ABUBAKAR v. JUNAID (2020)

ABUBAKAR v. JUNAID

(2020)LCN/14393(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Thursday, June 11, 2020

CA/MK/184/2012

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

IBRAHIM ABUBAKAR APPELANT(S)

And

MUNIR JUNAID RESPONDENT(S)

RATIO

WHETHER OR NOT A HOLDING OF A LOWER COURT NOT APPEALED AGAINST REMAINS BINDING AND CONCLUSIVE BETWEEN PARTIES

The law is that a holding of lower Court that is not appealed against remains binding and conclusive between the parties. See Heritage Bank Limited V Bentworth Finance (Nigeria) Limited (2018) 9 NWLR (Pt. 1625) 420, 436 and Chudi Verdical Company Limited V Ifesinachi Industries Nigeria Limited (2018) 16 NWLR (Pt. 1646) 520, 537. PER EKANEM, J.C.A

WHETHER OR NOT THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND RESTS ON A PLAINTIFF TO ESTABLISH HIS CLAIM ON THE STRENGHT OF HIS CASE AND NOT RELY ON THE WEAKNESS OF THE DEFENCE

The law is that the burden of proof in such a claim lies on the plaintiff to establish his claim on the strength of his case and not rely on the weakness of the defence except where the defendant’s case supports his own case. Therefore the plaintiff must satisfy the Court that based on his pleadings and evidence he is entitled to the declaration sought. However, once he has adduced sufficient prima facie evidence to entitle him to the relief sought, the onus shifts to the defendant notwithstanding the fact that the plaintiff must succeed on the strength of his own case. See Kodilinye V Odu (1935) 2 WACA 336, Piaro V Tenalo (1976) 12 SC 31, Onovo V Mba (2014) 14 NWLR (Pt. 1427) 391 and Orianzi V Attorney – General of Rivers State (2017) 6 NWLR (Pt. 1561) 224. PER EKANEM, J.C.A

WAYS OF PROVING TITLE TO LAND

Title to land may be proved by:
(i) traditional evidence;
(ii) production of document of title which must be duly authenticated;
(iii) the exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the inference that the person is the true owner of the land;
(iv) acts of long possession and enjoyment of the land; and
(v) proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. See Idundun V Okumagba (1976) 9 – 10 SC 227, Piaro V Tenalo supra., Onovo V Mba supra. and Orianzi V Attorney – General of Rivers State supra. PER EKANEM, J.C.A

DUTY OF THE COURT WHERE A PERSON SEEKS TO PROVE HIS TITLE BY PRODUCTION OF DOCUMENT OF TITLE

Where a person seeks to prove his title by production of document of title, the Court is to inquire into:

(a) the genuiness and validity of the document;
(b) its due execution, stamping and registration;
(c) capacity and authority of the grantor to grant title;
(d) whether or not the grantor had what he purported to grant;
(e) whether or not the document had the effect claimed by its holder. See Dabo V Abdullahi (2005) 7 NWLR (Pt. 923) 181 and Ayorinde V Kuforiji (2007) 4 NWLR (Pt. 1024) 341.PER EKANEM, J.C.A

WHETHER OR NOT A SPECIFIC FINDING OF A LOWER COURT MUST BE ATTACKED BY A SPECIFIC GROUND OF APPEAL FROM WHICH AN ISSUE FOR DETERMINATION WOULD BE RAISED AND ARGUED

The law is that a specific finding of a lower Court must be attacked by a specific ground of appeal from which an issue questioning it would be raised and argued. Where that is not done, the specific finding stands and is binding on the parties including the party adversely affected by it. See Mbang V State (2013) 7 NWLR (Pt. 1352) 48, 67, Heritage Bank Limited V Bentworth Finance (Nigeria) Limited supra. and Chudi Verdical Company Limited V Ifesinachi Industries Nigeria Limited supra. PER EKANEM, J.C.A

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Nasarawa State, holden at Nasarawa (the trial Court) delivered in suit No. NSD/N21/2011 on 20/9/2012. In the judgment, the trial Court (coram: A. O. Bako, J.) dismissed the claim of the appellant against the respondent.

