DR. AKIN AJIBOYE v. MOSES AKANDE ONIGBINDE
(2014)LCN/7173(CA)
In The Court of Appeal of Nigeria
On Thursday, the 8th day of May, 2014
CA/I/16/2008
RATIO
WHETHER RELIEFS ARE GRANTED ON ADMISSIONS OF THE PARTIES
It is equally the law that, declaratory reliefs are not granted on admissions of the parties but by credible evidence which must satisfy the court that plaintiff or Claimant is entitled to the declaration sought. Accordingly, for the Claimant to succeed, he must satisfy the court on the evidence adduced by him, that he is entitled to the declaration. As stated earlier, he must rely on the strength of his own case, and not on the weakness of the Defendant’s case. Thus, if he fails to discharge the onus, the weakness of the Defendant’s case will not help him and his claim will be bound to be dismissed. See Bello v. Eweka (1981) 1 S.C. p.101; Aromire v. Awoyemi (1972) 2 S.C. p.1 at 11; Ezeigwe v. Awudu (2008) 11 NWLR (pt.1097) p.158; Eyo v. Onuoha (2011) 11 NWLR (pt.1257) p.1; Eya v. Olapade (2011) 11 NWLR (pt.1259) p.505 at 525; Iroagbara v. Ufomadu (2009) 11 NWLR (pt.1153) p.587 at 603; Ukaegbu v. Nwololo (2009) 3 NWLR (pt.1127) p.194 at 231 – 232 and Ayanwale v. Odusanmi (2011) 18 NWLR (pt.1278) p.328 at 341. The burden rests throughout on the Plaintiff and never shifts. The only duty of the Defendant is merely to defend, unless where there is a counter-claim. See Awuzie v. Nkpariama (2002) 1 NWLR (pt. 747) p.1 at 9 – 10; Nruamah v. Ebuzoeme (2013) All FWLR (pt. 681.) p.1426 at 1442 paragraph E where Ariwoola, JSC stated that:-
“There is no doubt, that in an action for declaration of title, where the Defendant does not file a counter-claim, the burden is heavier on the Claimant to prove his title to the land in dispute. The defendant certainly has no duty to prove his title to the same land in dispute…” Per HARUNA SIMON TSAMMANI, J.C.A.
BURDEN TO ESTABLISH WITH CERTAINTY THE IDENTITY OF THE LAND
It is necessary at this point to point out that, in an action for declaration of title to land, the first duty of a Claimant is to establish with certainty the identity of the land to which his claim relates. He can discharge the burden of establishing the identity of the land by any one of two ways, viz; (a) by oral evidence describing with such degree of certainty or accuracy the parcel of land he claims in a manner that will guide a Surveyor armed with such description, to produce a Survey Plan of the said land, and (b) by filing a Survey Plan of the land claimed and reflecting the extent, area or location and boundaries of the land in dispute. See Awote v. Owodunni (No. 2) (1987) 2 NWLR (pt. 57) p. 367; Baruwa v. Ogunshola (1938) WACA 159; Otanma v. Youdubagha (2006) 2 NWLR (pt. 964) p. 337; Ezekwu v. Ukachukwu (2004) 17 NWLR (pt. 902) p. 227; Bello v. Fayose (1999) 11 NWLR (pt. 627) p. 510; Owhonda v. Ekpechi (2003) 17 NWLR (pt. 849) p. 326 and Ekpemupolo & Ors v. Edremoda & Ors (2009) 8 NWLR (PT. 1142) p.166. Per HARUNA SIMON TSAMMANI, J.C.A.
JUSTICES
MONICA B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
DR. AKIN AJIBOYE Appellant(s)
AND
MOSES AKANDE ONIGBINDE Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): By a statement of Claim dated and filed the 1st day of June, 2001, the respondent who was the Plaintiff at the Ogun State High Court, Ota Judicial Division, sought at paragraph 12 of the said Statement of claim, the following reliefs:-
“12. WHEREOF the Plaintiff claims against the Defendant as follows:
(1) A DECLARATION that the plaintiff is the owner of the parcel of land measuring two acres and delineated in survey Plan No. FN 3596 A drawn by Licensed Surveyor A. O. ADEBOGUN attached to the Plaintiff’s certificate of occupancy on the 17th day of May, 1983.
2(i) SPECIAL DAMAGES
10,000 9 inches blocks at N45.00 each N450,000.00
200 bags of cement at N850.00 each N170,000.00
10 lorry loads of sharp sand at N4,000 each N40,000.00
4 lorry loads of concrete at N35,000.00 each N140,000.00
LABOUR N70,000.00
TOTAL N870,000.00
(ii) GENERAL DAMAGES N500,000.00
TOTAL N1, 370,000.00
3. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendant, his agent, servants or privies from trespassing into the Plaintiff’s land measuring two acres and delineated in Survey Plan No. FN 35 96 A dawn by Licensed Surveyor A. O. ADEBOGUN attached to the Certificate of Occupancy No. 00005939 issued to the Plaintiff on the 17th day of May, 1983.
The Respondent’s case is that, he had purchased a parcel of land consisting of two acres, from the Gbeleyi Ajayi Adeyanju family at Otta, Ogun State on the 5th day of March, 1977 for the sum of Thirty Thousand Naira (N30,000.00) and a purchase receipt was issued to him. That when he paid the purchase price, he has put into possession of the parcel of land and has since been exercising acts of ownership and possession thereon.
That in the exercise of acts of ownership, he applied for and was issued a Certificate of Occupancy over the land by the Ogun State Government, and has since been exercising exclusive possession of the land without any hindrance whatsoever, till when the Appellant trespassed onto the parcel of land. In the exercise of his right of ownership and possession, the Respondent contended that, he was paying ground rent on the parcel of land to the Ogun State Government. Furthermore, that he fenced the land with blocks in preparation for construction of an Industrial concern.
According to the Respondent (Plaintiff), the Appellant trespassed on the parcel of land when he destroyed two wings of the fence around the land in violation of his (Respondent’s) right of ownership and possession over the parcel of land. He therefore prayed that the court grant him the reliefs stated in paragraph 12 of the Statement of Claim.
