949) 1 ALL ER 37 at 46 or (1946) 1 KB 322 at 336 was relied upon.

The Appellants opined that the evidence of the Respondents? witnesses was completely at variance with the pleadings and therefore the decision of the lower Court cannot be sustained. The cases of AKEREDOLU vs. AKINREMI (1989) 5 SC 102 or (1989) 3 NWLR (PT 108) 164 at 172, OREDOYIN vs. AROWOLO (1989) 7 SC (PT II) 1 and AKPAPUNA vs. NZEKA (1983) 11 SC 25 were cited in support. It was asserted that the property in dispute is the subject of inheritance among the Appellant and his co-heirs as a result of which the Appellant could not singlehandedly convey the property to the Respondents. The case of AJUWON vs. AKANNI (1993) 3 NWLR (PT 316) 182 at 202 was called in aid.

?It is the further contention of the Appellants that the Estate of the late Henry Adeleke Omole was not joined as a party in the action and that the Respondents

live in Belgium and had no letters of administration. Exhibit C-13, it was insisted, was ineffectual to convey legal estate in the property by means of specific performance vide ADEDUBU vs. MAKANJUOLA 10 WACA 33 at 36 and AKERELE vs. ATUNRASE (1961) 1 ALL NLR 201. It was posited that testimony of the circumstances under which Exhibit C-13 was made by CW1 who did not take part in making Exhibit C-13 is hearsay and inadmissible. The cases of OBINWUNNE vs. OKOYE (2006) 8 NWLR (PT 981) 104, HASHIDU vs. GOJE (2003) 15 NWLR (PT 843) 16 NWLR (PT 900) 487 [sic] were referred to.

?The Appellants? submissions on their issue number two is that the lower Court erred when it entered judgment for specific performance, perpetual injunction and for the 1st Appellant to receive the balance of the purchase price from the Respondents. It was stated that the lower Court misconceived the issue in controversy as the subject matter of the dispute was whether the Appellants had authority to sell the property which is subject of inheritance and whether the Respondents could sue from Belgium over an issue they had no knowledge of without giving authority to anybody. It was

contended that a Court would not compel a person to do the impossible and so specific performance cannot be ordered against a person who agreed to sell what he does not own. The case of BANSEDUM vs. IYABO (1962) 1 ALL WLR (PT 2) 710 was relied upon.

The Appellants argue that Exhibit C-13 relied on by the Respondents is dated 3rd April 1994 and that by Section 16 (2) of the Limitation Law of Lagos State, the period for bringing an action for recovery of land is twelve years. It was stated that by 2008 when the action was commenced, it had become statute barred to the detriment of a sleeping or slumbering plaintiff. The cases ofAJAYI vs. ADEBIYI (2012) 11 NWLR (PT 1310) PP 171 paras A-B and MERCANTILE BANK (NIG) LTD vs. FETECO (NIG) LTD (1998) 3 NWLR (PT 540) 143 were cited in support. The yardsticks for determining whether an action is statute barred were referred to and it was stated that time begun to run from the date the cause of action accrued vide BRITISH AIRWAYS PLC vs. AKINYOSOYE (1995) 1 NWLR (PT 374) 722, OGUNKO vs. SHELLE (2004) 6 NWLR (PT 868) 17, AKINKUNMI vs. SADIQ (2001) 2 NWLR (PT 696) 101 among other cases. The determination of whether an

action is statute barred was said to be an arithmetic or mathematical exercise arrived at by calculating from when the cause of action arose to when the writ of summons was filed. The lower Court, it was maintained, did not have the jurisdiction to entertain an action that is statute barred. The cases of MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR 341, INAKOJU vs. ADELEKE (2007) 4 NWLR (PT 1025) 423, ADEKOYA vs. FHA (2008) 11 NWLR (PT 1099) 539, EGBE vs. ADEFARASIN (1987) 1 NWLR (PT 47) 72 among other cases were called in aid.

