COUNTY & CITY BRICKS DEVELOPMENT COMPANY LIMITED & ANOR v. MKC NIGERIA LIMITED & ORS
(2019)LCN/12802(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/L/653/2015
RATIO
COURT AND PROCEDURE: DUTY OF THE COURT
“The lower Court was therefore duty bound in perception of evidence to admit all relevant evidence in that regard; thereafter it had the duty to evaluate the evidence in order to arrive at the value to give to the evidence by assessing the same to know which of the parties has more preponderant evidence. See ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182 at 208- 209 and AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9. A trial Court has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of how the evidence preponderates and then make logical and consequential findings of facts: ADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451 and STEPHEN vs. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
DAMAGES: GENERAL DAMAGES
“The term general damages covers all losses which are not capable of exact quantification. It includes all non-financial loss: ENTERPRISE BANK LTD vs. AKADIRI (2018) LPELR (44332) 1 at 25. The claim for loss of revenue was a specific financial loss that was exactly quantified by the Respondents at N80.5million per annum, so it was not suited for a claim for general damages. Furthermore, the loss of revenue is in the nature of loss of earnings. The Blacks Law Dictionary (8th ed. 2004, Electronic version) defines earnings as revenue gained from labour or services, from the investment of capital or from assets. So earnings are revenue and revenue is earning.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
EVIDENCE: EVIDENCE OF AN EXPERT WITNESS
“It has to be underscored that a trial Court is not bound to accept the testimony of an expert witness. Having received the expert testimony of the surveyors called and subpoenaed, the lower Court still had the duty of evaluating the same and other evidence as the decision on an issue before a Court is the duty of the judex. A Court is at all times fully in control of the evidence before it and does not abdicate its primary duty of assessing the evidence, including expert evidence and ascribing probative value thereto. In pungent terms, a Court is not bound to accept the evidence of any expert witness as the decision on the case is that of the Court and not that of the expert. See UTB vs. AWANZIGANA ENTERPRISES LTD (1994) LPELR (14599) 1 at 28-29, FAYEMI vs. ONI (2009) LPELR (4146) 1 at 58-59 and OROJO vs. I. R. AVIONICS TECHNOLOGIES (2018) LPELR (43797) 1 at 16.”PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
LAND LAW: CERTIFICATE OF OCCUPANCY
“The hornbook principle of law is that a Certificate of Occupancy is only a prima facie evidence of title and where the evidence shows that another person has a better title to the land, the Court will revoke the Certificate of Occupancy. See ILONA vs. IDAKWO (2003) LPELR (1496) 1 at 29, ADOLE vs. GWAR (2008) LPELR (189) 1 at 17 and OLOHUNDE vs. ADEYOJU (2000) 14 WRN 160 at 184. The necessary implication of the setting aside of the 3rd Respondents Certificate of Occupancy is that it is a trespasser on the disputed land and it is not entitled to enter onto the said land. The Appellants having established their legal rights over the disputed land are entitled to have their interest protected by the grant of an injunction.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES:
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. COUNTY & CITY BRICKS DEV. COMPANY LTD
2. LAYI AJAYI BEMBE – Appellant(s)
AND
1. MKC NIGERIA LTD
2. STERLING PROPERTY DEV. COMPANY LTD
3. SUNNYVALE NIGERIA LTD – Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):
The disceptation in this matter is in respect of parcels of land situate at Plot 29 Block 6 and Plot 15 Block 6, Ikoyi Foreshore, Ikoyi, Lagos State. The Respondents who were the Claimants at the lower Court trace their root of title to the Certificate of Occupancy issued to them by the Federal Government of Nigeria. The Appellants on their part maintain that they were successful in a previous litigation against the Federal Government over 16 hectares of land which encompasses the disputed two plots and that the Federal Government of Nigeria did not have any title to pass to the Respondents.
In the light of their disparate claims, proceedings were commenced at the High Court of Lagos State in SUIT NO. LD/1404/2009: M.K.C. NIGERIA LIMITED & ORS vs. COUNTY & CITY BRICKS DEVELOPMENT CO. LTD & ANOR. The Respondents as Claimants claimed the following reliefs:
(a) A declaration that the Defendants cannot rely on the judgment of the Federal High Court in suit No. FHC/L/CS/368/07 having obtained the said judgment by fraudulent misrepresentation of facts before that Court.
(b) An order of this honourable Court setting aside the said judgment obtained in the Federal High Court suit No. FHC/L/CS/368/07 as it affects the Claimants herein.
(c) A declaration that the Certificate of occupancy granted to the 1st Claimant by the Federal Government of Nigeria in respect of that parcel of land situate and lying at plot 29 block 6, Ikoyi Foreshore, Ikoyi, Lagos State more particularly delineated and verged red on Survey plan No. IL/4345B dated 16/05/03 drawn by Opeloyeru R. A is valid and subsisting;
(d) A declaration that the subsequent transfer of the parcel of Land situate and lying as plot 29 block 6, Ikoyi Foreshore, Ikoyi, Lagos State more particularly delineated and verged red on Survey plan No. IL/4345B dated 16/05/03 drawn by Opeloyeru R. A by the 1st Claimant to the 2nd Claimant is valid;
(e) A declaration that the 3rd Claimant is the owner of the land situate, lying and known as Plot 15, Block 6, Ikoyi Foreshore, Ikoyi, Lagos and particularly delineated and verged red on Survey Plan No. L/4383 dated 26/05/97 drawn by M. N. Yahaya;
(f) A declaration that the invasion and laying of siege on the Claimants land by the Defendants and consequent encroachment thereon is unlawful and illegal and amounts to trespass;
(g) A declaration that the destruction, looting and carting away of the Claimants properties on the Claimants said land by the Defendants is unlawful and illegal and amounts to trespass.