The Appellant who was Defendant at the court below, filed an Amended Statement of Defence dated the 13/12/2001 and filed the 06/7/2004 denying the Respondent’s claims against him. He contended that he is the owner of two (2) plots of land measuring approximately, 1343.951 square metres in Survey Plan No: OG/854/2002/56 dated the 18/12/2002 and drawn by K. A. Lawal, Registered Surveyor. It is therefore the Appellant’s case that, his parcel of land is separate and distinct and therefore does not form part of the parcel of land being claimed by the Respondent; and that the two parcels of land do not share a common boundary. That he bought his own parcel of land from Chief Olorunyomi Adejumo and was issued a purchase receipt dated 26/1/2000. It is also the Appellant’s case that, upon payment of the purchase price, he took immediate possession thereof, by clearing and surveying it.
It is also the case of the Appellant that, the said Chief Adejumo subsequently executed a Deed of Assignment in his favour, and that he has since been in undisturbed possession of his two plots of land, till the commencement of this action. He denied that the Respondent had constructed any fence nor cultivated any crops on the land which he (Appellant) destroyed. He instead contended that the land was overgrown with weeds which he cleared at substantial cost to him, before he began building thereon. The Appellant therefore denied the entire claim of the Respondent.
At the trial, the Respondent, as Plaintiff, did not testify but called three witnesses who testified as the PW1, PW2 and PW3 respectively. The Appellant as Defendant at the trial court testified as the D.W.1 and called three other witnesses who testified as the DW2, DW3 and DW4 respectively. At the close of evidence, both parties addressed the court. In a considered judgment delivered on the 13/10/2006, the learned trial Judge granted the Respondent’s (Plaintiff) claims in terms of prayers 1 and 3. Prayer 2 was granted in terms of prayer 2(ii) which is a prayer for general damages, while prayer 2(i) which is for special damages was refused. The Appellant being aggrieved by that decision has now appealed to this court vide Motion on Notice which was not dated but filed the 29/12/2006.
The said Original Notice of Appeal consisted of nine (9) Grounds of Appeal. However on the 10/02/2009, the Appellant was granted leave to file and argue additional grounds of appeal, vide Motion on Notice dated the 19/9/08 and filed the 22/9/08. Consequently, the Appellant filed an Amended Notice of Appeal incorporating the Additional Grounds of Appeal. The Amended Notice of Appeal was not dated, but filed the 16/2/2009.
As required by the Rules of this court, the parties filed and exchanged Briefs of Arguments. The Appellant’s Brief of Arguments was dated the 10/3/2009 and filed the same day. Therein, three (3) issues were nominated for determination as follows:
“1. Whether from the totality of the evidence adduced by both parties, the trial court arrived at a proper decision in the judgment delivered in favour of the Respondent. (Distilled from Grounds 1, 2, 3, 5, 6, 8, 9 and 10).
2. Whether the onus of proof in declaration of title shifts on the Appellant who was the Defendant in the absence of Counter-Claim by him. (Distilled from Ground 4).
3. Whether the failure of the Respondent to give evidence at the trial in his suit is not fatal to the success of his claims in that suit, (Distilled from Ground 11).”
The Respondent’s Brief of Arguments was dated and filed the 15/5/2009. Therein, three issues were also formulated for determination as follows:-
“1. Whether the learned trial Judge erred in law when he held that the evidence of the Plaintiff is more credible than that of the Defendant and whether the learned trial Judge properly evaluated the evidence before him and came to the right decision. (Grounds 1, 2, 4, 5 and 7).
2. Whether the learned trial Judge properly identified the identity of the land in dispute and was right in granting an order of interlocutory injunction in the circumstances of this case, (Grounds 3, 6 and 9).
3. Whether the Plaintiff/Respondent has discharged his onus of proof of title to the land in dispute despite his not giving evidence at the trial court personally as well as not suing through an Attorney. (Ground 11).”
It would be seen that, the issues formulated by the parties are essentially the same in scope and con. The only difference is that the issues are differently worded. In that respect, I intend to determine this appeal on the issues as formulated by the Appellant. I however propose to consider all the three issues together.
In arguing issue one (1), learned counsel for the appellant cited the cases of Akinfe v. UBA Plc (2007) 10 NWLR (Pt. 1041) p.185 and Ogunameh v. Adebayo (2008) 4 FWLR (pt. 450) P. 1609, to contend that, to prove which misdirection in law resulted in miscarriage of justice, the Appellant must strive to see which admissible piece of evidence the lower court rejected or inadmissible evidence it relied on. Learned Counsel then submitted that the trial court misdirected itself in expunging the only piece of evidence on the features of the Survey Plan No. FN 3596 A in Exhibit B. That no reason was given for expunging the evidence of DW2 thereon, especially when the Survey Plan in Exhibit B was already in evidence, and DW2 was therefore competent to give evidence on the features thereon. That the DW2 had testified that the Respondent’s land commenced from a setback of five (5) metres from Olusola Road, which would then place the land developed by the Appellant as separate, distinct and away from the land subject of the Respondent’s claims.
It was further contended by the Appellant that, the learned trial Judge made use of three pieces of evidence that were not pleaded, in reaching its conclusion in the judgment. Such unpleaded facts as pointed out by the Appellant are (a) evidence that the Respondent’s vendor sold land to other people, such as the United Gospel Faith Tabernacle Church. (b) the trial court admitted Exhibit D, which is a judgment in another suit allegedly involving the parties’ predecessors in title. That in any case, no Survey Plan was tendered to show that the land, the subject of Exhibit D, has any relationship with the land in dispute in the instant case and (c) the court admitted and made use of evidence that the fence of the Respondent on the land in dispute was 26 metres away from Olusola Road, whereas the 2 acres, subject of the Respondent’s claim is tied to the features or delineations in Survey Plan No: FN 3596 A attached to Exhibit B. That the effect of using this unpleaded fact is that, the court extended the Respondent’s land to include land developed by the Appellant.
