CHIEF DAUDA OLORO & ANOR V. MR. OLU OLABODE KAYODE-OLAWOLU
(2013)LCN/6297(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of June, 2013
CA/AK/39/2012
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. CHIEF DAUDA OLORO
2. CHIEF AMUSA EDIBOKUN Appellant(s)
AND
MR. OLU OLABODE KAYODE-OLAWOLU Respondent(s)
RATIO
WHETHER OR NOT A GROUND OF APPEAL MUST RELATE TO THE DECISION APPEALED AGAINST
Added to this, a ground of appeal must relate to the decision appealed against. An issue for determination in an appeal must be a substantial question of law or fact or both arising from a concrete and valid ground of appeal filed in the appeal. An issue should not be in the abstract or of mere hypothetical or academic relevance, It must also be supported by one or more of the grounds of appeal. See IMONIKHE V. THE ATT. GEN., BENDEL STATE (1992) 6 NWLR (Pt. 248) 396 at 467 and ODIFE V. ANTEMEKA (1992) 7 NWLR (Pt. 251) 25. PER GUMEL, J.C.A.
WHETHER OR NOT A DOCUMENT REFERRED TO IN JUDGMENT OF CUSTOMARY COURT BUT NOT EXPRESSLY STATED TO HAVE BEEN TENDERED IN PROCEEDINGS IN A CASE IS DEEMED TO HAVE BEEN ADMITTED BY THE COURT
The law is that document referred to in judgment of customary court but not expressly stated to have been tendered in proceedings in a case is deemed to have been admitted by the court. We rely on the Supreme Court’s case ANYIM MBA & 2 ORS. VS. AGBAFO AGU & 6 ORS. (1999) 9 SCNJ P. 84 at P.100.
5.04. If the ‘ratio decidendi’ of the decision of the Supreme Court in the above case is applied to the instant, it would then mean that the failure of the trial court in this case not to have acted on the said letter of 10/1/96 substantially occasioned a miscarriage of justice against the Appellants before the trial court and thereby motivated the trial court to have delivered a wrong judgment in this suit which ought to have been set aside by the Appellate court judge. It is implicit in section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides for the right of fair hearing that a trial court ought to hear and consider the evidence on all the issues joined before it see the case of LADEJO ONIFADE VS. ALHAJI ALIMI OLAYIWOLA & 6 ORS. (1990) 7 NWLR (Pt. 161) P.130 at P.165, paras. G – H. See also the case of UKPAI VS. OKORO (1982) 2 SCNLR P.380. In the same vein an appellate court ought to hear and consider the arguments on all the issues raised before it.
6.05. The Supreme Court has held in the case of THOMAS ENIYAN OLUMESAN VS. AYODELE OGUNDEPO (1996) 2 SCNJ P.172 at P.185 as follows:
“The right to fair hearing is a fundamental constitutional right guaranteed by the 1979 Constitution and its breach in any trial nullified, without doubt, such trial. In the second place, the law is settled that it is unnecessary for any person alleging a denial of fair hearing to established any injury or prejudice to himself before he may invoke his right to fair hearing.”
6.06 Similarly, the Supreme Court held in the case of T.A.O. Wilson & 1 Or. V. A.B. OSHIN & 3 ORS. (2000) 6 SCNJ P.371 at P.392 thus:-
“The principle of adjudication fundamental to the administration of justice is that the court is bound to consider every material aspect of a party’s case validly put before it. Hence, where the issue placed before the judge is one not relevant or crucial to the determination of the case before the court, non-reference to it in not a denial of fair hearing.” PER GUMEL, J.C.A.
WHETHER OR NOT THE RECORD OF PROCEEDINGS OF A COURT IS PRESUMED TO BE CORRECT UNTIL THE CONTRARY IS PROVED
“The law is that the record of proceedings of a court is presumed to be correct until the contrary is proved,
Any person or party challenging the correctness of proceedings must swear to an affidavit setting out the facts or part of omitted or wrongly stated in the record. Such affidavit must be served on the judge and or the registrar of the court would then file a counter-affidavit should he wish to contest the affidavit. See Ehikioya v. C.O.P. (1992) 4 NWLR (Pt. 233) 57. Sommer v. Federal Housing Authority (1992) LRCN (Vol.17) P.100 pp.103 – 104 ratios 10 x 11 ratio 10 held “Court is bound by the record of proceedings before it and cannot depart from it, certainly not on basis of speculation. Until such a time that electronic recording is introduced into the proceedings of our courts in this country, we will have to rely on the evidence recorded manually by the court, tedious though the practice may be, it has so far stood us in good stead, and cannot be allowed to be doubted on the basis of speculation.” PER GUMEL, J.C.A.
