AKWAIWU & ANOR v. AKWAIWU & ORS (2020)

AKWAIWU & ANOR v. AKWAIWU & ORS

(2020)LCN/14906(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/OW/279/2019

RATIO

LAND LAW: NATURE OF FAMILY PROPERTY

The law is trite that a family property remains so to be enjoyed by all the members of the family until the same is shared or partitioned to the members, and so, until partitioned, no member of the family can assert exclusive right to the family land permanently to the exclusion of the other members. And even where a particular member of the family may enjoy the right to farm on, occupy or possess a given family land allocated to him to farm on, occupy or possess, prior to the partition of the family property, he cannot assert exclusive right of ownership over that piece of land until the same is permanently given to him at the partitioning of the family lands/property. That has always remained the law. See Alafia & Ors Vs Gbode Ventures Nig. Ltd & Ors (2016) LPELR – 26065 SC; Nzekwu & Ors Vs Nzekwu & Ors (1989) 2139 SC.
In the recent decision of this Court in the case of Chiedozie George Vs. Mr. Sabastine Ajoku & Anor CA/OW/290/2010, delivered on 20/11/2020, we held as follows:
“Of course, it is simply logical to expect a family member who claims exclusive right over a family property to prove how and when the right over the family property vested in/on him exclusively. See Aduloju & Ors Vs Aluko & Ors (2018) LPELR – 46374 CA; and Ogbunuko Vs Ogbunuko & Ors (2019) LPELR – 47467 CA, where it was held:
“This Court has in number of times, re-iterated the obvious, that where parties, as in this case are in agreement that the land in dispute is a family land or originally founded by a family, any party who claims exclusive ownership of the land or part therefore, (sic) must fail, unless he is able to plead and prove by evidence how that exclusive ownership or title devolves on him. See Ogundipe Vs Adenuga (2006) All FWLR (Pt.336) 266; Stephen Okedion & Ors Vs Federal Airport Authority of Nigeria & Anor (2007) LPELR – 8678; Motunwase Vs Sorungbe (1988)5 NWLR (Pt.92)90.” Per Umar, JCA.
See also ONWUBU Vs ONWUBU & Anor (2018) LPELR – 46259 CA; Okwusogu & Ors Vs Okadigbo (2017) LPELR – 42751 CA; Oraezue Vs Igboneme (2017) LPELR – 42842 CA, on effect of partitioning of family land.
In the case of Ojoh Vs Kamalu & Ors (2005) LPELR – 2389 (SC), it was held:
“The law is also trite that a party, such as the appellant in the instant case, who claims exclusive title to community or family land against the entire family or community, must prove that there had been a partition of the land claimed. See Adesanya Vs Otuewu (1993)1 NWLR (Pt.270)414 at 435.”
See also Ewo & Ors Vs Ani & Ors (2004) LPELR – 1182 (SC):
“Family land is certainly not the same thing as communal land, but the principles are the same. If a member of a family claims ownership of family land, he or she, the claimant must prove how he or she came to own family land to the exclusion of other members of the family.” (Pages 19 – 21) PER ITA GEORGE MBABA, J.C.A.

JUDGMENT: EFFECT OF FINDINGS OF COURT NOT APPEALED AGAINST

Of course, the law is trite that a finding of Court not appealed against remains binding and conclusive. See Ejike & Anor Vs Egbuaba (2019) LPELR 46526 SC; Biariko & Ors Vs Edeh-Ogwuile & Ors (2001) LPELR – 779 SC; Customary Court of Appeal Edo State Vs Aguele & Ors (2017) LPELR – 44632 SC Nze Vs Aribe (2016) LPELR – 40617 CA. PER ITA GEORGE MBABA, J.C.A.

EVIDENCE: WHETHER ORAL EVIDENCE CAN BE USED TO CONTRADICT CONTENTS OF DOCUMENTARY EVIDENCE

Appellants’ Counsel had argued strenuously that oral evidence cannot be used to vary, contradict, alter and discount the content of a written document. That however remains the law under common law principles where there is no element of fraud, misrepresentation, mischief and illegality, linked to the document or the use of same. See the cases of Ogundele & Anor. Vs. Agiri & Anor. (2009) LPELR – 2328 (SC); UBN Ltd. Vs. Ozigi (1994) LPELR – 3389 (SC). In Madu Vs. Madu (2008) 6 NWLR (Pt. 1083) 296 at 324, the Supreme Court held on the place of documentary evidence, that oral evidence cannot supplant it:
“Oral evidence cannot be used to contradict contents of documentary evidence. In the instant case, any oral evidence by the respondent or relied by the Court of Appeal to show that the land in dispute belonged to any person other than the Appellant is inadmissible, as it amounts to using oral evidence to contradict contents of documentary evidence.”
See also the case of Uma Vs. Oke (2020) LPELR – 50131 (CA); Lewis Vs. Uba 2016 LPELR – 40661 SC. PER ITA GEORGE MBABA, J.C.A.

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

1. PAUL AKWAIWU 2. MR. WILLIAMS AKWAIWU APPELANT(S)

And

1. MR. JOSEPH AKWAIWU 2. CHARLES AKWAIWU 3. ELIAS AKWAIWU 4. CATHERINE AKWAIWU RESPONDENT(S)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellants filed this Appeal against the decision of the Customary Court of Appeal of Imo State in Appeal No. CCA/OW/A/35/2017, delivered on 1st February, 2019 by their lordships:
Hon. Justice C.U. Anwukah – P/Judge, Hon. Justice M.E. Njoku – Judge and Hon. Justice V.U. Okorie – Judge, wherein the lower Court allowed the Appeal and set aside the decision of the trial Customary Court, delivered on 9/12/2016 in the consolidated suits Nos. CC/EZ/IK/37/2014 and CC/EZ/IK/44/2014, which had dismissed the claim of the plaintiffs and granted the cross action by the defendants. The lower Court rather entered judgment for the plaintiffs in terms of their reliefs, and dismissed the cross action, with cost of N50,000 in favour of plaintiffs. At the trial Court, the plaintiffs (Appellants at the lower Court) had sought the following reliefs against the Defendants (now Appellants) in Suit No. CC/EZ/37/2014:
1) A declaration that the landed property of late Mr. Stephen Akwaiwu who died intestate, has been partitioned among his lawful children, in line with the native law and custom of

the people of Umuezealaodu Oparanaezeala, Atta, Ikeduru Local Government Area.
2) A declaration that a Piece or Parcel of land known and called “Ala Okenkwo” or “Ala Ulo Church”, lying and situate at Umuduruihuoma, Oparanaezeala, Atta in Ikeduru Local Government Area one of the landed property of late Mr. Stephen Akwaiwu was lawfully partitioned among his children, in line with the native law of Umuezealaodu Oparanaezeala Atta Ikeduru Local Government Area.
3) An order sustaining the partition of the landed property of late Mr. Stephen Akwaiwu by their material uncles, kinsmen, in-laws and paternal uncles, finally made on 21/2/2012 among the plaintiffs and the Defendants.
4) Perpetual injunction restraining the Defendants their agents, workmen or privies to their agents, workmen or privies to their respective shares of the landed property of late Mr. Stephen Akwaiwu, including ‘Ala Okenkwo’ or “Ala Ulo Church”. (See pages 1 and 2 of the Records of Appeal).

