CHIEF AKIN OMOTOSO v. MR. ABAYOMI AKOGUN & ORS
(2018)LCN/12232(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of December, 2018
CA/EK/60/2016
RATIO
EVIDENCE; WAYS TO PROVE TITLE TO LAND
“The law is trite that the five ways of proof of title are independent and mutually exclusive. A party can plead and rely on more than one but need not proof all to succeed. None of the five means is superior to the other. It is settled that a party claiming title to land is not bound to plead and prove more than one root of title to succeed. It is enough if he can prove only one of the recognized five ways of establishing a case for title. If however he relies on more than one root of title, he may be said to have done so ex abundata cautela by way of making assurance doubly sure. See Egbo v. Agbara (1997) 1 NWLR (pt. 481) 293 R.12. This was the position of the Appellant in this case. See Anyafulu & Ors. V. Meka & Ors. (2014) 6 SCM l at 17, Idundun v. Okumagba (1976) 9-10 SC 227.” PER PAUL OBI ELECHI, J.C.A
COURT AND PROCEDURE: PRELIMINARY OBJECTION
“Where there are other grounds that could sustain the appeal, a preliminary object should not be filed, where the purpose is merely to challenge the competence of some of the grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe v.Ofomata (2010) 18 NWLR (pt. 1225) 404 at 423, Ndigwe v. Nwude (1999) 11 NWLR (pt. 626) 314, N.E.P.A. v. Ango (2001) 15 NWLR 627, Muhammed v. Military Administrator, Plateau State (2001) 18 NWLR (PT. 744) 183.” PER PAUL OBI ELECHI, J.C.A
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
CHIEF AKIN OMOTOSO
(for himself and on behalf of other members of Akin Omotoso family of Ado-Ekiti) Appellant(s)
AND
1. MR. ABAYOMI AKOGUN
2. MR. OLAREWAJU AJAYI
3. MR. BABATUNDE AKINDELE Respondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Ekiti State High Court delivered on 21st day of March 2016 by His Lordship, Hon Justice J.O. Adeyeye dismissing the entire suit of the Appellant.
FACTS OF THE CASE
This is a land matter wherein the appellant claimed for declaration of title to land, order of perpetual injunction and N50 Million general damages against the respondents. After taking evidence of the parties and the addresses of learned counsel, the trial Court dismissed the appellant’s claims on the ground that he failed to plead and prove by credible evidence the traditional history of how his grantor came to the land in dispute as well as the line of succession.
In proof of his case, the appellant relied on traditional history and acts of long possession based on the traditional history. Sensing that the traditional history might not avail him, the appellant resorted to acts of long possession. On one hand, appellant claimed to have come from Onigbagbo family of Ado-Ekiti however in their evidence he claimed to have come from Iyin Ekiti a neighbouring town to Ado-Ekiti.
The respondents who are from Oniloda family of Oke Ewi Irona Quarters, Ado-Ekiti denied the appellant’s claim that the land in dispute belonged to Ewi Ajimudaoro but to their family and gave traditional history of how the land was founded.
The appellant in proof of his case gave evidence and called one witness. Similarly, the respondents in defence called two witnesses. One Chief Lamidi Ojo Asaoye as DW1 the second respondent.
The Appellant raised three issues for determination thus:
ISSUES IN APPEAL
1) Whether considering the evidence on record viz-a-viz Exhibits C1, C2 & C4, the Appellant has not established the dimension and locality of the disputed land to warrant a positive consideration of the trial Court?
2) Whether the refusal of the trial Court to consider the issue of possession or acts of ownership lawfully raised and relied upon by the Claimant on one hand, and the issue of estoppel parem judicata suo motu raised against Exhibit C3 without address by parties, did not violate the right of the Appellant of fair hearing?
3) Whether considering the totality of the evidence on record, the Appellant has not proved his claim on the balance of probability to warrant the grant of his claims
SUBMISSIONS
ISSUE 1:
Whether considering the evidence on record viz-a-viz Exhibits C1, C2 & C4, the Appellant has not established the dimension and locality of the disputed land to warrant a positive consideration of the trial Court?
This issue is predicated on ground 1 of the notice of appeal.
It is submitted that considering the totality of the evidence on record particularly Exhibits C1, C2 & C4 the Appellant duly established the dimensional area and the locality of the land in dispute with appreciable precision to warrant a positive consideration of the trial Court.
It is on record that the Appellant pleaded and led evidence that the land in dispute was part of a large expanse of land popularly known as Igidu farmland situate, lying and being on the left side of the road from Ado to Ikere-Ekiti.
The Appellant equally relied on and tendered Exhibit C1 & C2 which are survey plan and layout plan respectively duly approved by the Government of Ekiti State upon verification thereof.
These documents, the facts thereof having been duly pleaded and admitted by the Court rightly forms part of the evidence to be considered by the trial Court.
Perusing Exhibit C1, it gives a precise, definite and accurate size/area of the land in dispute to be 4.767 hectares whilst Exhibit C2 shows the breakdown of the land in dispute into plots with various boundary men including Folarin Adebolu family, Ben Afolarin family, Moses Ola family and Oniloda family (the Respondents herein). Placing Exhibits C2 (Appellant’s layout) side by side with Exhibit C4 (Respondents’ family layout of 1985), both layouts unambiguously show that both the Appellant and the Respondents family shares common boundary. The portion belonging to the Appellant (as in Exhibit C1 & C2) is the land in dispute. These facts were specifically pleaded and evidence led thereon by the Appellant.
Notwithstanding this avalanche of evidence on records, the trial Court discountenanced Exhibit C1 and C2 consequently held that the Appellant failed to prove the locality and area of the land in dispute.
What the law requires of the Appellant in this regard was to properly identify the land he claims with precision.
This can be done even without a plan. The Appellant pleaded in paragraphs 12, 13 & 14 on page 110 of the Records and paragraphs 6 & 9 on page 151 of the Records the land in dispute/boundary men thereof and further relied on Exhibit C1, C2 & C4 to identify the land in dispute. It is however conceded that, though, both Exhibits C1 & C2 did not mention the name ‘Igidu’ as the locality of the land in dispute, but the locality of the land in dispute was never in contention as both parties agreed by their pleadings and evidence that the land in dispute is located in Igidu, along Ikere-Ado Road, Ado-Ekiti. See paragraph 5 (page 108-109 of Records); paragraphs 13 & 14 (page 110 of the Records) for the Appellant’s pleadings and paragraphs 9, 13 & 19 (page 178 – 179 of the Records); paragraph 32 (page 182 of the Records) and Paragraphs 47 & 52 (page 184 of the Records) for the Respondents? pleadings.