ALI ABUBAKAR B. GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ondo State High Court, Owo Division delivered on 29th June, 2004 by Fadoju, J. in, Suit No. HOW/6A/98.
The Appellants were the 2nd and 3rd Defendants in Suit No. OW/CC1/15/97 before the Customary Court 1, Owo, Ondo State. The Respondent was the plaintiff who sued 3 Defendant’s on behalf of himself and Owotoyinbo family. The claim of the Respondent was as set out on the record as follows:
(a) The sum of N2,000 (Two Thousand Naira) being special and general damages for crops such as Timbers, Oranges, Palm trees etc destroyed and/or harvested without plaintiffs consent;
(b) A declaration that the family of Late Owotoyinbo of Owo was entitled to a customary right of occupancy of the land being at Iworo Camp vis Ojana, Owo and which land was bounded as follows;
(i) on the 1st side by the land of one Chief Asema –
(ii) On the 2nd side by River Obinrin
(iii) On the 3rd side by a footpath leading to Ojana, and
(iv) On the 4th side by River Orungba.
(c) An order forfeiting the interest of the Defendants, their agents, privies and servants in the disputed land and for the plaintiff to regain possession of same since the land, was granted to the Defendants’ privies and agents without the plaintiff’s consent; and
(d) An order restraining the Defendants, their agents, servants and privies from parading themselves as customary tenants of the plaintiff or as owners of the disputed land.
The matter went to trial according to the extant rules of the Customary Court. A series of witnesses gave oral testimonies on both sides of the divide. A number of documents and were also tendered and admitted in evidence. Also, as part of the trial the court moved to the locus in quo on 2 occasions and took some oral evidence of witnesses. At the end of the very exhaustive proceedings, respective learned counsel addressed the court and the matter was adjourned for judgment. Meanwhile the 1st Defendant then on record, Mr. Jimoh Oforo died.
In a very well considered judgment delivered on 6th May, 1998 the trial Customary Court, upon its views and observations on the totality of evidence adduced before it found for the plaintiff against the remaining 2 living Defendants. The judgment was in the following terms:-
1. The plaintiff, on behalf of Owotoyinbo family members is hereby granted the ownership and Customary right of Occupancy of the farm land lying and situate at Iwaro Camp on Ojana Road, Owo, as bounded in the claim;
2. The defendants, their agents and privies shall hereby forfeit their rights of tenancy forthwith;
3. The defendants shall pay to the benefit of the Plaintiff the sum of One thousand Naira only (N1,000) as general damages;
4. The defendants shall also pay to the benefit of the plaintiff (N250), Two Hundred and Fifty Naira only as cost; and
5. The defendants his (sic) agents and privies are henceforth restrained from further activities on the said farmland: (See page 68 record of appeal).
The Defendants were dissatisfied with this judgment and appealed to the Ondo State High Court in a notice of appeal dated 29th May, 1998 but filed on 1st June, 1998. The notice was predicated on a lone omnibus ground that the judgment was against the weight of evidence. The High Court granted leave for additional grounds of appeal to be filed. Four additional grounds were accordingly filed. After so much delay the appeal was fully argued some time in 2004.
In its judgment of 29th June, 2004, the lower court decided thus:-
“I agree with the finding of and order of the Grade II Customary Court. The appeal lacks merit and I dismiss it accordingly.” (See lines 8 to 9 page 131 of record of appeal).
The Appellants were dissatisfied with the judgment and further appealed to this court upon being granted the trinity prayers on 18th January, 2012. Also, the original Respondent, Mr. Kayode Olawolu, having died was substituted by the current Respondent on record – Mr. Olu Olabode Kayode Olawolu. Upon the trinity orders, the Appellants filed a notice of Appeal dated 29/3/12. It was filed on 30th March, 2012. It contains 3 grounds of appeal with their particulars.
For very obvious reasons, I wish to set out these grounds of appeal with their respective particulars. They are:-
“(a) The learned judge erred in law by affirming the judgment of the customary court which had no jurisdiction to entertain the suit.
PARTICULARS OF ERROR
(i) The particulars of claim before the trial court was improper as it was not signed and dated by the Plaintiff/Respondent nor his counsel.
(ii) There was no any valid claim before the lower court on which the jurisdiction of the said court could be anchored.