(h) An order of perpetual injunction restraining the Defendants whether by themselves, their agents, servants and/or privies from going unto, entering in, carrying on any acts of destruction and/or demolition whatsoever, carrying out any construction works whatsoever, selling, leasing and/or alienating in any way whatsoever and/or disturbing, and/or interfering with the Claimants quiet possession and control of all that parcels of land being Plot 29 Block 6, Ikoyi Foreshore, Ikoyi, Lagos State more particularly delineated and verge red on Survey plan No. IL/4345B dated 16/05/03 drawn by Opeloyeru R. A, and plot 15 block 6, Ikoyi foreshore, Ikoyi, Lagos State more particularly delineated and verge red on Survey plan No. L/4383 dated 26/05/97 drawn by M.N. Yahaya and or looting and carting away in any way whatsoever the properties thereon.
(i) N179,008,200.00 (one hundred and seventy nine Million, eight thousand, two hundred Naira) being special damages for the Defendants acts of unlawful damage, destruction, demolition and/forceful conversion of the Claimants properties and/or structures on the said land.
PARTICULARS OF SPECIAL DAMAGES
1. …
15. Projected loss of income per annum from January 2011 as a result of non completion of the building project on the property N80, 580,000
________________
TOTAL N179, 008,200.00
General Damages
(a) N1, 000,000 being general damages for trespass; and
(b) N80, 580,000 per annum being general damages for loss of revenue from 30th April, 2011 up and until the final determination of this suit.
(See pages 7-9 of the Records)
The Appellants as Defendants at the lower Court set up a counterclaim for the following reliefs:
1. A declaration that the Claimants are trespassers on the land the subject matter of this suit.
2. An Order that the Claimants, their servants, agents or privies are not entitled to enter or cross the 1st Defendants land or any part thereof which is more particularly identified and described in the survey plan of MA Fasassi dated 5th May 1995 with number MAF/322/95/L.
3. An order of perpetual injunction restraining the Claimants whether by themselves or by their servants, agents, privies or howsoever from entering, crossing, continuing to enter or cross the land known as Block 6 Plot 15 Federal Government Layout, Ikoyi Foreshore which falls within and is part of the 1st Defendants land and or any part of the 1st Defendant land.
4. An order nullifying the Certificates of Occupancy purportedly issued to the Claimants by the Federal Government.
5. Damages against the Claimants in the sum of N20, 000,000 (Twenty Million Naira) for trespassing on the Defendants land.
(See pages 39-40 of the Records)
In the course of the proceedings at the lower Court the Appellants conceded that Plot 29 Block 6 did not fall within the 16 hectares they previously litigated with the Federal Government, so the contest was effectively restricted to Plot 15 Block 9. The matter was subjected to a full dressed plenary trial and in its judgment which was delivered on 20th February 2013, the lower Court entered judgment for the Respondents in terms of their reliefs (a), (e), (f) and (h) which reliefs I have already set out in this judgment. The lower Court dismissed the special damages claimed under relief (i), but granted the sum of N16, 500,000.00 as general damages which was also claimed under relief (i). The relief for setting aside the previous judgment claimed as relief (b) by the Respondents was not acceded to by the lower Court.
The Appellants were dissatisfied with the decision of the lower Court and appealed against the same. The scarified judgment of the lower Court is at pages 364-377 of the Records, while the extant notice of appeal on which the appeal was argued is the Amended Notice of Appeal filed on 3rd July 2017, but deemed as properly filed and served on 4th July 2017.
In obeisance to the Rules of Court, the parties filed and exchanged briefs of argument. The Appellants filed their Appellants Briefs on 6th October 2016, but deemed as properly filed on 4th July 2017. The Appellants also filed a Reply Brief on 14th January 2019 but deemed on 15th January 2019. On 4th December 2017, the Respondents filed a Notice of Contention that the judgment of the lower Court should be affirmed on grounds other than those relied on by the lower Court. The Notice of Contention was argued as issue number two in the Respondents
Brief which was filed on 4th December 2017. Both the Notice of Contention and the Respondents Brief were deemed as properly filed on 15th January 2019.
At the hearing of the appeal, the learned counsel for the parties adopted and relied on their respective briefs, with learned senior counsel for the Appellants contending that the Respondents Notice of Contention was incompetent as it relates to relief (b) of the Respondents claim which was refused by the lower Court. It was stated that the proper process to challenge the refusal of the relief was a cross appeal against the decision and not a Respondents Notice of Contention. The Court was therefore urged to discountenance the incompetent Respondents Notice of Contention.
Now, the logical starting point will be to address the issue raised as to the competence of the Respondents Notice of Contention, which has been argued in the Respondents
Brief, to see if it ought to play any part in the consideration and resolution of this appeal; or if indeed it is competent contrary to the submissions of the Appellants counsel.
Order 9 Rule 2 of the Court of Appeal Rules, 2016 stipulates as follows:
2. A Respondent who desires to contend on the appeal that the decision of the Court below should be affirmed on grounds, other than those relied upon by that Court, must give notice to that effect specifying the grounds of that contention.
The Respondents Notice of Contention is resorted to where the position of the respondent is that the judgment is correct but that the judgment was based on wrong grounds or premise; and that there is enough evidence on record which can sustain the judgment on other grounds other than those relied upon by the trial Court. The Respondent’s Notice of Contention postulates the correctness of the judgment. See AMERICAN CYANAMID COMPANY vs. VITALITY PHARMACEUTICALS LTD (1991) 2 NWLR (PT 171) 15 or (1991) LPELR (461) 1 at 23-24, SUNMONU vs. ASHOROTA (1975) 1 NWLR 16 and LAGOS CITY COUNCIL vs. AJAYI (1970) 1 ALL NLR 291.
It goes without saying that a Respondents Notice that postulates the correctness of the judgment appealed against cannot hanker after reversing the decision reached by the Court in the judgment. Where a Respondent seeks a reversal of the decision arrived at, it presupposes dissatisfaction with the judgment and the appropriate procedure will be to file a cross appeal to correct the error and not a Respondents Notice: AFRICAN CONTINENTAL SEAWAYS LTD vs. NIGERIAN DREDGING ROADS AND GENERAL WORKS LTD (1977) 5 SC 235, ELIOCHIN NIG. LTD vs. MBADIWE (1986) 1 NWLR (PT 14) 47 and ORO vs. FALADE (1995) 5 NWLR (PT 396) 385.
Relief (b) claimed by the Respondents is as follows:
An order of this honourable Court setting aside the said judgment obtained in the Federal High Court in suit No. FHC/L/CS/368/07 as it affects the Claimants herein.