The trial Court however did not consider the pleadings/Evidence and the exhibits conjunctively as if they were given in two different suits. This position led the trial Court in holding that Exhibits C1 & C2 were not relevant and consequently held that the Appellant failed to prove the identity of the land in issue.
The trial Court equally held that the features on the land and the boundaries are also not indicated. With respect to the features on the land, paragraph 9 of the Appellant’s pleadings suffices (see page 109 of the Records). But with respect to Exhibits C1 & C2, it is submitted that features on land cannot be reflected on a perimeter survey plan and a layout plan. Features on land are usually reflected on dispute survey plan. On boundaries, Exhibits C2 and C4 clearly show the boundary men, such that the Appellant and Respondents’ family were shown to be boundary men. This was rightly pleaded and evidence led thereon.
It is submitted that the mere omission of ‘Igidu’ as the location of the disputed land from Exhibits C1 & C2 (though not in contention by the parties) is not enough to discard the exhibits for being irrelevant. Exhibit C1 is a perimeter survey plan and not a dispute survey plan. A perimeter survey plan only shows the circumference and area/size of the land being claim.
Hence, Exhibit C1 specifically shows the area and size of the land in issue. Exhibit C2 is a layout plan and specifically shows the beaconized plots (43 in nos.) and the boundary men as pleaded by the Appellant and evidence led thereon. As if that was not enough, Exhibit C4 (a 1985 survey plan of the Respondents’ family) clearly shows the boundary men to include the Appellant herein. In other words, Exhibit C4 unambiguously affirmed the Appellant as a boundary man to the Respondents thereby specifically identifying the land in dispute. Putting these facts and evidence together, the identity of the land in issue, is with respect, proved by the Appellant.
See Prof Fola Lasisi & Anor v. Mrs Rose Nwanna (2012) LPELR 19936 (CA; Chief Daniel Allison Ibuluya & Ors. V. Tom Benebo Dikibo & Ors. (1976) 6 SC 97 at 107; Atolagbe v. Shorun (1985) 1 NLLC 177 at 197A.
The Appellant pleaded and gave evidence on the location and boundary men of the land in dispute. This evidence was not controverted by the Respondents. In fact, the same was further strengthened under cross-examination of CW1 & CW2 by the Respondents’ counsel.
The parties did not claim ignorance of the locality of the land in dispute both in their respective pleadings and evidence led.
It is submitted that the Court can still grant declaration of title to the Plaintiff once the boundaries and location of the land is known to the parties and the parties through their witnesses were ad idem in this case. See Adedeji v. J.O. Oloso (2007) 2 CMLR 216 at 275. Para. B-C.
Also submitted is that both parties knew the land in dispute and same was properly identified. Identity of the land may not necessary be tied down to one single document or exhibit, the combined reading of the pleadings and Exhibits C1, C2 & C4 give a precise area/size and location of the land in dispute beyond any doubt. The Court is urged to so hold.
See Aiyeola v. Pedro (2014) 12 SCM 71 at 93; Alhaji Raufu Gbadamosi v. Olaitan Dairo (2007) 3 CMLR 32 at 36. The parties are ad idem that the land in dispute at Igidu, Ikere Road, Ado Ekiti, the area of the land is conspicuously written on Exhibits C1 and C2 and further corroborated by C4.
To conclude this issue, it is submitted that considering the totality of the evidence on record the Appellant has successfully identified the land in issue with appreciable precision to warrant a positive consideration of the trial Court and urged the Court to so hold and therefrom resolve this issue in favour of the Appellant.
ISSUE 2:
Whether the refusal of the trial Court to consider the issue of possession or acts of ownership lawfully raised and relied upon by the Claimant on one hand, and the issue of estoppel parem judicata suo motu raised against Exhibit C3 without address by parties, did not violate the right of the Appellant to fair hearing?
This issue is predicated on ground 2 of the Notice of Appeal.
According to learned counsel, the right of the Appellant to fair hearing was curtailed by the trial Court, having refused to consider two out of the three means of prove of title rightly raised by the Appellant on the basis that the traditional history raised by the Appellant failed. See Odetayo v. Bamidele (2007) 30 NSCQR 915 at 926.
It is trite that there are five ways of proving title to land. This position was rightly founded by the trial Court. The trial Court equally rightly found as a fact that the Appellant raised, at least, three out of the five ways of proving title, to wit, proof by traditional history, proof by acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference that the person exercising such acts are the true owners of the land, and proof by acts of long possession.
The trial Court considered proof by traditional history raised by the Appellant and held that since there was a break in the chain of the traditional history, same is not credible. The trial Court subsequently dismissed the suit without considering other means of proof of title lawfully raised and relied upon by the Appellant.
The law is trite that the five ways of proof of title are independent and mutually exclusive. A party can plead and rely on more than one but need not proof all to succeed. None of the five means is superior to the other.
It is settled that a party claiming title to land is not bound to plead and prove more than one root of title to succeed. It is enough if he can prove only one of the recognized five ways of establishing a case for title. If however he relies on more than one root of title, he may be said to have done so ex abundata cautela by way of making assurance doubly sure. See Egbo v. Agbara (1997) 1 NWLR (pt. 481) 293 R.12. This was the position of the Appellant in this case. See Anyafulu & Ors. V. Meka & Ors. (2014) 6 SCM l at 17, Idundun v. Okumagba (1976) 9-10 SC 227.
It is on record and was rightly found by the trial Court that the Appellant relied on about three out of the five ways of proof of title. However, the trial Court, notwithstanding the fact that the Appellant pleaded and relied on acts of ownership and possession, refused to consider these means of proof of title and thereby denied the Appellant fair hearing.
It is submitted that since none of the five means is superior to the other, the failure of one should not be taking as automatic failure of others. In fact the Appellant right to fair hearing as to his ownership predicated on the other two means of proof of title was violated by the refusal of the trial Court to consider the same. SeeEigbejale v. Oke (1996) 5 NWLR (pt. 447) 128 @ 144.
It is on record that the suit was dismissed by the trial Court because the traditional history of the Appellant was inconclusive in that there was a break in the chain of ownership as stated by the Appellant.
