HIGH CHIEF LISA AKINSOLA & ORS v. CHIEF P. A. AKINWEHINMI & ORS (2014)

HIGH CHIEF LISA AKINSOLA & ORS v. CHIEF P. A. AKINWEHINMI & ORS

(2014)LCN/7489(CA)

In The Court of Appeal of Nigeria

On Thursday, the 30th day of October, 2014

CA/B/273/2009

RATIO

ACTION: INSTITUTING AN ACTION IN COURT; WHO CAN INSTITUTE AN ACTION IN COURT

It is trite that only persons known to law can initiate an action in court. A non juristic person cannot sue or be sued. Where someone that has no capacity to sue or cannot sue on behalf of another person, he cannot appear on behalf of another.

In the case of Thomas v. Maude (2007) All FWLR (Pt. 361) 1749 at 1765 the court held thus:
“Only an Appellant himself or a legal practitioner who is registered in the roll of legal practitioners and authorized to practice as an advocate in the Supreme Court of Nigeria can sign and file a notice of appeal. A firm of legal practitioners is not authorized to so act. In the instant case, the notice of appeal with which the appeal was commenced was signed by a firm of legal practitioners which is not authorized to so act. In the circumstance, the notice of appeal is fundamentally defective null and void”.

Similarly, in the case of N.N.B. Plc v. Denclag Ltd (2004) All FWLR (Pt. 228) at 606, Sanusi, JCA speaking for the Court of Appeal posited thus:
“As I said earlier the original notice of appeal dated 23/10/1998 issued and filed by the firm of Ibrahim Hamman & Co. is fundamentally defective having not been issued and signed by a legal practitioner. Where a notice of appeal is fundamentally defective, there is no foundation for the appeal and therefore there is no appeal before the court. The appeal then collapsed for being devoid of necessary foundation. Having not been issued by a competent authority, the appeal becomes incompetent and with defective notice of appeal the appeal is not predicated on a valid notice”. per. MOJEED ADEKUNLE OWOADE, J.C.A.

PRACTICE AND PROCEDURE: ESTOPPEL; WHAT IS ESTOPPEL AND WHEN DOES ESTOPPEL PER REM JUDICATA AND ISSUE ESTOPPEL ARISES

Estoppel is a general characterization for many and varied situations where a person in litigation is prevented from resiling from or doing the contrary of which he has led another to believe, and the special case of relying on a previous judgment as conclusive of the issue in dispute. In each case the rule is called into play in the interest of public policy to prevent injustice and detriment to the other party who relied on the conduct of another.
See Mooregatee Marchantile Co. Ltd v. Twitchings (1976) 1 Q.B 225 at 241; Ezewani v. Onwordi (1988) 4 NWLR (Pt. 33) 27; Ashibuogwu v. Attorney-General of Bendel State (1988) 1 NWLR (Pt. 69) 138; Iloabachie v. Iloabachie (2000) 5 NWLR (Pt. 656) 178 at 219.

Estoppel per rem judicata or estoppel of record arises where an issue of fact has been judicially determined in a final manner between parties by a court or tribunal having jurisdiction, concurrent or exclusive in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. Thus, the parties affected are stopped from bringing a fresh action before any court on the same case and on the same issue already pronounced upon by the court in a previous action. – Osunriade v. Ajamogun (1992) 6 NWL (Pt. 241) 156; Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561; Dokubo v. Omoni (1999) 8 NWLR (Pt. 616) 647; Oshodi v. Eyifunmi (2000) 7 SC (pt. 11) 145.

The principle of ‘estoppel by standing by’ on the other hand is that if a person is content to stand by and see his battle fought by someone else in the same interest, he is bound by the result and should not be allowed to re-open the case. “issue estoppel” arises where an issue had earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in a subsequent proceedings between the same parties or their privies – Oyerogba v. Olaopa (1998) 13 NWLR (Pt. 583) 509; Akujobi v. Ekenam (1999) 1 NWLR (Pt. 585) 96; Ito v. Ekpe (2000) 2 SC 98; Ebba v. Ogodo (2000) 6 SC (Pt. 1) 133.

Essentially, issue estoppel and res judicata operate in similar conditions or factors. In res judicata however, what the plaintiff is estopped from bringing up again is not confined to what has actually been previously litigated but also to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.
Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt. 81) 129.
In relying on issue estoppel, a party is not required to prove, unlike estoppel per rem judicatam, that the subject matter and the claims were identical in addition to the identity of the parties being the same.
Ezewani v. Onwordi (1986) 4 NWLR (Pt. 33) 27.

PRACTICE AND PROCEDURE: ESTOPPEL; THE CONDITION FOR A PLEA OF ESTOPPELS PER REM JUDICATA TO SUCCEED

For a plea of estoppels per rem judicata or estoppel by record to succeed, a party relying on it must establish the following facts, namely:
(a) that the parties or their privies involved in both the previous and the proceedings in which the plea is raised are the same; (b) that the claim or issue in dispute in both proceedings are the same; (c) that the res or the subject matter of the litigation in the two cases are the same; (d) that the decision relied upon to support the plea is valid, subsisting and final; and (e) that the court that gave the previous decision relied upon to sustain the plea was a court of competent jurisdiction.
Finally all the above conditions must co-exist for the plea to succeed and the burden is on the party who sets up the defence of estoppel per rem judicatam to establish the above pre-conditions conclusively. Balogun v. Ode (2007) 4 NWLR (Pt. 10123) 1; Dagaci of Dere v. Dagaci of Ebwa (2006) 7 NWLR (Pt. 979) 382; Ekong v. Udo (2002) 16 NWLR (Pt. 792) 1. per. MOJEED ADEKUNLE OWOADE, J.C.A.

