ALHAJI SALAWU LADOKUN ISHOLA v. DAUDA OYELAKIN & ANOR. (2011)

ALHAJI SALAWU LADOKUN ISHOLA v. DAUDA OYELAKIN & ANOR.

(2011)LCN/4970(CA)

In The Court of Appeal of Nigeria

On Thursday, the 8th day of December, 2011

CA/I/69/92

RATIO

DECLARATION OF TITLE TO LAND: DUTY OF THE COURT TO ENSURE THAT THE LAND IS PROPERLY DEFINED AND ASCERTAINED TO LAND; THE BEST WAY OF ASCERTAINING THE EXACT BOUNDARIES OF THE LAND IN DISPUTE

TITLE TO LAND: WAYS BY WHICH TITLE TO LAND CAN BE PROVED

… there are five ways by which title to land can be proved. They are as follows – 1. By traditional evidence; 2. By production of documents of title which must be duly authenticated; 3. By acts of long possession or enjoyment of the land; 4. By acts of the person claiming the land such as selling, leasing, renting, farming provided such acts are positive and extend over a sufficiently long period of time as to indicate ownership. 5. By proof of possession of connected or adjacent land. There is a plethora of case law on this subject matter. See IDUNDUN V. OKUMAGBA (1976) 10 NSCC 445; (1976) 9 – 10 SC 227; (1976) 1 ALL NLR 200; (1976) NMLR 200 at 210-211. This is an authority that has gained notoriety in our courts. See also EWO V. ANI (2004) 1 SCNJ 272 at 280-281; NNEJI V. NWANKWO (1996) 12 SCNJ 388 at 397; UKA V. IROLO (2002) 7 SCNJ 137 at 160 – 161. PER STANLEY SHENKO ALAGOA, J.C.A.

ASCERTAINMENT OF LAND IN DISPUTE: ESSENCE OF THE ASCERTAINMENT OF THE LAND IN DISPUTE

Indeed the ascertainment of the land in dispute which is the duty of the Plaintiffs is so vital that a claim for declaration of title to land must fail in the absence of such proper ascertainment. See ADEOSUN V. JIBESIN (2001) 11 NWLR (PART 724) 190 at 302; EZENDU v. OBIAGWU (1986) 2 NWLR (PART 21) 208 at 220. PER STANLEY SHENKO ALAGOA, J.C.A.

BURDEN OF PROOF: ON WHOM RESTS THE BURDEN OF PROOF IN A CLAIM FOR TITLE TO LAND; WHETHER THE PLAINTIFF MUST RELY ON THE STRENGTH OF HIS CASE TO SUCCEED AND NOT ON THE WEAKNESS OF THE DEFENCE

JUSTICES

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

OFR Justice of The Court of Appeal of Nigeria

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

Between

ALHAJI SALAWU LADOKUN ISHOLA Appellant(s)

AND

1. DAUDA OYELAKIN
2. LAMIDI YUSUF ADEGBITE Respondent(s)

STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment): In the High Court of Justice Ibadan, Oyo State of Nigeria, the present Respondents as Plaintiffs by their Further Amended Statement of Claim dated the 7th March 1998 claimed against the Appellant as Defendant as follows –
(i) A declaration of title to a Statutory Right of occupancy in accordance with the Land use Act No. 6 0f 1978 to all that piece or parcel of land known as Akobielemu family land situate and being at Podo Village in Oluyole Local Government Area, Ibadan, Oyo State.
(ii) N2,000.00 (Two thousand Naira) General Damages for the acts of trespass being committed by him his servants and or agents on the said landed property which has always been in physical possession of the Plaintiffs’ family. The acts of trespass which is still on started early in 1985.
(iii) Perpetual injunction restraining the Defendant, his servants and or agents from further acts of trespass on the said land. The annual rented value of the said land is about N250.00k.
An order pursuant to the then Plaintiffs’ motion of the 6th May 1986 was granted by the High Court on the 2nd May 1986 permitting the then Plaintiffs’ Surveyor to carry out a survey plan of the land in dispute without hindrance from the then Defendants.
In response to the plaintiffs’ pleadings, the present Appellant as Defendant filed an Amended Statement of Defence dated the 26th January 1989 which elicited the filing by the present Respondents then Plaintiffs of the reply to the Amended Statement of Defence dated the 6th March 1989. The Plaintiffs in the court below called 7 witnesses in substantiation of their claim to the land in dispute while the Defendant (now Appellant) also called 7 witnesses. It is perhaps pertinent to state that learned Counsel for the Defendant (now Appellant) Adebisi Kowe Esq. discontinued with DW3 Ibrahim Akanji Yessuf. A total of five exhibits as follows were tendered in evidence by both sides and admitted by the court below viz –