The Defendants (now Appellants) had, in turn, filed a cross action – CC/EZ/IK/44/2014, seeking the following reliefs:

1) A declaration of the Honourable Court that the plaintiffs are entitled to the Customary Right of occupancy over the piece or parcel of land known as and called “Ala Okenkwo”, lying and situate at Umuduru, Oparanaezeala Atta in Ikeduru Local Government, Area of Imo State.
2) A declaration that all the properties of late Mr. Stephen Akwaiwu have not been partitioned among his children and any purported sharing, without the leave, consent or permission of Opara (the 1st son) of late Mr. Stephen Okwaiwu, is void, according to native law and custom of Oparanaezeala, Atta in Ikeduru Local Government of Imo State.
3) A perpetual injunction restraining the Defendants, workmen or privies, servants and anybody whatsoever from further trespass to the said land of the plaintiffs
4) N5,000,000.00 (Five Million Naira) being damages for trespass of the Ala Okenkwo of the plaintiff.”
(Pages 4 and 5 of the Records).

After hearing the case and considering the evidence and addresses of Counsel, the trial Customary Court had held for the Defendants (Appellants herein) on the cross action and dismissed the plaintiffs’ claim (See

pages 209 to 219 of the Records).

Of course, that decision was reversed by the lower Court (Imo State Customary Court of Appeal), on 1/2/2019, when their Lordships held:
“It must be noted that the Respondents did not put up any strong case against the claims of the Appellants. The main plank of their own case or defence was to the effect that, before a partition of land, the principal members of the family must agree. In the case, at hand, the principal members of the family of late Stephen Akwaiwu, whose landed property were being shared, are his direct sons/children, namely the 1st – 5th Plaintiffs/Appellants and the 1st defendant/Respondent. It was nowhere suggested or given in evidence at the trial Court, that the 1st respondent objected to or rejected the said partition. The evidence of PW4 (John Ewurum) was even to the effect that it was the 1st respondent himself that, personally, came and informed the PW4 about their agreement to partition their late father’s landed property, and the PW4 accordingly attended even though he was unable to follow them to the bush due to his sight challenges. The evidence disclosed that it was

the 2nd respondent (DW3) that object to the partitioning. I hold that the purported objection of the partition by the 2nd respondent is of no moment, in view of the fact that he is not a direct son of late Stephen Akwaiwu or a principal member of the family of Stephen Akwaiwu, but rather a son of the 1st respondent (Paul Akwaiwu), who is still alive, till date. The DW3/2nd Respondent being neither the head of the family nor a principal member of the family of late Stephen Akwaiwu, but merely a grandson, his consent or approval is not essential under customary law, before a partition of the landed property of late Stephen Akwaiwu could be carried out in 2012, on the wrong premise that same was done without the consent of the 1st respondent.
Similarity, in relation to ‘Ala Okenkwu’, I had earlier, while resolving issue No. 1 above, held that same is not the personal or exclusive property of the 1st Respondent, but rather the family land of the parties. Thus, the evidence of DW3 (2nd respondent) at page 149… of the records of appeal, wherein he stated:
“In our customs, a personal property cannot be partitioned and shared without

the consent of the person, becomes of no moment. It is also observed that a careful perusal of the claims of the parties would reveal that it is only appellants that prayed the Court for a declaration that the landed property of late Stephen Akwaiwu has been partitioned and prayed for same to be sustained, while the respondents prevaricated by qualifying their claim that “all the landed properties of late Stephen Akwaiwu have not been partitioned among his children”, but interestingly, they did not tell the Court either in their claim or in their evidence, the ones that have been partitioned and the ones that have not been partitioned. In conclusion therefore, I cannot but resolve the above issue No.5 in favour of the Appellants and against the respondents.
… I hereby, wholly, adopt the views and conclusions reached in my resolution of issues Nos. 1 and 3 in, equally, resolving issue No.4 in favour of the appellants and against the respondents.
That is to say, I hold that, in the light of the evidence led, the trial Court was wrong in dismissing the appellants’ case and in giving judgment to the respondents.” (See

pages 680 to 682 of the Records of Appeal).

That is the decision, Appellants, in this Appeal, quarreled with, as per their Notice and grounds of Appeal, on pages 688 to 692 of the Records, disclosing 3 grounds of Appeal (filed on 15/4/2019).

Appellants filed their Brief of Arguments on 9/8/2019, wherein they distilled 2 issues for the determination of the Appeal as follows:
1) Whether the lower Court was right when it held that Ala Okenkwu is a family land of the Akwaiwu family under the native law and custom of Oparanaezeala, Atta in Ikeduru Local Government Area of Imo State. (Grounds 1 and 3).
2) Whether the Court below was right in holding that the family lands of the parties, including Ala Okenkwo, have been partitioned. (Grounds 2)

The Respondents filed their Brief (Amended Brief) on 23/3/2020 and adopted the two issues distilled by the Appellants, for the determination of the Appeal. Appellants filed an Amended Reply brief to contest some issues in the Respondents’ brief.

Arguing the Appeal, on 4/11/2020, learned Counsel for Appellate, Dr. Ken Uzoechi, who settled the Brief on Issue 1 said the lower Court erred

when it held that the trial Court was wrong to have awarded the ‘Ala Okenkwo’ to the 1st Respondent, whereas evidence had shown it was a family land of the parties, placing undue reliance on the evidence of PW3 and disregarding the evidence of DW1 and DW3 on how the said land was purchased. Counsel said both sides were ad idem that the said land was held by their father, by virtue of pledge from Amadi family which PW3 belonged to; that PW3 had testified:
“I know the parties, they are my tenants. I know the land, it is my land because the land is on pledge to the parties’ father, called Stephen.”