Accordingly, it is submitted that a Claimant can plead both traditional history and act of possession and ownership and rely on the latter if the farmer proved to be inconclusive. If the trial Court had adverted its mind to this, the suit would not have been dismissed without considering other means of prove of title lawfully raised and relied upon by the Appellant. See Salami v. Lawal & Ors. (2006) LPELR 9759 (CA).
In view of all the above authorities, the Appellant reserved the right to plead and rely on more than one means of proof of title and that non consideration of these proof properly raised by the Appellant amounted to a breach of his fair hearing.
The disturbing aspect of this issue is that the trial Court suo motu raised, determined and concluded that Exhibit C3 was used as estoppel parem judicata and consequently refused to consider it or attach any weight to it. Meanwhile, Exhibit C3 was neither tendered nor admitted to proof estoppel parem judicata by the Appellant, hence the trial Court ought not to have discountenance same on that basis.
The trial Court having raised the issue of Exhibit C3 being estoppel parem judicata ought to have called on parties to address it before coming to such conclusion. See Oguebeogo & Anor. V. Okasa & Ors. (2016) 6 SCM 128 at 151 – 152, Ndiwe v. Okocha (1992) 7 SCNJ 355, Alli v. Alesinloye (2000) 2 SCNQR (pt. 1) 285 at 322, Leventis v. Akpu (2007) 30 NSCQR 631 at 660, Abbas & Ors. V. Solomon (2001) 17 NSCQR 44 at 64, Achiakpa v. Nduka (2001) 17 NSCQR 341 at 358.
On the consequences of denying parties the right to address the Court on issue raised suo motu, see Dairo v. Union Bank (2007) 31 NSCQR 475.
The Court is urged to resolve this issue on their behalf.
ISSUE 3:
Whether considering the totality of the evidence on record the Appellant has not proved his claim on the balance of probability to warrant the grant of his claim?
This issue is predicated on ground 3 and 4 of the Notice of Appeal.
It is submitted that notwithstanding the fact that the trial Court did not fully evaluate the evidence adduced by both parties at the trial Court, this Court is seized of power under S.16 of Court of Appeal Act to evaluate the evidence and determine the appeal.
Also that considering the totality of both statement on oath and documentary evidence on records, the Appellant has discharged the burden placed on him on preponderance of evidence to warrant the grant of his claim.
By Section 134 of the Evidence Act 2011, civil cases are determined on the preponderance of evidence otherwise called balance of probabilities. The trial Court was therefore required to place on imaginary scale evidence from both sides and weigh same together to determined which side the scale tilts. See Ezechukwu &Anor. V. Onwuka (2016) 6 SCM 71, 87 ? 88, para E-I, A-C. R. 4.
It is trite where there is claim for declaration of title to land, the plaintiff must rely on the strength of his case and not on the weakness of the defendant’s case. However, where the defendant?s case lends support to the case of the plaintiff, the Court cannot ignore it in arriving at a conclusion as to which side to believe. See Usman v. Garke (1999) NWLR (pt. 587) 466 R. 8: Woluchem v. Gudi (1985) 5 SC 281.
By paragraphs 5, 7, 8, 9, 10, 11, 12, 13, 14 & 15 of the amended statement of claim, the Appellant relied on grant of the land in dispute by Ewi Ajimudaoro of Ado-Ekiti which grant was further confirmed by subsequent Ewi of Ado-Ekiti. This pleading was supported by evidence adduced by Appellant’s witnesses in chief and under cross-examination.
By paragraph 4 of the Respondents’ further amended statement of defence, the Respondents denied the grant and any prior right/ownership of Ewi of Ado-Ekiti (i.e. Appellant’s grantor) on the land in dispute. Strangely however, the Respondents admitted in their paragraphs 20 & 24 of the further amended statement of defence, the Ewi’s ownership right over the land in dispute. Page179 of the Records. Also by paragraph 15 of the DW2 statement on oath, Ewi’s right over the land in dispute was admitted.
It is submitted that despite this admission in the pleadings and statement on oath, DW1 & DW2 contradicted themselves when they denied Ewi?s said right under cross-examination, wherein they said the land in dispute was never in time owned by Ewi of Ado but by Oniloda and Aro.
See Ladan v. The State (2016) 6 SCM 113 at 123, Oyeneyin v. Akinkugbe (2010) 4 NWLR (pt. 1184) 265 at 284.
The Appellant having pleaded and led evidence of his grantor to be Ewi of Ado-Ekiti and the Respondent’s admitted by their pleadings the prior ownership of the land in dispute by Ewi of Ado-Ekiti, it is submitted that both parties have successfully traced their grantor to the same person (Ewi of Ado-Ekiti). It then becomes necessary to determine whose evidence of grant is more credible, cogent and reliable.
The Appellant adduced unchallenged evidence that the grant was made over 160 years ago and that the grant has been confirmed by subsequent Ewi of Ado-Ekiti.
However, the Respondents equally adduced evidence that the land in dispute was granted to their forefather (Oniloda & Aro) several years ago by Ewi of Ado-Ekiti. This evidence was seriously attacked by the Appellant wherein the Appellant pleaded and adduced evidence that the 1st Oniloda was only installed sometimes in 1952/53. Prior to that time, there was no stool like Oniloda. This fact was neither controverted under nor contradicted by the Respondents even on cross examination. In fact, DW2 under cross-examination said the land in dispute was founded by Oniloda. The question to be asked is how did Oniloda who came to being in 1952/53 found a land that has been granted and occupied by the Appellant over 160 years ago?
It is therefore submitted that the evidence placed on record on the grant of the land in dispute by the Appellant is more credible, cogent and reasonable compared to the contradictory evidence adduced by the Respondents. See James Malgwi v. Alhaji Muhammed Goni Jijiwa Song (2012) ALL FWLR.
The Appellant has adduced evidence of grant and occupation of the land in dispute for about 160 years, he tendered Exhibits C1, C2 & c4 made several years back, some even before the creation of Ekiti State. Specifically, Exhibit C4 is a document of the Respondents’ family showing that the Respondents? family shares common boundary with the Appellant on the land in dispute. Exhibit C4 was made by the Respondents’ Oniloda family.
The Appellant further pleaded and led evidence on how the Respondents family became the owner of parcel of land in Exhibit C4. The Appellant led evidence that parcel of land in Exhibit C4 was granted to the Respondents’ Oniloda family by their in-law (Aro). This was rightly confirmed by the Respondents.