Learned Counsel for the Appellant further contended that, the trial court rejected the evidence of DW2, on the ground that the DW2 is not a reliable witness. That the evidence on record does not support the reasoning of the learned trial Judge that (i) the DW2 lied when he said that he carried out the first Survey Plan in 2002 instead of 2001 and (ii) there were contradictions in the testimony of the DW2 as the contradictions were not pointed out by the trial court. Learned Counsel then contended that, contrary to the decision of the trial court, DW2 had consistently maintained that (a) he used the Respondent’s Survey Plan annexed to Exhibit B as his reference point (b) the Respondent’s Survey Plan delineated the land in dispute as commencing from 5 metres from Olusola Road, and which delineation will not include the land of the Appellant within the parcel of land claimed by the Respondent, and (c) on site he (DW2) measured the Respondent’s fence, during the visit to the locus in quo, as being 26 metres from Olusola Road. It was therefore submitted by learned counsel for the Appellant that, the learned trial Judge relied on the evidence of DW2 which is contrary to the survey plan of the Respondent, upon which the judgment is based. That the learned trial Judge simply preferred one of the two conflicting surveyor’s testimonies by discrediting the testimony of the DW2. He relied on the cases of George v. U.B.A. (1972) 8 – 9 S.C. p. 264; Adimora v. Ajufo (1988) 3 NWLR (pt. 80) p.1 and Esso West Africa v. Oladiti (1968) N.M.L.R. p. 453 at 454 to submit that, it is the law that, pleadings must contain all material facts and that evidence on a matter not pleaded goes to no issue, and must not be allowed to be given, and where given, it must be disregarded.
Learned Counsel for the Appellant also pointed out that, the reliefs sought by the Respondent and which were granted by the trial court, were on title to land and injunction to protect his title to land. Learned Counsel therefore relied on the cases of Kodilinye v. Odu 2 WACA p. 336; Adesina v. Sunmonu (2008) 4 FWLR (Pt. 444) P. 6595; Ogedengbe v. Balogun (2007) 4 FWLR (pt. 391) p. 6136; Okuoja v. Ishola (1982) 7 S.C. p. 314 at 351 and Udofia v. Afia (1980) 6 WACA p. 216 to submit that in such a claim, the Plaintiff must succeed on the strength of his case and not on the weakness of the defence. That the Plaintiff must discharge that burden by showing a defined area to which the declaration is sought, and that such defined area shall include the location, size, boundary and features of the land. It was therefore submitted that, by paragraphs 2, 3 and 4 of the Amended Statement of Defence, the Appellant made the identity of the land in dispute, when he averred that the land he is developing is distinct and separate and does not share a boundary with the land claimed by the Respondent.
Learned Counsel for the Appellant went on to submit that, the test for determining the identity of the land is whether from the record, a surveyor can produce an accurate plan. The cases of Oke & Ors. v. Eke & Ors. (1982) 2 S.C. p. 218 at 232 and Dada v. Dosunmu (2007) 1 FWLR (pt. 349) p. 388 were cited in support. It was therefore contended that, at the hearing three surveyors were called by the parties, who testified as the PW2, DW2 and the representative of the Surveyor-General of Ogun State, but could not resolve the issue of identity with certainty. That at the trial the Respondent pleaded two acres of land which exact area started or commenced from 5 metres from Olusola road as shown by his survey plan attached to the certificate of Occupancy (Exhibit B), but what he proved is 2 acres of land that commenced from his fence which started at 26 metres from Olusola Road. That by that, the Respondent failed to prove the external boundaries of the land claimed by him. The cases of Amala v. Maduka 14 WACA p. 580; EPI & Anor v. Aigbedon (1975) 1 NMLR p. 31 were then cited to submit that, the effect is that the Respondent had failed to prove his case and the proper order to have been made is that of dismissal of his claim.
Learned Counsel for the Appellant also submitted that, the parties joined issues on the root of title as each of them claimed through different vendors. That it is the Respondent who had the burden to plead and lead credible evidence on the root of his title. The case of Olokotintin v. Sarumi (2003) 1 MJSC p. 156 at 158 was cited to submit that the Respondent failed to discharge this evidential burden as there were no facts pleaded to prove who founded the land in dispute and how the land devolved to his vendors. That, the judgment (Exhibit D) relied on by the trial court and the certificate of occupancy (Exhibit B) did not prove his root of title because, Exhibit D has no survey plan attached thereto to show the nexus between the land in Exhibit D and the land upon which the Respondent sought the declaration in the instant case, and that the certificate of occupancy (Exhibit B) does not perse create title or validate any title on the Respondent, where such title has not been proved. The cases of Atta v. Ezeana (2001) FWLR p.1489 and Ogunloye v. Oni (1990) 2 NWLR (pt. 158) p. 745 were cited in support. The cases of Olagunjoye v. Akinterinwa (2000) 12 WRN p. 173 and Nwadiogbu v. Nnadozie (2001) 6 S.C. p. 107 at 112 were also cited to contend that, in a claim for perpetual injunction, proof of title is a sine qua non for its grant, but there is no evidence by the Respondent to prove sale to him under customary law, as there is no evidence that the 2 acres was delivered to the Respondent by the head and principal members of his vendor family in the presence of witnesses as required for a sale under customary law.
The Appellant’s argument on issue two (2) is essentially a restatement of his arguments in issue one (1) on the burden of proof in a claim for declaration of title to land. In that respect, I do not find it necessary and expedient to restate those arguments here. I only need to keep in view the plethora of cases such as Okafor v. Idigo (1984) 6 S.C. p. 1; Kodilinye v. Odu 2 WACA p. 336; Adesina v. Sunmonu (2008) 4 FWLR (pt. 444) p. 6595; Alao v. Akano (2005) 11 NWLR (pt. 935) p. 160; Owoade v. Omitola (1988) 2 NWLR (pt. 77) p. 413 and Ndayako v. Dantoro (2004) 13 NWLR (pt. 889) p. 187, cited by the Appellant in support of his submission.
On issue three (3), learned counsel for the Appellant submitted that, generally, a party is not obliged to testify on his behalf, but where the case is such that the party is expected to swear to its truth and be cross-examined thereon, or where there are issues of fact requiring the party to clarify on same, or the evidential burden is such that requires the party’s testimony, such party should testify. He relied on the cases of Governor of Kwara State v. Olawale (1993) 1 NWLR (pt. 272) p. 645 and Awure v. Iledu (2008) 1 FWLR (pt. 402) p. 7657 to contend that, failure to give evidence in such circumstances could only mean that the party had something to hide, and which is against his interest. That in the instant case, despite the heat generated on the identity of the land in dispute, the Respondent who had the evidential burden to prove the exact boundary of the land he bought failed to testify and also kept away the surveyor who prepared the Survey Plan No. FN 3596 A (Exhibit B) upon which judgment was based, from testifying. It was therefore submitted that, failure of the Respondent to testify and be cross-examined amounted to failure to discharge the onus of proof cast on him and that his claim should have been rejected.