Exhibit “A” – Certified true copy of Deed of Conveyance dated 20th December 1974 tendered by PW1 Chief Lanlehin;

Exhibit “B” Survey plan No.KESH/Y/18765 dated 2nd June 1986 tendered by Alhaji Yekini Olayiwola Keshinro, a Surveyor and 2nd plaintiff’s witness;

Exhibit “C” Plan No. PAS/OY/29 of the 15th November 1986 was tendered by DW1 a licensed Surveyor by name Chief Olufemi Ilori;

Exhibit “D” Police Station Diary with particular reference to entry made and relating to this case dated 5th April 1973 was tendered by DW2 Sergeant Phillips Ojugbeli on subpoena.

Exhibit “E’ is a receipt dated 27th June 1967.

What can be culled from the pleadings of the parties and the evidence adduced on both sides is the ownership of one and the same piece of land verged red in Plan No. KESH/Y/18765 dated the 2nd June 1986, tendered by the then Plaintiffs and admitted as Exhibit “B” and a counter plan No. PAS/OY/29 dated the 25th November 1986 also verged red which was tendered by the then Defendant (now Appellant) as Exhibit “C”. What appears to be in issue is not the identity of the land which is not in dispute but who owns the said piece of land verged red in both Exhibits “B” and “C”. Evidence having been concluded and addresses of Counsel taken, the learned trial Judge S. A. Oloko in his judgment delivered on the 30th June 1989 ruled in favour of the then Plaintiffs (now Respondents) in these terms –
“In the circumstances I hereby enter judgment in favour of the Plaintiffs as follows:
(i) Declaration of Title to a Statutory Right of Occupancy in accordance with the Land Use Act No. 6 of 1978 to all , that, piece or parcel of land known as AKOBIELEMU FAMILY AND situate and being at Podo Village and more particularly delineated RED in Plan No.KESH/Y/18765 dated 2nd June 1986.
(ii) N200.00 damages for trespass committed on the said piece of land around 1985.
(iii) Perpetual injunction restraining the Defendant, his servants and or agents from further acts of trespass on the said land.
(iv) N2,000.00 awarded to the Plaintiffs including out of pocket expenses.”
It is this judgment that is the subject matter of this appeal in respect of which the aggrieved Defendant as Appellant filed a Notice of Appeal dated 30th June 1989 contained at page 101 of the Record of Appeal which consists of the following Grounds of Appeal –
(i) The decision is against the weight of evidence.
(ii) Further Grounds of Appeal shall be filed on receipt of the record proceedings.