The Court if urged to hold that the Appellant having shown with credible evidence that the land in dispute was granted to his family by Ewi of Ado-Ekiti prior to the emergence of the first Oniloda. The Appellant has adduced credible and reliable evidence in support of his claim.
The Appellant equally pleaded and tendered judgment of Ewi-in-Council on the land in dispute as Exhibit C3. From Exhibit C3, the Ewi-in-Council further confirmed and corroborated the evidence of Claimant/Appellant as to the grant and his right of ownership on the land in dispute for over 160 years and trespass being committed by the Respondents. It was further revealed in Exhibit C3 that both parties herein appeared before the panel, gave evidence, called witnesses, cross-examined them and visited the locus in quo upon which the decision in Exhibit C3 was reached. Exhibit C3 should further be considered on the basis of the Respondents’ submission that they were equally granted the land in dispute by Ewi of Ado-Ekiti, which claim has now been refuted by the decision of Ewi-in-Council in Exhibit C3.
However, the trial Court failed to consider and or attach any weigh to Exhibit C3 on the ground that such judgment is equivalent to decision of customary arbitration and as such cannot be used as estoppel parem judicata on the basis that the panel members and the finality of their decision was not specifically pleaded.
Learned counsel submitted that the Appellant never pleaded, tendered and relied on Exhibit C3 for the purpose of estoppel parem judicata, rather Exhibit C3 was tendered and admitted as a piece of evidence buttressing/corroborating Appellant’s claim for grant, possession, ownership and trespass by the Respondents on the land in dispute.
The trial Court discountenanced Exhibit C3 and refused to attach any weight to same on the ground that same did not fulfil the conditions to be used as estoppel parem judicata as was raised by the trial court suo moto. Exhibit C3 was neither tendered nor admitted to prove estoppel parem judicata, hence the trial Court ought not to have discountenanced same on that basis. See Owonyin v. Omotosho (1961) ALL NLR 304, Dekeke v. Williams 10 WACA 164.
In Oguebego & Anor. v. Okasa & Ors. (2016) 6 SCM 128 @ 151-152, paras G-I, A, R. 8, the Apex Court held that not allowing parties to address a Court on issue raised suo motu breached the right to fair hearing as enshrined in S.36 of the 1999 Constitution. See also Ndiwe v. Okocha (1992) 7 SCNJ 355; Alli v. Alesinloye (2000) 2 SCNQR (pt.1) 285 @ 322. R. 11: A.G. Leventis v. Akpu (2007) 30 NSCQR 631 @ 660. R.13: Abbas & Ors. V. Solomon (2001) 7 NSCQR 44 @ 64, para C-D. R10; Achiakpa v. Nduka (2001) 7 NSCQR 341 @ 358, R. 18 and Dairo v. Union Bank (2007) 31 NSCQR 475 @ 510, para G.
The Appellant equally pleaded and led evidence that the Respondents’ family admitted the Appellant’s ownership of the land in dispute vide the Respondents’ Oniloda family survey plan of 1985 admitted as Exhibit C4. The exhibit unambiguously affirmed that the Respondents’ family share boundary with the Appellant. Despite this affirmation, the Respondents shamelessly denied the Appellant’s right to the land in dispute. This evidence is much more cogent, credible and reliable; not only because of the Respondents’ family admission /affirmation of Appellant’s title to the land in dispute, but also because the first Oniloda was only recently installed sometimes in 1952/53 whilst the right of the Appellant on the land in dispute is over 160 years.
On proof of exclusive possession of the land in dispute, the combined reading of the Appellant’s pleadings in paragraphs 5, 7, 9, 11, 12, 13, 15, 21, 22, 23, 24, 25, 26, 27, 28 & 29 of the amended statement of claim and Exhibit C1, C2, C3 & C4, it is crystal clear that the Appellant has exclusive possession and same was undisturbed until 2011 by the Respondents. The Respondents are mere trespassers. A trespasser does not by the act of trespass secure possession in land. Echenim Ofume v. Isaac Ngbeke (supra) R. 9.
In Ogbu v. Ani (1994) 7 NWLR (pt. 355) p. 128 SC, it was held that the fact that a person in possession of land is disturbed on it by another does not render the former possession un-exclusive. It will only cease to be exclusive if other people are on the land lawfully.
It is further submitted that where two persons make conflicting claims to possession of land, the law ascribes possession to the person that can prove better title to the land. Ogbu v. Ani (supra); Ojelade v. Soroye (1998) 5 NWLR (pt. 549) 284 R. 11.
From the totality of the evidence on records, it has been shown that the case of the Appellant is more cogent, credible, reliable and reasonable to warrant the Court finding for the Appellant.
Surprisingly, none of these averments of exclusive possession and evidence led thereon was controverted/contradicted by the Respondents. Evidence which is not contradicted or denied is deemed to have been admitted. Apart from the evidence led, the fact that an averment is not denied is enough to admit it in evidence. Cappa & Dalberto Ltd. V. Akintilo Tilo (2003) 9 NWLR (pt. 824) 49, R. 6.
It is further submitted that survey beacons constitute an act of possession which could be relied upon to prove title. See Thompson v. Arowolo (2003) 7 NWLR (pt. 818), 163 @ 232, para G-H.
However where two persons make conflicting claims to possession of the land, the law ascribes possession to the person that proved a better title to the land. See Ogbu v. Ani (1994) 7 NWLR (pt. 355) 128; Ojelade v. Soroye (1998) 5 NWLR (pt. 549) 284.
From the submission above, it is on record that the trial Court did not consider and nor attach any weight to Exhibits C1, C2, C3 & C4 in the determination of the rights of the parties. The position by the trial Court has adversely affected the right of the Appellant to the land in dispute. He urged the Court to consider these exhibits vis-a-vis the pleadings and evidence adduced on record.
The Appellant pleaded and led evidence that both Exhibits C1 and C2 were made on broad day light to the notice of the general public especially the fathers/family of the Respondents (i.e. 2nd Oniloda). That a challenge by the Respondents on the land in dispute only started in 2011. The Appellant demonstrated his family exercise of ownership and possession over these years in diverse ways. The Respondents have not been able to impeach this evidence.