Arguing on issue one (1) learned counsel for the Respondent contended that, the Respondent relied on traditional evidence in proof of his title to the land in dispute when he pleaded and led evidence that the land was sold to him by Gbeleyi Ajayi Adeyanju family of Ota. That this evidence was corroborated by his vendors who testified that they sold two acres of land to the Respondent at Olusola Road, Ota at a sum of N30,000.00 and a purchase receipt (Exhibit B) issued to him. He then cited Section 92(1) of the Evidence Act (now Section 34 (1)(a) of the Evidence Act, 2011), to submit that, there is incontrovertible evidence to show that the Respondent had been in exclusive possession and ownership of the land covered by the certificate of occupancy (Exhibit B) since the 5/3/1977, including the revenue receipts for payment of annual ground rent to the Ogun State Government. That the Respondent also tendered a judgment (Exhibit D) in a dispute involving the Gbeleyi Ajayi Adeyanju family who the Respondent’s vendors, and the Oke-Odota family who are the Appellant’s vendors, in which judgment was entered in favour of the Respondent’s vendors.
The Respondent’s learned counsel further contended that, a major point in favour of the Respondent is the evidence of the Surveyors on both sides. That the PW2 testified that, in carrying out his assignment he was contracted to do by the Respondent, he made use of the Respondent’s Survey Plan annexed to Exhibit B, drawn by Surveyor Adebogun, and the Appellant’s Survey Plan made by Surveyor K. A. Lawal dated 8/5/2001 (Exhibit F). It was also contended that the learned trial Judge rightly held that the evidence of the Appellant’s Surveyor (DW2) is unreliable, because, during the visit to the locus in quo, DW2 faced with the reality on ground admitted, contrary to his testimony at the trial that he did not visit the land but only worked on the survey plans.
Learned Counsel for the Respondent listed the five ways of proving title to land as laid down by the Supreme Court in Idundun v. Okumagba (1976) 6 – 9 S.C. p.277, to contend that, the Respondent predicated his claim of title on acts of long possession and enjoyment by his predecessors in title. That the PW3 who is the present heed of the Gbeleyi Ajayi Adeyanju family, the Respondent’s Vendors, testified of the sale by the family of the parcel of land the family sold to the Respondent, and also tendered the judgment (Exhibit D) which granted title to the expanse of land in the suit between the Respondent’s Vendor’s family and the family of the Appellant’s Vendor, in which title was granted to the Respondent also proved his title to the land through the certificate of occupancy (Exhibit B) and the purchase receipt issued by his Vendors in his favour. That, the unchallenged evidence of traditional history of the Respondent’s Vendors, the authentic survey plan, the certificate of occupancy (Exhibit B), the judgment (Exhibit D) have established the Respondent’s title to the land in dispute.
It was thus contended by the Respondent that, the fact that the Appellant did not Counter-Claim does not absolve him from proving his root of title, and thus, the learned trial Judge did not err when he held that the Appellant failed to prove the root of title of his Vendors. He then contended that, the Appellant’s root of title pleaded at paragraphs 1, 9, 10 and 15 of his Amended Statement of Defence that he bought two plots of land from Chief Olorunyomi Adejumo, was contradicted by the said Chief Adejumo, who testified that he sold only one plot to the Appellant. That the representative of Oke-Idota family (DW3) did not say anything useful other than that the family sold 10 acres of land to Chief Adejumo, and also lied that he was not aware of the judgment in Exhibit D.
On Exhibit D, it is the submission of learned counsel for the Respondent that, the judgment shows good root of title by long possession and enjoyment of land, extending over a length of time, sufficient enough to warrant the inference of ownership. That the certificate of ownership (Exhibit D) raises the presumption of ownership under Section 114 of the Evidence Act (now Section 146 of the Evidence Act, 2011), and that a certificate of occupancy (C of O) is prima facie evidence of exclusive possession of the land to which it relates, and also has the effect of extinguishing all existing rights and interests in the parcel of land in question. In other words, that a certificate of occupancy has the effect of raising the presumption that the owner is in exclusive possession of the land to which it relates. It was therefore submitted that, the learned trial Judge did not err but weighed the evidence for both sides and accordingly held rightly that, Exhibit D established possession in the Respondent’s predecessors in title. We were accordingly urged to hold that, even in the absence of a Survey Plan, the evidence led has established a nexus between the land in dispute and Exhibit D, and to further hold that the Respondent had established a prima facie root of title to the land in dispute, and so to dismiss the appeal.
On issue two (2) which is on the identity of the land in dispute, it was contended by the Respondent’s learned counsel that, trespass to land is a wrongful invasion of the private property of another, and that no intent is required so long as the act resulting in the trespass is direct and immediate. The cases of Yusuf v. Keinsi (2005) 13 NWLR (pt. 943) p. 554 and Dantshoho v. Mohammed (2003) 6 NWLR (pt. 817) p.457 were then cited to submit that, only a person in possession of land in dispute at the material time can maintain an action in trespass. That the Respondent gave credible evidence of the land in dispute through PW1, PW2 and PW3 and further tendered the certificate of occupancy to which is attached the Survey Plan of the land in dispute. That particularly, PW2, a Licensed Surveyor, gave evidence that he made a composite plan from the Survey Plans made by the Respondent and the Appellant and that he visited the land and did some measurement and computations before drawing up the composite plan. He contended that, the evidence of the Respondent’s Surveyor is more reliable than that of the Appellant’s Surveyor which is full of conflicts.
Learned Counsel for the Respondent contended that, as rightly pointed by the trial court, while the Appellant’s Surveyor (DW2) stated that he was engaged to carry out the survey in 2002, but when confronted with the facts, admitted that the survey he made was in 2001. That the DW2 also admitted in cross-examination that he visited the land and therefore had knowledge of the features on the land before preparing his plan (Exhibit G), Exhibit G was not shown to contain any features, which showed that he never visited the land. Furthermore, that upon a visit to the locus in quo, the evidence of DW2 was torn into shreds as he merely engaged in conjuring measurements with the intent of showing that the Appellant’s structure is outside the Respondent’s land, but eventually admitted that he did not visit the land but merely worked on the Survey plans. It was accordingly contended by the Respondent that, the visit to the locus in quo brought out the whole truth as the parties and their Surveyors agreed that, Exhibit B is the basis of the documents (Plans) and evidence tendered in the case. That measurements were taken at the site and both parties gave account of their case through their respective Surveyors and on the preponderance of evidence, the learned trial Judge found that the Appellant’s structure is within the Respondent’s land, thereby making the Appellant a trespasser.