The facts of the case leading to this appeal are as follows: The appellant (as plaintiff) claimed to be the owner of the plot of land in dispute, having purchased the same from the Late Alhaji Musa Turaki, the customary owner, vide a sale agreement dated 19/1/2003. He cleared the land and deposited sand on it preparatory to moulding of blocks. Then the respondent (defendant at the trial Court) trespassed on the land, laying foundation (for a building) on top of the already existing one. Wherefore the appellant took out a writ of summons at the trial Court endorsed with a statement of claim against the respondent seeking two declaratory and injunctive reliefs against him (the respondent).

The respondent filed a statement of defence, denying the claim of the appellant. He averred that that the vendor of the appellant

was paid compensation in respect of the land in the year 2000. The land was then allocated to Mallam Ibrahim Suleiman who assigned his interest in the right of occupancy to Alhaji Muazu Ishaq who sold the land to the respondent vide a deed of assignment dated 9/1/2001.

Issues having been joined the case proceeded to trial. The appellant called two witnesses and tendered two documents. The respondent called two witnesses and tendered ten documents. After taking addresses of counsel, the trial Court, as earlier stated, dismissed the claim of the appellant.

Aggrieved by the decision, the appellant appealed to this Court by the means of a notice of appeal filed on 3/10/2012. The notice of appeal incorporates six grounds of appeal.

At the hearing of the appeal on 20/3/2019, counsel for the appellant was absent though served with hearing notice and the appeal was deemed as argued on the appellant’s brief of argument, which was filed on 19/3/2013 but which was deemed filed and served on 10/4/2014. S.I. Shuram, Esq. for the respondent identified, adopted and relied on respondent’s brief of argument which was filed on 29/4/2014 in urging the

Court to dismiss the appeal.

In the appellant’s brief of argument, the following issues have been formulated for the determination of the appeal:
ISSUE 1. (ARISING FROM GROUND 1).
“1. Whether there is no limit in filling (sic) statement of defence after leave was granted for the defendant to file his defence.
ISSUE 2.(ARISING FROM GROUND 2).
2. Whether exhibit I, which is the receipt of tax chargeable on the value of compensation is a conclusion that the appellant was paid compensation in respect of the portion of land in dispute.
ISSUE 3. (ARISING FROM GROUND 3).
3. Whether there was proof of allocation by the respondent in the instant action.
ISSUE 4. (ARISING FROM GROUND 4).
4. Whether there was acquisition of the land in dispute by the government and properly established by the respondent.
ISSUE 5.(ARISING FROM GROUND 5).
5. whether after purchased/sale of land and the transfer by the vendor to the buyer, the buyer has the right to commence an action.
ISSUE 6.(ARISING FROM GROUND 6).
6. Whether documents made and executed in the cause (sic) of trial are admissible in law to the

extent of Court giving effect to same”.

In the respondent’s brief of argument, the following issues have been decocted from the six grounds of appeal:
“3.2 Whether the Respondent’s Statement of Defence filed 13 days after leave and extension of time was granted without an order stipulating time for its filling (sic) is incompetent (Ground 1)
3.3 Whether the Trial Court evaluated the evidence placed before it hence was right in dismissing the appellant’s claim for declaration of title to land (Grounds 2, 3, 4, 5 and 6”).

It is curious that appellant’s counsel has formulated an issue from each ground of appeal, thus raising six issues from his six grounds of appeal. Issues are not formulated to coincide with the number of grounds of appeal. The essence of formulation of issues is to reduce the grounds of appeal into terse, compact formulations which take cognizance and consideration of the same issues running though more than one ground of appeal. See Bankole V Pelu (1991) 8 NWLR (Pt. 211) 523, Okechukwu V INEC (2014) 17 NWLR (Pt. 1436) 255 and Sakati V Bako (2015) 14 NWLR (Pt. 1486) 531. It is on

this account that I prefer the formulation of respondent’s counsel to that of the appellant, as issue 1 of the appellant challenges the competence of the statement of defence filed at the trial Court while his issues 2 to 6 basically question evaluation of evidence. They can be rolled into two issues. I therefore shall be guided by respondent’s issues with some slight modifications while keeping my eyes on the complaints of the appellant.