(b) The learned judge erred in law by affirming the judgment of the trial court in a proceeding which was not conducted in accordance with the principles of their hearing.
PARTICULARS OF ERROR
(i) The defendants/appellants were not given a fair hearing in that a letter dated 10/1/96 written by the Olowo of Owo, Sir, Olateru Olagbegi which was tendered by the defendants/appellant to confirm the genuineness of Exhibit ‘A’ during the trial was not contained in the record of proceedings and not acted upon by the trial court.
(ii) The evidence of Chief Oloro Jawara on pages 28 to 29 of the record of proceedings of the trial court showed that the trial court deliberately jettisoned the said letter of 10/1/96 i.e. Exhibit ‘A’ inspite of the evidence led in support of same by the appellant.
(c) The learned judge erred in law by affirming the judgment of the trial court which is against the weight of evidence in this case.
PARTICULARS OF ERROR
(i) The trial court failed to consider the evidence of all the independent witnesses taken during the visit to the ‘locus-in-quo’ before arriving at its judgment thereby occasioning a substantial miscarriage of Justice in this case.”
To argue the appeal, learned Counsel Chief O.J. Jejelola filed a brief of argument dated 23-04-12. It was filed on 26/4/12. For the Respondent, learned counsel Mr. A.O. Samuel filed a brief of argument dated 25-05-12. Learned Counsel Chief Jejelola filed a reply brief dated 13-06-12. It was filed on 14/6/12.
From the grounds of appeal, learned counsel to the Appellants distilled the following issues for the determination of this appeal. They are:-
“(i) Whether the Appellate Court Judge was right in affirming the judgment of the trial court which had no jurisdiction to entertain this suit.
(ii) Whether the learned Appellate court judge was right in affirming the judgment of the trial court that was against the laid down principles of fair hearing.
(iii) Whether the Judgment of the learned Appellate Court judge could stand in view of the fact that it was delivered in the names of wrong parties to this suit.
(iv) Whether the learned Appellate Court judge was right in affirming the judgment of the trial court that was against the weight of evidence.”
For the Respondent, learned counsel formulated the following issues for the determination of this appeal. They are:-
“(A) WHETHER THE SUIT AT THE TRIAL COURT WAS INCOMPETENT AS ALLEGED? GROUND A
(B) WHETHER ANY BREACH OF FAIR HEARING WAS DISCLOSED TO WARRANT THE JUDGMENT OF THE LOWER COURT TO BE SET-ASIDE? GROUND B
(C) WHETHER THE ERROR OF THE LOWER COURT ON FAILING TO ADEQUATELY DESCRIBE ONE OF THE PARTIES SHOULD BE VISITED ON THE RESPONDENT
(D) WHETHER THE LOWER COURT WAS RIGHT IN AFFIRMING THE DECISION OF THE TRIAL COURT IN VIEW OF ALL THE EVIDENCE ADDUCED BEFORE IT AT THE LOCUS. GROUND C”
At the hearing of the appeal learned counsel to the Respondent informed the court that he had filed and argued a notice of preliminary objection seeking to challenge the competence of issue 3 in the issues formulated and argued in the Appellants’ brief. Further to this, respective learned counsel identified, adopted and relied on their briefs of argument.
Learned counsel to the Respondent drew the attention of the court to pages 2 to 3 of his brief where the notice of preliminary objection he raised was argued. He urged the court to uphold the preliminary objection and to discountenance and strike out issue 3 in the appellants’ brief of argument because it was not formulated out of any of the valid grounds of appeal in this appeal. Learned counsel to the Appellants referred to his reply brief and urged on the Court to dismiss the notice of preliminary objection for lacking in merit.
Before going into the issues formulated for the determination of this appeal, let me pause a little and go into the arguments and submissions for and against the notice of preliminary objection.
The grounds for the preliminary objection are out on 3 of the Respondent’s brief as follows:-
(a) The Appellant filed a notice of appeal on the 29th March, 2012 contained towards the last page of the Record;
(b) In the said Notice of Appeal, there were only 3 Grounds of Appeal, i.e. grounds a – c;
(c) None of the said grounds could be said to be the ground from which issue 3 was distilled from (sic);
(d) That as a result of the above, appellants’ issue III is incompetent and should be struck out.
Indeed, these are really not good grounds for a notice of preliminary objection. They are inelegant and very badly couched. However, in order not to throw away the baby with the bath water and to avoid any undue technicality, I shall take them on their face value without much ado.