It was further contended by learned counsel for the Respondent that, one of the central issues resolved in this case, was whether the identity of the land was established by the Respondent. It was accordingly argued that, the identity of the land in dispute was proved with certainty, because the identity of the land was pleaded in paragraph 2 of the statement of claim. That the Respondent had the onus of proving clearly, the area of land to which his claim relates, only if such was made an issue by the Appellant, and that the Respondent could discharge the burden by production of a Survey Plan of the land drawn to scale, or by giving a description of the land, sufficient enough for a Surveyor taking the record to produce a plan showing accurately the land to which the claim relates.
The Respondent contended that, he produced a Survey Plan No. FN 3596 A drawn by Surveyor Adebogun and further gave sufficient description of the property in the statement of claim as well as in the testimony of PW1.
That such evidence was never challenged, as the Appellant also admitted knowledge of the land in dispute. It was accordingly submitted that, the identity of the land was sufficiently established as the area of land covered by certificate of occupancy (Exhibit B) was clearly shown. The case of Famuroti v. Abeke (1991) 5 NWLR (pt. 189) p.1 at 12 was cited in support.
Learned Counsel for the Respondent also submitted that, the evidence on identify of the land in dispute was fortified by the testimony of PW1 who properly described the land and how they farmed on the land, the Survey Plan drawn on it, the identity of the Surveyor and the Vendor that sold the land to the Respondent. That, PW2 further testified that, he made use of the Appellant’s Survey Plan drawn by K. A. Lawal in making out a composite Survey Plan. Furthermore, that the visit to the locus in quo, put to rest the conflict as to the identity of the land in dispute.
On issue three (3), learned counsel for the Respondent relied on the case of Shittu v. Fashawe (2005) 14 NWLR (pt. 946) p.671 at 692 paragraph H to submit that, the fact that a Plaintiff did not testify in support of his case, will not affect his case, once he is able to prove his case to the satisfaction of the court. That the Respondent was able to prove his case to the satisfaction of the court through the testimony of PW1, PW2 and PW3. We were therefore urge to resolve all the issues against the Appellant, dismiss the appeal and affirm the judgment of the trial court.
Now, a cursory reading of the statement of claim at page 3 of the record of appeal would show that, the principal or main claim of the Respondent, as Plaintiff before the trial court, was for declaration that he is the owner of two acres of land embodied in Survey Plan No FN 3596 A attached to his certificate of occupancy dated 17/5/1983. In other words, the main claim of the Respondent is for a declaration of title to that piece of land pleaded at paragraphs 1 and 2 of the statement of claim. See paragraphs 1, 2 and 12(1) of the statement of claim, contained at pages 3 – 4 of the record of appeal. It is the law that in a claim for declaration of title to land, the claimant has the burden to establish his claim, and it is not open to him to rely on the weakness of the defendant’s case, save where such weakness, supports his claim, in which case he can rely on it to strengthen his evidence. The duty required of the Plaintiff is to lead credible evidence which satisfies the court that he has a better title than the defendant. See Kaiyaoja & Ors. v. Egunla (1974) 12 S.C. (Reprint) p.49; Kodilinye v. Odu 2 WACA 336 and Fabunmi v. Agbe (1985) 3 S.C. P.28.
It is equally the law that, declaratory reliefs are not granted on admissions of the parties but by credible evidence which must satisfy the court that plaintiff or Claimant is entitled to the declaration sought. Accordingly, for the Claimant to succeed, he must satisfy the court on the evidence adduced by him, that he is entitled to the declaration. As stated earlier, he must rely on the strength of his own case, and not on the weakness of the Defendant’s case. Thus, if he fails to discharge the onus, the weakness of the Defendant’s case will not help him and his claim will be bound to be dismissed. See Bello v. Eweka (1981) 1 S.C. p.101; Aromire v. Awoyemi (1972) 2 S.C. p.1 at 11; Ezeigwe v. Awudu (2008) 11 NWLR (pt.1097) p.158; Eyo v. Onuoha (2011) 11 NWLR (pt.1257) p.1; Eya v. Olapade (2011) 11 NWLR (pt.1259) p.505 at 525; Iroagbara v. Ufomadu (2009) 11 NWLR (pt.1153) p.587 at 603; Ukaegbu v. Nwololo (2009) 3 NWLR (pt.1127) p.194 at 231 – 232 and Ayanwale v. Odusanmi (2011) 18 NWLR (pt.1278) p.328 at 341. The burden rests throughout on the Plaintiff and never shifts. The only duty of the Defendant is merely to defend, unless where there is a counter-claim. See Awuzie v. Nkpariama (2002) 1 NWLR (pt. 747) p.1 at 9 – 10; Nruamah v. Ebuzoeme (2013) All FWLR (pt. 681.) p.1426 at 1442 paragraph E where Ariwoola, JSC stated that:-
“There is no doubt, that in an action for declaration of title, where the Defendant does not file a counter-claim, the burden is heavier on the Claimant to prove his title to the land in dispute. The defendant certainly has no duty to prove his title to the same land in dispute…”
Under the Nigerian legal system, a Claimant or Plaintiff in an action for declaration of title to land, may discharge the burden on him by leading credible evidence establishing his title by any of the following ways:-
“(a) by traditional evidence;
(b) by production of documents of title duly authenticated and executed;
(c) by acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference that he is the owner of the land;
(d) by acts of long possession and enjoyment of the land;
(e) by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected and adjacent land would in addition by the owner of the land in dispute.”
It should be noted that, the Plaintiff is not required to plead and prove all the five ways stated above. He may succeed in proving his claim by one of more of the five methods. See Nruamah v. Ebuzoeme (supra) at p. 144 paragraphs F – H; Idundun v. Okumagba (1976) 9 – 10 S.C. p. 227.