The Appellants? contention on their issue number three is that the Respondents who reside in Belgium and did not give anybody authority to sue on their behalf did not have the locus standi to allege crime against the Appellants as any alleged robbery incident did not affect them in Belgium. The principles and test for determining locus standi and the cases of INAKOJU vs. ADELEKE (supra), ADESOKAN vs. ADEGOROLU (1997) 3 NWLR (PT 493) 261 among other cases were referred to and it was asserted that the Respondents lacked the locus standi to institute the action as they had no axe to grind with the Appellants in respect of the robbery

incident. The decision of the lower Court was stated to be perverse, occasioned a miscarriage of justice and the Court was urged not to allow Exhibit C-13 stand based on the authorities of BAYOL vs. AHEMBA (1999) 10 NWLR (PT 623) 381, CAMEROON AIRLINES vs. OTUTUIZU (2011) 4 NWLR (PT. 1238) 572 and ONWUBUARIRI vs. IGBOASOYI (2011) 3 NWLR (PT 1234) 357.

On issue four, the Appellants claim that by Section 135 (1) of the Evidence Act, the allegation of crime must be proved beyond reasonable doubt and that the lower Court did not direct itself properly on the standard of proof and reduced the serious crime of armed robbery on the basis of which the Respondents came to Court to thuggery. It was conclusively submitted that the lower Court approached the issue of wrongful eviction by preferring evidence which was not pleaded vide NWOBODO vs. ONOH (1984) 1 SC 1, ARAB BANK LTD vs. ROSS (1952) QBD 216 at 299 and OMOBORIOWO vs. AJASIN (1984) 1 SC 216.

SUBMISSIONS OF THE RESPONDENTS? COUNSEL
It is the submission of the Respondents that the appeal attacks the findings of facts made by the lower Court. It was stated that the appraisal of evidence and

ascription of probative value thereto is the primary duty of the Court of trial. The lower Court it was stated was guided by the principles and put the case of both parties on the imaginary scale of justice in order to see where the pendulum tilted. The cases ofJEKPE vs. ALOKWE (2001) FWLR (PT 47) 1013 at 1024 and KARA vs. WASSAH (2001) FWLR (PT 78) 1191 at 1202 were relied upon. The case as made out by the parties was referred to and it was posited that the lower Court made findings of facts which cannot be faulted as they are based on the evidence on record.

It was opined that Exhibit C-13 is clear as to the intention of parties thereto for the sale of the disputed property. It was stated that the 1st Appellant signed Exhibit C-13 and collected instalment payments made pursuant thereto and was therefore not in any doubt as to the content of Exhibit C-13. The Respondents, it was contended, successfully established their case for the grant of specific performance as Exhibit C-13 established a valid and enforceable contract vide ENEJO vs. SANUSI (2008) ALL FWLR (PT 412) 1084 at 1106 and 1111. The 1st Appellant, it was maintained, did not show why an

order of specific performance should not be made since it is an equitable remedy meant to prevent fraud from being perpetrated on the other side that has altered his position. The case of INTERNATIONAL ILE INDUSTRIES (NIG) LTD vs. ADEREMI (1999) 8 NWLR (PT 614) 286 was cited in support.

On the Appellants? issue number two, the Respondents state that at all material times they were in possession of the disputed property and the action was therefore not for recovery of land, since the right of action to recover land, by Section 19 (c) of the Limitation Law of Lagos State, will only accrue where the land is in possession of some person in whose favour the period of limitation can run.

On the Appellants? issue number three, the Respondents state that their place of residence did not arise at the lower Court and that locus standi is predicated on interest not residence. It was opined that paragraphs 1 and 10 of the Statement of Claim established the Respondents? locus standi and that a claimant need not testify in a case if he can prove his case through other credible witnesses. The Respondents? witnesses it was maintained

gave direct evidence, and that the Respondents did not seek any relief based on armed robbery.

RESOLUTION
I have insightfully considered the pleadings, evidence on record and the decision of the lower Court, in conjunction with the disparate submissions in the briefs of argument. It is as clear as crystal that at the core of the disceptation in this matter is the evaluation of evidence and ascription of probative value thereto by the lower Court. Before I closely examine whether the lower Court properly discharged its primary duty of evaluating the evidence and ascribing probative value thereto, it is pertinent to deal with the threshold jurisdictional issues of limitation of action and locus standi raised by the Appellants.

