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ENARISE & ORS v. OLOGBEDE & ORS (2022)

ENARISE & ORS v. OLOGBEDE & ORS

(2022)LCN/16480(CA)

In the Court of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, March 23, 2022

CA/AS/351/2019

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

1. MR. GABRIEL ENARISE 2. ONORIEDE UWUJABOR 3. MR. AUGUSTINE IDOGHOR 4. MR. FREDERICK IDOGHOR 5. MR. SAMSON ONOWENU (For Themselves And On Behalf Of Akora Family Of Owhelogbo) APPELANT(S)

And

1. MR. JACOB OLOGBEDE 2. MR. JOHNSON AGADIE 3. DEACON IROBO 4. UMUAKPORO ODONO 5. EJIREME AVUWA 6. EMMANUEL ONOMASE 7. HUMPHREY EDUJE 8. MORRISON ILUESURE (For Themselves And On Behalf Of Owhelogbo Community Development Union, Owhelogbo And Their Successors) RESPONDENT(S)

 

RATIO:

THE LAW ASCRIBES POSSESSION TO THE ONE WITH A BETTER TITLE

It was also contended that the Appellants had shown a better title, having demonstrated how the land devolved on them; and were therefore, entitled to judgment. OGBU VS. WOKOMA (2005) ALL FWLR (PT. 277) 815 AT 830 relied on thus:
“Where two competing parties claim to be in possession of land in dispute in a case, the law ascribes possession to the one with a better title. In the instant case, the Appellant as Plaintiff clearly led credible evidence in support of his title to the plot and houses on No. 185 Ikwere Road. The Respondents on the other hand, failed to lead credible evidence in support of his contention that the property was not the plaintiffs’ but his own. It follows from this that the Appellant ought to have been granted his claim before the trial Court.” MOHAMMED AMBI-USI DANJUMA, J.C.A. 

THE CONSEQUENCE ON THE FAILURE OF THE TRIAL COURTS TO PROPERLY EVALUATE THE EVIDENCE

Counsel cites AYANRU VS MANDILAS LTD. (2007) 4 SC (PT. 3) 58 AT 75 thus”
“The law is that where a trial Court fails to properly evaluate the evidence on record or erroneously does so or the conclusion reached is not supported by the evidence on record, then the Court of Appeal in the interest of justice must exercise its own powers of reviewing those facts and drawing the appropriate inference from the proved facts. See LAWAL V. DAWODU (1972) 8-9 SC 83 AT 114-117; (1972) 8-9 SC (REPRINT) 55; FASHANU VS. ADEKOYA (1974) 6 SC 83 AT 91; (1974) 6 SC (REPRINT) 72; TSOKWA MOTORS(NIG.) LTD. VS UNION BANK OF NIGERIA LTD. (1996) 6 NWLR (PT. 471) 129.” MOHAMMED AMBI-USI DANJUMA, J.C.A. 

THE TRESPASSER DOES NOT BY HIS ACTS OF TRESPASS SECURE POSSESSION

ALIYU V. DIKKO (2012) ALL FWLR (PT. 632) 1715 AT 1736 was relied upon to show that a trespasser does not by his acts of trespass secure possession. Instances of trespass as being where entry is entered without title or consent of the owner or where he is let into possession by a person without title or superior title to the owner or entry pursuant to a transaction which has been declared void or void ab initio as its lawful character losses its lawfulness and acquires an illegal character or unlawful character from the very moment entry was made MOHAMMED AMBI-USI DANJUMA, J.C.A. 

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): The Appellants herein at the trial Court as the Plaintiffs had claimed against the Respondents/Defendants as follows:
a. A declaration that the Claimants’ family are the owners in possession of the piece and parcel of land beside Enuru/Igbuku Bye Pass Road, Owhelogbo and thus entitled to customary right of occupancy over the said land.
b. An order of perpetual injunction restraining the defendants, their successors, their agents, servants and/or privies from further committing acts of trespass on the claimants’ land aforementioned.
c. A declaration that the proclamation/ announcement made by the defendants, their servants, agents and/or privies against members of the claimants’ family members are stated in paragraph 17 of the statement of claim is illegal, null and void and of no effect in any manner whatsoever.
d. An order of perpetual injunction restraining the defendants, their successors, their servants, agents and/or privies from making such proclamation/announcement in any form in any manner whatsoever against the claimants’ family members.
e. An order of Court compelling the defendants, their successors, agents, servants and/or privies to denounce the said proclamation through Owhelogbo town crier by withdrawing same.