It is necessary at this point to point out that, in an action for declaration of title to land, the first duty of a Claimant is to establish with certainty the identity of the land to which his claim relates. He can discharge the burden of establishing the identity of the land by any one of two ways, viz; (a) by oral evidence describing with such degree of certainty or accuracy the parcel of land he claims in a manner that will guide a Surveyor armed with such description, to produce a Survey Plan of the said land, and (b) by filing a Survey Plan of the land claimed and reflecting the extent, area or location and boundaries of the land in dispute. See Awote v. Owodunni (No. 2) (1987) 2 NWLR (pt. 57) p. 367; Baruwa v. Ogunshola (1938) WACA 159; Otanma v. Youdubagha (2006) 2 NWLR (pt. 964) p. 337; Ezekwu v. Ukachukwu (2004) 17 NWLR (pt. 902) p. 227; Bello v. Fayose (1999) 11 NWLR (pt. 627) p. 510; Owhonda v. Ekpechi (2003) 17 NWLR (pt. 849) p. 326 and Ekpemupolo & Ors v. Edremoda & Ors (2009) 8 NWLR (PT. 1142) p.166.
The need to prove the identity of the land in dispute will arise only where the Defendant has joined issues with the Plaintiff on the question of identity of the land in dispute.
Issues will be said to have been joined where the Defendant has in his pleading or in his oral evidence disputed either the area of the land in dispute or its location or extent of the land.
See Nwokidu v. Okanu (2010) 3 NWLR (pt. 1181) p. 362; Ayuya v. Yonrin (2011) 10 NWLR (pt. 1254) p. 135; Kano v. Maikaji (2011) 7 NWLR (pt. 1275) p. 139 and Olukunlade v. Ademilayo (2011) 15 NWLR (pt. 1269) P. 72.
The pleadings of the Respondent (Plaintiff) in respect of the identity of the land upon which he sought the declaration is at paragraph 1 of the Statement of Claim, wherein, the Respondent pleaded that:-
“The Plaintiff is the owner of a parcel of land measuring two acres situate at Olusola Road, Otta, Ogun State, which is more particularly delineated in survey Plan No. FN 3596 A drawn by Licensed Surveyor A. O. ADEBOGUN attached to certificate of occupancy No. 00005939 issued to the Plaintiff on the 17th day of May, 1983.”
In response, the Appellant pleaded at paragraphs 2, 3 and 4 of his Amended Statement of Defence as follows:
“2. The Plaintiff avers that the Certificate of Occupancy mentioned in paragraph 1 of the claim, if granted at all, was granted upon misrepresentation of facts to the Governor of Ogun State.
3. In response to paragraph 2 of the Claim, the Defendant avers that he is the owner and/or the person vested with the deemed Statutory Right of Occupancy over the 2 (two) plots of land measuring approximately 1343.951 Square Metres situate at Afobaje Survey Plan No. OG/854/2002/56 dated 18th December, 2002 drawn by K. A. Lawal, Registered Surveyor.
4. In further answer to paragraph 2 of the Claim, the Defendant avers that his plots of land aforesaid is separate, distinct and does not form part of the parcel of land being claimed by the Plaintiff in this case, neither do they share a common boundary.”
At the hearing, the Respondent tendered a Certified True Copy (C.T.C) of the Certificate of Occupancy dated 17/5/1983 issued by the Ogun State Government, and it was admitted in evidence as Exhibit B. Annexed to the said Certificate (Exhibit B) is a Plan drawn by Surveyor A. O. Adebogun. He also tendered a composite plan which is in evidence as Exhibit E. The Appellant testified at the trial as the DW1. He testified at the last paragraph of page 79 of the record of appeal as follows:
“I know the land in dispute. I do not have any direct connection with the land in dispute. The land been (sic) claimed by the Plaintiff in this case is about a full plot distance from the plot I am developing. When driving on Obasanjo Road, the land been (sic) claimed by the Plaintiff is two acres opposite each other and right behind the two acre is about a full plot of land separating the two acres of land of the Plaintiff and mine, which is a two plot land fencing each other. My parcel of land is not part of the land been (sic) claimed by the Plaintiff in this case, my land is about a full plot away from the Plaintiff’s land.”
With this evidence, he called DW2, a Licensed Surveyor, who tendered the Appellant’s Survey Plan No. OG/854/2002/56 in evidence as Exhibit F. He also tendered a composite plan of the parcels of land subject of this dispute, and it is in evidence as Exhibit G.
In the course of writing judgment in the case, the learned trial Judge saw the need to visit the locus in quo, so as to clarify some issues which appeared not clear to him. It is however clear from both the oral and documentary evidence proffered in this case that the Respondent’s land is distinct and separate from the Appellant’s parcel of land. It is also clear from the Survey Plans Exhibits B (for the Respondent) and Exhibit “F” (for the Appellant) that each of the parties owns a parcel of land in the location of the two parcels of land. The composite plans tendered as Exhibits “E” and “G” by the Respondent and Appellant clearly testify to the fact that the land the subject of the Respondent’s claim is separate and distinct from that of the Appellant. I accordingly agree with the learned trial Judge when he held at page 116 of the record of appeal that:
“In the circumstances, I find and hold that the land in dispute as pleaded and proved by evidence is the parcel of land situate at Olusola Road, Ota, measuring 7867.589 Square Metres, properly described and delineated on plan No. FN 3596 A dated 6/7/82 drawn by A. O. Adebogun, licensed surveyor and annexed to the Certificate of Occupancy dated 17/5/83 and registered as No.65 at page 65 in volume 226 of the Lands Registry, Abeokuta, Exhibit B, herein.”
Now, as regards the claim for declaration of title to the land in dispute, the Respondent had pleaded his root of title at paragraphs 4, 5, 6 and 7 of the Statement of Claim as follows:
“4. The Plaintiff avers that the Plaintiff purchased the parcel of land from Gbeleyi Ajayi Adeyanju family Otta, Ogun State on the 5th day of March, 1977 for the sum of N30,000.00 (Thirty Thousand Naira Only) the receipt of which is hereby pleaded.
5. The Plaintiff has since been paying the ground rent on the whole land to the Ogun State Government and he shall found and rely on the Demand Notice and Receipts from ground rent paid to the Ogun State Government.
6. The Plaintiff avers that the Plaintiff has been in exclusive possession and ownership of the land covered by the Certificate of Occupancy since 5th March, 1977 without any hindrance whatsoever.
7. The Plaintiff constructed a brick fence round the whole land and put workers on the land to till and farm on the land in furtherance of the Plaintiff’s ownership rights in preparation for the construction of an industrial concern.”