Counsel asserted that, from the above evidence, there was nothing to support the decision of the lower Court, that Ala Okenkwo was a family land. Appellants however admitted that both PW2 and DW3, in their respective evidence, agreed that the land (Ala Okenkwo) was purchased from the Amadi family, though initially the land was on pledge by the Amadi family; that DW3 had asserted that the purchase was done by 1st Respondent – DW3’s father.

Appellants referred us to the evidence of PW3 (Raymond Amadi) and of PW1

(Charles) who all agreed the land was purchased (Akwaiwu) by the family of Stephen Okonkwo for N600.00 from the Amadi’s family; that PW1 said the money was from him, but that they prepared the agreement in the name of their senior brother (1st Respondent)! (Page 127 of the Records). Counsel referred us to Pages 133 to 134 of the Records, where PW3 said:
“… Thus, they came with one Chief J.I. Ewurum pleading with me, those that came include the 2nd Plaintiff, 1st Defendant and others. At that time, they have built houses, the 1st Plaintiff was working in an oil company their father later (sic) Stephen built, 5th Plaintiff built; Catharine their Sister (sic). When they came they sued for peace. I carried the matter to the senior brother Benjamin and he accepted and he told them, N600.00 around 1983 and I left it for them and I told them to use his name for the land receipt. I allowed, this because of the respect for our senior. The person that gave the N600.00 is Charly, because I am sure it is Joseph that gave Charly the money. We gave them receipt and they called me to come and sign; they called their senior brother, 1st defendant, John

Ewurum, myself, Elias, Uzoma, Felix, Benjamin Amadi, Paul are signatories and I told them they will bring goat for us to give to my kinsmen which they later brought…”

Counsel, however, argued that PW3 was not a member of the parties family and so wondered how he knew the money for the purchase of the land came from Joseph. He argued that the findings of the Court below, allowed oral evidence to alter the contents of Exhibits F1 and F2; he said that appellate Court should not substitute its own views of fact for those of the trial Court, which saw and heard the witnesses – Ebba Vs Ogodo (1984) 4 SC 84; Emarieru Vs Ovirie 1977 SC 81. He asserted that oral evidence is inadmissible to vary, add or contradict the contents of a document, and relied on Ogundele & Anor Vs Agiri & Anor (2009) LPELR – 2328 SC; UBA Ltd Vs Prof. Albert Ojo Ozigi (1994) LPELR – 3389 SC; Madu Vs Madu (2008)6 NWLR (Pt.1083) 296 at 324; Fashanu Vs Adekoya (1974)6 SC 83; Kimdey Vs Military Gov. of Gongola State (1988)2 NWLR (Pt.77) 445; Haward International Schools Ltd Vs Mina Projects Ventures Ltd (2003) 39 WRN 57 AT 69;

Submit fiancé Company Ltd Vs Hon. Baba & Sons (2003)48 WRN 81 at 105.

Counsel said that the oral evidence of the Respondents in Court were in consistent with the documentary evidence in Exhibits F1 & F2; thus, the documentary evidence should prevail and be accorded probative value, in the absence of any vitiating elements such as fraud, misrepresentation, intimidation and illegality. He relied on Section 128 of the Evidence Act, and the case of Udeora Vs Nwakonobi (2003)4 NWLR (Pt.811) 643 at 674.

Counsel referred us to the evidence of DW3, who said that it became necessary to reduce the agreement into writing, to avoid a fight over the land by the brothers (page 148 of the Records), showing there was that premonition. He wondered why the lower Court chose to believe the oral testimony, as opposed to that documentary account. Counsel also reproduced the findings of the trial Court, on the issue, which said:
“I have clearly looked at Exhibit F1 and F2 and equally gone through the land transaction (sic) was between one Benjamin Amadi and Paul Akwaiwu, if the 1st Plaintiff brought the said money it behold (sic) on him to insist that his name is there as

one of the purchaser or that is doing so on behalf of the family; his inability to do so, this Court cannot be in a position to avoid (sic) him for the position of the law that one documentary evidence supports oral evidence such oral evidence become more credible serves as hanger from which to assess oral testimony…” (page 219 of the Records).

Counsel further argued that it is not part of native law and custom that document of law transaction of a family is done in the name of the first son of the family, including purchase of land in his name. He said that by Exhibits F1 and F2, the Respondents acquired no interest in Ala Okenkwo land; that they had no connection with the land in dispute and were not competent to bring the action against appellants.

On issue 2, whether the Court below was right in holding that the family land of the parties, including Ala Okenkwo, had been partitioned, Counsel adopted his arguments in issue 1, and added that the lower Court erred in holding that the family properties of the parties, including the land in dispute, had been partitioned by Exhibit C. He said that there was no positive evidence of

partition, and none implied or alleged about Ala Okenkwo; that the findings of the trial Court stands and cannot be upset or varied by the lower Court, as it is trite that for a finding of the trial Court to be varied, it must be shown to be perverse or occasion a miscarriage of justice to warrant appellate Court to disturb it. (Buhari Vs INEC (2009)7 WRN 1 at 174).

Counsel said that apart from Exhibit C, the only evidence of alleged partition, given at the trial was the ipse dixit of PW2; that both PW3 and PW5 said they heard parties had shared their lands, while PW4 said he came for the partitioning, but could not follow them to the bush due to his sight challenges. Counsel relied on the evidence of DW3, who said:
“In 2012, the Akwaiwu family wanted to share their family lands. When they gathered to share, there were sharp disagreements and the sharing was not done.” Page 149 of the Records.

Counsel raised queries about the Exhibit C (partition document) and said that partitioning has to be either by agreement or order of Court (Taiwo Sowemimo Vs Ayeni Abiodun (1982)5 SC 57 at 83). He said that a party claiming partitioning, has to

show that the members of the family agreed to it and accepted the partition; that partition must be by the general consent of the family and the deed of partition must be signed by the principal members of the family – Balogun Vs Balogun (1943)9 WACA 78.

In this case, Counsel said, there was no evidence that the parties agreed by general consent or signed any deed of partition of the land Ala Okenkwo, neither did they accept what is contained in Exhibit C; he said that Exhibit C can best be described as what was imposed on the family by some members, in collaboration with the signatories therein. He urged us to hold that there was no proper partition of the family property, including the Okenkwo land in dispute.