The aforesaid amended statement of claim was filed on 13th November, 2012 and copied at pages 115-121 of the Record of Appeal.

The Defendants/Respondents’ amended statement of defence and counter-claim filed on 22nd July, 2012 and copied on pages 206-216 of the Record of Appeal.

The Reply to the statement of Defence and Defence to the counter-claim dated 5th September, 2012 found on pages 148-152 of the Record led to the conclusion of hearing and dismissal of the suit and the grant of the counter-claim all in the manner herein stated, thus: …

Dissatisfied, this appeal was brought and upon five (5) Grounds of Appeal on 15th April, 2019, as found on pages 158-161 of the Record of Appeal.

​Following the transmission of Record of Appeal, the parties filed their respective Briefs of Argument all out of time upon the leave of this Court granted on 19th October, 2020 and 19th January, 2021 for the Appellants and Respondents respectively to so file their Briefs of Argument.

By the Appellants’ Brief of Argument filed on 3rd November, 2020 but deemed filed and served on 19th October, 2020 which was adopted at the hearing on 17th February, 2022, the following issues were raised;
1. WHETHER IN HIS EVALUATION OF THE EVIDENCE BEFORE HIM, THE LEARNED TRIAL JUDGE EXERCISED JUDICIALLY AND JUDICIOUSLY HIS SINGULAR FUNCTION OF EVALUATION AND ASCRIPTION OF PROBATIVE VALUE TO THE EVIDENCE ADDUCED BEFORE HIM AS LAID DOWN BY JUDICIAL AUTHORITIES.
2. WHETHER THE FINDINGS OF THE LEARNED TRIAL JUDGE THAT THE APPELLANTS FAILED TO PROVE THAT THE LAND IN DISPUTE FALLS OUTSIDE THE LAND CEDED TO THE RESPONDENTS’ OWHELOGBO COMMUNITY IS SUPPORTED BY THE ADMITTED EVIDENCE ON RECORD.
3. WHETHER THE RESPONDENTS ADDUCED SUFFICIENT EVIDENCE ADEQUATE ENOUGH IN THE CIRCUMSTANCES TO SUSTAIN THEIR COUNTER-CLAIM.

The learned counsel argued issues 1 and 2 together, as according to counsel, those issues are closely related.

I shall not restate the facts of the case or the evidence, but only as may be necessary in the manner in which the Appellants’ counsel so referred to them in his Brief of Argument.

​On their part, the Respondents by their Brief of Argument filed on 5th January, 2020 but deemed filed on 19th January, 2021 and adopted at the hearing on 17th February, 2022 formulated a sole issue for determination thus:
“Whether in the evaluation of the evidence before him, the learned trial Judge rightly dismissed the claims of the Appellants, then the Claimants at the lower Court having failed to prove their case.”

APPELLANTS’ ARGUMENTS
The Appellants submits at page 6 of their Brief of Argument that being the Claimants for declaration of title to land, they bore the onus to prove to the satisfaction of the Court the title they assert. Their counsel posits that the proof must be done by admissible, credible, cogent and convincing evidence.

He relies on the cases of: EZE V. ATASIE 200 FWLR (PT. 13) P. 2180 AT 2193 PAR. E-F; ADOLE VS. GWAR 2008, ALL FWLR (PT. 423) P. 1217 and ARAF. V. ONYEDIM (2012) ALL FWLR (PT. 625) P. 265 AT 286.

​The counsel contends that if the Claimants’ title, is not challenged, in that the Defendant admits that the land in dispute originally belongs to the claimant then, there is noonus on the Claimant to prove his title as admitted facts need no further proof. That the onus then shifts to the Defendant to prove how the admitted title owner(s) was divested of his/their original title earlier admitted. CHINDO VS. ISAH (2010) ALL FWLR PT. 542, 1752 AT 1764.

The learned counsel says his client’s title is predicated on traditional history and acts of long possession as set out in the pleadings in the Amended Statement of Claim and the Reply to the Statement of defence and counter-claim.