The manner in which to ascertain if the Respondents action is statute barred as contended by the Appellants is simple and straightforward. It simply to examine the facts pleaded in the Statement of Claim to see what the cause of action is. Totidem verbis, in ascertaining whether an action is statute barred, the Court looks at the date when the action was instituted and the date when the cause of action arose. Now, a cause of

action is the operative fact or facts (the factual situation) which give rise to a right of action. In simple terms, a cause of action arises the moment a wrong is done to the claimant by the defendant. See EGBE vs. ADEFARASIN (1987) 1 NWLR (PT 47) 1 at 20 and ADEKOYA vs. FHA (supra) at 551 and 557.
The determination of whether an action is caught by the statute of limitation is a matter of calculation of raw figures and a Court of law has no discretion in the matter: ADEKOYA vs. FHA (supra) at 557. It is necessary to distinguish a cause of action from a right of action. A right of action is the right to enforce presently a cause of action. A right of action is a remedial right. A statute of limitation however removes the right of action and leaves the plaintiff with a bare and empty cause of action which he cannot enforce. See EGBE vs. ADEFARASIN (supra) at 20, EBOIGBE vs. NNPC (1994) 5 NWLR (PT 347) 649 at 659, ODUBEKO vs. FOWLER (1993) 7 NWLR (PT 308) 637 andP. N. UDOH TRADING CO. LTD vs. ABERE (2001) 11 NWLR (PT 723) 114 or (2004) 24 WRN 1.
?Section 16 (2) (a) of the Limitation Law, Cap L67, Laws of Lagos State provides as follows:<br< p=””

</br<

?The following provisions shall apply to an action by a person to recover land
(a) Subject to paragraph (b) of this Subsection no action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.?
The rationale behind limitation laws and its enforcement was eloquently stated by Edozie, JSC in AREMO II vs. ADEKANYE (2004) 13 NWLR (PART 891) 572 at 592-593 as follows:
“Sometimes, the legislature prescribes certain periods of limitation for instituting certain actions. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation. Where a statute of limitation prescribes period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute-barred, a Plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of the time laid down by the limitation

for instituting such an action has elapsed. See the cases of Eboigbe vs. N.N.P.C. (1994) 5 NWLR (Part 347) 649; Odubeko vs. Fowler (1993) 7 NWLR (Part 308) 637; Sanda vs. Kukawa Local Government (1991) 2 NWLR (Part 174) 379; Ekeogu vs. Aliri (1991) 3 NWLR (Part 179) 258. The rationale or justification supporting the existence of statute of limitation includes the following:
1. That long dormant claims have more of cruelty than justice in them?
2. That a defendant might have lost the evidence to disprove a stale claim? and
3. That persons with good causes of action should pursue them with reasonable diligence?
The period of limitation begins to run from the date on which the cause of action accrued. To determine whether an action is statute barred, all that is required is for one to examine the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and comparing that date with the date on which the Writ of Summons was filed. If the time on the Writ is beyond the period allowed by the limitation law, then the action is statute-barred: See the case Egbe vs. Adefarasin (supra) at 20-21.?

With due deference to learned counsel the question is not whether the Respondents had been in possession and can therefore not be seeking to recover the land from any person. Irrespective of the fact that they may have been in possession, they had a cause of complaint as a result of which they filed the action in Court. The critical question is when did that their cause of complaint arise? It is based on when it arose that it can be determined if the action was caught by the limitation laws.
The Appellants have argued that Exhibit C-13, the agreement on which the Respondents founded the reliefs claimed is dated 3rd April 1994 (the actual date is 4th February 1994) and therefore the limitation period of twelve years had elapsed by 2008 when the action was instituted. It is a mis-appreciation of the concept of cause of action and its accrual for the Appellants to contend that the cause of action arose on 3rd April 1994 (4th February 1994) when Exhibit C-13 was entered into. No. The phrase, cause of action, has been defined as the fact or combination of facts which give rise to a right to sue. It consists of the