Counsel urged us to resolve the issues for Appellants and allow the Appeal and set aside the decision of the lower Court.

Responding, counsel for Respondents, J.E. Okodogbe Esq., (who settled the brief), on Issue 1, said there was overwhelming and credible evidence, that the Ala Okenkwo was a family; land that there was evidence that Akwaiwu family negotiated and purchased the land, with the family’s money; the family settled

on the land as pledged, and several members of the family had built houses and lived on it (Ala Okenkwo) as a family, long before the dispute with the Amadi family, which led to the outright purchase of the land by the family. He relied on the case of Olowosago Vs Adebanjo (1988)4 NWLR (Pt.88) 275, on how the concept of family ownership of land in modern era can be created namely:
1) Where a land owner, whose estate is governed by customary law, dies intestate – such land revolves on his heirs in perpetuity as family land;
2) Family land can be created by a conveyance, intervivos, which land is purchased with money belonging to the family;
3) Family land can also be created by the use of the appropriate expression in the will of the owner of such land; and
4) Family land ceases to be family land on partition.

Counsel said there was evidence that the Ala Okenkwo was on pledge to late Stephen Akwaiwu by the Amadi family; there was a challenge by Raymond Amadi, who threatened to exhume the corpse of late Stephen Akwaiwu Anyanwu (father of parties) on the land; the matter came for arbitration before their Traditional Ruler; the

parties accepted that Chief Iwuala John Ewurum (PW4) withdraw the matter from the Traditional Ruler’s (Eze) Palace for settlement. Pw4 gave evidence of what transpired on the day of the settlement and how the Akwaiwu family purchased the land from the Amadi family, and how they agreed on the names to use for the written agreement, and how the money paid for the land was sourced – as a family. PW4 said:
“… The settlement was between Raymond (PW3) and his brother Benjamin, and the family of parties. Raymond wanted to exhume the body of Stephen Akwaiwu Nwanyanwu, father of the parties and I pleaded with him and they begged the Amadi family and they agreed. They decided that they should give the Amadi family the sum of N600.00 (Six Hundred Naira) and they went inside and brought N600.00 (Six Hundred Naira) and gave them. It was the 1st defendant that gave the money to Benjamin, and they went in with the money the people that conferred in the room are Akwaiwu’s and and his brother. I don’t know precisely the person that brought the money.” (Page 138 of the Records).

Counsel said the PW4 was not cross examined on

the material facts in that evidence. He addressed us on the effect of unchallenged evidence of a witness by cross examination, that the same is deemed admitted. (Gaji Vs Paye (2003) 8 NWLR (Pt.823) 583 at 605; INEC Vs Ifeanyi (2010) NWLR 9 (Pt.1174)98; Adeosun Vs Gov. Ekiti State (2012) 4 NLR Pt.1291.

Counsel said even the DW3 acknowledged the truth of the account by PW4, when in an answer to a question, said that all that PW4 said to the Court was correct. (Page 150 of the Records).

Counsel also referred us to the evidence of PW5 (Felix Anyanwu) cousin to the parties who stated that, it was 1st Plaintiff that gave the N600.00 to the 1st Respondent (Paul Akwaiwu) for the purchase of the Ala Okenkwu land, which was paid to Benjamin Amadi, and that they used the name of the 1st Sons (of Amadi and Stephen) to make the agreement, which they signed (Page 138 of the Records). Again, Counsel said that evidence was not challenged by cross examination.

Counsel also relied on the evidence of PW2 and PW3 on the point to show that the land was family land and purchased by the family from Amadi family, the money being supplied by 1st Plaintiff (Joseph

Akwaiwu), who worked in an oil company. Counsel said the cases cited about the effect of content of documentary evidence, would only apply in the context of the surrounding the facts and circumstances giving birth to the said documents – Exhibits F1 and F2, especially as it was obvious that the parties lived on the said land (Ala Okenkwo) and built their houses on it long before the dispute with the Amadi family.

Counsel said Appellants and Respondents were ad idem, that upon the construction of the last two buildings of 1st Respondent and 5th Respondent, the Amadi family (led by PW3) sued the parties at the Palace of Eze Umunnawuike 1 of Atta claiming title to the said land (pages 127, 133, 136 and 142) of the Records. He referred us to the Exhibit G, tendered by 2nd Appellant, which showed that 1st and 5th Respondents built their houses on the said land in the 1980’s with the consent and approval of the 1st Appellant (father of 2nd Appellant). See page 21 of the Records – paragraphs 18 to 20 of the 2nd Appellant’s affidavit made on 23/6/2014). Counsel said the lower Court made findings that the presence of the buildings of

1st and 2nd Respondents on part of the Ala Okenkwo land since the 1980s and the 2 storey building of the 4th Respondent since 2004 on the same part of the land clearly showed that it was not in dispute that the parties used the land as family land (page 670 of the Records).

Counsel said that the lower Court, having adverted its mind to that piece of evidence at the trial and having weighed same on the imaginary scale of justice, arrived at the sound compelling reasoning that Exhibits F1 as F2 were merely written in the name of 1st Appellant in line with the custom of the parties and not meant to give him exclusive ownership of the Ala Okenkwo land. Thus, it was wrong for the trial Court to give literal interpretation to the Exhibits F1 and F2. Counsel relied on the exception to Section 128 (1) (a) of the Evidence Act 2011, and the provision to Order 10 Rule 5(4) of the Customary Court Rules of Imo State 1989 (as amended), which provide for the exception of oral evidence where the interest of justice so demands as stated by the lower Court on pages 665 – 666 of the Record of Appeal:
“The hard rules of Evidence Act do not apply

to customary Courts, even to Customary Court of Appeal. We refer… to Section 128(1) (A) of the Evidence Act (supra). Even at that, the provisions of Subsection 1 paragraph ‘A’ – ‘E’ to the said Section 128 of the Evidence Act, are solid exceptions to the rule against fraud, intimidation and illegality are alleged or based on usage and custom.”
Counsel further relied on the case of IROEGBU VS MPAMA (2013) All FWLR (Pt.549) 1118 at 1119 – 1124.
He urged us to resolve issue one against the Appellant.

On Issue 2, Counsel said there was overwhelming evidence on record from the Respondents which showed clearly that the family properties had been partitioned contrary to the submission of the Appellants in their brief. He founded on the evidence of the PW2, PW4 and PW5, who stated that they participated in the sharing exercise and tendered the Exhibit C to show (pages 236 to 242 of the Records of Appeal).