In arguing the notice of objection learned counsel pointed out and explained the basic facts stemming and arising out of the grounds for the objection. He relied on the cases of AHMAD V. SOKOTO STATE HOUSE OF ASSEMBLY (2003) FWLR (Pt.174) 306 at 317 G-H, B.J. EXPORT & CHEMICAL CO. LTD. V. K.R.P.C. & CO. LTD. (2003) FWLR (Pt. 105) 445 at 497 F – H and MAT HOLDINGS LTD. V. UBA PLC. (2003) FWLR (Pt. 183) 146 at 162 F – G in urging the Court to discountenance issue 3 and proceeds to strike out same for being incompetent.
According to what I can gather from the response of learned counsel to the Appellants, he appeared to what to explain that the preliminary objection failed to comply with the Order 10 of the Court of Appeal Rules 2011 and it ought to be dismissed. Learned counsel gave no particulars of the alleged non-compliance. Further to this learned counsel pointed out that his issue 3 was distillable from what he chose to call ground (a) (ii) of the grounds of appeal. Upon this he urged on the court to dismiss the notice of preliminary objection and allow issue 3 to be part of the issues formulated for the determination of this appeal.
The approach of respective learned counsel to this notice of preliminary objection is so haphazard and grossly perfunctory and simplistic. Learned counsel to the Respondent presented the case of B. J. EXPORT (Supra) as reported in (Pt. 105) of FWLR. This is wrong. There is no such case reported in Part 105 of FWLR. To say the least, this attitude of Counsel leaves a lot to be desired. From the totality of the facts and circumstances in this appeal it does not admit of any arguments that only 3 grounds of appeal are contained in the notice of appeal filed on behalf of the Appellants and reproduced in full hereinabove. It also goes without any doubt that learned counsel to the Appellants formulated 4 issues for the determination of this appeal. Learned Counsel to the Respondent, inspite of his notice of preliminary objection, inexplicably also formulated 4 issues for the determination of this appeal. There is a proliferation of issues. It is not allowed for an appellant to formulate more issues than there are grounds of appeal. Appellate adjudication does not envisage or contemplate the splitting of grounds of appeal to give birth to more issues than grounds of appeal.
Added to this, a ground of appeal must relate to the decision appealed against. An issue for determination in an appeal must be a substantial question of law or fact or both arising from a concrete and valid ground of appeal filed in the appeal. An issue should not be in the abstract or of mere hypothetical or academic relevance, It must also be supported by one or more of the grounds of appeal. See IMONIKHE V. THE ATT. GEN., BENDEL STATE (1992) 6 NWLR (Pt. 248) 396 at 467 and ODIFE V. ANTEMEKA (1992) 7 NWLR (Pt. 251) 25.
Learned Counsel to the Appellants tried to justify his formulation of 4 issues out of 3 grounds of appeal by referring to ground (a) (ii). This is a wrong approach and it is not the norm or practice in Appellate Courts. In MAT HOLDINGS LTD. V. UBA PLC. (Supra), this court referred to ODIFE V. ANIEMEKA and held that an Appellant cannot and should not be allowed to argue an issue not formulated on the grounds of appeal. See the contribution of Omage JCA at 162- F-G to the lead judgment of Salami, JCA. An issue which is not supported by a ground of appeal is incompetent and liable to being discountenanced and struck out in the determination of the appeal. See LABIYI V. ANRETIOLA (1992) 10 SCNJ 1 at 17 and AHMAD V. SOKOTO STATE HOUSE OF ASSEMBLY (Supra). The splitting of one ground of appeal to give birth to issues 1 and 3 is wrong and should not be allowed. In the instant appeal issues 1 and 3 must remain incompetent and are accordingly struck out. The preliminary objection succeeds and it is upheld.
The only remaining issues for the determination of this appeal that appear most pungent and sufficiently all embracing are issues 2 and 4 as formulated on behalf of the Appellants. I will therefore proceed to determine the merits of this appeal only on issues 2 and 4.
For what may later be shown to be good cause and justifiable I want to reproduce in full all that learned counsel had to offer as his arguments on issue 2.
“6.02. We submit with due respect that the appellants were not given a fair hearing in this case by the trial court in that a letter dated 10/1/96 written by the Olowo of Owo, Sir Otateru Olagbegi which was tendered by the Appellants to confirm the genuineness of Exhibit ‘A’ during the trial was not contained in the records of the proceedings of this case and not considered by the trial court. The evidence of DW1, Chief Oloro Jimoh Jawara on page 28 – 29 of the records shows that the trial court deliberately jettisoned the said letter of 10/1/96 inspite of the avalanche of evidence led in support of same by the Appellant.”