RELIEF SOUGHT FROM THE COURT OF APPEAL –
To set aside the judgment of the lower court and enter judgment for the Defendants.
By a motion on notice brought pursuant to Order 3 Rule 4(1) and Rule 16 of the then Court of Appeal Rules 2002 and the inherent jurisdiction of this court dated the 28th February 2007 and filed on the 16th March 2007, the Appellant as Applicant sought for an order inter alia to amend his notice of appeal by an addition of other Grounds of Appeal attached as “Exhibit A.” This application was moved and granted by this Court on the 19th April 2007 and the amended notice of appeal dated the 19th April 2007 and filed on the 23rd April 2007 became operative. It consists of ten Grounds of Appeal listed hereunder shorn of particulars –
GROUNDS OF APPEAL:
1. The decision is against the weight of evidence.
2. The learned trial Judge misconceived the issue raised on the pleadings of the parties and on the evidence and thereby came to a wrong decision in the matter.
3. The learned trial Judge instead of resolving the conflicting issues preferred to base his Judgment on the ability of the Appellant’s Ancestor to found a separate Compound at Ibadan, which was not an issue on the pleadings and thereby came to a wrong decision in the matter.
4. The learned trial Judge erred in law for non-discretion of essential issues as canvassed on the pleadings, the oral and documentary evidence and thereby came to a wrong decision in the matter.
5. The learned trial Judge erred in Law when he entered Judgment in the suit in favour of the Respondents in respect of the land in dispute when they failed to prove their case as pleaded.
6. The learned trial Judge erred in law in awarding Damages for trespass against the Appellant when the issue of who was in possession was not adequately appraised and evaluated by him.
7. The learned trial Judge although referred to the cases of (1) J. AKINOIA & ANOR VS. FATOYINBO OLUWO & 2 ORS (1962) WNLR 133 AT 134;
(2) CHIEF EBENEZER AWOTE & ORS VS. KADIRI OWODUNNI & ANOR (1987) 2 NWLR (PART 57) PAGE 366 AT 365 to support the judgment in favour of the Respondents erred in law for non-direction in failing to use the same yardstick of evidence of one MR. OYELAKIN AMOO a relation of the Respondents who gave evidence for the Appellant in the court below and thereby came to a wrong decision in the matter.
8. Having pleaded that they give one OJO OLOYI the land in dispute and that the said OJO OLOYI died childless and upon which the Appellant pleaded that OJO OLOYI was their relative and died survived by a son LAMIDI ADIGUN, the learned trial Judge misdirected himself in law when he held the Respondents were entitled to the land in dispute being in exclusive possession and therefore came to a wrong decision in the matter.
9. The learned trial Judge erred in law when he held
“The evidence of the only boundary man called by the Defendant 5th D/witness YUSUF AIAGBE from Agodi family does not improve the Defendant’s Case. He admits that Agodi family form boundary with the Land in dispute as well as AKOBIELEMU farmland”.
Under cross-examination this witness volunteered answers which clearly supported Plaintiff Claim.
“AKOBIELEMU owns land on the left and right of Odo-Ona River. I do not know the boundaries of the land in dispute besides Odo-Ona River.”
Page 96 lines 26-35.
10. The learned trial Judge erred in law when he held:
“Let me say at this Juncture that I am highly impressed by the traditional history of the plaintiffs as to settlement on the land and I prefer their traditional history to that of the Defendant. My preference of the traditional history of the plaintiffs to that of the Defendant is buttressed by the fact that it looks strange that ABAYODE, if he were a great Warrior as claimed by his descendants particularly the Defendant, one would expect him to found his own separate Compound as was given in evidence in the case of Agodi family another Warrior. In other words the fact that ABAYODE had no separate Compound of his own does not lend credence to his claim of being a Warrior.

Of the ten Grounds of Appeal contained in the Appellants’ amended notice of appeal, the following five issues were distilled for the determination by this court in the Appellant’s brief of argument dated the 31st August 2007, filed on the 2nd November 2007 but deemed properly filed and served on the Respondents on the 8th May 2008. The said issues for determination which are contained in paragraph 3.00 at pages 3 and 4 of the Appellant’s brief of argument are stated hereunder as follows –
(1) Whether the approach of the trial court in adjudicating the case did not amount to casting the onus of proof on the Defendant instead of the Plaintiffs and therefore runs contrary to the principles enshrined in (a) KAIYEOJA V. EGUNLA (1974) 1 All NLR (PART 2) page 426 at 431 per Ibekwe JSC. (b) KODILINYE V. ODU (1935) 2 WACA 336 or 337.
(2) Whether the traditional history relied upon by the Plaintiffs in proof of the title to the land in dispute was discharged.
(3) Whether the approach of the learned trial Judge in writing his judgment did not occasion a miscarriage of justice in that-
(a) Raising an issue SUO MOTU as to non-founding of a compound by the Defendant’s ancestors which did not arise on the pleadings.
(b) Whether the entire judgment showed a dispassionate review of the issues raised by the parties.
(4) Whether on the pleadings and evidence led at the trial court the Respondents are entitled to judgment in respect of the land in dispute as granted them by the trial court.
(5) Whether the Respondents proved in the trial court the exclusive possession of the land in dispute as to warrant their being entitled to a declaration of title to the land in dispute and their being granted damages for trespass.