In refusing this relief the lower Court stated as follows at page 374 of the Records:
…this Court cannot accede to relief b which is akin to sitting on Appeal over a Court of co-ordinate jurisdiction.
The ground on which the Respondents Notice of Contention is predicated is as follows:
The Appellants cannot rely on the judgment of the Federal High Court in Suit No. FHC/L/CS/368/07 County & City Bricks Development Company Limited v. Federal Ministry of Environment & Urban Development & Ors., delivered on 8th day of June, 2009 to claim ownership of Plot 15 Block 6 at Ikoyi Foreshore, Ikoyi, Eti-Osa Local Government Area, Lagos State as the Federal High Court lacks the jurisdiction to adjudicate on propriety [sic] interest in land.
Without a doubt, it is effulgent that the object of the Respondents Notice of Contention is to attain a reversal of the decision of the lower Court refusing to grant relief (b). It postulates that the decision is not correct and the process by which to secure a reversal of the decision is by filing an appeal, not a Respondents Notice of Contention. In the circumstances, the Respondents Notice of Contention is incompetent and the jurisdiction of this Court has not been activated by the said incompetent process. I hereby discountenance the same and the arguments proffered thereon in the Respondents Brief. They will play no further part in the consideration and resolution of this matter. We now segue to the merits of the appeal.
The Appellants distilled four issues for determination, namely:
1. Whether the trial Judge was right to grant relief (a) without evaluating the evidence and in the absence of any specific factual finding of a fraudulent misrepresentation by the Appellants, and yet concluded that the Federal High Court Judgement was obtained by fraud or misrepresentation.
2. Whether the trial Court was right to hold that the dispute land does not fall within the land in the Federal High Court Judgement and thereby conclude that the Judgment does not in any way affect the interest of the Respondents (i.e Respondents herein) consequently granting relief (e)
3. Whether the trial Court was right to award general damages of N16,500,000 against the Appellants when the Respond? damages claim for trespass was only for N1,000,000.
4. Whether the trial Court was right to classify the Respondents claim for loss of revenue as general damages thus granting N16,500,000 when damages for loss of revenue is in law special damages and there was no evidence to support the grant.
The Respondents equally formulated four issues for determination, as follows:
(1) Whether the judgment of the Federal High Court in Suit No. FHC/L/CS/368/07 was obtained by the Appellants through fraudulent misrepresentation.
(2) Whether the Appellants can rely on the judgment in Suit No. FHC/L/CS/368/07 referred to as Exhibit D2, as their root of title where the Federal High Court lacks the jurisdiction to determine action in respect of title to land;
(3) Whether the land in dispute falls within the land contained in Plan No. MAF/322/95/L drawn by M. A. Fasasi referred to as Exhibit 11;
(4) Whether the Court was right when it awarded the sum of N16,500,000.00 as general damages in favour of the Respondents.
As earlier stated, the Respondents issue number two is predicated on the Respondents Notice of Contention. Having held that the said Respondents Notice of Contention is incompetent, I will discountenance the said issue number two. The Respondents issue numbers one, three and four are akin to the four issues distilled by the Appellants, with the Respondents issue number four being an amalgam of the Appellants issue numbers three and four. I will therefore consider and resolve this appeal based on the issues as crafted by the Appellants. Issue numbers three and four nominated by the Appellants will be taken together since they are of the same genus.
ISSUE NUMBER ONE
Whether the trial Judge was right to grant relief (a) without evaluating the evidence and in the absence of any specific factual finding of a fraudulent misrepresentation by the Appellants, and yet concluded that the Federal High Court Judgment was obtained by fraud or misrepresentation.
SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellants submit that the Respondents had the onus of proving fraudulent misrepresentation beyond reasonable doubt and that they did not meet this standard of proof as there was no iota of evidence to support the allegation of fraud. It was maintained that there was absolutely no evidence that the decision of the Federal High Court, Exhibit D2, was obtained by fraud. The lower Court, it was stated, did not properly evaluate the evidence and thereby caused a miscarriage of justice. The cases of LEKO vs. SODA (1995) 2 NWLR (PT 378) 432 at 435 and KHEREKHOLO vs. UDA (2011) 3 NWLR (PT 1234)323 were referred to.
It was opined that the lower Court after reviewing the evidence did not make any findings that the Federal High Court judgment was obtained by fraud and therefore the decision to grant relief (a) cannot be allowed to stand. It was contended that parties joined issues on whether the Federal High Court judgment was obtained by fraudulent misrepresentation, but that the lower Court failed to consider the issue thereby occasioning a miscarriage of justice.
It is the further contention of the Appellants that the particulars of fraud pleaded by the Respondents complained about the evidence led at the trial at the Federal High Court, which can only be decided by an appellate Court, but certainly did not amount to fraud. It was stated that fraud is not committed merely because a party thinks that the evidence is not sufficient to support the judgment obtained. Such a complaint it was stated was for an appellate Court to decide, more so when the lower Court cannot sit on appeal over the decision of a Court of co-ordinate jurisdiction. The cases of AGHENHEN vs. WAGHOREGHOR (1974) NSCC 20 at 21 ratio 3 and ANATOGU vs. IWEKA II (1995) 8 NWLR (PT 415) at 573-574 were relied upon.
SUBMISSIONS OF THE RESPONDENTS COUNSEL
The Respondents submit that the basis of the decision of the Federal High Court in Exhibit D2 was the survey plan tendered as Exhibit 11 and that the Appellants surveyor, the DW2, revealed that when he produced Exhibit D11, he did not take into consideration Exhibit 13, the Lagos State Government Gazette which excised 8 hectares of land for the Ajegunle Odo family from where the Appellants land was said to have started. It was posited that the evidence from the Respondents surveyor, the CW3, showed that the exclusion by the DW2 of a substantial part of the excised land in Exhibit 13 resulted in the encroachment onto the Respondents land in Exhibit 11.
It was asserted that it was this exclusion that led to the misrepresentation of facts regarding the land purportedly acquired by the Appellants and that the failure or omission to consider Exhibit 13 before Exhibit 11 was produced was concealed by the Appellants before the Federal High Court judgment, Exhibit D2, was delivered. It was maintained that the Respondents furnished enough materials for the lower Court to reach the conclusion that Exhibit D2 was obtained by fraudulent misrepresentation.