It is his submission that notwithstanding the inconclusive nature of the traditional history of the Appellant, the Appellant has adduced cogent, credible and convincing evidence of grant, ownership and exercise of possession over the land spanning over appreciable long duration. The Court is urged to consider the claims of the Appellant, the land in issue was granted to the family.
The Court is urged to resolve this issue in favour of the Appellant. In conclusion, Appellants counsel contended that from the totality of evidence on records ranging from grant, act of ownership and possession exercised over a long period of time over the land in dispute, the import of the findings and decision of Ewi-in-Council in Exhibit C3, and other Exhibits (C1, C2 & C4), it is submitted that the Appellant has advanced credible evidence of ownership of the land in dispute to warrant favourable consideration of his claim.
The Court is urged to allow the appeal, set aside the decision of the lower Court and grant the prayers of the Appellant.
The Respondent on their own part formulated two issues for determination.
i. ?Whether the Appellant who failed to established by credible and convincing evidence the traditional history of how his grantor got to the land in dispute could turn round to rely on acts of long possession in proof of declaration of title to the disputed land.? (Grounds ii, iii & iv)
ii. Whether the Appellant proved with certainty the identity of the land in dispute.? (Ground i)
Before proceeding to argue the two issues as formulated, learned counsel raised a preliminary objection against issue No. 2 formulated by the Appellant and argued in his brief of argument in paragraphs 4.22 – 4.48 of the Appellants brief of argument. The said issue, particularly the issue of estoppel per rem judicatam did not arise from ground No.2 of the Notice of Appeal at pages 277 – 278 of the record.
A lone issue was distilled for the preliminary objection thus.
“Whether issue No. 2 of the Appellants? brief of argument is competent.”
It is submitted that Ground No. 2 of the Notice of Appeal does not challenge the decision of the trial Court on issue of estoppel per rem judicatam. Or to put it in a better way, Ground No. 2 does not contain any fact or issue on issue of estoppel per rem judicatam. Learned counsel raised the said issue from ‘the moon’.
It is trite that you cannot build something on nothing and expect it to stand. This Honourable Court is prayed to hold that issue No.2 of the Appellant and the argument on same as contained paragraphs 4.22- 4.48 of the Appellants Brief of Argument cannot stand as it does not flow from the ground of appeal. It is liable to be struck out and urged the Court to so hold.
See Hadejia Jama Are River Basin Dev. Authority v. Chimande Nigeria Ltd. (2016) LPELR ? 40202 (CA), the Court is urged to uphold the preliminary objection.
ARGUMENT AND SUBMISSION ON ISSUES FORMULATED BY THE RESPONDENTS
ISSUE NO. 1
Whether the Appellant who failed to establish by credible and convincing evidence the traditional history of how his grantor got to the land in dispute could turn around to rely on acts of long possession in proof of declaration of title to the disputed land.? (Ground ii, iii & iv)
To argue this issue, Respondent learned counsel referred the Court to the case of Balogun & Ors v. Akanji & Ors (1988) LPELR ? 720 (SC) where the Supreme Court listed the five different ways of proving ownership of land.
It is stated that the Appellant averred that his forefathers were granted the land in dispute by the Kabiyesi, Ewi Ajimudaoro about 160 years ago through the appellant’s head of Babanboni. He went further that his father occupied the land, built houses and planted crops on the land. He stated further that the successor to Ewi Ajimudaoro confirmed that the Ewi Ajimudaoro gave the disputed land to the Onigbagbo family to which appellant belonged.
In defence, the respondents deny the appellant’s claim that Ewi Ajimudaoro granted the disputed land to the appellant’s family and that same did not belong to the said Ewi Ajimudaoro and as such could not have given it to the appellant’s family.
Respondents’ gave a traditional history of how they got to the land through their ancestor, AKOGUN, a great warrior in his lifetime and head of the Ewi of Ado-Ekiti?s war chiefs. See Lawson v. Ajibulu (1997) LPELR 17669.
According to learned counsel, it is to be noted that throughout the gravamen of the pleadings and evidence of the appellant and his witness, the appellant did not plead and prove by credible evidence how Ewi Ajimudaoro the alleged grantor came about the land. Admittedly, a grant is one of the recognized modes of acquiring tithe to land. See Tella & Anor v. Daniel (2013) LPELR 22620 CA at page 36 paras A-D.
The onus is on the appellant to plead and prove the traditional history of how Ewi Ajimudaoro’s title to the dispute land. The appellant failed in this regard. SeeOlukoya v. Ashiru (2006) 4 JNSC (pt. 15) 531; (2006) 30 WRN 115. The Appellant failed to plead and prove by credible evidence his root of title to the disputed land of Ewi Ajimudaoro got to the land in dispute and the Appellant was under an erroneous impression that the trial Court ought to have considered the acts of long possession pleaded. See Oyadare v. Olajide Keji & Anor (2005) LPELR 2861 (SC), Registered Trustees of the Diocese of Abaa v. Helen Nkume (2002) 1 SC 19 at 28, Dabo v. Alhaji Abdullahi (2005) ALL FWLR (pt. 255) 1039 at 1057 SC, Ozo John Nwadiogbu & Ors. V. Philip Nnadozie & Ors. (2001) 6 SC 107 at 115.
Finally, on this issue, he prayed this Honourable Court to resolve same in favour of the respondents, the appellant having failed to discharge the onus on him to plead and prove the root of title of his grantor. He cannot now turn round to rely on acts of possession on a non-existent root of title.
ARGUMENT AND SUBMISSION ON ISSUE NO. 2
Whether the Appellant proved with certainty the identity of the land in dispute.? (Ground i)
Learned counsel adopted his argument and submission on issue No.1 above and submitted that it is the duty of the appellant to identify and prove the existing boundaries. See Oyebanji v. Akanbi (2011) 12 WRN 86 at page 101 lines 25-35.
It is contended that the Appellant did not appeal against the decision of the trial Court on Appellants claim for trespass and damages as could be seen on page 275 of the record.
A finding or decision of a Court against which there is no appeal is binding and valid. Since the issue of proof of identity of land has to do with an order of perpetual injunction against which there is no appeal, it becomes an academic exercise to belabour this Honourable Court on this issue. The Court is urged to so hold and resolve this issue in favour of the respondents.
Finally, he urged the Court to dismiss the appeal and affirm the judgment of the trial Court on the grounds that the Appellant failed to plead and prove the root of his title as required by law.