The Respondents on their part distilled a single issue for determination by this court. The issue is contained at page 3 of the Respondents’ brief of argument dated the 6th October 2009, filed on the 7th October 2009 and deemed properly filed and served on the appellant on the 19th October 2009 following the grant by this court of an application dated the 28th February 2007 and filed on the 16th March 2007 to file the said brief out of time and to deem the brief which had already been filed and served on the appellant as properly so filed and served. The sole issue is whether the respondents have proved their case to be entiled to judgment in this case.
On the 12th October 2011, this appeal came up for hearing. Counsel for the parties – H. U. Lanse for the Appellant and G. A. Sunmonu for the Respondents adopted and relied on their respective briefs of argument. Mr. Lanse urged us to allow the appeal while Mr. Sunmonu urged us to dismiss same and affirm the judgment of the trial High Court. I have carefully considered the issues formulated on both sides and I think this appeal can be heard and determined on the sole issue formulated by the Respondents which is whether the Respondents have proved their case to be entitled to judgment, interestingly, this singular issue is the same with issues 2, 4 and 5 distilled by the Appellant which are unnecessarily repetitive of one another, For the avoidance of doubt the said issues are as follows –

Issue 2 – whether the traditional history relied upon by the plaintiffs in proof of the title to the land in dispute was discharged.

Issue 4 – whether on the pleadings and evidence led at the trial court the Respondents are entitled to judgment in respect of the land in dispute as granted them by the trial court.

Issue 5 – whether the Respondents proved in the trial court the exclusive possession of the land in dispute as to warrant their being entitled to a declaration of title to the land in dispute and their being granted damages for trespass.

The Supreme Court has constantly and consistently frowned at the unnecessary proliferation of issues by counsel when it is clear that an appeal can be determined on fewer issues. In this case there is no doubt that the Appellant and Respondents are referring to one and the same piece of land verged red in both the Respondents’ plan – exhibit “B” and the Appellant’s plan exhibit “C”. The only issue is and ought to be who by the pleadings and evidence led is entitled to exclusive possession of the area verged red in both exhibits “B” and “C”? Any other issue formulated is tantamount to a surplusage.

It must be stated at the outset that in a claim for declaration of title to land the first duty of a court is to make sure that the land is properly defined and ascertained. See ODUNZE V. NWOSU (2007) 13 NWLR (PART 1050) 1 at 31; (2007) ALL FWLR (PART 379) 1295. For this purpose a plan prepared by a licensed surveyor with proper boundaries is usually the best bet. See DADA v. DOSUNMU (2006) 50 WRN 1; (2006) 18 NWLR (PART 1010) 134. Happily in the present case the identity of the land in dispute is not in doubt. Alhaji Yekini Olayiwola Keshinro, a Licensed Surveyor testified as PW2 that in 1986 some members of the Plaintiffs (now Respondents) family asked him to carry out a survey of the land in dispute which he did and produced a plan No. KESH/Y/18765 dated 2nd June 1986 which was tendered in evidence and admitted as Exhibit “B”. In the same vein DW1 Chief Olufemi Ilori a licensed surveyor prepared a plan No. PAS/OY/29 dated the 25th November 1986 on behalf of the Defendant (now Appellant) which was tendered in evidence and admitted as exhibit “C”. In both exhibits “B” and “C” the land the subject matter of this action is verged red and DW1 confirmed that the two plans exhibits “B” and “C” are the same. The next and crucial question is who owns the land in question? The learned trial Judge appreciated the position when in his judgment at page 94 of the records he stated as follows,
“The area that is being claimed by both parties are not in issue and are therefore identical. What is in issue is “Who owns the area verged ‘RED’ either in exhibit “B” or in exhibit “C”? Or in other words, who was in exclusive possession of the said area marked ‘RED’ in exhibit “B” or “C” before the promulgation of the Land Use Decree (now Act) in March 1978?”
Indeed the ascertainment of the land in dispute which is the duty of the Plaintiffs is so vital that a claim for declaration of title to land must fail in the absence of such proper ascertainment. See ADEOSUN V. JIBESIN (2001) 11 NWLR (PART 724) 190 at 302; EZENDU v. OBIAGWU (1986) 2 NWLR (PART 21) 208 at 220. Having said this there are five ways by which title to land can be proved. They are as follows –
1. By traditional evidence;
2. By production of documents of title which must be duly authenticated;
3. By acts of long possession or enjoyment of the land;
4. By acts of the person claiming the land such as selling, leasing, renting, farming provided such acts are positive and extend over a sufficiently long period of time as to indicate ownership.
5. By proof of possession of connected or adjacent land.
There is a plethora of case law on this subject matter. See IDUNDUN V. OKUMAGBA (1976) 10 NSCC 445; (1976) 9 – 10 SC 227; (1976) 1 ALL NLR 200; (1976) NMLR 200 at 210-211. This is an authority that has gained notoriety in our courts. See also EWO V. ANI (2004) 1 SCNJ 272 at 280-281; NNEJI V. NWANKWO (1996) 12 SCNJ 388 at 397; UKA V. IROLO (2002) 7 SCNJ 137 at 160 – 161.