Issue 1
Whether the respondent’s statement of defence filed 14 days after leave and extension of time was granted without an order stipulating time for its filing is incompetent.
Appellant’s counsel stated that the respondent was on 21/3/2012 granted extension of time to file his statement of defence. He argued that the respondent ought to have filed the process within 7 days of that date; rather he filed the process 14 days after leave was granted. Relying on Order 26 Rule 4 of the High Court Rules 2010 (without stating which State High Court Rules), he urged the Court to hold that the statement of defence was incompetent.

Respondent’s counsel submitted that the statement

of defence is competent. He stated that the trial Court did not fix time within which a clean copy of the statement of defence was to be filed. He submitted that Order 26 Rule 4 of the Nasarawa State High Court (Civil Procedure) Rules (hereafter termed “the High Court Rules”) deals with filing amended processes when leave to amend is granted, and therefore does not apply in this instance. In any event, he continued, assuming without conceding that the said rule applied in this instance, the effect of not filing the process within seven days would be to render a defaulting party to a fine of N200.00 per day of default and not render the process incompetent.

Counsel contended that the objection of appellant’s counsel was belated and that the appellant had waived his right to complain, having taken steps by filing a reply to the statement of defence and an additional witness statement on Oath. He placed reliance on Order 9 Rule 2 (1) of the High Court Rules. He added that the era of technicality is gone and so rules of Court will not be used to defeat justice.

Resolution
The respondent did not file his statement of defence within

the time prescribed by the High Court Rules. Consequently, he applied for extension of time to do so vide a motion on notice filed on 21/3/2012. The trial Court on 21/3//2012 granted the application as prayed but did not set time within which the process was to be filed. The respondent filed the statement of defence on 4/4/2012, that is, 14 days after the order for extension of time for him to do so. In response to the statement of defence, the appellant filed his “Reply to Defendant’s statement of Defence” on 12/4/2012. The trial commenced to conclusion. It was at the address stage that counsel for appellant raised the point that the statement of defence was filed out of time and was therefore incompetent.

It was argued by respondent’s counsel that appellant had waived his right to raise the point. Counsel had no business putting forward that argument and I shall not entertain it. This is because the trial Court, rightly or wrongly, at page 182 of the record of appeal, rejected the same argument by respondent’s counsel though it did not state its reasons for doing so. The respondent has not filed a cross-appeal for a

reversal of that holding. The law is that a holding of lower Court that is not appealed against remains binding and conclusive between the parties. See Heritage Bank Limited V Bentworth Finance (Nigeria) Limited (2018) 9 NWLR (Pt. 1625) 420, 436 and Chudi Verdical Company Limited V Ifesinachi Industries Nigeria Limited (2018) 16 NWLR (Pt. 1646) 520, 537. I therefore discountenance the argument of appellant’s counsel on the issue of waiver.

Since the learned trial Judge did not limit the time within which the respondent was to file his statement of defence, the implication is that the process was to be filed within a reasonable time. The process filed within 14 days of the order of Court cannot be said to have been filed outside reasonable time. Order 26 Rule 4 of the High Court Rules invoked by appellant’s counsel does not apply to a process filed after extension of time. The said rule provides:
“if a party who has obtained an order to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within 7 days from the date of the order, such party shall pay an

additional fee of N200.00 (two hundred Naira) for each day of default.“(underlining is mine for emphasis)

It is clear from the underlined portion of the provision above that it applies to the filing of an amended process after an order to that effect has been obtained by the relevant party. It has nothing to do with the filing of a statement of defence after an order for an extension of time to do so.