6.03 The law is that document referred to in judgment of customary court but not expressly stated to have been tendered in proceedings in a case is deemed to have been admitted by the court. We rely on the Supreme Court’s case ANYIM MBA & 2 ORS. VS. AGBAFO AGU & 6 ORS. (1999) 9 SCNJ P. 84 at P.100.
5.04. If the ‘ratio decidendi’ of the decision of the Supreme Court in the above case is applied to the instant, it would then mean that the failure of the trial court in this case not to have acted on the said letter of 10/1/96 substantially occasioned a miscarriage of justice against the Appellants before the trial court and thereby motivated the trial court to have delivered a wrong judgment in this suit which ought to have been set aside by the Appellate court judge. It is implicit in section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides for the right of fair hearing that a trial court ought to hear and consider the evidence on all the issues joined before it see the case of LADEJO ONIFADE VS. ALHAJI ALIMI OLAYIWOLA & 6 ORS. (1990) 7 NWLR (Pt. 161) P.130 at P.165, paras. G – H. See also the case of UKPAI VS. OKORO (1982) 2 SCNLR P.380. In the same vein an appellate court ought to hear and consider the arguments on all the issues raised before it.
6.05. The Supreme Court has held in the case of THOMAS ENIYAN OLUMESAN VS. AYODELE OGUNDEPO (1996) 2 SCNJ P.172 at P.185 as follows:
“The right to fair hearing is a fundamental constitutional right guaranteed by the 1979 Constitution and its breach in any trial nullified, without doubt, such trial. In the second place, the law is settled that it is unnecessary for any person alleging a denial of fair hearing to established any injury or prejudice to himself before he may invoke his right to fair hearing.”
6.06 Similarly, the Supreme Court held in the case of T.A.O. Wilson & 1 Or. V. A.B. OSHIN & 3 ORS. (2000) 6 SCNJ P.371 at P.392 thus:-
“The principle of adjudication fundamental to the administration of justice is that the court is bound to consider every material aspect of a party’s case validly put before it. Hence, where the issue placed before the judge is one not relevant or crucial to the determination of the case before the court, non-reference to it in not a denial of fair hearing.”
6.07 In the instant case, the said letter of 10/1/96 written by Sir Olateru Olagbegi which confirmed the Appellants’ title to the land in dispute in this case is fundamental and critical to the determination of this case before the trial court.”
In his response to the totality of what learned counsel to the Appellants had to say and as fully reproduced above, learned counsel to the Respondent referred to pages 118 – 119 of the record of appeal and pointed out that learned counsel, on behalf of the Appellants, made the same complaint on this same letter before the lower court. For good effect, learned counsel to the Respondent reproduced the following passage from the judgment of the lower court. Thus:-
“Since the Appellant has failed to file and serve on the Court an affidavit to afford the Court the opportunity of file a counter-affidavit either admitting or denying the allegation of failure to admit or reject those documents and which would have amounted to denial of fair hearing should the allegation be proved true, there is nothing this Court can do. On ground 1 of the additional Ground of Appeal, I hold that there has been no breach of the principle of natural justice.”
Against this background learned counsel to the Respondent went on to submit that the above decision of the lower court was not challenged by the Appellants in this appeal. He referred to the case of OSENI V. BAJULU (2010) All FWLR (Pt 511) 813 where it was held at page 829 E- G that where there is no appeal against a finding of fact and holding of the trial Court, the effect that such a finding subsists and an Appellate court has no power to delve into it or make any pronouncement on it. He then argued that since the Appellants did not challenge this decision in this appeal, this court cannot interfere with the above finding. He urged this court to resolve this issue against the appellants.
From what I reproduced above as the submissions of learned counsel to the Appellants and after all is read in its con, it would appear to me that learned counsel is complaining about the proceedings at the trial Court. This appeal is mainly about the proceedings of the Ondo State High Court, It is not the trial court. The trial Court was Customary Court, Owo, Ondo State. In my view, and I strongly hold this view, learned counsel to the Appellants would appear to be under some misconception of the facts and circumstances of this matter.