Learned counsel emphasised that from those pleadings, it was clear and not in doubt that his clients were in possession of the land in dispute and exercising acts of ownership over the same. That the Respondents had admitted a grant of a portion of the Appellants’ land to them for the purpose of establishing a secondary school. That the Respondent having admitted, must prove the terms of the grant. He referred to FAGBENRO VS. AROBADI (2006) 141 LRCN 2413 AT 2417. It should be said immediately that such a Defendant who was not a Claimant had no burden of proof of how he came in and the extent thereof as, he had made no claim except if his legal entry or grant was denied or disowned by the Claimant. This is not the situation here.

The learned counsel referred to the pleadings of the Appellants and the Exhibits ‘A’ and ‘B’ being the evidence on oath – a replica of the averment and submitted that it was not denied by the Defendants/Respondents.

The learned counsel faulted the reliance of the Court on the evidence of a school teacher in the school built on the donated land, contending that it was not shown how the land was acquired or knowledge of its size as donated, and also who as a teacher in the school had an interest and purpose to serve.

That Courts should be circumspect in relying on the evidence of witnesses who have an interest in the outcome of a suit. That the identity of the land is well known to the parties and the evidence led by the Claimants/Appellants clearly showed the boundary of the land of the Appellants and the extent or termination point of the land granted to the community for use as a grammar school.

​That Appellant had pleaded in paragraphs 6 and 7 of the Amended Statement of Claim that the land is well known to the parties and same was not challenged or disputed by the Respondents in the pleadings, and cannot be a point to be canvassed or proved by the Appellants.

That a burden was wrongly placed on the Appellants to prove the identity and size of the land in dispute, more so, according to counsel, that issues were not joined on the identity and/or size of the land throughout the gamut of the pleadings of the parties.

The learned counsel relies on DAKOLO VS REWANE –DAKOLO (2011) ALL FWLR (PT. 592) PAGE 1610 AT 1624 thus:
“Where the identity of the land is in dispute, it is resolved by each side producing survey plans supported by credible evidence to satisfy the Court of the land or property in issue. But where the land or property is well known to both sides the need no longer arises”.Reference was made profusely to the evidence of ownership as pleaded and consequently submitted that they were entitled to judgment. OYADARE VS. KEJI (2005) ALL FWLR (PT. 247) 1583 AT 1598 (SC) relied on the prima facie evidence of ownership raised by acts of long possession and enjoyment of land, subject to the burden to rebut cast on a Defendant claiming same.

It was also contended that the Appellants had shown a better title, having demonstrated how the land devolved on them; and were therefore, entitled to judgment. OGBU VS. WOKOMA (2005) ALL FWLR (PT. 277) 815 AT 830 relied on thus:
“Where two competing parties claim to be in possession of land in dispute in a case, the law ascribes possession to the one with a better title. In the instant case, the Appellant as Plaintiff clearly led credible evidence in support of his title to the plot and houses on No. 185 Ikwere Road. The Respondents on the other hand, failed to lead credible evidence in support of his contention that the property was not the plaintiffs’ but his own. It follows from this that the Appellant ought to have been granted his claim before the trial Court.”

That the situation was such that the Court ought to have placed the competing evidence on the imaginary scale of justice to determine in whose favour the balance of probability lies. OGUNLEYE VS. OYEWOLE (2009) 14 NWLR (PT. 687) 290 AT 302 PAR. D-E. Thus:
“a trial Court has the duty to fully consider the evidence of all the parties before him, ascribe probative value to it and put it on imaginary scale of justice to determine where the balance of probability lies, make necessary findings of facts, apply the relevant law and come to the logical conclusion.”
Was referred to in support.

Counsel cites AYANRU VS MANDILAS LTD. (2007) 4 SC (PT. 3) 58 AT 75 thus”
“The law is that where a trial Court fails to properly evaluate the evidence on record or erroneously does so or the conclusion reached is not supported by the evidence on record, then the Court of Appeal in the interest of justice must exercise its own powers of reviewing those facts and drawing the appropriate inference from the proved facts. See LAWAL V. DAWODU (1972) 8-9 SC 83 AT 114-117; (1972) 8-9 SC (REPRINT) 55; FASHANU VS. ADEKOYA (1974) 6 SC 83 AT 91; (1974) 6 SC (REPRINT) 72; TSOKWA MOTORS(NIG.) LTD. VS UNION BANK OF NIGERIA LTD. (1996) 6 NWLR (PT. 471) 129.”