wrongful act of the defendant which gives the claimant the right to complain and the damage consequent due to the wrongful act. See EGBUE vs. ARAKA (1988) 3 NWLR (PT 84) 598 at 613, AFOLAYAN vs. OGUNRINDE (1990) 1 NWLR (PT 127) 369 at 373 and SAVAGE vs. UWECHIA (1972) 3 SC 214 at 221. A cause of action is the factual basis or some factual situations, a combination of which makes the matter in litigation an enforceable right or an actionable wrong. See IBRAHIM vs. OSIM (1988) 1 NNSC 1184 at 1194 and TUKUR vs. GOVT OF GONGOLA STATE (1989) 4 NWLR (PT 117) 517 at 581.
There is no wrongful act of the Appellants on 3rd April 1994 (4th February 1994) when Exhibit C-13 was entered into that would have given the Respondents the right to sue or complain. From the facts averred to in the Statement of Claim, the Respondents complaint arose after the 1st Appellant made himself unavailable to collect the balance of the purchase price agreed in Exhibit C-13. This culminated in the issuance of statutory notices to recover the premises and the unlawful eviction vi et armis, in consequence of which the various reliefs in this action was claimed. (See paragraphs 8 to 18 of

the Statement of Claim). The cause of action definitely did not arise in 1994. From the pleadings the facts or combination of facts which gave them the right to sue began in 2005 when the Appellants first issued the Respondents a notice to quit and was crowned by the unlawful eviction vi et armis on 17th February 2008. The Writ of Summons was sealed on 25th February 2008, so a calculation of the raw figures makes it limpid that the action was filed well within the twelve year limitation period provided for in Section 16 (2) of the Limitation Law. The action is not statute barred. The Respondents? right of action remained intact and the lower Court was imbued with the competence to entertain the action.

The Appellants predicated their contention that the Respondents do not have locus standi on the fact that the Respondents on record reside in Belgium. Apart from the fact that there is nothing on record with regards to where the Respondents reside, the question of locus standi as rightly submitted by the Respondents? counsel is a matter of interest, not residence. In any event, it has to be remembered that the Respondents maintain the action in

a representative capacity, for themselves and on behalf of the entire family of the late Henry Adeleke Omole. So every member of the family is part and parcel of the action notwithstanding where they reside. See APEH vs. PDP (2016) ALL FWLR (PT 824) 1 and DURBAR HOTEL PLC vs. ITYOUGH (2016) LPELR (42560) 1.
The term locus standi denotes the legal capacity to institute proceedings in a Court of law. It is often used interchangeably with terms like standing, or title to sue. In order for a person to have locus standi, he must show that his civil rights and obligations have been or are in danger of being infringed and that he has sufficient legal interest in seeking redress in Court. See generally ADESANYA vs. PRESIDENT OF NIGERIA (1981) 5 SC 112 or (1981) 2 NCLR 358, ADENUGA vs. ODUMERU (2003) 8 NWLR (PT 821) 163 and ETALUKU vs. NBC PLC (2004) 15 NWLR (PT 896) 370 at 398. It is from the cause of action that it can be determined whether the person has a sufficient interest to maintain the action by considering the totality of the averments in the statement of claim. See OWODUNNI vs. CELESTIAL CHURCH OF CHRIST (2000) 6 SC (PT III) 60 at 97, 101-102. The test

of sufficient legal interest is whether the person seeking redress or remedy will suffer from injury or hardship arising from the litigation. Where the Court is satisfied that he would so suffer, then he has the requisite locus standi: ODELEYE vs. ADEPEGBA (2001) 5 NWLR (PT 706) 330. Let me iterate that this is a representative action. The entire members of the family of late Henry Adeleke Omole are bound by the result of the action, the named parties on record are merely championing their cause. Without a doubt, when it is remembered that the action is to enforce the contract, entered into by Henry Adeleke Omole in his lifetime, for the sale of and purchase of the property, which property is occupied by members of his family; it becomes effulgent that the members of the family have sufficient legal interest in ensuring the performance of the contract as they would undoubtedly suffer injury or hardship. It is mischievous to contend that the members of the family who are the Claimants in the action as constituted do not have locus standi because their named champions reside in Belgium. Nothing can be further from the legal position. In a coda, the Respondents

had the locus standi, standing or title to sue to maintain the action.