RESOLUTION OF ISSUE NUMBER ONE
The pith of the Appellants contention under this issue is that the lower Court did not evaluate the evidence and did not make any specific finding of fact that there was fraudulent misrepresentation of facts by which the Federal High Court, Exhibit D2, was procured before proceeding to grant the Respondents relief (a).
The trial judge is a peculiar adjudicator. He has the unparalleled advantage of seeing the witnesses testify. He observes their demeanour and it is within his province having seen, heard and assessed the witnesses to evaluate and ascribe probative value to the evidence adduced. The trial Court has the duty to receive all available relevant evidence on an issue. This is perception of evidence. Afterwards, the Court has the duty to weigh that evidence in the context of the peculiar circumstances of the case. This is evaluation of evidence. A finding of fact will entail both perception and evaluation of evidence. See GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592 and WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50 -51.
The parties joined issues on whether there was fraudulent misrepresentation leading on to the judgment of the Federal High Court in Exhibit D2. The Respondents pleaded the particulars of fraud in paragraph 32 of their 2nd Amended Statement of Claim. The lower Court was therefore duty bound in perception of evidence to admit all relevant evidence in that regard; thereafter it had the duty to evaluate the evidence in order to arrive at the value to give to the evidence by assessing the same to know which of the parties has more preponderant evidence. See ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182 at 208- 209 and AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9. A trial Court has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of how the evidence preponderates and then make logical and consequential findings of facts: ADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451 and STEPHEN vs. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005.
The judgment of the lower Court at pages 364-377 of the Records can be compartmentalized into four segments. Pages 364-366 restate the reliefs claimed in the main claim and counterclaim respectively. Pages 366-372 consist of a review of the evidence adduced by the parties. Pages 372-374 consists of the evaluation of the evidence and ascription of probative value, while pages 374-377 are on the reliefs granted and those refused and the reasons therefor.
I have painstakingly gone through the judgment of the lower Court and it is translucent that the lower Court did not evaluate or make any finding of facts on how the evidence preponderated on the question of fraudulent misrepresentation on which the parties had joined issues. Without the finding being made that the evidence established the same, it was like a bolt out of the blue when the lower Court proclaimed at page 374 of the Records that judgment is entered in terms of relief (a). This is unsatisfactory and a failure by the lower Court in its duty of adjudication. See LEKO vs. SODA (supra), KHEREKHOLO vs. UDA (supra) and OKONJI vs. NJOKANMA (1991) 7 NWLR (PT 202) 131 at 150.
The allegation of fraud must be proved beyond reasonable doubt, the law being that where the commission of a crime is directly in issue in any proceeding, the standard of proof is beyond reasonable doubt. See Section 135 (1) of the Evidence Act, OMORHIRHI vs. ENATEVWERE (1988) 1 NWLR (PT 73) 746, FOLAMI vs. COLE (1990) 2 NWLR (PT 133) 445 and TERAB vs. LAWAN (1992) 3 NWLR (PT 231) 569. The Respondents therefore had the burden of proving the particulars of fraud they pleaded beyond reasonable doubt in order to be entitled to the grant of the relief that the judgment of the Federal High Court, Exhibit D2, was obtained by fraudulent misrepresentation.
I have insightfully considered the evidence of the Respondents and in a coda, their case is that the survey plan on which the judgment Exhibit D2 was arrived at is not correct because it did not take into consideration the land excised by the Lagos State Government in the Gazette, Exhibit 13. Quite apart from the fact that this contention relates to the quality of the evidence which led to the judgment in Exhibit D2, it does not allude to any dishonest, unconscionable and morally reprehensible conduct on the part of the Appellants on which the allegation of fraud can be founded. The sufficiency vel non of the evidence on which the judgment of a Court was arrived at can only be challenged or ventilated on an appeal against the said judgment. Paucis verbis, the evidence does not establish any fraudulent misrepresentation to warrant the grant of relief (a). I will accordingly resolve this issue number one in favour of the Appellants. The lower Court was not right when without evaluating the evidence and making any finding on the establishment of fraudulent misrepresentation, it proceeded to hold that the decision of the Federal High Court, Exhibit D2, was obtained by fraudulent misrepresentation.
ISSUE NUMBER TWO
Whether the trial Court was right to hold that the disputed land does not fall within the land in the Federal High Court Judgment and thereby concluded that the Judgment does not in any way affect the interest of the Claimants (i. e. Respondents herein) consequently granting relief (e).
SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellants contend that the Federal High Court judgment, Exhibit D2, made a declaration of title over 16 hectares of land in favour of the Appellants, which had the effect of defeating the title of the Respondents predecessor in title, and consequently it had no title to pass to the Respondents. It was stated that the lower Court was wrong to hold that the disputed land was not part of the land adjudged as belonging to the Appellants in the judgment of the Federal High Court. It was opined that the testimony of the expert witnesses, the surveyors called by the parties is that the disputed land fell within the 16 hectares. It was further stated that the Respondents? surveyor, the CW3, having so testified, was an admission against the interest of the Respondents vide ECOBANK PLC vs. NULGE (2014) LPELR 24171 CA.
It was argued that the lower Court misinterpreted the testimony of the DW2 as to whether the disputed land fell within the 16 hectares and that not having properly evaluated the evidence, it arrived at a perverse decision. It was contended that the lower Court ought to have placed value on the expert evidence of the surveyors (CW3 and DW2).
The cases of SEISMOGRAPH SERVICES (NIG) LTD vs. OGBENI (1976) NSCC 130 at 137 and SEISMOGRAPH SERVICE (NIG) LTD vs. AKPORUOVO (1974) 6 SC 119 at 136 were cited in support. Further argued that the evidence of the Surveyor-General of Lagos State and Exhibit D5 and Exhibit 8 show that the disputed land falls within the 16 hectares of land covered by the Federal High Court Judgment and ought to have been accepted by the lower Court, being from an independent and impartial body.