It would therefore be seen that, the Respondent predicated his claim of title on a sale or purchase from or by the Gbeleyi Ajayi Adeyanju family, Otta who issued him a stamped purchase receipt dated 05/3/1977. The PW3, Chief Nathaniel Bajela Bankole, who stated that he was the secretary of the Gbeleyi Adeyanju family, who are the Respondent’s Vendors, confirmed that the Gbeleyi Adeyanju family sold the parcel of land to the Respondent in 1977. That he was secretary of the family in 1977 when the land was sold to the Respondent, and that he is now the head of the family. He confirmed that two (acres) were sold to the Respondent. He was never contradicted under cross-examination. Furthermore, the Respondent led evidence through PW1 that upon purchase of the land in dispute, he engaged the services of a surveyor who surveyed the land, and which survey plan is attached to Exhibit B (the Certificate of Occupancy). That he applied for and was granted a certificate of occupancy by the Ogun State Government. He thereafter exercised other rights of ownership over the land, such as renting out portions of the land to tenants for farming purposes, and clearing and fencing same in preparation for the construction of an industrial concern. He also paid ground rent to the Ogun State Government as evidenced by the “Demand Notice” Exhibit C and the payment receipts, Exhibits C1 and C2. I accordingly agree with the learned trial Judge that the Respondent had proved his root of title.
It was contended by Appellant that the learned trial Judge relied on facts which were not pleaded in arriving at his conclusion that the Respondent had proved title to the land. Those facts he stated are that the Gbeleyi Adeyanju family sold land to other people including United Gospel Faith Tabernacle Church, the judgment in another suit (Exhibit D) and evidence that the fence of the Respondent on the land in dispute was 26 metres from Olusola Road. It is indeed the law that parties must limit their case to the facts as pleaded. Accordingly, evidence adduced at the trial must be supported by or be in line with the pleadings. A party is therefore, expected to give evidence that is within the scope or a limit of his pleadings. Thus, when evidence is led beyond or outside of the pleadings, such evidence is to be ignored as going to no issue. In other words, evidence which is not in line with the pleading or at variance therewith is inadmissible, and where admitted should be expunged or discountenanced. See Dokibo v. Omono (1999) 6 SCNJ p.168 at 183 – 184; Alao v. A.C.B. (1998) 3 NWLR (pt. 542) p. 339 and Nwokorobia v. Nwogu (2009) (pt. 1150) p. 553.
In the instant case, I agree with learned counsel for the Appellant that the judgment (Exhibit D) no facts to support same was pleaded. Similarly, there was no pleading relating to the evidence that the Respondent’s Vendors sold land to other people. Though the fact that the fence of the Respondent on the land in dispute was from a setback of 26 metres from Olusola Road may appear to be evidence, and parties are not expected to plead evidence, it is my view that, a case of this nature requires accuracy in the pleadings in respect of particulars and specifications. Those particulars and specifications, in my view, were required to be pleaded. I think it is in recognition of this pertinent point that the learned trial Judge, at the locus in quo rejected the testimony of DW2 that, “the road was about 6 metres in 1982 to about 5 metres”.
Those facts not having been pleaded ought to have been expunged or discountenanced in the evaluation of the evidence. However, I find that failure to expunge those pieces of evidence did not occasion a miscarriage of justice, as the decision of the trial court was not dependent on those facts alone. There are other facts on record which support the decision of the trial court.
It is clear from the evidence adduced at the trial as shown by the record of appeal that, each of the Appellant and the Respondent has his own parcel of land in the area. The record shows that, the parcels of land are close to each other. This is evidenced by Exhibits B and E tendered by the Respondent and Exhibits F and G, tendered by the Appellant. The crucial issue to be determined now is whether the Appellant trespassed onto the Respondent’s parcel of land. The evidence of trespass, as stated by the PW1 is that, the Appellant entered the Respondent’s parcel of land, destroyed portions of his built fence and erected a building thereon. In determining the issue, the learned trial judge competently summed up the evidence fed by the parties at page 120 of the records as follows:
“For the Plaintiff, PW1 testified that the Defendant entered the land and had started erecting a building on about two plots thereof toward the back of the land. His evidence was corroborated by PW2, a surveyor, who tendered Exhibit E a composite plan on which he testified positively that the Defendant’s structure, marked blue in Exhibit E, is within the Plaintiff’s land towards the back thereof. He testified that though the Defendant’s survey plan land is shown marked yellow in Exhibit E, outside the Plaintiff’s land, his structure on site is however within the Plaintiff’s land. The evidence was not challenged nor contradicted under cross-examination.
The inference from PW2’s evidence is that the Defendant rather than build on his own land verged yellow in Exhibit E is building on the portion verged blue within the plaintiff’s land.”
Referring to the Appellant’s case, the learned trial Judge stated at page 121 lines 3 – 11 as follows:-
“In the circumstances, Exhibit G, I hold, has no evidential value. Meanwhile, when DW2 was confronted with Exhibit E and specifically the portion marked blue on which the Defendant was alleged to have encroached, he merely said that the portion verged blue has no plan in support. That piece of evidence begs the issue and is unexpected of an expert in the circumstances. The deduction from the totality of DW2’s evidence on this point is that he did not dispute Exhibit E and indeed agrees that his client, the Defendant, has his structure within the Plaintiff’s land. In the circumstances of the incredible evidence of DW2, I find PW2’s evidence more probable and hold that the Defendant trespassed on Plaintiff’s land.”
Indeed the parties to this case called their surveyors in support of their cases. The Respondent who was Plaintiff at the court below called his surveyor who testified as the PW2, Through the PW2, Exhibits B and E were tendered Exhibit B is the Respondent’s Certificate of Occupancy to which is attached his Survey Plan. Exhibit B only identifies the land claimed by the Respondent, but does not disclose the area trespassed upon by the Appellant. Similarly, the Appellant tendered through his surveyor, Exhibit F, to show that his land is separate and distinct from that claimed by the Respondent. Though the Appellant admitted to building, but on his own parcel of land, which he contends is separate and distinct from that of the Respondent, such building or structure was not captured in Exhibit F.