Having dealt with the threshold jurisdictional question of limitation of action and locus standi raised by the Appellants, I see my way clear to delve into the substance of the appeal. Post-haste, it is an established principle of law arising from the logic of reasoning that where there is a misconception as to the nature of finding made by a Court, then in all probability, a wrong conclusion will invariably be arrived at as a result of the said misconception. See UDENGWU vs. UZUEGBU (2003) 13 NWLR (PT 836) 136 at 192 and LADEJOBI vs. OGUNTAYO (2004) 7 SC (PT 1) 159 at 169. The Appellants have laboured under the misconception that the lower Court held that Exhibit C-13 is an instrument of land transfer and this misconception has coloured the contention in their submissions. The lower Court held that Exhibit C-13 is an agreement to sell, consequent upon which it ordered specific performance of the said agreement. The Appellants further seem to have lost sight of the fact that the action was constituted in a representative capacity against the 1st Appellant. He was sued for himself and

on behalf of the entire family of the late Mrs. Edak Etim Asuquo, so the decision binds the entire family and it does not command the 1st Appellant to do the impossible as the judgment is for the entire family of the late Mrs. Edak Etim Asuquo to obey and comply: APEH vs. PDP (supra) at 13 and DURBAR HOTEL PLC vs. ITYOUGH (supra) at 17-18. The co-heirs and other family members touted by the 1st Appellant are bound by the result of the action. It is further instructive that the 1st Appellant tendered the Letters of Administration (Without Will) issued by the High Court of Cross River State on 8th March 1993 making him the Sole Administrator of the Estate of his deceased mother. This was one whole year before the 1st Appellant entered into Exhibit C-13 with the late Henry Adeleke Omole on 3rd April 1994. So at the time he entered into Exhibit C-13, he already had the powers of the administrator of the Estate of his deceased mother. His contention on the legal principle of nemo dat quod non habet is disingenuous.

?It is the primary duty of the trial Court to evaluate and ascribe probative value to the evidence adduced. The evaluation of evidence is basically

the assessment of the facts by the trial Court to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. See ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182 at 208-209, OYADIJI vs. OLANIYI (2005) 5 NWLR (PT 919) 561 and AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9. The evaluation involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. A Court of trial has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of how the evidence preponderates and then make logical and consequential findings of facts. See ADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451 and STEPHEN vs. STATE (1986) 5 NWLR (PT 46) 978 at 1005.
The settled legal position is that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the view of the trial Court, however, an appellate Court can intervene where there is insufficient evidence to sustain the

judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 69-71, EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT589) 1 or (1999) LPELR (1248) 1 at 47-48.

In discharge of its primary duty, the lower Court identified the nucleus of the dispute in the case in the following words at page 265 of the Records:
?The dispute, from the pieces of evidence, is whether the monies paid to the 1st Defendant by the late Omole, which the 1st Defendant received, was towards the purchase of the property in dispute or

towards rent. A resolution of this dispute will resolve this suit. This to the Court is the issue for determination.?

The lower Court zeroed in on the pith of the contest and trenchantly evaluated the evidence and made logical and consequential findings of facts which flow from the evidence on record. Hear the lower Court at pages 267-269 of the Records:
From these pieces of evidence highlighted by the Court, the purport of exhibit C13 is the crux of the matter. The Claimants placed reliance on this exhibit to prove the agreement to sell, while the 1st Defendant, though did not deny the existence of this exhibit, maintains that he did not sell the property.
By Section 5 (2) of the Law Reform (Contracts) Law, Cap L63, Laws of Lagos State of Nigeria, for the enforcement of a contract for sale of land, the contract or some memorandum or not in respect thereof shall be in writing and is signed by the party to be charged therewith or by some other person lawfully authorized by him. Exhibit C13 can be referred to as a memorandum or a note. It is dated 4th February 1994. The content of exhibit C13 is as follows:
I Mr. A. Asuquo