The Appellants further submit that the interest of the Appellants in the disputed land is by virtue of the Certificate of Occupancy issued by the Federal Government; and that the Federal High Court Judgment, Exhibit D2, nullified the title of the Federal Government and consequently it had no title to pass to the Respondent ab initio on the principle of nemo dat quod non habet. The Certificate of Occupancy, it was posited, was not enough to prove a valid title, when the grantor, the Federal Government, did not have the authority or capacity to make the grant. The cases of AGUSIOBO vs. OKAGBUE (2001) 15 NWLR (PT 737) 502 at 537-538, N.E.W. LTD vs. DENAP LTD (1997) 10 NWLR (PT 526) [no page stated], ROMAINE vs. ROMAINE (1992) 4 NWLR (PT 238) 650 at 662 and ASHIRU vs. OLUKOYA (2006) 11 NWLR (PT 990) 1 at 29 were called in aid. It was conclusively asserted that the lower Court was wrong to hold that the Federal High Court Judgment, Exhibit D2, did not affect the interest of the Respondents.
SUBMISSIONS OF THE RESPONDENTS COUNSEL
The Respondents argument on this issue is under its issue number three. It was submitted that the Respondents evidence made it clear that the disputed land did not fall within Exhibit 11; it was stated that the CW3 testified that the composite plan, Exhibit 15, shows that Exhibit 11 did not subsume the land excised by the Lagos Sate Government Gazette, Exhibit 13, which fact the Appellants surveyor, DW2 and the Surveyor-General conceded that they did not consider Exhibit 13 when they prepared Exhibit 11 and Exhibit 8 respectively. It was maintained that if Exhibit 11 had taken Exhibit 13 into consideration, it would not have encroached on the disputed land. It was opined that based on this evidence the lower Court rightly concluded that the Federal High Court judgment, Exhibit D2, does not affect the interest of the Respondents.
The Respondents further contend that the CW3 did not admit that the disputed land fell within Exhibit 11, as his testimony was that the Appellants encroached on the disputed land because Exhibit 13 was not captured in Exhibit 11, and in Exhibit 8 prepared by the Surveyor-General, Exhibit 13 was still not considered. It was maintained that a community reading of the statement on oath of the CW3 indicates that there was no admission that the disputed land fell on Appellants land. It was conclusively submitted that Exhibit D2 did not nullify the 3rd Respondents Certificate of Occupancy over the disputed land because the Federal High Court lacks jurisdiction to deliver Exhibit D2.
APPELLANTS REPLY ON LAW
In the Reply Brief, the Appellants contend that the issue of whether the Federal High Court had jurisdiction to deliver Exhibit D2 could not have been determined by the lower Court, being a Court of co-ordinate jurisdiction and consequently cannot be raised in this appeal, but in an appeal against the decision of the Federal High Court. It was stated that the decision of a Court remains binding until set aside vide FAWEHINMI vs. A-G LAGOS STATE (NO.1) (1989) 3 NWLR (PT 112) 707 at 724 and ALADEGBEMI vs. FASANMADE (1988) 3 NWLR (PT 81) 129 at 155.
It was maintained that Exhibit 11 shows that the disputed land falls within it and that by Section 54 of the Evidence Act, a judgment binds the parties and their privies and so the Respondents being privies of the Federal Government, the party in Exhibit D2, are bound by the decision in Exhibit D2. The case of AGBOGUNLERI vs. DEPO (2008) 3 NWLR (PT 1074) 217 at 237 was referred to.
RESOLUTION OF ISSUE NUMBER TWO
Let me start by stating that this appeal is not the forum to determine whether the Federal High Court had the requisite jurisdiction to deliver the judgment in Exhibit D2. The proper forum for such an exercise will be an appeal against the said judgment. So for the purposes of this issue, the material consideration is whether the disputed land in this matter is within the 16 hectares adjudged as belonging to the Appellants by the Federal High Court in Exhibit D2 and whether the lower Court was right in its decision that the disputed land is not within the said 16 hectares and therefore the interest of the Respondents is not affected by the said Exhibit D2.
It is important to restate at this outset that the Appellants conceded in the course of the trial that Plot 29 Block 6 was not within the 16 hectares adjudged by the Federal High Court as belonging to them, so the contest that remained was in respect of Plot 15 Block 6. It is against this background that the evidence adduced has to be contextualised, appreciated and understood.
It has to be underscored that a trial Court is not bound to accept the testimony of an expert witness. Having received the expert testimony of the surveyors called and subpoenaed, the lower Court still had the duty of evaluating the same and other evidence as the decision on an issue before a Court is the duty of the judex. A Court is at all times fully in control of the evidence before it and does not abdicate its primary duty of assessing the evidence, including expert evidence and ascribing probative value thereto. In pungent terms, a Court is not bound to accept the evidence of any expert witness as the decision on the case is that of the Court and not that of the expert. See UTB vs. AWANZIGANA ENTERPRISES LTD (1994) LPELR (14599) 1 at 28-29, FAYEMI vs. ONI (2009) LPELR (4146) 1 at 58-59 and OROJO vs. I. R. AVIONICS TECHNOLOGIES (2018) LPELR (43797) 1 at 16.
I iterate that the critical question is whether the disputed land, id est, Plot 15 Block 6, fell within the area adjudged by the Federal High Court as belonging to the Appellants. In dealing with the identity of the land in dispute the lower Court stated as follows at page 372 of the Records:
The identity of the land in question is not in issue. Exhibit 4 is the Certificate of Occupancy issued to New Panorama Investment Properties Limited in respect of Plot 15 Block 6 of the Federal Government Layout Ikoyi Foreshore, Eti-Osa Lagos State on 30th June, 1997 with the Survey Map aptly describing the land dimension by M. N. YAHAYA, Surveyor General of the Federation on 26/5/97. It is indisputable that New Panorama Investment Properties Limited is the Predecessor-in title of the 3rd Claimant in this suit.
This shows a clear understanding that it is Plot 15 Block 6 which the 3rd Respondent acquired from New Panorama Investment Properties Limited that calls for determination whether it is within the 16 hectares adjudged as belonging to the Appellants by the Federal High Court, the lower Court having already held that the Appellants conceded the ownership of Plot 29 Block 6 to the Respondents (See page 372 of the Records).