Counsel said that the lower Court had noted that Appellants did not put up any strong case against the claim, that there was partition; it also added that the principal members of late Stephen

Akwaiwu, whose landed property were shared, were his direct sons/children, namely the 1st to 5th Plaintiffs and the 1st defendant; that there was no evidence that 1st Defendant objected to the partition. Rather, he (1st defendant) took part in the partition. See page 680 of the Records and page 136 of the Records (evidence of PW4).

Counsel said the lower Court, having considered the above pieces of evidence, as well as Exhibit C, was in no doubt that the landed property of late Stephen Akwaiwu had been partitioned. He urged us to resolve the issue 2 against the Appellants, relying on the case of Obiazikwor Vs Obiazikwor (2007) All FWLR (Pt.371) 604 to the effect that in proving partition of family property, evidence of those who witnessed the transaction is what is required; that the 1st to 5th Respondents had satisfied that requirement, as well as the Exhibit C.

Appellants’ Reply Brief appeared to be a further argument of Appellants’ brief to fortify and improve on the same contrary to what a Reply brief is designed for being to contest new points of law raised in Respondents’ brief not contemplated in the Appellants’

brief. See the case of Kanu Vs A.G. Imo State (2013) LPELR – 20646 CA; Oluwarotimi Vs The State (2020) LPELR – 50277 CA; Wada & Ors Vs Bello & Ors (2016) LPELR – 47015 SC.

RESOLUTION OF ISSUES
I shall consider this Appeal on the two issues donated by the Appellant, and shall take them together as they relate to the same thing namely:
Whether the Court below (Customary Court of Appeal) was right to hold that the family lands of late Stephen Akwaiwu, including the Ala Okenkwo or Ala Ulo Church, had been partitioned, in accordance with native law and custom, to entitle the respective members of the family to retain their shares.

partition of the family property, he cannot assert exclusive right of ownership over that piece of land until the same is permanently given to him at the partitioning of the family lands/property. That has always remained the law. See Alafia & Ors Vs Gbode Ventures Nig. Ltd & Ors (2016) LPELR – 26065 SC; Nzekwu & Ors Vs Nzekwu & Ors (1989) 2139 SC.
In the recent decision of this Court in the case of Chiedozie George Vs. Mr. Sabastine Ajoku & Anor CA/OW/290/2010, delivered on 20/11/2020, we held as follows:
“Of course, it is simply logical to expect a family member who claims exclusive right over a family property to prove how and when the right over the family property vested in/on him exclusively. See Aduloju & Ors Vs Aluko & Ors (2018) LPELR – 46374 CA; and Ogbunuko Vs Ogbunuko & Ors (2019) LPELR – 47467 CA, where it was held:
“This Court has in number of times, re-iterated the obvious, that where parties, as in this case are in agreement that the land in dispute is a family land or originally founded by a family, any party who claims exclusive ownership of the land or part

therefore, (sic) must fail, unless he is able to plead and prove by evidence how that exclusive ownership or title devolves on him. See Ogundipe Vs Adenuga (2006) All FWLR (Pt.336) 266; Stephen Okedion & Ors Vs Federal Airport Authority of Nigeria & Anor (2007) LPELR – 8678; Motunwase Vs Sorungbe (1988)5 NWLR (Pt.92)90.” Per Umar, JCA.
See also ONWUBU Vs ONWUBU & Anor (2018) LPELR – 46259 CA; Okwusogu & Ors Vs Okadigbo (2017) LPELR – 42751 CA; Oraezue Vs Igboneme (2017) LPELR – 42842 CA, on effect of partitioning of family land.
In the case of Ojoh Vs Kamalu & Ors (2005) LPELR – 2389 (SC), it was held:
“The law is also trite that a party, such as the appellant in the instant case, who claims exclusive title to community or family land against the entire family or community, must prove that there had been a partition of the land claimed. See Adesanya Vs Otuewu (1993)1 NWLR (Pt.270)414 at 435.”
See also Ewo & Ors Vs Ani & Ors (2004) LPELR – 1182 (SC):
“Family land is certainly not the same thing as communal land, but the principles are the same.

If a member of a family claims ownership of family land, he or she, the claimant must prove how he or she came to own family land to the exclusion of other members of the family.” (Pages 19 – 21)

In this case at hand, the Respondents had pleaded and led evidence to show that the landed property of their father, Late Stephen Akwaiwu, had been partitioned for them (1st to 5th Respondents and the 1st Appellant), who were the direct sons/children of their said late father and principal members of the family. Evidence from the family members, 1st to 5th Respondents and witnesses supported the claim of the partition and they even tendered the document showing when/how the partition was done – Exhibit C. Evidence by none members of the family (including PW3, PW4 and PW5) supported the claim of the partition. But the DW3 (2nd Appellant) had vehemently denied the story of the partition of the family property saying he did not give consent for the partition and so it was not effectively or properly done! But the lower Court found that the consent of the 2nd Appellant was not necessary, as he was not a principal member of the Late Stephen

Akwaiwu family, being only a grandson, (the son of 1st Appellant) who was said to have participated in the arrangement for the partitioning and the actual sharing of the family property! The 1st Appellant (father of DW3) did not deny his involvement in the partitioning of the family property. In its finding, the lower Court said:
“It must be noted that the respondents did not put up any strong case against the claim of the Appellants; the main plank of their own case or defence was to the effect that before a partition of land, the principal members of the family must agree. In the case, at hand, the principal members of the family of late Stephen Akwaiwu, whose landed property were being shared are his direct sons/children namely 1st to 5th Plaintiffs/Appellants and the 1st defendant/Respondent. It was nowhere suggested or given in evidence at the trial Court, that the 1st respondent objected to or rejected the said partition. The evidence of PW4 (John Ewurum) was even to the effect that it was the 1st respondent himself that personally came and informed the PW4 about their agreement to partition their late father’s landed property, and the

PW4 accordingly attended even though he was unable to follow them to the bush due to his sight challenges. The evidence disclosed that it was rather the 2nd respondent (DW3) that objected to the partitioning. I hold that the rejection of the partition by the 2nd respondent is of no moment in view of the fact that he is not a direct son of late Stephen Akwaiwu or a principal member of the family of Stephen Akwaiwu but rather the son of the 1st respondent (Paul Akwaiwu) who is still alive to date. The DW3/2nd respondent being neither the head of family nor principal member of the family of late Stephen Akwaiwu but merely a grandson, his consent or approval is not essential under customary law, before a partition of the landed property of late Stephen Akwaiwu could be carried out.” (Pages 680 to 681 of the Records of Appeal).