of 135 Ogunlana drive received the sum of four hundred thousand naira being part payment on my property 52 Palm Avenue Mushin Lagos from Mr. H. A. Omole of 1 Olanrewaju st Mushin. Today 4th February 94. Total price of the property is one million only.?
On the face of the exhibit, the exhibit was signed by the late Omole and the 1st Defendant. The 1st Defendant, on the face of the exhibit signed on 11th February 1994. At the bottom of the exhibit, it is written ?NB as per attached 10 payment receipts? and signed by the late Omole and the 1st Defendant. The 1st Defendant did not effectually deny his signature on this exhibit during trial.
Now the 1st Defendant denies the purport of this exhibit. He denied the receipt of the sum of N400,000.00 as stated in this exhibit but did not deny the existence of his signature on the document. All he said was that the signature looks like his, but he did not write the exhibit.
To this Court, the issue is not who wrote exhibit C13, but whether exhibit C13 do exist in fact. Exhibit C13 complies with the provision of Section 5 (2) of the Law Reform (Contracts) Law cited above. Exhibit C13 is

signed by the party to be charged therewith. From exhibits C dated 5th June 1993, C1 dated 22nd June 1993, C2 dated 28th September 1993, C3 dated 9th November 1993, C4 dated 10th November 1993, C5 dated 1st December 1993, C6 dated 2nd December 1993, C12 dated 17th December 1993, C14 dated 5th January 1994 and C15 dated 3rd August 1993 the total sum of N270,000.00 was collected by the 1st Defendant. The 1st Defendant did not disprove these exhibits. The 1st Defendant did not tell the Court the purpose or why he collected these monies. To this Court, there seems to be more than what the 1st Defendant is trying to portray to the Court. The 1st Defendant did admit the existence of these exhibits. He even stated that he wrote these exhibits. But he failed to tell the Court why he collected the money in the space of 6 months before the existence of exhibit C13. Thereafter, after the existence of exhibit C13, the 1st Defendant further collected various sums. Exhibits C7, C8, C9, C10 and C11 are proof of this fact. The total sum collected by the 1st Defendant, after the existence of exhibit C13 is N110, 000.00. Thus in the space of about a year and a half, the 1st

Defendant by the exhibits marked C-C15, had collected the total sum of N780,000.00.
As noted above, the 1st Defendant denied that he sold the property to the late Omole. He also denied that he collected the sum of N400,000.00 from the late Omole being part payment for the purchase of the property. In his evidence, he stated that at the time of the demise of the late Omole, the later was in arrears of rent for several years and on the renewal of the tenancy, the late Omole paid the sum of N400,000.00 as rent being rents for 2 years at the sum of N200,000.00 per year.
Going on, the 1st Defendant later admitted collecting the sum of N400,000.00, but he stated that the money represents rent arrears. He provided no receipt to prove same. He did not lead nay evidence as to how the rent came to the sum of N200,000.00 per annum contrary to the contents of exhibit DW2 which fixed the rent at N8,000.00 per annum. The question that begs for an answer is that if it is true that the sum of N400,000.00 paid by the late Omole was towards rents, then what about the total sum of N380,000.00 collected by the 1st Defendant on various dates, in which he did not deny the

receipt? What does these monies represents?
The Claimants stated in evidence that these monies, totalling N380,000.00 as shown in exhibits C ?C12, C14 & C15, collected at various times by 1st Defendant were part of the payment in installment [sic] towards the purchase of the property in dispute as agreed by the late Omole and the 1st Defendant. The 1st Defendant did not explain the purpose he collected these monies. The 1st Defendant did not deny the receipt of these monies.
His non-denial of the receipts of these monies, and his non-explanation as to what the monies collected represented, only proves that there was an arrangement in place before the late Omole died. Further, CW2 and CW4 in their evidence stated that a meeting was held under the chairmanship of the Honourable Justice S.O. Ilori, wherein an agreement was reached with the 1st Defendant to receive the balance outstanding. This piece of evidence given by these witnesses, if it must be stated was not challenged by the 1st Defendant. These witnesses were not cross-examined by learned counsel to the Defendants on this piece of evidence. All the 1st Defendant stated during

cross-examination on this issue of meeting with Justice S. O. Ilori is simply that he did not attend any meeting in Justice Ilori?s office, and he does not know him. He also stated that he does not know that Savage, his Solicitor, had any dealing with Justice Ilori and does not know what the meeting was about.
The totality of the foregoing is that the Court, in placing the whole evidence on a scale, the scale tilts in favour of the evidence proffered by the Claimants on the existence of the contract to sell the property in dispute. It should be re-stated that parties are bound by the terms of the contract they enter into. The Court is not averse to the argument of learned counsel to the Defendants when he suggested that an analysis of exhibit C13 will show that the writing on that document is different to the writings on exhibits C – C12, C14 and C15 in which the 1st Defendant acknowledged as his during trial. With respect to him, this difference in writing, though not an issue during trial, has not been proved by the 1st Defendant who, through his counsel in the written final address, alleges same. Further, address of counsel cannot be equated to