Appellant’s counsel in regard to issue 1 has only resorted to technicality as rightly submitted by respondent’s counsel. Technicality no longer has a place in the judicial process for the Courts are in pursuit of substantial justice devoid of the asphyxiating influence of technicality. See Dapianlong V Dariye (2007) 8 NWLR (Pt. 1036) 332, 416 and Alioke V Oye (2018) 18 NWLR (Pt. 1651) 247, 267.
I therefore enter a negative answer to issue I and resolve it against the appellant.

Issue 2
Whether the trial Court (properly) evaluated evidence placed before it, hence was right in dismissing the appellant’s claim for declaration of title to land.
Appellant’s counsel referred to Exhibit I, upon which the trial

Court held that compensation had been paid to appellant’s vendor. He also referred to exhibit G (receipt for payment of compensation to Danladi Musa). He submitted that the two documents have no link with each other and that for that reason the Court ought to consider their contents as unreliable. It was his further submission that exhibit I has no nexus with the land in dispute and did not show that money was collected by appellant’s vendor.

Counsel noted that the contention of the respondent was that he was allocated the land in dispute by the government after compensation was duly paid to the customary owner. He argued that there was no evidence of any allocation paper from the government to the respondent to show that he was allocated the land in dispute. He posited that exhibit E was a grant of right of occupancy which states that it was issued as a result of an application and not through an allocation. He lamented that the trial Court did not inquire into the things it was bound to probe into where a case is founded on production of documents of title.

It was posited by him that there was no proof of any acquisition by the

government though the burden of proof was on the respondent. He contended that acquisition of land by the government is through service of notice of acquisition and payment of compensation, which he said had not been established in this instance. He posited that once there is an existing legal interest over land and such interest is not extinguished but a certificate under the Land Use Act is issued, such certificate would be considered to be granted in error and can be set aside. He placed reliance on Omiyale V Macauley (2009) 46 WRN 46.

He contended that the appellant having purchased the land had the legal right to sue over the said land. It was submitted by counsel that exhibit K (Deed of assignment in favour of respondent) was chargeable on 30/11/2011 and registered on 16/5/2012, and so they are inadmissible in law since the case was filed on 8/12/2011. He finally contended that no consent was obtained for the assignment.

For the respondent, it was contended by his counsel that the trial Court evaluated evidence placed before it and rightly dismissed the claim of the appellant. He stated that the case of the appellant was hinged on exhibit D, a

sale agreement. He stated that the law on production of document of title is that the document of title must be duly authenticated. It was posited that exhibit D was made by appellant’s lawyer when the suit was anticipated and was therefore inadmissible. In any event, he stated, for the appellant to be declared customary owner, he must prove that he is an original owner by inheritance and for him to be a statutory owner, he must tender a statutory right of occupancy granted to him by the Governor of Nasarawa State. He argued that none of these was in evidence and that exhibit D, a mere sale agreement that was not registered cannot found a claim for customary and statutory ownership.

Counsel submitted that a claimant claiming declaration of title must succeed on the strength of his case and not on the weakness of the defendant’s case. He noted that the appellant has not challenged the finding of the trial Court on exhibit D and so the success of the issues raised by appellant would not result in the success of the appeal.

It was his submission that appellant’s effort at comparing exhibits I and G is misleading as the case of the

respondent was that exhibit G was executed in addition and subsequent to the payment of compensation to appellant’s vendor. It was further submitted that a certificate of occupancy issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land to which it relates. He referred to and relied on Madu V Madu (2002) 13 NWLR (Pt. 784) 286. He contended that the appellant failed to rebut the presumption. He posited that a statutory right of occupancy is a document evidencing allocation of a land by a government to an individual.

Continuing, counsel stated that the observation by the trial Court that it was strange for the appellant to raise the issue of acquisition of the land rather than his vendor was a mere obiter dictum which cannot be the subject of an appeal.

It was his position that exhibit K (the deed of assignment in respondent’s favour) was executed more than five years before the suit was filed, that its registration and obtaining of consent vide exhibit L are post-alienation processes. Thus he contended the document was not caught by Section 83 (3) of the Evidence Act, 2011. He

finally stated that an alienation is valid though there was no consent to assign at the time of the alienation once it is not purported to be a completed action but made subject to seeking and obtaining of consent for the assignment.