The lower Court in evaluating the evidence of the DW2 then stated as follows at pages 373-374 of the Records:
From the evidence before the Court, DW2, the Defendants Surveyor M. A. Fasasi who charted Exhibit 11 upon which the judgment at the Federal High Court was based stated clearly that the land in dispute did not form part of the 16 hectares he carved out of the land sand filled. He stated inter alia thus; ‘The place was sand-filled and it became in excess of the 16 hectares we carved out later on…The area I filled up was more than 16 hectares… In my plan in Exhibit 11, if I had moved up the survey plan it would have covered this other land.
Now, it seems as though the lower Court misinterpreted and misunderstood the testimony of the DW2 which it was evaluating. At the risk of prolixity, Block 29 Plot 6 had been conceded as no longer in dispute being outside the 16 hectares. It is this Block 29 Plot 6 that the DW2 referred to as the other land that was outside the 16 hectares and which if he had moved up his plan Exhibit 11 would have covered this other land (See page 178 of the Records). Besides, the Respondents surveyor, the CW2, testifying under cross examination stated as follows at page 165 of the Records:
Exhibit 8 is the result of the Surveyor-General’s composite plan. I used it in preparing my composite plan.
Exhibit 8 shows part of the land in dispute verged yellow and also outside the land verged yellow. Part of the land claimed by the claimant falls outside the land verged yellow. Only a part of it falls within the land verged yellow on the survey plan.
One survey plan falls within and one survey falls outside. The one that falls within is the New Panorama. Yes only the land claimed by New Panorama shown in Exhibit 4 falls within the land verged yellow. The other survey MCK plan falls outside the land verged yellow.
The witness further stated that the correct survey plan with the correct coordinates is Exhibit 8 which he used to prepare his own composite plan (page 166 of the Records).
Then at page 167 he stated that: The only land that is within the land verged yellow is the land claimed by Panorama.
So the Respondents witness conceded that the disputed land, Plot 15 Block 6 (the New Panorama land; New Panorama being the predecessor-in title of the 3rd Respondent), is within the 16 hectares adjudged as belonging to the Appellants by the Federal High Court. This is an admission against the interest of the Respondents and it is the best evidence in favour of the Appellants: ONYENGE vs. EBERE (2004) 13 NWLR (PT 889) 39 and ROCKSHELL INTERNATIONAL LTD vs. BEST QUALITY SERVICES LTD (2009) 12 NWLR (PT 1156) 640 at 649. The lower Court evidently did not advert its mind to this testimony from the Respondents CW3.
It is rudimentary law that evaluation of evidence is primarily the duty of the trial Court. It is only where, as in this case, the trial Court fails to properly evaluate the evidence in the sense that the evaluation of evidence is wrong, perverse and cannot be supported by the evidence that an appellate Court can intervene. See NWOKORO vs. NWOSU (1994) 4 NWLR (PT 337) 172 at 194, WOLUCHEM vs. GUDI (1981) 5 SC 291 and CSS BOOKSHOPS LTD vs. THE REGD TRUSTEES OF THE MUSLIM COMMUNITY IN RIVERS STATE (2006) LPELR (824) 1 at 38.
As already demonstrated herein, the lower Court ignored the admission against interest in the testimony of the Respondents witness and arrived at a perverse decision which occasioned a miscarriage of justice. In the circumstances an appellate Court is bound to interfere and set aside the decision: AGBOMEJI vs. BAKARE (1998) 9 NWLR (PT 564) 1 at 8, NEPA vs. OSOSANYA (2004) 5 NWLR (PT 867) 601 at 624-625 and ODUGBO vs. ABU (2001) 14 NWLR (PT 732) 45. Indubitably, this issue number two (Respondents issue number three) must be resolved against the Respondents. The lower Court was wrong when it held that the disputed land did not fall within the land in the Federal High Court judgment and therefore the said judgment did not affect the interest of the Respondents.
ISSUE NUMBERS THREE AND FOUR
Whether the trial Court was right to award general damages of N16, 500,000 against the Appellants when the Respondents damages claimed for trespass was only for N1, 000,000.
Whether the trial Court was right to classify the Respondent’s claim for loss of revenue as general damages thus granting N16, 500,000 when damages for loss of revenue is in law special damages and there was no evidence to support the grant.
SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellants submit that the Respondents claimed special damages of N179million which included projected loss of income, but that the lower Court held that the same was not proved only to award the sum of N16.5million as general damages, whereas the Respondents only claimed N1million as general damages for trespass. The circumstances in which an appellate Court will interfere with the award of general damages were referred to and it was stated that it was a mistake of law for the lower Court, not being a Father Christmas, to award the Respondents more than the N1million they claimed as general damages. The cases of UBN vs. ODUSOTE (1995) 9 NWLR (PT 421) 558 and OLAOPA vs. OAU, ILE-IFE (1997) 7 NWLR (PT 512) 204 at 221 were referred to.
It is the further submission of the Appellants that the lower Court awarded general damages at the rate of N3million per annum without stating whether it is for trespass or loss of profit and also did not state the basis for calculating the award and how the figure of N3million per annum was arrived at. It was maintained that there is no evidence on record to support the award and that it is speculative, arbitrary and ought to be set aside, having been made under a mistake of law, disregard of principles, misapprehension of the facts and taking irrelevant matters into consideration and not taking relevant matters into consideration vide UBA vs. ODUSOTE BOOKSTORES LTD (supra) at 599.
It was opined that since the lower Court did not state that the award was for trespass, it could only have been for the relief of loss of revenue which can only be special damages and not general damages. The case of IYERE vs. B.F.F.M. LTD (2008) 18 NWLR (PT 1119) 301 was relied upon. It was asserted that the Respondents claim for loss of income under special damages was the same as the claim for loss of revenue under general damages and that having rejected the loss of income claim for special damages as not proved, the claim for loss of revenue ought to fail for the same reason.
It was posited that the award was as a result of mistake of law, disregard of principles and misapprehension of the facts.
The Appellants conclusively submitted that the order for perpetual injunction should not have granted since the disputed land falls within the land in the Federal High Court judgment, and that where a declaration of title does not succeed, the ancillary claim for trespass and perpetual injunction must necessarily fail.