I think the above findings and holding of the lower Court was perfect, and the same has not been appealed against or challenged by the Appellants in this Appeal. Of course, the law is trite that a finding of Court not appealed against remains binding and conclusive. See Ejike & Anor Vs Egbuaba (2019) LPELR 46526 SC;

Biariko & Ors Vs Edeh-Ogwuile & Ors (2001) LPELR – 779 SC; Customary Court of Appeal Edo State Vs Aguele & Ors (2017) LPELR – 44632 SC Nze Vs Aribe (2016) LPELR – 40617 CA.

Exhibit C was tendered as the document evidencing the partition of the late Stephen Akwaiwu landed property and the document prepared on 21/1/2012 speaks for itself showing how the property of late Stephen Akwaiwu was shared for his children including the land in dispute Ala Ulo Church (or Ala Akenkwo) where the Arbitrators stated (on page 5 of the document):
“Decision of Arbitration Committee on the land called “Ala Ulo Church”
1) The committee decided that all the children of Mr. Stephen Akwaiwu must get a portion of the land because the land was first obtained by their father Mr. Stephen Akwaiwu.
2) Any of the Children of Mr. Stephen Akwaiwu that had built on the land will take the portion were (sic) he built as his own.
3) Mr. Joseph Akwaiwu should take the area he built his house as his portion.
4) Miss Catherine Akwaiwu should take the portion she built house.
5) The area Elias Akwaiwu built his

house should be his portion
6) The remaining part of the land should be divided for Mr. Paul Akwaiwu, Charles Akwaiwu and Maxwell Akwaiwu. The land was measured with tape from left side of the land, the committee measured out 28ft on the road side as width and length 35ft middle 28ft width 35ft length. On the right side 28ft, 39ft, length.
Collection
1) Mr. Paul Akwaiwu was asked to collect. He collected the right side of the land, measuring 28ft width and 39ft length.
2) Mr. Charles Akwaiwu was asked to collect. He collected the middle measuring 28ft width and 35ft length.
3) Mr. Maxwell Akwaiwu collected the left side of the Ulo Church land, measuring 28ft width and 35ft length.” (See pages 240 – 241 of the Records)

The other landed property of late Stephen Akwaiwu were also shared by the Arbitration Committee for his children. See pages 236 to 242 of the Records of Appeal.

It is noteworthy that on page 242 of the Records, the Arbitration Committee had some words of advice for Mr. Paul Akwaiwu, by calling on Chief Ewurum (PW4) to advise him:
“Mr. Pascal Okeihe directed Chief Ewurum to advice the

family. Chief Ewurum asked Mr. Paul Akwaiwu to listen to him with two ears open. He told Paul to tell his children the truth concerning the land all of them are living, as at now (called Ala Ulo Church in Umuduru, homa). He asked him to tell his children about his life and his brothers and sisters assisted him to be a man. Chief Ewurum directed Paul Akwaiwu to maintain peace with his brothers, as his father Akwaiwu did. Chief Ewurum advised him to teach his sons the need to respect elders, especially those of his brothers. That he should tell his son to stop challenging his brothers…”

The names of the arbitrators and their signatures, were carried on the said Exhibit C (page 242 of the Records).

However, the DW3 (2nd Appellant) had insisted on the literal interpretation of the Exhibit F1 and F2, which stated that the land Ala Okenkwo, was sold by Benjamin Amadi to Paul Akwaiwu on 27/3/82 for N600.00 in the presence of witnesses – Benjamin Amadi’s brother (Raymond) and Paul Akwaiwu’s brothers.

But evidence was led to show how the sale transaction came about and how the parties allowed the names of their heads of

families (first sons of Amadi and Akwaiwu) to be used for the sale transaction as ‘seller’ and ‘buyer’ respectively. The evidence was clear that the land was Amadi’s family land pledged to Stephen Akwaiwu which was later in dispute between Amadi’s children and Stephens children and Amadi children threaten to throw out the Stephen children (who had built on the land). But mediation and settlement were made spearheaded by PW4 (Chief Ewurum) and Amadi’s children opted to sell the land out rightly to the family of late Stephen (whose corpse had been buried on that land). The money (N600.00), was produced by Joseph Akwaiwu and given to Charles who gave it to Paul (the 1st Son of Stephen) to pay to Benjamin (the first son of Amadi). PW3 (Raymond) had explained that the sale was done by his family to the family of the Respondents and 1st Appellant after negotiations and the settlement of their disputes. The PW4 corroborated the evidence of the PW2, PW3 and of PW5.

There was abundant evidence that the said land Ala Okenkwo (Ala Ulo Church) had been used as Stephen Akwaiwu family land right from when it was on

pledge to when it was purchased by the family, using the name of the 1st Appellant; that Stephen Akwaiwu was buried on that land; that Joseph Akwaiwu had built on the land in 1980 and Cathrine Akwaiwu built on the land too in 1980; and Elias had built 2 storey house in 2004, Charles built in the 1980’s – See even the evidence (affidavit) of DW3 on page 21 of the Records – where he acknowledged that the Respondents had their personal buildings on the land and had built with the consent of his father (the 1st Appellant!).

With such clear evidence and admissions, I think it was fraudulent for the Appellants (particularly 2nd Appellant) to insist that because the Exhibit F1 and F2 showed the name of 1st Appellant (Paul Akwaiwu) as the “buyer” of the Ala Okenkwo, the Land exclusively belonged to them (Appellants) to the exclusion of the Respondents and that the land ceased to be a family land!