Resolution
The claim of the appellant was for declaration of title to the land in dispute. The law is that the burden of proof in such a claim lies on the plaintiff to establish his claim on the strength of his case and not rely on the weakness of the defence except where the defendant’s case supports his own case. Therefore the plaintiff must satisfy the Court that based on his pleadings and evidence he is entitled to the declaration sought. However, once he has adduced sufficient prima facie evidence to entitle him to the relief sought, the onus shifts to the defendant notwithstanding the fact that the plaintiff must succeed on the strength of his own case. See Kodilinye V Odu (1935) 2 WACA 336, Piaro V Tenalo (1976) 12 SC 31, Onovo V Mba (2014) 14 NWLR (Pt. 1427) 391 and Orianzi V Attorney – General of Rivers State (2017) 6 NWLR (Pt. 1561) 224.

The case of the appellant was that he purchased the land from Alhaji Musa Turaki, its customary owner. He led evidence in that regard via PW1 (a member of the family of his said vendor) and himself as PW2. Exhibit D was tendered as the Sale agreement. The appellant did not plead and tender it as a memorandum of sale or as a receipt but as his document of title. Where a person seeks to prove his title by production of document of title, the Court is to inquire into:

Now the trial Court at page 185 of the record of appeal found as follows:
“On this point and in the final analysis of the issue of when Exhibit D was made and or executed; the testimony of PW2 that it was made and or executed in 2011, and having the privilege of marching the demeanor of the witness, Exhibit D leaves little or nothing to be desired. Exhibit D therefore being the basis of the plaintiff’s claim is unsustainable, it therefore accordingly fails”.

In other words, the trial Court held specifically that exhibit D was not valid and did not have the effect claimed by the appellant. I have looked through the grounds of appeal raised by the appeal. There is no specific ground of appeal which attacks that specific finding by the trial

Court. The law is that a specific finding of a lower Court must be attacked by a specific ground of appeal from which an issue questioning it would be raised and argued. Where that is not done, the specific finding stands and is binding on the parties including the party adversely affected by it. See Mbang V State (2013) 7 NWLR (Pt. 1352) 48, 67, Heritage Bank Limited V Bentworth Finance (Nigeria) Limited supra. and Chudi Verdical Company Limited V Ifesinachi Industries Nigeria Limited supra. The finding of the trial Court quoted above having not been appealed against stands and binds the appellant. This is the death knoll of this appeal.

This Court being an inter-mediate appellate Court, I will proceed to consider other points argued by counsel.

The respondent in paragraph 15 of his statement of defence pleaded as follows:
“The Defendant avers that as far back as the year 2000, the said Alhaji Musa Turaki was paid compensation in respect of the Defendant’s plot…”
In the case of Mulima V Usman (2014) 16 NWLR (Pt. 1432) 160, 190 and 192, it was held that by pleading that compensation had been paid to a party, the

deduction was that the land originally belonged to that party and that the onus was on the other party to show how that party was divested of title. Having admitted by implication that appellant’s vendor was the original owner of the land in dispute, the burden was on the respondent to show how he was divested of ownership. The case of the respondent was that appellant’s vendor was paid compensation on the land and the same was allocated to Mallam Ibrahim Suleiman who in turn sold it to his vendor (Alhaji Muazu Ishaq). The respondent testified to that effect and tendered Exhibit 1 to prove his assertion.

The trial Court at page 183 of the record of appeal held thus:
“Now placing Exhibit 1 which is the revenue receipt issued for tax chargeable on the value of compensation shows that the plaintiff’s vendor was compensated in November 2000, three (3) years before he purportedly sold to the plaintiffs … The only natural reputable (sic; rebuttable) presumption of law is that there was acquisition even though not expressly made on (sic; an) issue in this case …”

In other words, the trial Court found as a

fact that compensation on the land had been paid to appellant’s vendor three years before he purportedly sold the land to the appellant. I have again read the grounds of appeal in appellant’s notice of appeal and the particulars thereof. The sole complaint therein, in ground (ii) against the reliance by the trial Court on exhibit 1 to find that compensation was paid to appellant’s vendor is that it has no link with exhibit G. I shall therefore limit myself to that complaint or point as the Court is not a knight errant in white armour going about looking for skirmishes.