evidence. The difference in writing is not material to defeat the purport of exhibit C13 with the evidence highlighted by the Court. The 1st Defendant did acknowledge that his signature is on the exhibit. He never for once alleged that his signature was forged. He cannot even allege forgery as same is not pleaded and no particulars of same are contained in the statement of defence and counter-claim.
An agreement is made where there exists an offer, acceptance, consideration, capacity and intention to create legal relationship ? see YARO V AC LTD (2007) 10 MJSC PG 186. Exhibit C13, to this Court is a valid agreement entered into between parties. It lacks no feature that can defeat its purposes. The Defendants did not plead any feature, with particulars in their statement of defence and counter-claim, in which the purport of exhibit C13 can be defeated.
To answer the issue raised by the Court earlier, which is whether the money paid to the 1st Defendant by the late Omole, which the 1st Defendant received, was towards the purchase of the property in dispute or towards rent, the Court finds that the monies paid to the 1st Defendant by the late

Omole, which the 1st Defendant received, was towards the purchase of the property in dispute.?

I set out the above pericope from the decision of the lower Court in some detail to underscore and make lucent the fact that the lower Court justifiably appraised the facts and unquestionably evaluated the evidence. The findings arrived at flow from the accepted evidence and they are not perverse. There is no basis for an appellate Court to interfere since it is not the business of an appellate Court to embark on a fresh appraisal of the evidence when the trial Court has unquestionably evaluated and appraised the evidence. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21, AWOYALE vs. OGUNBIYI (1986) 4 SC 98 and BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47.

?The Appellants contend that the Respondents witness who tendered Exhibit C-13 is not the maker and therefore his testimony amounts to hearsay evidence. In the excerpt from the decision of the lower Court reproduced above, the lower Court rightly found and held that the 1st Appellant executed Exhibit C-13. It is important to state that Exhibit C-13

was tendered and admitted without any objection (See page 188 of the Records) and the 1st Appellant evasively answered under cross examination that the signature on Exhibit C-13 looks like his signature (See page 204 of the Records). The trite principle of law is that a document speaks for itself and the intention of the makers of the document is to be discovered from the ordinary meaning to be ascribed to the words used in the document. See IKEMEFUNA vs. ILONDIOR (2018) LPELR (44840) 1 at 18 and OZOMARO vs. OZOMARO (2014) LPELR (22663) 1 at 44. Section 83 (1) (b) of the Evidence Act provides exceptions where a document can be admissible in evidence even if the maker is not called as a witness. Furthermore, by Section 83 (4) of the Evidence Act, a statement in a document shall be deemed to have been made by a person who signs it. The said Exhibit C-13 is not hearsay and the contention of the Appellants in that regard is ignis fatuus.

The Appellants made a kerfuffle with their contention that the Respondents on record did not testify. It is rudimentary law that a party need not testify in his matter so long as he has witnesses who can adduce credible

evidence in support of his case or documentary evidence which can prove the case. See NACB vs. ADEAGBO (2004) 14 NWLR (PT 894) 551 at 573-574, CROSS RIVER STATE NEWSPAPER CORP vs. ONI (1995) 1 NWLR (PT 371) 370 and ADEKUNLE vs. IBRU (2018) LPELR (44119) 1 at 32-33.
The evidence adduced by the Respondents witnesses having established the case, it is of no moment that the Respondents on record did not personally testify.