​On the issues 1 and 2 argued together as aforesaid, it was urged that this Court can evaluate the evidence led and come to a decision as the trial Court ought to have done.
NDUKWE V. STATE (2009) 2-3 SC (PT. II) 35 AT 77 referred.

That the issues 1 and 2 be resolved in favour of the Appellants.

On the issue 2 relating to whether the Respondents’ counter-claim was proved, the Defence and counter-claim as pleaded was reproduced together with the defence to the counter-claim and submission made that a counter-claim was an independent action and separate such that it had to be proved distinctly as any other claim. NSEFIK V. MUNA (2013) 10-12 SC 161 AT 195 relied upon, as we as BILANTE INT. LTD. VS. NDIC (2011) 6-7 (PT. IV) 113 AT 134 PAR. 5-10 for the position of the law on a counter claim.
Reproducing the evidence of DW1, i.e Pastor Moses Ubara in cross-examination for the Cross-Appellants, thus;
“I know a few people in Akora family of Owhelogbo. I am aware Akora family donoted part of their land for the building of Iluelogbo grammar school, Owhelodgbo. I do not know the extent of the land Akora family gave for the school. Part of the school is fenced. It is fenced from the Igbrude Road formally called Enuru Road. I do not know the actual reason the government fenced the school. The school was fenced in about 2005/2006. I was not the one who directed where the fence should stop. The school consented to the community authorising Nigercat Construction Company to excavate sand. The area excavated is outside the fence area.”
(pages 305-306 of the Record).

It was submitted that the evidence aforesaid confirms the pleadings of the Appellant that the land donated terminated at the Ibrude/Igbrude Road and also shows that the school has not been exercising rights of possession or ownership outside the fence area, particularly the burrow pit as pleaded in paragraphs 12 and 13 of the Appellants Amended Statement of Claim to the effect that where the school was allocated is fenced to demarcate it from the burrow pit and other lands of the Appellants.

That the counter-claim is misconceived as it is not supported by any law or facts or evidence before the Court.

The case of ONOVO VS. MBA (2014) 5-6 SC (PT. IV) 147 AT 170 on the burden to prove as cast on he that asserts and he that deserves judgment in his favour to prove his case on the preponderance of evidence by credible and legally admissible evidence in order to succeed was relied upon.

​It was also submitted that if the evidence had been properly evaluated, the Court would have found that the land donated did not extend to the fenced area, and that a trespasser will remain a trespasser no matter how long he has been in possession, assuming that the Iluologbo grammar school fence before the year 2005/2006 extended beyond Enuru/Igbrude Road.

ALIYU V. DIKKO (2012) ALL FWLR (PT. 632) 1715 AT 1736 was relied upon to show that a trespasser does not by his acts of trespass secure possession. Instances of trespass as being where entry is entered without title or consent of the owner or where he is let into possession by a person without title or superior title to the owner or entry pursuant to a transaction which has been declared void or void ab initio as its lawful character losses its lawfulness and acquires an illegal character or unlawful character from the very moment entry was made.

​That there was no proof that the area the Respondents claimed was donated to the school. That no documents to buttress their claim to the land was tendered. That the issue be resolved in favour of the Appellants and the judgment be set aside; and the reliefs sought in the amended statement of claim be granted.

RESPONDENT’S ARGUMENTS
The Respondents, in denying the claims of the Appellants had averred that the claimants had no cause of action against the Defendants/Respondents as the community had donated the land to the Delta State Government in 1974 for the establishment of the Iluelogbo grammar school, Iwhelogbo; and that the ministry of Education, Delta State was in possession of the land.

The learned counsel refers to the denial of the Appellant’s’ claim of title as done in paragraph 3 of the Amended Statement of Defence. Reference was also made to paragraphs 4, 5, 6, 7 and 8 of the Amended Statement of Defence at page 207 of the Record of Appeal succinctly denying that the land in dispute belongs to the Appellants, as the entire land had been relinquished by the Akora family and some other families of Iwhelogbo which are named at paragraph 13 of the Amended Statement of Defence at page 208 of the Record of Appeal as Ehobe, Oge, Ekreode, Eka and Akora families.