SUBMISSIONS OF THE RESPONDENTS COUNSEL
The Respondents submission on these issues are in their issue number four. They contend that the lower Court was right to award N16.5million as general damages; that since they Appellants were adjudged trespassers, the award of general damages was automatic as trespass is actionable per se vide OLUWOLE vs. ABUBAKARE (2004) 10 NWLR (PT 882) 549 at 568. It was stated that the Respondents asked for N1million as damages for trespass and N80.5million as general damages for loss of revenue but that the lower Court, acting judicially and judiciously, only awarded N16.5million which was not excessive and therefore not perverse.
It was further submitted that in cases of breach of contract, the categorization of damages as special and general are inapt vide NCC vs. MOTOPHONE LTD (2007) LPELR 8893 (CA); but that in actions in tort, like the instant one, trespass is actionable per se and there is no need to prove general damages once it is established that a party has trespassed. It was conclusively stated that the claims for N1million for trespass and N80.5million as loss of revenue were claims for general damages and were awarded as such and not as special damages.
RESOLUTION OF ISSUE NUMBERS THREE AND FOUR
In paragraph 37 (i) of the 2nd Amended Statement of Claim, the Respondents claimed the sum of N179million as special damages. The particulars of the special damages includes the sum of N80,580,000.00 as projected loss of income per annum from January 2011 as a result of non-completion of the building project on the property. The Respondents further claimed general damages and an item of general damages claimed by them is the sum of N80, 580,000.00 per annum being general damages for loss of revenue from 30th April 2011 up and until the final determination of this suit.
I see some similarity in the item for special damage and the item for general damages. It is the sum of N80.5million per annum from 2011. Under the claim for special damages it is christened loss of income and under the claim for general damages it is christened loss of revenue. The cognomen notwithstanding, I am not in any doubt that it is the same N80.5million per annum claimed as special damages for loss of income, that is also claimed as general damages for loss of revenue. The Blacks Law Dictionary (8th ed. 2004 Electronic Version) defines income as the money or other form of payment that one receives, usually periodically, from employment, business, investments, royalties, gifts and the like. It goes on to define revenue as gross income or receipts. So by this definition revenue is income and income is therefore revenue. The Respondents therefore claimed the same relief under different heads of special and general damages in the hope that one might succeed; and they did indeed inveigle the Court into awarding the relief under the head of general damages after it held that the Respondents did not establish their entitlement to special damages by credible evidence (See page 375 of the Records).
In awarding the Respondents the sum of N16.5million as general damages, the lower Court stated as follows at pages 376-377 of the Records:
The Claimants too in paragraph 20 of their Amended Statement of Claim averred that it was in July, 2009 that the Defendants invaded the Claimants said land accompanied by an army of thugs and hoodlums. July 2009 is logical as the trespass commenced till now is therefore logical as the Federal High Court Judgment was delivered about a month earlier. It can therefore be deduced that the Defendants have been in unlawful of [sic] possession of the 3rd Claimants land since 2009 till date. This is 2015 in other words the Defendants have denied the Claimants the benefit of this land for exactly 5years. This is apart from the trauma and frustration suffered by the Claimants.
In the light of the circumstances of this case, I am satisfied that the Claimants and in particular the 3rd Claimant herein is entitled to general damages which is hereby assessed at Three Million Naira (N3,000.000.00) per annum translating to a total of Sixteen million Five Hundred Thousand Naira (N16, 500,000.00) only.
Judgment therefore in the sum of Sixteen Million, Five Hundred Thousand Naira is hereby entered in favour of the 3rd Claimant against the Defendants jointly and severally as general damages.
Now, there is something apparent in this award which I would point out post-haste. The Respondents claim for general damages for loss of revenue is from April 2011. But the award made by the lower Court is from July 2009. It is elementary law that a Court is bound by the relief or reliefs sought. The generosity or charity of a Court of law is confined strictly to the relief or reliefs sought to the extent that a Court of law cannot give a party what he did not claim: EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40 and OSUJI vs. EKEOCHA (2009) LPELR (2816) 1 at 44. A Court is not Santa Claus or a charitable institution; it cannot award a party what he has not claimed.
A Court cannot award a claimant what he has not asked for as that would be an unusual charity and goodwill which a Court of law, qua judex, has no jurisdiction and is incompetent to do. See EKPEYONG vs. NYONG (1975) 2 SC 65 at 73-74, AJIKAWO vs. ANSALDO NIG LTD (1991) 2 NWLR (PT 173) 359 at 372 and VEEPEE INDUSTRIES LTD vs. COCOA INDUSTRIES LTD (2008) LPELR (3461) 1 at 24. So in the first place, the lower Court was wrong to have awarded general damages for loss of revenue from July 2009, which was not the claim before it. But more importantly, should the general damages for loss of revenue have been awarded at all after the same relief as special damages for loss of income had been refused by the Court as not having been proved?
The term general damages covers all losses which are not capable of exact quantification. It includes all non-financial loss: ENTERPRISE BANK LTD vs. AKADIRI (2018) LPELR (44332) 1 at 25. The claim for loss of revenue was a specific financial loss that was exactly quantified by the Respondents at N80.5million per annum, so it was not suited for a claim for general damages. Furthermore, the loss of revenue is in the nature of loss of earnings. The Blacks Law Dictionary (8th ed. 2004, Electronic version) defines earnings as revenue gained from labour or services, from the investment of capital or from assets. So earnings are revenue and revenue is earning.
It has been held that loss of earnings (or using the Respondents cognomen, loss of revenue) is in the nature of special damages and full particulars of the earnings and such other facts as may be necessary to enable the Court to calculate as accurately as it can, the actual amount of the claimants loss must be pleaded. See OKESOTO vs. TOTAL NIGERIA PLC (2010) LPELR (4716) 1, BENIN RUBBER PRODUCERS CO-OPERATIVE MARKETING UNION LTD vs. OJO (1997) 9 NWLR (PT 521) 388 at 410 and FIRST BANK vs. MUKSAN INTERNATIONAL LTD (2017) LPELR (43143) 1 at 22. Without a doubt, the lower Court was wrong to have entertained the claim for loss of revenue as a claim for general damages and to underscore that the Respondents did not give full particulars of how they arrived at the figure of N80.5million per annum as the revenue, the lower Court without showing how it arrived at its calculation whimsically awarded the sum of N3million per annum as loss of revenue.