In an effort to reconcile the differences in the respective plans drawn up by them, both parties filed composite plans. The composite plans are in evidence as Exhibit E and G. Exhibit E is the Respondent’s composite plan while Exhibit G is the Appellant’s composite plan. As I stated earlier, those composite plans were filed or tendered with a view to showing whether or not the Appellant trespassed onto the Respondent’s land. This is a commendable act by both parties, as the law is that, where two plans are filed, one by the Plaintiff and the other by the Defendant, and which plans contradict each other, there is the need to file a composite plan to resolve the issue. The respective plans will be compared with the composite plan, so as to see which version of the plans captured the issue in dispute or contention between the parties. See Bitas v. Suleiman (1973) All N.L.R. (pt. II) p. 282; Bankole v. Pelu (1991) 8 NWLR (pt. 277) p. 523 and Nnadi v. Okoro (1998) 1 NWLR (pt. 535) p. 573. In the instant case, PW2 testified as follows:-
“The area marked red on the plan is the area claimed by the Plaintiff, while that marked yellow represents the Defendant’s Survey Plan. The area in blue is the area in dispute with the Plaintiff’s land. It was observed that the plan given by the Defendant was far away from that of the Plaintiff. I observed that within the Plaintiff’s land, the area verged blue has been encroached upon by the Defendant.”
In answer to a question asked under cross-examination, the PW2 stated that:-
“On the site, one will observe that the Defendant has already erected a building on the portion verged blue within the Plaintiff’s land. The plan of the Defendant falls within the area marked yellow.
They are of the same, no matter how you plot it, it will fall in the same place.”
This piece of evidence by the PW2 was never challenged in cross-examination.
I have carefully studied the Appellant’s composite Survey Plan (Exhibit E). The Plan clearly shows the parcels of land claimed by the parties. The area of land trespassed upon is marked blue and is within the Respondent’s parcel of land, marked red. The Appellant’s parcel of land is shown and marked “Yellow”. It is some distance away from the Respondent’s parcel of land, marked “Red”.
Now, the Appellant who testified as the DW1 stated that his parcel of land is not part of the land claimed by the Respondent (Plaintiff), and that his plot of land is about a full plot away from the Respondent’s land. He then stated under cross-examination at page 80 line 16 – 27 as follows:-
“It is on the basis of Exhibit E that I am preparing my own composite plan… I confirm that my land is the one verged yellow on Exhibit E. The area verged red is the two acres covered by Exhibit B of the Plaintiff. I agree that the land verged yellow outside the portion verged red is my own land. I agree that the portion verged blue is within the portion verged red in the Exhibit. I know that the Plaintiff’s complaint is that I am inside his land.”
The Appellant then went on to state at lines 26 – 27 of page 80 of the record of appeal that, he has never entered the Plaintiff’s land and that before the institution of this action; he had already built on his parcel of land up to the lintel level. His surveyor testified as the DW2. He stated that, he prepared a composite plan for the Appellant. The said composite plan is in evidence as Exhibit “G”. Though the Appellant who testified as DW1 had stated that he had built a structure on his own parcel of land, such structure is not depicted on Exhibit G. The area verged red on the Appellant’s composite plan is said to be the Appellant’s parcel of land, while the area verged “green” is the Respondent’s portion of land. No structure is indicated as having been constructed in either parcels of land, and the Appellant having pleaded and testified that he had a structure on his own parcel of land, it is obvious to me that the Appellant had something to hide. The learned trial Judge was therefore right when he held at page 121 lines 7 – 11 that:-
“The deduction from the totality of DW2’s evidence on this point is that he did not dispute Exhibit E and indeed agrees that his client, the defendant, has his structure within the Plaintiff’s land. In the circumstances of the incredible evidence of DW2, I find PW2’s evidence more probable and hold that the Defendant trespassed on Plaintiff’s land.”
It is obvious from the evidence adduced at the trial, including the survey plans tendered, and facts discovered at the visit to the locus in quo, that the structure erected by the Appellant was on the Respondent’s parcel of land. The learned trial Judge was therefore right, when he found and held that, on the preponderance of the evidence before the court, the Appellant’s structure is within the Respondent’s parcel of land. He was equally right when he held that the Appellant trespassed on the Respondent’s land.
Learned Counsel had also contended that the failure of the Respondent to testify in his case is fatal to his case. There is no rule of law or practice which prescribes for a party which witness to call or document to tender in proof of his case. Similarly, no rule of law prescribes or makes it mandatory that a party to a proceeding must himself appear in person to testify or tender the document he relies on in proof of his case.
So long as he is able to adduce sufficient evidence which satisfies the court, his case would have been proved. See Shittu v. Fashawe (2005) 7 SCNJ p.337 at 354. In the instant case, it has been found that the evidence, both oral and documentary adduced before the court sufficiently proved his case. His failure to testify at the trial therefore did not affect the weight of evidence adduced by him at the trial.
On the whole therefore, I am of the view that this appeal lacks merit. It is accordingly dismissed. The judgment of the court below in Suit No. HCT/184/91 delivered on the 13th day of October, 2006 is hereby affirmed. I award Fifty Thousand Naira (N50, 000.00) as cost against the Appellant in favour of the Respondent.
MONICA B. DONGBAN-MENSEM, J.C.A.: My learned brother Haruna Simon Tsammani, JCA who prepared the lead judgment has fully addressed all the issues raised in this appeal. By the vital evidence in the survey plans tendered by each of the parties and the visit to the locus in quo, it became clear to the learned trial Judge that the Appellant had trespassed into the land of the Respondent. With these visual and physical experience of the facts by the learned Judge of the Ogun State High Court, this court has no reason and is hamstrung to interfere with the decision. In the case of Dakolo & Ors vs. Rewane-Dakolo & Ors (2011) LPELR-915 (SC) pp. 1868-1880, the Supreme Court per Galadima JSC states it more succinctly as follows:-
“When a trial court which observed and heard witnesses who testified before it, has evaluated the evidence of such witnesses, based on the credibility of those Appellant’s witnesses and drawn conclusion thereon, an Appellate Court cannot interfere with same unless it is demonstrated that such conclusions are perverse and not supported by unchallenged credible evidence. The Appellants having failed to show that any of the findings of the learned trial judge was perverse there was nothing upon which the specific findings of fact of the learned trial judge could be disturbed by the Court below
I agree with the lead Judgment that the appeal is without merit and is hereby dismissed. I adopt the consequential orders made in the lead Judgment.
CHIDI UWAOMA UWA, J.C.A.: I read in draft the judgment of my learned brother, Haruna Simon Tsammani, JCA. I agree that the appeal lacks merit, I dismiss same and abide by the order made as to costs in the leading judgment.
Appearances
S. O. Saka Esq.For Appellant
AND
T. O. Odumosu Esq.For Respondent