Proof of title to land rests squarely on the shoulders of the Plaintiff who, it is trite, must rely on the strength of his case to succeed and not on the weakness of the defence. The Plaintiff must therefore satisfy the court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought. See the following cases where this principle of law was amply enunciated ELIAS V. OMO-BARE (1982) 5 SC 25 at 57; (1982) 1 All NLR 70; (1982) 5 SCNJ 25; (1982) NSCC 92; AKINOLA V. OLUWO (1962) 1 ALL NLR 224; ALIMI AKANBI DADA V. CHIEF JOBATHAN DOSUMU (2006) 9 SC 12 where the Supreme Court held as follows,
“It is settled law which law has acquired notoriety that in a claim for declaration of title to land, the onus is on the Plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the Defendant.”
It must however be made clear that where the weakness in the case of the defence supports the case for the Plaintiff, such Plaintiff cannot be prevented from using same in aid of his case. See CHIEF AWOTE & ORS V. AWODUNNI & ANOR (1987) 2 NWLR (PART 17) 366 at 368.
As had been earlier noted, one of the ways of establishing ownership of land is by traditional evidence or traditional history. The learned trial Judge in his judgment at page 94 of the record of appeal had stated thus on this subject matter of traditional history,
“Let me say at this juncture that I am highly impressed by the traditional history of the Plaintiffs as to settlement on the land in dispute and I prefer their traditional history to that of the defendant.”
The Defendant (now Appellant) has submitted at page 12 paragraph 7.02 Appellant’s brief of argument that the pleadings in paragraphs 7 and 8 of the Respondents’ further amended statement of claim fell short of the requirements of the law relating to proof of title to land by traditional history and has relied on the following authorities –
AKINLOYE V. EYIYOLA (1968) NMLR 92;
ELIAS V. OMOBARE (1982) 5 SC 25;
MOGAJI V. CADBURY (NIG.) LTD. (1985) 2 NWLR (PART 7) 393
OWOADE V. OMITOLA (1988) 2 NWLR (PART 77) 413
It is instructive to reproduce those paragraphs of the respondents’ further amended statement of claim –
PARAGRAPH 7 – The land in dispute is part of a large piece or parcel of land upon which Banjoko Akobielemu settled after the inter tribal wars many centuries ago. It is situate and being at Podo Village on Ibadan to Ijebu Ode Road and it is shown on Survey Plan No. KESH/Y/18765 dated 2nd June 1986 attached to this further amended statement of claim. The boundaries of the land in dispute are:-
(a) On first side by Akobielemu family land adjacent to Odo-Ona stream being cultivated by Latinwo Akano a member of Akobielemu family.
(b) On second side Akobielemu family land sold to Mr. A. F. O. Lanlehin for which a deed of conveyance Reg. 38/38/1666 was executed in his favour. Plaintiff pleads the said Conveyance.
(c) And on the third side by Akobielemu family land granted to Kasumu for farming.
(d) On fourth side by Akobielemu family land granted to Yesufu Hassan through his father Hassan who was related to Akobielemu family through his mother Oyenike. It was Hassan who granted Owolabi permission to cultivate cash crops on part of the land. On the death of Hassan, Yesufu Hassan took over the land absolutely.

Paragraph 8 – The land in dispute was originally granted to one Ojo one of the children of Aboyade through the influence of Kasumu a relation of Akobielemu.