In a Reply brief dated 28th April, 2017 and filed on 13/10/2017 but deemed on 18/10/2018, the Appellant stated that in response to paragraphs 5.04 – 5.09 of the Respondents brief, it is submitted that the ownership right of Ewi of Ado-Ekiti on the land in issues was rightly admitted by the Respondents in their paragraphs 20 and 24 of their further amended statement of defence and paragraph 15 of the DW2 statement on oath. It is trite that what is admitted requires no further proof. The Respondents are precluded from denying same through their brief and the Court is urged to so hold.
The Respondents have contended that since the Appellant did not plead and prove facts relating to how the Appellant’s grantor (i.e. Ewi of Ado) got to the land in issue, the trial Court was right in dismissing the suit. It is however that issues were not joined on title/ownership of Ewi Ado to the land in issue. It is on record that both parties traced their root of title to Ewi of Ado. Hence, Appellant requires no further proof of his grantor’s title. Nwano v. Obaeze (2012) ALL FWLR (pt. 605) 231. Consequently, the authority ofOlukoya v. Ashiru (2006) 4 JNSC (pt.15) 531 relied upon by the Respondents is inapplicable as grantor’s title was never in issue.
The Respondents equally contended that once traditional evidence failed, it is unnecessary to consider acts of ownership and possession. They relied heavily on the decision of Kutigi, JSC in Oyadare v. Olajire Keji & Anor (2005) LPELR 2861. The Respondents misconstrued this decision and the basis for the same and the said authority is not applicable in this case. See Okpala Eze Okonkwo & Ors. v. Nwafor Okeke & Ors. LLAC I page 9 at 39 – 40.
In respect of the objection raised by the Respondent, same is totally misconstrued as estoppel parem judicatam suo motu raised by the trial is a violation of Appellant’s right to fair hearing. Ground two and issue two raised thereof by the Appellant is predominantly on challenge to breach of fair hearing of the Appellant. Hence, the objection is of no moment.
The Court is therefore urged to allow the appeal, set aside the judgment of the trial Court and grant the reliefs sought by the Appellant.
RESOLUTION OF ISSUES:
I think that as a first line of action in this appeal, it is pertinent to dispose of the preliminary objection raised.
The purpose of a preliminary objection is to truncate the hearing of the appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary object should not be filed, where the purpose is merely to challenge the competence of some of the grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe v.Ofomata (2010) 18 NWLR (pt. 1225) 404 at 423, Ndigwe v. Nwude (1999) 11 NWLR (pt. 626) 314, N.E.P.A. v. Ango (2001) 15 NWLR 627, Muhammed v. Military Administrator, Plateau State (2001) 18 NWLR (PT. 744) 183.
Accordingly, I hereby find and hold that the notice of preliminary objection filed by the Respondent same having not filed against the hearing of the entire appeal is therefore inappropriate in the circumstances of this appeal as there are other grounds which can sustain the appeal. See General Electric Coy v. Harry Akande (2011) 4 NSCQR 611, Adejumo v. Olawiye (2014) 12 NWLR (Pt. 1421) 252 at 265. The said preliminary objection is hereby discountenanced and accordingly struck out.
In the consideration of the merit of this appeal, I shall adopt the issues as distilled by the Appellant thus:
1. Whether considering the evidence on record viz-a-viz Exhibits C1, C2 and C4, the Appellant has not established the dimensions and locality of the dispute land to warrant a positive consideration of the trial Court?
2. Whether the refusal of the trial Court to consider the issue of possession or acts of ownership lawfully raised and relied upon by the claimant on one hand, and the issue of estoppel peram judicata suo motu raised against Exhibit C3 without address by parties did not violate the right of the Appellant to fair hearing?
3. Whether considering the evidence on record viz-a-viz Exhibits C1, C2 and C4, the Appellant has not established the dimension and locality of the disputed land to warrant a positive consideration of the trial court? This issue is predicated on ground one of the notice of appeal.
It is trite law that he who asserts facts must prove them. See Sections 131 (1) (2) 132, 133 and 136 of the Evidence Act 2011. Also the case of Phillips v. E.O.C. & Ind. C. Ltd. (2013) 1 NWLR (pt.1336) 618 at 641.
It is also a fundamental procedural requirement that when issues are joined by parties in their pleadings, evidence is required to prove them as averred. It is the person upon whom the burden establishing that issue lies that must adduce satisfactory evidence.
It is in the light of the discharge of that onerous task of burden of proof in civil cases that the Appellant urged the Court to hold that Exhibit C1, C2 & C4 have duly established together with other evidence on record the dimensional area and locality of the land in dispute with appreciable precision to warrant a positive consideration of the trial Court.
The law is settled that there are five ways as enunciated in Idundun v. Okumagba (1976) 9-10 SC 227 how to establish ownership of title to wit;
1. Proof by traditional history or evidence.
2. Proof by grant or the production of documents of title.
3. Proof by acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference
that the person exercising such acts is the true owner of the land.
4. Proof by acts of long possession in connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owners of the land in dispute.
The Supreme Court went further to state that;
“What is to be noted and re-emphasized is that the party claiming title to land is not bound to plead and prove more than one root of title to succeed. If he relied on more than one root, that is merely to make assurance double sure. He does not at abundata cantella.”
In a claim for declaration of title, the plaintiff succeeds on the strength of his own case and not on the weakness of the defendant. The onus lies on the plaintiff to satisfy the Court on the evidence he adduced that he is entitled to a declaration of title in his favour. If the plaintiff fails to discharge the onus, his claim fails and his action is dismissed. See Kodilinye v. Odu (1935) 2 WACA 336, Abisi v. Ekwealor (1993) 6 NWLR (pt. 302) 43, Salami v. Gbodoolu (1997) 4 NWLR (pt. 499) 277.
As well, the starting point in a declaration of title is to identify the land which must be clearly ascertained. However, the identity of the land would be in issue if and only if the defendant in his pleading disputed the area of the land its location. See Eze Udu & Ors. V. Obiagwu (1986) 2 NWLR (pt. 21) 208.
In proof of their case, the Appellants tendered Exhibits C1, C2 & C4 which are the survey plan and the layout plan respectively. These documents were tendered and admitted in evidence in support of their oral assertions in Court that the land in dispute was granted to them by the Kabiyesi, Ewi Ajimudaoro about 160 years ago through the Appellant’s Babanboni having been duly approved by the Government Ekiti State after verification.