The case of the respondent, as can be gleaned from his statement of defence, was that despite payment of compensation to appellant’s vendor, a member of the vendor’s family (Danladi Musa) approached Mallam Ibrahim Sulaiman (the allottee of the land) and demanded further compensation and he was paid N30,000:00 over the same land as evidenced in exhibit G. I therefore agree with respondent’s counsel that the contention that the two documents (exhibits 1 and G) are inconsistent is misleading as the two do not relate to the same payment. Since the only

complaint about the finding of the trial Court, based on exhibit 1, that the vendor of the appellant was paid compensation on the land is baseless, the finding stands.

It is no doubt the law that for a holder of a deemed right of occupancy to be divested of his interest in the land by acquisition by the government, he must be served with notice of compulsory acquisition and be paid compensation. This was not pleaded by the respondent. Yet by reason of collecting compensation on the land, appellant’s vendor divested himself of his title in the land three years before purportedly selling the same to him. It did not therefore lie in the mouth of the appellant to raise any issue as to whether or not there was an acquisition of the land.

The whole thing boils down to this: As at 19/12/2003 when the appellant purportedly purchased the land from his vendor, he (the vendor) had no title or interest in the land to convey to the appellant. The appellant bought nothing but the wind. The maxim is nemodat quod non habet – One cannot give what he does not have. In the case of Ajayi V Adebiyi (2012) 11 NWLR (Pt. 1310) 137, 177 the Supreme Court held

that where a vendor sells land to a purchaser three years after government had acquired it, the doctrine of nemodat quod non habet applies. The trial Court was therefore right in holding at page 184 of the record that:
“I find that the plaintiff’s vendor had no title over the land in question at the time he transferred it to the plaintiff”.

The respondent tendered exhibit E, a grant of a right of occupancy over the land in dispute to Mallam Ibrahim Suleiman by the government. This shows that there was an allocation of the land to him. He in turn assigned the same to respondent’s vendor. Consent for the assignment was given vide Exhibit D. He in turn assigned the same to the respondent vide a deed of assignment dated 9/1/2016. The argument by appellant’s counsel is that the assignment was void as consent (of the Governor) was not sought for and obtained contrary to Sections 22 and 26 of the Land Use Act. Lack of consent or otherwise was not an issue before the trial Court and so it is a fresh issue for which leave to raise is required. Leave was not sought for and obtained, and so I discountenance the issue.

In any event, a holder of statutory right of occupancy can enter into negotiations and subsequent written agreement to assign the same which at that stage being inchoate does not require the consent of the Governor and it is not contrary to the law as it is to be eventually submitted to the Governor for consent. This is followed by the second stage in the transaction, to wit; forwarding the deed to the Governor for consent. Thus the absence of prior consent of the Governor before a deed of assignment is executed does not render the assignment null and void. See Awojugbagbe Light Industries Ltd V Chinukwe (1995) 4 NWLR (Pt. 390) 379, Iragunima V Rivers State Housing and Property Development Authority (2003) 12 NWLR (Pt. 834) 427 and Mbanefo V Agbu (2014) 6 NWLR (Pt. 1403) 230. So as rightly argued by respondent’s counsel, an alienation of land is valid though there was no consent to alienate granted at the time of alienation, once the alienation is not purported to be a completed action but made subject to the seeking and getting of consent to alienate. See Utuk V Liquidator (2010) 4 WRN 38.
In the instant matter, the deed of assignment to the respondent

states in part in clause 5 that:
“The assignment is subject to the Governor’s consent being given to the assignee …”
The assignment was therefore not null and void.