there is no element of fraud, misrepresentation, mischief and illegality, linked to the document or the use of same. See the cases of Ogundele & Anor. Vs. Agiri & Anor. (2009) LPELR – 2328 (SC); UBN Ltd. Vs. Ozigi (1994) LPELR – 3389 (SC). In Madu Vs. Madu (2008) 6 NWLR (Pt. 1083) 296 at 324, the Supreme Court held on the place of documentary evidence, that oral evidence cannot supplant it:
“Oral evidence cannot be used to contradict contents of documentary evidence. In the instant case, any oral evidence by the respondent or relied by the Court of Appeal to show that the land in dispute belonged to any person other than the Appellant is inadmissible, as it amounts to using oral evidence to contradict contents of documentary evidence.”
See also the case of Uma Vs. Oke (2020) LPELR – 50131 (CA); Lewis Vs. Uba 2016 LPELR – 40661 SC.
However, that same case of Madu Vs. Madu (Supra) also appreciates a situation, where a purchase of property is made in the name of another person(s) and holds that:
“The Court will impel or presume a situation, where a purchase of property is made in the name of

another, that that other holds the property for the benefit of the person who advanced money for the purchase of the property. The law, in such a situation, presumes that the intention was that the property should be held on trust by the third party transferee. I may go further to say that the same principle also applies, where the purchase money was provided, partly by the person to whom the property is transferred and partly by another or others. In such cases, the transferee holds the property in trust for all the persons who contributed to paying for it with, each having beneficial interest proportionate to the amount of purchase money he advanced.” Per Aderemi JSC.
My Lord, Aderemi, JSC had alluded in the above case to even the common law system in circumstances when a resulting trust would arise when he said:
“In the well-known case of Westdeutsche Landesbank Girozentrale Vs. Islington London Borough Council (1996) 2 AER, 961 Lord Browne – Wilkinson, sitting in the House of Lords, identified two sets of circumstances when a ‘RESULTING TRUST’ arises …
(a) where A makes a voluntary payment to or pays

(wholly or in part) for the purchase of property, which is vested either in B alone or in joint names of A and B, there is a presumption that A did not intend to make a gift to B; the money or property is held on trust for A (if he is sole provider of the money) or in the case of a joint purchase by A and B, in shares proportionate to their contributions.
(b) Where A transferred property to B on express trusts, but the trusts declared do not exhaust the whole beneficial interest.”
Going by the above decision of the House of Lords by which I am persuaded, both types of “Resulting Trust are based on solely the presumed intention to the settler. It therefore follows that where the settler has expressly or by necessary implication abandoned any beneficial interest in the trust, property, there is no resulting trust the indisposed or equitable interest in the property vests in our country in the state as Bona Vacantia. See In Re: WEST SUSSEX CONSTABULARY’S WINDOWS, CHILDREN AND 1971 CH.1.” (1930) FUND TRUST.
I think, in this case, where there is ample evidence that the land in contention, Ala Okenkwo (or Ala Ulo Church), had

been a family land, wherein the late father of the parties was buried and the parties (members of the family) built their separate dwelling houses even before and after the land (which was on pledge) was bought out rightly from the pledgor family, by the pledgee family, and where there was clear evidence of consent that the names of the first son of the pledgor and pledgee be used in drafting the sale agreement of the land, and the persons whose names were used have not refuted that evidence but rather took part in the partition of the family lands, including the said Ala Okenkwo or Ala Ulo Church land, the presumption remains strong that the 1st Appellant (Paul Akwaiwu) knew and admitted that his name was donated to the land transaction as “buyer”, on behalf of the family, to hold the land in trust for the family of Stephen Akwaiwu – 1st to 5th Respondents and himself, who took active part in negotiating with the Amadi family to buy the land and the 1st Respondent (Joseph) had provided the money (N600.00), on behalf of the family to pay for the said land. See Section 128(1)(a) of the Evidence Act, 2011 which proviso is to the effect

that oral evidence may be allowed/adduced where there is allegation of:
“fraud, intimidation, illegality, want of execution… existence or want or failure of consideration, mistake in fact or law; want of capacity in any contracting party or the capacity in which a contracting party acted when it is not consistent with the terms of the contract, or any other matter which, if proved would produce any effect upon the validity of any document or of any part, or would entitle any person to any judgment, decree, or order relating to it.”

The evidence on this point at the trial Court appeared strong and consistent, PW2 (Joseph) had told the trial Court:
“In 2012, we called our brother Paul that we should share our land and he said we should call our maternal sons and our kinsmen, and they share the land, the 1st defendant was also around when the land was shared, when they shared it, everybody was happy and no one objected and we thanked the 1st defendant in the sharing, the 1st defendant got the Ishi-obi and also the Ihu. In the cause (sic) of sharing, Ala Okengwu and Ala Ulo Church (sic) said the place already developed

belongs to the person who developed it and the area not yet built, those who have not built should take it. The people that built are myself, Elias, Cathrine (my senior sister). I erected around 6 bedrooms bungalow, Cathrine built 6 room bungalow I built my house in 1980, Cathrine built in 1980, and there was no objection and Elias built 2 storey building of 32 rooms, there was no objection… Originally my father Stephen Akwaiwu got the land from Amadi… when Raymond Amadi came from Amadi and sued my senior brother Paul, claiming title to the land, even though we had developed it, and subsequently I gave Paul money to join issues with him at Eze’s Palace; from there Chief Iwuala John Ewurum withdraw the case for settlement and we all agreed to call Raymond and settle and as brother that works with one mind; we asked them to use the name of our senior brother to write he agreement, we agreed and gave Raymond N600.00 and I brought the money and gave to Charly. I was not at home and we work as one and same brother. When our maternal sons were sharing Ala Nkwu, Paul did not raise any objection to it. The 2nd defendant is in possession of the

receipt. In the course of sharing the land, I asked what of the money I brought, the N600.00, and they said that the land is our family inheritance, I never recovered the money up till now…” (See page 127 of the Records).

The PW3 (Raymond Amadi), who troubled the Akwaiwu family and dragged them to the Eze’s Palace to recover the land) said:
“… I know the land, it is my land because the land is on pledge to the parties father called Stephen. I was not at home and my Senior brother is in North. After the Pledge, Stephen Akwaiwu, father of the parties, entered the land, all built in the land. When he sneaked into the land and started building my mother went and reported to the village people… I came back from Ghana in 1970 and in 1973 I went about the land and sued them at Eze Umunnawuike 1 of Atta, by that time, the father of the parties had died and all of them, their children booed at me, that if I die, who will care of me and I told them that I will win them in the case an uproot the fathers corpse to his place Umuezeala … Thus they came with one Chief J.I. Ewurum, pleading with me, those that came

include the 2nd plaintiff, 1st defendant and others. At that time they have built houses, the 1st plaintiff was working in an oil company … when they came to sue for peace, I carried the matter to my senior brother, Benjamin and he accepted and he told them N600.00 around 1983 and I left it for them and I told him to use his name for the land receipt. The person that gave the money is Charly, because I am sure it is Joseph that gave Charly the money. We gave them receipt and they called me to come and sign, they called their senior brother (1st defendant) John Ewurum, myself, Elias, Uzoma, Felix, Benjamin Amadi, Paul, all the signatories and I told them that they will bring goat for us to give to my kinsmen, which they later brought. Samuel Uriewuji (late) prepared the document. I allowed the 1st defendant to sign because he is the 1st son as a result of respect for him…” pages 133 – 134 of the Records.