​That there was no evidence on the demarcation and size of the land claimed as the Appellants’ family land. That 4th Appellant Mr. Fredrick Igoghor had testified that he was a small boy at the time of the donation of the land and did not even know the size of the land donated to the Owhelogbo community by his Akora family; see pages 272–273 of the Record. 1st and 4th Appellants testified to the donation of land by their family in similar circumstance and that 2 other families did similar donations. That the witnesses had not distinguished the extent or size of their family donation of land from the other donors of land of family lands to the same community for the construction of the school. That it was not the duty of the Court to establish the missing size of the parcel of land donated by the Appellants’ family.

Counsel relied on DAKOLO VS REWANE (2011) VOL.198 LRCN1 AT 8 and BAMIKOLE VS OLADELE (2011) ALL FWLR (PT 562) 1699 AT 1703 and also submitted that the mere pleadings of the Appellants in paragraph 6 of their Amended statement of claim will not make it possible for a surveyor to produce an accurate plan of the land in dispute, particularly as the Appellants were unable to demarcate their own portion allegedly donated from other families in the Owhelogbo community. NWOKIDU VS OKANU(2010) VOL.183 LRCN 114 AT 121 relied upon for the desirability of the description of land such that a surveyor can produce an accurate plan thereof for identification.

That the Appellants’ family had relinquished the title to the land in dispute, which portion was not even known by the Appellants, who did not produce a survey plan by a licenced surveyor. That a gift of land once accepted by the donee, was irrevocable except fraud, misrepresentation, mistake or total failure of consideration. The learned counsel argued that throughout the pleadings and evidence, it was not stated that the donation to the community was vitiated by fraud, mistake or a total failure of the object of the gift. IMAH VS OKOGBE (1993) 12 SCNJ 57 relied on.

It was also argued that, the Appellants who had pleaded and also admitted that they were successors to the Okora family can not, as successors in title to a donor, revoke a constituted gift of land made inter vivos; see EKPA VS UTONG (1991) 6NWLR (PT 197) 258 AT 284.

The Appellants having testified (see pages 266–267 of the record) in cross-examination that they attended a meeting of the whole community where it was announced that a school had been given to Owhelogbbo and where it was resolved that the community should donate land for the school, but the land his family gave for the school was not measured, they can not complain, as they are estopped.

The learned counsel also argued that the trial Judge’s conclusion that “it was wrongful for the Appellants to seek to forcefully recover the land from the community,” was based on the evaluation of the evidence led by both parties and justified. That Respondents had shown how they came into possession of the land in dispute.

That the evidence of DW1, as a school teacher and a member of the school Agric committee was probative and rightly relied upon as to the extent of the land of the school, as he saw it. That the preference of DW1 to the 4th Appellant’s evidence (a student) was very apt, for the reasons given by the learned trial Judge.

That the evaluation of evidence as made by the trial Judge was right AND THE judgment was correct. That the appeal be dismissed and the judgment of the trial Court should be upheld.

​RESOLUTION OF THE APPEAL
Clearly, this appeal is one that challenges the evaluation of evidence as made by the trial Judge and therefore questions the rightness of the decision arrived at in dismissing the Appellants’ claims as unproved.

In this wise, it is obvious that the Appellants’ three (3) Issues can be merged to ask the question whether the Appellants had proved their case to be entitled to judgment.

In other words, whether, the Appellants had not proved their case and therefore, have had their claims rightly dismissed by the trial Court.

I shall, therefore, adopt the Respondents’ sole issue which answers all the three (3) Issues as split by the Appellants.

The parties on both sides are agreed on a donation of respective portions of land by some individual families, inclusive of the Appellants’ Akora family to the Owhelogbo community for the construction of a school, which lands were given to the Delta State Government for the construction of a Grammar School.

​There is, therefore, no dispute about the donation of sundry pieces of land from different families inclusive of the Appellants’ family to the Defendants/Respondents’ community, represented by the community union herein.