As I begin to approach the terminus for this judgment, let me quickly deal with the Appellants contention on the standard of proof. The Appellants contend that the armed robbery which the Respondents complained about ought to be proved beyond reasonable doubt, but that the lower Court reduced the allegation to thuggery. The suit at the lower Court was fought on pleadings. The Statement of Claim delineates the claim of the Claimants and the facts upon which they are predicated. In paragraph 22 (v) of the Statement of Claim, the Respondents claimed general damages for the actions of the Appellants in using thugs and hoodlums to invade the property and throw their things out. The facts in this regards are averred in paragraph 18 of the

Statement of Claim as follows:
18. The Claimants were therefore shocked beyond belief when the 2nd Defendant acting as agent of the 1st defendant and with thugs and hoodlums numbering between 25 and 30 and who were armed with dangerous weapons and charms invaded ?the property? on Sunday the 17th of February 2008 at 6 am and attacked the Claimants? staff and relatives living in the premises and attempted to unlawfully evict them from the premises by packing out by [sic] properties and put the property under lock and keys while other properties and items were carted away by these thugs and hoodlums.

There is nothing in the above averments which brings into play any armed robbery allegation. The parties and the Court are bound by the pleadings. Section 135 (1) of the Evidence Act provides that where the commission of a crime is directly in issue in any proceeding, it must be proved beyond reasonable doubt. The question of armed robbery was neither in issue nor directly in issue and the lower Court was not conflicted as to the standard of proof. The Appellants allusion to evidence being at variance with the pleadings in

paragraph 4.03 on page 9 of the Appellants? Brief is in respect of the testimony of the CW1 under cross examination that he was not told that someone came to rob them (see page 187 of the Records). There is nothing in the testimony that is at variance with the pleadings. I have reproduced the of paragraph 18 of the Statement of Claim above and at the outset I had reproduced the reliefs claimed. The word ?robbery? was not employed by the Respondents in their pleadings. I am therefore unable to agree with the Appellants that the evidence is at variance with the pleadings.

In seemingly perfect synchronisation, just as every blade of grass in the field of this judgment has been tendered and groomed, we arrive at the terminus. The concatenation and conflating of the foregoing is that this appeal is devoid of merit. It fails and it is accordingly dismissed. The decision of the lower Court is hereby affirmed. There shall be costs of N250, 000.00 in favour of the Respondents.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read the judgment just delivered by my learned brother, UGOCHUKWU

ANTHONY OGAKWU, JCA, and I am in agreement with it, and I would only like to re-emphasize the fact that an appellate Court cannot unnecessary, interfere with a decision of the lower Court or embark on a fresh appraisal when there is no basis for it, in EDILCON (NIG) LTD v UBA PLC (2017) LPELR – 42342 (SC), the Apex Court per NWEZE, JSC held thus;
“It has long been established that an appellate Court, generally speaking, should not interfere with findings of fact of trial Courts. This is simple. The latter Courts, that is, Courts, had the unique opportunity of seeing and hearing the witnesses, they, equally, observe all their habits and man These include their idiosyncrasies. As a corollary to these peculiar advantages, the Law anticipates that they should utilize an their judicial competence: competence or skill rooted or anchored on law and commonsense to evaluate the evidence by eliminating the chaff from the grain of probative evidence, proper conclusions which a reasonable Court ought to arrive at, expectedly or ideally, should eventuate from that rigorous exercise. That is why the law takes the view that a failure in this regard would warrant

the interference of the appellate Court,.
…This explains the prescription that an appellate Court will interfere With the findings of facts where findings are perverse, that is persistent in error, different from what is reasonable or required, against weight of evidence; put differently, where the trial judge took into accounts, matters which he ought not to have taken into account or where he shut his eyes to the obvious, Atolagbe v. Shorun (1985) LPELR – 592 (SC) 31; C.D…”
In this case, the judgment was far from being based on preserve findings nor was it in contravention with the pleadings.

In light of the above and the reasoning in the lead judgment. I also agree that the appeal fails and it is hereby dismissed. The decision of the lower Court is hereby affirmed. I abide by all consequential orders in the lead judgment.

TOBI EBIOWEI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I agree with the judgment and I have nothing to add as my Lord has exhaustively addressed the issues involved in this appeal. I also affirm the decision of the lower Court. I abide by the cost awarded.

Appearances:

W. Ballantyne, Esq.For Appellant(s)

Respondents absent and not represented by Counsel.For Respondent(s)

Appearances

W. Ballantyne, Esq.For Appellant

AND

Respondents absent and not represented by Counsel.For Respondent