The above evidence was corroborated by PW4 (Chief John 1 Ewurum) who helped to negotiate the settlement of the dispute between the Amadis and the Akwaiwu’s, and also played a noble role in the partition of the landed

properties of Stephen Akwaiwu for his children – 1st to 5th Respondents and the 1st Appellant. He said:
“…We decided that they should give Amadi family the sum of N600.00 and they went inside and brought N600.00 and gave them on that day it was 1st defendant that gave the money to Benjamin and they went in with the money, the people that conferred in the room are the Akwaiwu’s and his brother. I don’t know precisely the person that brought the money…
Apart from this, there was a time they had conflict, they invited me and others and we agreed that instead of the problem they should go and share their land and I was there; they came and came back and told me they have shared it. Paul was present when the sharing was made; when they came back and the 2nd defendant objected to the sharing of the land; the 2nd defendant is Williams the son of the 1st defendant. Later they wrote the document of the sharing but I did not sign because I am blind…” See page 136 of the Records.

Under cross-examination, PW4 said about 1st Appellant’s role in the partition:
Paul personally came and inform me,

and the maternal sons were there, and I told them that I cannot follow you to the bush, because I don’t see…” (page 137 of the Records).

PW5 (Felix Anyanwu, Cousin of the parties – (1st to 5th Respondents and 1st Appellant) said:
“… I know Ala Okwukwu or Ala Ulo Church. I was one of the signatories to the land agreement and the parties are Raymond Amadi and Joseph Akwaiwu… We decided to withdraw the matter with the help of Chief Ewurum and we agreed to pay them N600.00 and it is the 1st Plaintiff that brought the money and gave the money to Charles Akwaiwu, who gave it to Paul and he gave it to Raymond Amadi and they told him to give it to their 1st son Benjamin Amadi and they used the name of the 1st sons to make the agreement which they signed. The 1st Plaintiff brought the money because he worked in an oil company in Port Harcourt…” See page 138 of the Records.

The DW3 (2nd Appellant) appeared to be the alter ego of their case, as his father (1st Appellant) did not give evidence, to deny the weighty evidence on his role in the partition of the land (Exhibit C) and the fact that the N600.00

paid by him to buy the Ala Okenkwo land, came from Joseph (the 1st Respondent) who paid on behalf of the Akwaiwu family, the land having remained their family land before the outright purchase and even thereafter. The strong point of the evidence of DW3 was he did not give consent for the partition of the land of his grandfather and that the land was bought by his father. He relied on the Exhibits F1 and F2, dated 27/3/83 which stated, thus:
“This land agreement is between Mr. Benjamin Amadi of Umuduruiho and Mr. Paul Akwaiwu of Ikeduru. This land has been sold by Mr. Benjamin Amadi to Mr. Paul Akwaiwu at the sum of Six Hundred Naira (N600.00) which was paid at the spot by the buyer, Mr. Paul Akwaiwu. The land is irredeemable (i.e. not to be redeemed). The land is known as Ala-Okenkwo.”

It was thumb printed by Mr. Benjamin Amadi (as seller), and signed by Mr. Paul Akawiwu (as buyer) with witnesses, including the Dr. B.E. Amadi (PW3), Mr. J.I. Ewurum (PW4), Felix Anyanwu (PW5), Mr. Elias, Uzoma and the writer, Samuel Urewuji O. (See page 248 of the Record of Appeal).

It appears the DW3, greatly, banked on the above receipt, evidencing

payment for the land, and may have been misled to think that such a document will be considered strictly in the favour of Appellants, despite their dishonest or immoral exclusive claim to the land, and without recourse to the surrounding history of how the land evolved, and the indisputable evidence of how the purchase of the land was negotiated by the family and purchased by the Respondents and his father (1st Appellant) and how PW2 produced the money (N600.00) with which the 1st Appellant used in paying the “seller”.

The facts that the land had always been used as family land, and the Respondents had built their houses on the land in 1980 (before the outright sale of same in 1983), and that even after the sale and purchase in the names of the 1st sons of the “Seller” and ‘buyer’, the land remained the family property, and was part of the lands partitioned for the family members (who were allowed to retain the portions they built on), and the same 1st Appellant (the “buyer”) playing leading role in the partitioning of the landed property, were in my view, clear enough evidence to show that the said Paul

Akwaiwu (1st Appellant) was holding the title of ‘buyer’ of the land for himself and the other members of the Akwaiwu family – 1st to 5th Respondents (See Madu Vs Madu Supra).

The Appellants were therefore acting in mischief, with clear moral turpitude by trying to deny the other family members their right to their buildings and portions in the land, trying to ride on the crest of “letters of the law” (Exhibits F1 & F2) denying the “the spirit of the law” (clearly exhibited in the history of the land and the conduct of the 1st Appellant in the land saga). The 2nd Appellant (DW3) appeared to be a wrong and negative influence in the family, who would not heed the counsel of the elders, who had in 2012, warned his father, in the Exhibit C, – the partition document!

As stated by the lower Court, I agree that DW3 (2nd Appellant) was of no consequence in the decision of his father and uncles (1st to 5th Respondents) to share and partition his grandfather’s property, as long as his father was still alive, and took part in the sharing. He was not a principal member of the family and had no consent to

give for the partition. I therefore see no merit in this appeal and dismiss it with cost assessed at Five Hundred Thousand (N500.000.00) payable to the Respondents by the Appellants.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: Having read in draft the judgment just delivered by my learned brother HON. JUSTICE ITA GEORGE MBABA, JCA, I agree in toto with his reasoning and conclusion that this appeal lacks merit and is hereby dismissed by me.
I abide by the order as to cost.

Appearances:

KEN. UZOECHIFor Appellant(s)

E. OKODOGBE, with him, M. O. EZIKEFor Respondent(s)

Appearances:

KEN. UZOECHI For Appellant(s)

E. OKODOGBE, with him, M. O. EZIKE For Respondent(s)