The individual pieces or moiety of the whole land donated and which was purportedly trespassed upon, was not testified to nor identified by the Appellants. The specific or sole portion of Appellants’ land donated was not testified to. No boundary demarcation of any such land from that of other donors was given. The remnant of the Appellants’ land not donated but purportedly trespassed upon was not identified.
It is, therefore, right as submitted by the learned counsel for the Appellants that the primary duty of identifying the land in dispute lay on the claimants, in this case, the Appellants, themselves. They had not satisfied this obligation. The burden remained undischarged.
Indeed, even from the Appellants’ pleadings, the four cardinal or boundary points of their land was not brought out, as only 3 dimensions were stated in their pleadings paragraph 6 of Amended Statement of Claim and evidence led. (see page 116 of Record for the pleadings).
​The Court has no duty of descending into the arena to so demarcate. The Court is a disinterested and impartial umpire. How can a Court decree a declaration of title and find for trespass in respect of a land that can not clearly be ascertained and an accurate plan produced by a surveyor, upon the state of the pleadings and evidence?
The Appellants’ land was amorphously described and such that no identifiable portion had been disclosed for any declaration of title or remedy in trespass to be based. It is the duty of the Appellants to plead and prove specifically that, it is not all the land pleaded by the Defendants/Respondents that was donated by the Appellants’ family to the Owhelogbo community for the purpose of school construction.

What is more, even the evidence of a valid gift inter vivos of land by the Appellants’ predecessors on title remained unchallenged. It was admitted. Respondents are right in arguing that a valid gift can not be vitiated or revoked except by mistake, fraud or failure of the purpose of the donation or gift inter vivos. Here the object of the gift has not been shown to have failed.
​The trial Judge was, therefore, right in holding that it was wrongful for the Appellants to seek to forcefully recover the land from the community. No wonder, the Appellants said the land was well known to the Defendants/Respondents! However, sadly, the Appellants do not even know the size of the land donated by their family, let alone any remnant allegedly trespassed upon!

There was a thorough and meticulous evaluation of the evidence led, such that the trial Judge was right when he stated that the evidence of fencing the school land and its state at the time of the suit was not conclusive of the size or area of the land donated for the school as there existed the evidence that part of the land donated for the school was not fenced and shifting cultivation took place there by the school as testified by DW1 and also that burrow pit was dug outside the fenced area on the permission of the school through the community.

​The trial Judge, in my view, had clearly and comprehensively evaluated the evidence led and applied the law such that it was obvious that the Appellants had not proved their claims in any way as made. I.J. Ifenedo, Esq. for the Respondents was crystally correct, in his submissions, that the trial Judge aptly evaluated the evidence led and applied the applicable law correctly in coming to the conclusion that the Appellants as Plaintiffs had not proved their claims.

The sole Issue of the Respondents is resolved in their favour and Appellants’ variegated Issues 1, 2 and 3 are each resolved against the Appellants who could not prove which portion of their land was not given to the Respondents’ community for the purpose of the construction of a school nor any trespass thereon.
Appeal is dismissed.

The judgment of the High Court of Delta State in suit No. HC2/12/2010 delivered on 15-1-19 is affirmed.

JOSEPH EYO EKANEM, J.C.A.: I read in advance, a copy of the lead judgment of my learned brother, DANJUMA, JCA, which has just been delivered.

I agree with the reasoning and conclusion therein which I adopt as mine in dismissing the appeal.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity of reading in draft, the leading judgment just delivered by my learned brother, MOHAMMED AMBI-USI DANJUMA, JCA. He has extensively considered and exhaustively pronounced on the relevant issue(s) germane to the resolution of this appeal. I will only reinstate that the Appellants had the duty of properly describing the land they want to recover from the Respondent which was freely donated for the building of a grammar school. The failure of the Appellants to specifically identify the said portion means they had failed to prove their claims.

In the light of the above and the elucidated reasoning enumerated in the lead judgment, I too agree that the appeal is void of merit and is accordingly dismissed. The judgment of the lower Court delivered on 15th January, 2019 is hereby affirmed.

​I abide by all consequential orders.

Appearances:

Chief V. E. Otomiewo. For Appellant(s)

I. J. Ifenodo, Esq. For Respondent(s)