One may ask – what is the effect of Exhibit C1 and C2 admitted in evidence in this case?
The Supreme Court has held in Agboola v. U.B.A. Plc. (2011) 11 NWLR (pt. 1288) 307 at 413 that mere production of a document of title or deed over a piece of land does not automatically entitle the party to the title to the land.
On the other hand, the Court must be satisfied that;
1) The document is genuine or valid.
2) It has been duly executed, stamped and registered.
3) The grantor has the authority to make the grant.
4) The grantor has in fact what he proposes to grant.
5) The grant has the effect claimed by the holder of the instrument. See Ayorinde v. Kuforiji (2007) 4 NWLR (pt.1024) 341, Dosunmu v. Dada (2002) 13 NWLR (Pt.783) 1, Romaine v. Romaine (1992) 4 NWLR (pt.238) 650, Kyari v. Alkali (2001) 11 NWLR (pt. 224) 412, Dabo v. Abdullahi(2005) 7 NWLR (pt. 923) 181 Exhibits C1 and C2 were tendered and admitted in evidence as proof of their title or evidence of ownership of the land in dispute.
Perusing Exhibit C1, it gives a precise, definite and accurate size/area of the land in dispute to be 4.767 hectares whilst Exhibit C2 shows the breakdown of the land in dispute into plots with various boundary men including Folarin Adebolu family, Ben Afolarin family, Moses Ola family and Oniloda family (the Respondents herein). Placing Exhibits C2 (Appellant’s layout) side by side with Exhibit C4 (Respondents’ family layout of 1985), both layouts unambiguously show that both the Appellant and the Respondents family shares common boundary.
The portion belonging to the Appellant (as in Exhibit C1 & C2) is the land in dispute. These facts were specifically pleaded and evidence led thereon by the Appellant.
From the above, I do not seem to agree with the Respondent when he made his submission in his brief of argument that the Appellant has not discharged the burden on him to identify and prove the existing boundaries of the land in dispute.
The Appellants as well filed both a survey plan and another plan i.e. Exhibit C1 and C2 which constitute one of the ways of proving the identity and extent of the land claimed. See Oyebanji v. Akanbi (2011) 12 WRN 86. The Appellants adduced very strong and convincing oral description of the land in dispute such that a Surveyor acting on the strength of the description can make a plan of the land in dispute. See Kwadzo v. Ajei (1944) 10 WACA 274, Udofia & Anor v. Adia & Ors. (1940) 6 WACA 216.
In view of the above, I hold that the Appellant has established the dimensions and locality of the land in dispute through the evidence in Court and Exhibits C1, C2 & C4 as to warrant a positive consideration of the trial Court.
Therefore, this issue is resolved in favour of the Appellant.
ISSUE 2:
Whether the refusal of the trial Court to consider the issue of possession or acts of ownership lawfully raised and relied upon by the Claimant on one hand, and the issue of estoppel parem judicata suo motu raised against Exhibit C3 without address by parties, did not violate the right of the Appellant to fair hearing?
The Appellants relied on three of the five ways of proof of title as enunciated inIdundun v. Okumagba (supra) to prove title viz;
1) By traditional evidence.
2) Acts of possession in and over the land in dispute, extending over a sufficiently length of time, numerous and positive enough to warrant the inference that the persons thus in possession are the true owners.
3) Acts of long possession and enjoyment of the land so situate and connected with the land in dispute by locality or similarity that the presumption under Section 45 of the Evidence Act Cap 62 of 1958 applies and the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land. See Balogun & Ors. V. Akanji & Ors. (1988) LPELR? 720 (SC) at 37-38.
However, the trial Court in its judgment considered only proof of traditional history raised by the Appellant and held that there was a break in the chain of the traditional history, same not credible. It must be noted and indeed re-emphasized that a party claiming title to land is not bound to plead and prove more than one root of title to succeed. If he relied on more than one root, that is merely to make assurance double sure. He does that abundata cautella. See Idundun v. Okumagba (supra). In addition as well, the Supreme Court in Odunukwe v. Ofomata & Anor (2010) LPELR ? 2250 (SC) Adekeye, JCS held:
“There are five ways of proving title to or ownership of land and that the establishment of one of the five ways is sufficient proof of ownership. Where a claimant for title to land who pleads traditional history fails to prove his title to the land by that means, he cannot turn round to rely on acts of ownership and possession to prove his title to the land. As a matter of cause, there would be nothing on which to found acts of ownership. In such a case, the Court is obliged to dismiss the claimant?s claim.”
See also Ezukwu v. Ukachukwu (2004) 17 NWLR (pt. 902) 227 at 252. But now, the Supreme Court of Nigeria is widening the scope and concept of proof of title. In the case of Onwuka & Ors. v. Ediala & Anor (1989) 1 SC (pt. 11) 1, Abubakar Bashir Wali, JSC in a lead judgment held:
“The accepted methods of proving customary ownership of land are (1) Traditional history of ownership (2) where the evidence in (1) above is found to be inconclusive, then proof of acts of occupation and use of the land over a considerable long period without challenge or disturbance from any other claimant and (3) Where (2) above fails, proof of exclusive possession without permission. See Ekpo v. Ita 11 NLR 68, F. M. Alade v. Lawrence Awo (1975) 4 SC 215.”
Placing reliance on the above authority, a claimant can therefore plead both traditional history and act of possession and ownership and rely on the latter if the former proved to be inconclusive. It is on the basis of the above that I tend to agree with the submission of learned Appellant’s counsel that if the trial Court had adverted its mind to this, the suit would not have been dismissed without considering other means of prove (sic) of title lawfully raised and relied upon by the Appellant.
I resolve this aspect of the issue in favour of the Appellant.
On the issue of estoppel parem judicata suo motu raised against Exhibit C3 without address by parties, it is settled law that though a Court of law may raise an issue suo motu, it cannot base its determination of the appeal or case on the issue so raised except it calls on the parties or their counsel to address it on that issue. In other words, a Court of law has the power to raise an issue necessary for the determination of the matter before it subject to it being addressed on that point/issue by counsel for both parties if the decision of the Court is to be rooted or grounded on the issue so raised suo motu and proceed to decide the matter on the same without hearing counsel for the parties thereon is to deny the parties their right of fair hearing and an appellate Court is duty bound in the circumstance to set aside the determination so made. SeeShasi & Anor v. Smith & Ors. (2009) LPELR 3039 (SC).