Issue 2 appeared to have been formulated out of ground (b) of the grounds of appeal. The complaint of the Appellants in this ground of appeal clearly appears to be connected with incorrectness, incompleteness, wrongful or improper compilation of record of appeal. There is also the unfortunate allegation that the trial court deliberately jettisoned a document it admitted as Exhibit A. This complaint, as appropriately pointed by learned counsel to the Respondent, was laid before the lower court.
In dealing with this complaint, the lower court pointed out and observed at page 118 that;-
“The law is that the record of proceedings of a court is presumed to be correct until the contrary is proved,
Any person or party challenging the correctness of proceedings must swear to an affidavit setting out the facts or part of omitted or wrongly stated in the record. Such affidavit must be served on the judge and or the registrar of the court would then file a counter-affidavit should he wish to contest the affidavit. See Ehikioya v. C.O.P. (1992) 4 NWLR (Pt. 233) 57. Sommer v. Federal Housing Authority (1992) LRCN (Vol.17) P.100 pp.103 – 104 ratios 10 x 11 ratio 10 held “Court is bound by the record of proceedings before it and cannot depart from it, certainly not on basis of speculation. Until such a time that electronic recording is introduced into the proceedings of our courts in this country, we will have to rely on the evidence recorded manually by the court, tedious though the practice may be, it has so far stood us in good stead, and cannot be allowed to be doubted on the basis of speculation.”
Even if I were to give some benefit of doubt to learned counsel to the Appellants, that though he appeared to be challenging the decisions of the trial customary court, he only meant by trial court the State High Court, there would be no reasonable basis, foundation of justification to fault the steps the learned judge of the lower court took in his decision on this so-called complaint of the Appellants. The learned judge stated the law correctly. His application of the law to the facts and circumstances of this matter cannot be better and, in my view was spot on. I agree with learned counsel to the Respondent that this court ought not to interfere with the decision of the lower court in the circumstance. This issue must and is hereby resolved against the Appellants.
With respect to issue 4, learned counsel to the Appellants continued with his style. In order to achieve real effect, I also wish to reproduce the key and material submissions of learned counsel on this issue, It is at pages 8 to 9 of his brief. Thus:-
“8.02 we submit with due respect that the trial court failed to consider the evidences of all the independent witnesses taken during the visit to locus-in-quo in this suit before arriving at its judgment thereby occasioning a substantial miscarriage of justice.
8.03 The record of appeal on pages 50 to 51 shows that the trial court took evidence from three different independent witnesses at the locus-in quo of January 6th, 1998, These witnesses are CHIEF JACOB EMINOWA; MR. JOSHUA OWOYE and MR JOSEPH BOSEDE. The evidence given by these witnesses did not support the Respondent’s case as they all told the trial court that the Respondent was not known to them as the owner of the land in dispute in this case.
8.04 It is hereby submitted that the evidences given before the trial court by these witnesses at the locus-in-quo were not challenged under cross-examination and by law the said court ought to have acted and rely on same as true statement in respect of the ownership of the land in issue in the instant case.”
Inspite of what learned counsel to the Respondent stated at pages 6 and 7 of his brief, I see all the submissions of learned counsel as a monumental misconception. To attack the judgment of the trial court in the manner learned counsel aimed to do is grossly erroneous and totally lacks basis or foundation. The allegation that the trial court failed or deliberately refused to consider the probative value of a document it admitted in evidence is totally in bad faith as clear facts on record show that learned counsel ought not have made those allegations. There are no justifications whatsoever for any such allegation to be made. This issue too must be resolved against the Appellants and I accordingly so do.
This appeal totally lacks merit and it is dismissed. The concurrent findings of the two lower court on the factual foundation of the case of the Respondent are hereby upheld. Also, the judgment of Fadoju, J delivered on 29/6/2004 in Suit No. HOW/6A/98 is upheld and affirmed. I order for N100,000 costs against the Appellants in favour of the Respondent.
PRONOUNCEMENT BY ALI ABUBAKAR B. GUMEL, J.C.A: My learned brother K.M.O. Kekere-Ekun, JCA presided the panel at the hearing of this appeal. He subsequently participated at the conference that led to the judgment just delivered by me. He agrees that this appeal be dismissed, and abide by all the consequential orders in the lead judgment.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I was privileged to read in draft before now the lead judgment just delivered by my learned brother ALI A. GUMEL, JCA and I totally agree with his reasoning and conclusion thereon.
I too shall dismiss the appeal and it is so dismissed for lacking in merit. I abide by the order made as to costs.
Appearances
Chief O.J. JejelolaFor Appellant
AND
Mr. A.O. SamuelFor Respondent