Appellant further submitted that there is no history of how the Respondents came to own the land. But is this borne out by the evidence of the Respondents and their witnesses? One Chief Folarin Lanlehin was the first witness for the Respondents as Plaintiffs in the court below, His evidence is that about 1974 he bought a piece of land from the Respondents for which he tendered exhibit “A” a deed of conveyance in respect of the transaction. His further evidence was that he had never been disturbed since his purchase of the land which forms boundary with the land in dispute. PW3 one Latinwo Akano’s evidence is that the Appellant is a descendant of Aboyade and like his ancestor Aboyade, the defendant/appellant lived at the Respondents’ Akobielemu’s family land and never stepped unto the land in dispute during the lifetime of his ancestor Adewale who had died twenty-five years previously and the Appellant’s trespass on the land in dispute commenced some four years before he was called to give evidence in the case. Another witness for the Respondents Adetunji Ajadi’s evidence is that he had been farming on the land without any disturbance for a period of forty years and had been paying customary gifts to persons including the 1st Plaintiff and had to stop some four years before his testimony when he was challenged by the Appellant which challenge he reported to the Respondents’ family. One Shittu Kasumu testifying for the Respondents as PW6 in the court below stated that his father Kasumu got a grant of land near Podo from the Respondents Akobielemu family. He further testified that this land is adjacent to the land sold to Lanlehin by Akobielernu family and that the said land forms boundary with the land in dispute, Lasisi Adegbite’s evidence as 4th Plaintiff’s witness is that his ancestor was Banjoko Akobielemu who was a great warrior and founded Akobielemu Compound after the Gbanamu war. He further testified that the land in dispute forms part of the land he settled upon after that war. Aboyade, he said, was the ancestor of the defendant now Appellant and the said Aboyade was granted a piece of land to build a house in Akobielemu’s Compound by Banjoko Akobielemu. This witness also testified that before the trespass on the land in dispute by the Appellant, no member of Aboyade family had challenged the Respondents’ family’s right to the said land in dispute. It is instructive to note that these pieces of evidence were never seriously challenged by the Appellant’s cross-examination of the Respondents. The learned trial Judge made certain findings of fact from the pleadings and evidence of the parties which I must say I agree with. Ownership of or proof of title to the land in dispute was being contested from the time of the end of the inter-tribal war. Banjoko Akobielemu was the ancestor of the Respondents and Aboyade was his friend and associate and confidutt. The said Banjoko Akobielemu was the founder of Akobielemu Compound where Aboyade lived until the time of his death. It is also a fact that even after the death of Aboyade, his ancestors, one of whom is the Appellant still live in Akobielemu’s Compound. The learned trial Judge reasoned that the Appellant could not lay proper claim to the land in dispute when his ancestor Aboyade had no separate Compound of his own but lived and died in Akobielemu Compound. Evidence from the Respondents’ witnesses is that the Appellant lives on Akobielemu’s Compound. Apart from the fact that the traditional evidence of settlement is in favour of the Respondents, the evidence of the Respondents’ witnesses as to acts of ownership of the land in dispute is also in favour of the Respondents. It is noteworthy that even the 6th & 7th Defendant s/Appellant’s witnesses Yinusa Iyanda and Alhaji Salawu Ladokun Ishola admitted under cross-examination that after the Gbanamu war, Aboyade, ancestor of the Appellant joined Akobielemu to settle at Akobielemu’s Compound rather than go to found his own family compound. The 7th Appellant’s witness Alhaji Salawu Ishola admitted under cross-examination that there is no Aboyade’s Compound in Ibadan and that he lives in Akobielemu’s Compound. Even the 4th Appellant’s witness Ibrahim Yesuf, a member of the Respondents’ family who admitted that he has an axe to grind with his family admitted under cross examination that the 1st Plaintiff is the Mogaji of Akobielemu’s family.
Like the learned trial Judge, I find the evidence in favour of the Respondents’ ownership of the land overwhelming. The Appeal ought to fail and it fails and the judgment of the learned trial Judge Oloko J. delivered on the 30th June 1989 in Suit No.I/213/86 is hereby affirmed by me.
Parties are to bear their own costs.

ADZIRA GANA MSHELIA, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, ALAGOA, J.C.A, OFR, I am in complete agreement with the reasoning and conclusion arrived thereat, which I also adopt as mine. I have nothing useful to add. I too dismiss the appeal and affirm the decision of the lower court delivered on the 30th June, 1989. Parties to bear own costs.

MODUPE FASANMI, J.C.A.: I have had the benefit of reading the judgment of my learned brother S. S. ALOGOA J.C.A. (OFR) just delivered.
Upon a thorough perusal of the record of appeal and the briefs of argument of the parties herein, I am of the view that my learned brother has painstakingly considered and resolved the issues in contention in this appeal.
I agree with his reasoning and conclusion that the appeal lacks merit. The judgment of the learned trial Judge Oloko J. delivered on the 30th of June 1989 in suit No. I/213/86 is hereby affirmed by me, I abide with the order made as to costs.

Appearances

H. U. Lanase Esq.For Appellant

AND

G. A. Sunmonu Esq.For Respondent