The deed of assignment was executed on 9/1/2006 but the consent was given on 15/3/2012 vide exhibit L. It is therefore not correct to say that the document is inadmissible on account of Section 83(3) of the Evidence Act, 2011. The document was executed over five years before the suit was filed on 8/12/2011 or was even contemplated. The fact that the letter conveying the consent was issued on 15/3/2012 is of no moment as that was an official act of the government done long after the execution of the deed of assignment.

It is my view that the trial Court correctly evaluated evidence placed before it before arriving at its conclusion. Where a trial Court has not only assessed and given value to the evidence at its disposal and it leaves no doubt as to how and why in arriving at its conclusion it preferred the evidence of the respondent to that of the appellant, it is not the function of the appellate Court to upset the conclusion of the trial Court. See

Mogaji V. Odofin (1981) 4 SC 91,Woluchem V. Gudi (1981) 5 SC 291 and Enang V. Adu (1981) 11 SC 25.
I therefore enter an affirmative answer to issue 2 are resolved against the appellant.

On the whole, I find no merit in the appeal and it is hereby dismissed, the judgment of the trial Court is affirmed by me.
I assess the costs of the appeal at N100,000.00 in favour of the respondent against the appellant.

IGNATIUS IGWE AGUBE, J.C.A.: I have read an advance copy of the Lead Judgment delivered by my learned Brother, Hon. Justice J.E. Ekanem, JCA. I agree with the reasoning and conclusions reached in the Lead Judgment.
“In our adversarial system of litigation, the law always places the burden of proof in civil matters on the plaintiff/claimant, as the case may be, to satisfy the Court by leading concrete cogent and valid evidence with a view to establishing his claim” – See In Re: Amolegbe (2014) 8 NWLR (Pt. 1408) 76 at 98-99 paragraphs “G”.”B” per I. T. Muhammad, JSC.
In Jack vs. Whyte (2001) 6 NWLR (Pt.709) 266 the Supreme Court held at page 277 (G-H) as follows:

“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 an ancient rule founded on consideration of good sense, and it should not be departed from without reasons. 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 whatever. If when all the evidence by whomsoever introduced, is in the party who has this burden has not discharged it the decision must be against him.”
See also Section 133(1)-(3) of the Evidence Act, 2011 which stipulates as follows:
“133(1) In civil eases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to, in subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the

burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.”
In Attorney-General of Anambra State vs. Attorney-General of the Federation & Ors. (2005) All FWLR (Pt.268) 1557, Niki-Tobi, JSC held at page 1607 paragraphs “E” to “G” as follows:
“It is elementary law that a plaintiff has the burden to prove the reliefs sought in the statement of claim to obtain judgment. That burden does not shift. This is because he is the party who claims the reliefs in the statement of claim, and so the onus probandi rest upon him. He must prove the affirmative content of his statement of claim. Our adjectival law is as strict as that. See Okechukwu & Sons vs. Ndah (1967) NMLR 368; Elemo vs. Omolade (1968) NMLR 359; Frempong II vs. Erempong II (1952) 14 WACA 13; Osawaru vs. Ezeiruka (1978) 6-7 SC 135; Fashanu vs. Adekoya (1974) 6 SC 83. It must be mentioned that the burden of proof is restricted to the live issues in

the matter, that is the issues which will determine the case one way or the other. In other words, a 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 as issues seen as merely gallivanting in the pleadings and to no issue.”

For these reasons and the fuller reasons in the lead Judgment, I therefore find no merit in the appeal. I also dismiss the Appeal for lacking merit. The Judgment of the learned Trial Judge is hereby affirmed.
I abide by the order(s) as to cost of this Appeal.

ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading in draft a copy of the lead Judgment just delivered by my Learned Brother, Joseph E. Ekanem, JCA, in which this appeal was dismissed. I adopt as mine the comprehensive resolution of the issues arising for determination.

I also dismiss this appeal and abide by the orders made in the lead Judgment, including the order as to costs.

Appearances:

Appellant’s counsel absent though served with hearing notice For Appellant(s)

I. Sheram, Esq. – for Respondent For Respondent(s)