Having raised the issue of estoppel parem judicata suo motu, and not calling on parties to address same it occasioned a denial of fair hearing. The right of fair hearing under Section 36(1) of the 1999 Constitution (as amended) as applicable in the determination of civil rights and obligation of citizens is a trial conducted according to all legal rules formulated to ensure that justice is done to all parties. The Court is expected to provide a condusive atmosphere for parties to exercise their right to fair hearing is a question of opportunity of being heard. See Okafor v. A.G. Anambra State (1991) 6 NWLR (pt. 200) 659, Saleh v. Monguno (2003) 1 NWLR (pt. 801) 221; Kotoye v. CBN (1989) 1 NWLR (PT.98) 419, Military Gov. Imo State v. Nwauwa (1997) 2 NWLR (PT. 490) 675, Amadi v. INEC & Ors. (2012) LPELR 7831 (SC).
The lower Court therefore breached the constitutional right of fair hearing by not calling on the parties to address it on an issue it raised suo motu. This issue is hereby resolved in favour of the Appellant. See Odetayo v. Bamidele (2007) 30 NSCQR 915 at 926 – 927.
ISSUE NO. 3
Whether considering the totality of the evidence on record, the Appellant has not proved his claim on the balance of probability to warrant the grant of his claim?
This issue is predicated on ground 3 and 4 of the notice of Appeal.
It is submitted that considering the totality of both statement on oath and documentary evidence on record, the Appellant has discharged the burden placed on him on preponderance of evidence to warrant the grant of his claim.
By paragraphs 5, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the Amended Statement of claim, the Appellant relied on grant of the land in dispute by Ewi Ajumudaoro of Ado-Ekiti which said grant was further confirmed by subsequent Ewi of Ado-Ekiti. These pleadings were supported in evidence by Appellants witnesses in chief and also under cross-examination.
On the contrary, the Respondents denied the grant or any other right/Ownership of Ewi of Ado-Ekiti on the land in dispute. Inspite of the admission in the pleadings and statement on oath, DW1 & DW2 contradicted themselves when they denied Ewi?s said right under cross-examination when they said that the land in dispute was never in time owned by Ewi of Ado-Ekiti but by Oniloda and Aro. See Ladan v. The State (2016) 6 SCM 113 at 123.
The Appellant led evidence of his grantor to be Ewi of Ado-Ekiti and the Respondents admitted by their pleadings the prior ownership of the land in dispute. Therefore both traced their grantor to the same person (Ewi of Ado-Ekiti).
What is important now is to determine whose evidence after evaluation is more credible, cogent and reliable. The Appellant gave evidence that the grantor was made over 160 years ago and continued to be confirmed by subsequent Ewi of Ado-Ekiti.
The Respondents equally adduced evidence that the land in dispute was granted to their forefather (Oniloda & Aro) several years ago by the same Ewi of Ado-Ekiti. This piece of evidence was seriously attached by the Appellants as they pleaded and adduced evidence that the 1st Oniloda was only installed in 1952/53 as there was no such stool like Oniloda. This piece of evidence was never controverted or contradicted by the Respondents even under cross-examination. DW2 under cross examination said that the land in dispute was founded by Oniloda.
The dilemma created by the Respondents for themselves is that the Oniloda who only came in being in 1952/53 be said to have found the land that has been granted and occupied by the Appellants over 160 years ago. It is not possible to say the least. It is on this background that it is very easy to see that the evidence of grant of the land in dispute by the Respondents is weak and has no foundation to stand unlike that of the Appellants that is more credible, cogent and more reasonably reliable and I so hold.
See James Malgwi v. Alhaji Mohammed Goni Jajiwa Song (2012) ALL FWLR (pt. 624) 43, Nwano v. Obaeze (2012) ALL FWLR (pt. 605) 231.
To prove his grant and occupation of the land in dispute for about 160 years ago, the Appellant tendered Exhibits C, C2 and C4 made several years ago. Exhibit C4 is a document of the Respondent family showing that the Respondents family share common boundary with the Appellant on the land in dispute.
The Appellants pleaded and tendered in evidence the judgment of Ewi in Council on the land in dispute as Exhibit C3. The said Exhibit C3 the Ewi in Council further confirmed and corroborated the evidence of the Appellant as to the grant and his right of ownership on the land in dispute for over 160 years. Nonetheless, the lower Court discountenanced the document and refused to attach any weight to same on the ground that same did not fulfil the conditions to be used as estoppel parem judicata.
Where two persons make conflicting claims to possession of land, the law ascribes possession to the person that proved a better title to the land.
From the Appellants evidence on record right from the grant, act of ownership and possession exercised over a long period of time on the dispute land, the import of the findings and decision of Ewi in council in Exhibit C3 and other Exhibits (C1, C2 & C4), the Appellants have advanced credible evidence of ownership of the land in dispute to warrant favourable consideration of his claim.
The Respondents gave a traditional history of how they got to the land through their ancestor, AKOGUN, a warrior in his time and head of the Ewi of Ado-Ekiti’s war chiefs.
In this matter, the evaluation of evidence and ascription of probative value to the evidence are the primary duties of the trial Court which had the opportunity of seeing, hearing and assessing witnesses. With respect to the instant appeal, the trial Court has properly evaluated the evidence before it and its findings in the facts before it are not perverse. As a result, this Court will not interfere with such findings. SeeFRN v. Iweka (2011) LPELR 9350 (SC).
This issue is therefore resolved in favour of the Appellant.
In conclusion, I hold the view that the Appellant has placed on record evidence substantial enough to discharge the burden placed on him to warrant the grant of his claim. All the issues have been resolved in favour of the Appellant. The appeal is highly meritorious and it is hereby allowed. Accordingly, the decision of the trial Court is hereby set aside. Cost is fixed at N50,000.00 in favour of the Appeal.
Appeal Allowed.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have read in draft the judgment just delivered by my learned brother, Paul Obi Elechi, JCA and I agree with his reasoning and conclusions. In the result, this appeal is highly meritorious and is hereby allowed.
The decision of the lower Court is hereby set aside. A cost of N50,000.00 is awarded in favour of the Appellant’s
Appeal Allowed.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
Appearances:
Akinyemi Omoware, Esq.For Appellant(s)
Adebayo Adewunmi, Esq. with him, Olawale Ajayi, Esq.For Respondent(s)