It is no doubt trite law that in awarding general damages a widespread power is given to the Court, comparable to the exercise of discretion of the Court: ELF PETROLEUM vs. UMAH (2018) LPELR (43600) 1 at 27-28; but it is a power exercised and the damages recoverable where the existence of a legal wrong has been established. See AKINTERINWA vs. OLADUNJOYE (2000) LPELR (358) 1 at 39. Thus far in this judgment, I have held that the lower Court was wrong in holding that the Federal High Court Judgment was obtained by fraudulent misrepresentation and that the disputed land was not part of what was adjudged as belonging to the Appellants in the Federal High Court Judgment. It is therefore evident that there is no legal wrong for which the Appellants are to be mulcted in general damages.
It is pertinent to underscore that the award of general damages is improper where the quantum of loss is ascertainable. The Respondents specifically pleaded the ascertained loss at N80.5million per annum, they had the burden of proving it to the hilt. They were unable to do so under their claim of special damages for loss of income. It is wrong to take into consideration in awarding general damages matters which would have been considered in awarding special damages: KEREWI vs. ADEGBESAN (1967) NMLR 89 and STAG ENGINEERING CO LTD vs. SABALCO (NIG) LTD (2008) LPELR (8485) 1 at 44. It is limpid from the foregoing that the lower Court was mistaken as to the law, acted in disregard of legal principles and misapprehension of the facts when it awarded the Respondents the sum of N16.5million as general damages for loss of revenue. In these circumstances, an appellate Court will be justified to interfere and set aside the award: UBN vs. ODUSOTE BOOKSTORES LTD (supra).
The lower Court granted the Respondents relief (h) which is for perpetual injunction restraining the Appellants from, inter alia, going into the disputed land. The relief of perpetual injunction is like a leech, the success of which depends on the Respondents succeeding in their reliefs that the Federal High Court Judgment was obtained by fraudulent misrepresentation and that the disputed land does not fall within the land adjudged as belonging to the Appellants in the Federal High Court Judgment. The Respondents have now failed on both scores and having so failed, the relief for perpetual injunction would equally fail. The legal principle is sublato principali tollitur adjuctum (co. Litt 389) [the principal being taken away, its adjunct is also taken away]. See ADEGOKE MOTORS vs. ADESANYA (1989) 3 NWLR (PT 109) 250 at 269. Ineluctably, these issue numbers three and four (Respondents issue number four) are resolved in favour of the Appellants.
At the incipient stage of this judgment, I referred to and set out the Appellants Counterclaim. The reliefs claimed in the said counterclaim are the antithesis of the Respondents claims in the sense that where the Respondents do not succeed, the counterclaim would perforce succeed. Put differently, the circumstances of the action from the facts pleaded are intertwined and interwoven as regards the Respondents claims and the Appellants counterclaim, such that the Respondents claims having failed, the Appellants counterclaim will succeed: DABUP vs. KOLO (1993) LPELR (905) 1 at 39. The Respondents not having succeeded in their reliefs that the Federal High Court judgment, which adjudged the larger expanse of land that encompasses the disputed land, as belonging to the Appellants, was obtained by fraudulent misrepresentation and that the disputed land does not fall within the said Federal High Court Judgment; connotes that the fons et origo of the Respondents claim to Plot 19 Block 6, the Certificate of Occupancy issued by the Federal Government, the losing party in the Federal High Court Judgment, has been eroded as the Federal Government by virtue of the said decision of the Federal High Court had no title to pass to the 3rd Respondent. The said Certificate of Occupancy is therefore liable to be set aside.
The hornbook principle of law is that a Certificate of Occupancy is only a prima facie evidence of title and where the evidence shows that another person has a better title to the land, the Court will revoke the Certificate of Occupancy. See ILONA vs. IDAKWO (2003) LPELR (1496) 1 at 29, ADOLE vs. GWAR (2008) LPELR (189) 1 at 17 and OLOHUNDE vs. ADEYOJU (2000) 14 WRN 160 at 184. The necessary implication of the setting aside of the 3rd Respondents Certificate of Occupancy is that it is a trespasser on the disputed land and it is not entitled to enter onto the said land. The Appellants having established their legal rights over the disputed land are entitled to have their interest protected by the grant of an injunction.
In a summation, from the totality of the foregoing this appeal is immensely meritorious and it accordingly succeeds. The judgment of the lower Court is hereby set aside and in its stead the reliefs of the Respondents are hereby dismissed and judgment is entered in favour of the Appellants on their counterclaim in the following terms:
1. The 3rd Respondent is hereby declared a trespasser on the land the subject matter of this suit, id est, Plot 19 Block 6, Ikoyi Foreshore Ikoyi, Lagos.
2. The 3rd Respondent, its servants, agents or privies are not entitled to enter or cross the 1st Appellants land or any part thereof which is more particularly identified and described in the survey plan of MA Fasassi dated 5th May 1995 with number MAF/322/95/L.
3. The 3rd Respondent, whether by itself, its servants, agents, privies or howsoever are restrained from entering, crossing, continuing to enter or cross the land known as Block 6 Plot 15 Federal Government Layout, Ikoyi Foreshore, which falls within and is part of the 1st Appellants land and or any part of the 1st Appellants land.
4. The Certificate of Occupancy purportedly issued to the 3rd Respondent by the Federal Government is hereby nullified.
5. The sum of N1, 000,000.00 is awarded in favour of the Appellants as general damages for trespass against the 3rd Respondent.
The parties shall bear their respective costs of this appeal.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the thorough judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A.
TOBI EBIOWEI, J.C.A.: I have read in draft the judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA just delivered. I agree and have nothing to add.
Appearances:
Oluyele Delano, Esq. SAN with him, Miss Yetunde Afonja For Appellant(s)
Seyi Soremekun, Esq. with him, Miss Tomisin Ogunniran & Gabriel Agboola, Esq. For Respondent(s)