PRATICE AND PROCEDURE: DOCTRINE OF RES JUDICATA; WHETHER THE DOCTRINE OF RES JUDICATA CANNOT BE APPLIED TO A MAN WHO BECOMES AWARE OF AN ACTION WHERE DURING THE PENDENCY OF THAT ACTION, HE BROUGHT HIS OWN ACTION, BEFORE JUDGMENT WAS GIVEN IN THE FORMER OR PENDING ACTION

Indeed, the doctrine of res judicata or standing by cannot be applied to a man who becomes aware of an action where during the pendency of that action, he brought his own action, before judgment was given in the former or pending action. Oputa v. Ezeani (1963) 1 All NLR 149. per. MOJEED ADEKUNLE OWOADE, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

1. HIGH CHIEF LISA AKINSOLA
2. PRINCE ENOCK OMONIYI
3. PRINCE OJO ADEBAYO
(For themselves and on behalf of Members of Akintimehin family of Ore) Appellant(s)

AND

1. CHIEF P. A. AKINWEHINMI
2. CHIEF AJIHAN A. AJIHAN
3. MR. BENSON AKINKUNMI
(For themselves and on behalf of members of Orisadiyelomo family of Ore/Odigbo) Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A.: (Delivering the leading Judgment): This is an appeal against the judgment of the Honourable Justice F. O. Aguda-Taiwo in the Ore Judicial Division of the Ondo State High Court Holden at Ondo State delivered on 27th October 2008.
The Respondents as Plaintiffs instituted action against the Appellants as Defendants in the Ore Customary Court Holden at Odigbo. The Respondents claims against the Appellants dated 1/2/2007 as contained on page 4 of the printed record are as follows.
“The plaintiffs claim against the Defendants are as follows.
1. A declaration that the Plaintiffs are entitled to customary right of occupancy over that large expanse of land situate, lying and being at Ofefe, after river Ore, known as “Ofefe land” in Ore Odigbo local Government Area of Ondo State which land is bounded as follows:
a. On the first side by Orunsero family land.
b. On the second side by Adegbehin family land.
c. On the third side by Adegbehin family land.
d. On the fourth side by old Agbabu Road.
A declaration that the sale, purported sale, allocation and partitioning of any part of the said land by the Defendants or any of the Defendants to any person whosoever is null and void and of no legal effect whatsoever.
N2,000.00 general damages against the defendants for trespass committed by them and their agents on the disputed land.
An order of perpetual injunction restraining the Defendants their agents or privies and anybody whosoever claiming through them from committing trespass or further trespass on the land in dispute”.

The case of the Respondents as Plaintiffs is that both Akintimehin the progenitor of the Appellants and Orisadiyelomo, also known as Sadoyele were both children of Madam Ogunbi. That Madam Ogunbi at first bought a large expanse of land from the Orunsero family stretching from the back of Origbara River to Omi Ore for the benefit of all his children. That later, after the demise of his son Akintimehin (who predeceased Madam Ogunbi) and the subsequent victimization of Orisadiyelomo and her children by the children of Akintimehin, Madam Ogunbi went back to Orusero to ask for a small land for Orisadiyelomo who was her first female child (Aremobirin) to avert further victimization from the children of Akintimehin. That the land in dispute which Madam Ogunbi bought for Orisadiyelomo started from Omila Kurudu to Omi Ateni and that the boundary is before Adegbehin and Orunsero land.

The Appellants on the other hand claimed that after the death of madam Ogunbi, Akintimehin and his children settled on the land. That the female children of Akintimehin had nothing to do with the land in dispute since they were married. That it was incorrect and misleading to say Akintimehin died before Madam Ogunbi or that Ogunbi bought the land for Orisadiyelomo.

At the trial customary court, the first Plaintiff gave evidence and called two witnesses, the second defendant gave evidence and called two other witnesses.
In the course of address by Counsel, learned counsel for the Defendants Appellants raised amongst others the issue that a previous consent judgment between Akintimehin family and the Orunsero family in suit No. ORCC/13/98 Exhibit H, and the evidence attributed to the 2nd Respondent in the said suit Exhibit ‘G’ constitute Res Judicata against the Respondents case.
Still before the trial Customary Court, Defendants Appellants Counsel also argued that the Respondents Orisadiyelomo family became aware and therefore bound by the decision in ORCC/13/98 and tendered Exhibit J, their claims in Suit No. ORCC/14/99 which was later withdrawn.

That, in any event the 2nd Respondent was the same Chief Ajihan who gave evidence as per Exhibit G and which was favourable to the Appellants’ case, that the land in dispute belongs to the Akintimehin family. The trial customary court said that the Appellants failed to establish the necessary ingredients of the plea of Res Judicata as between Exhibits H and G and the case before it. It also opined that the Appellants were not able to prove that the 2nd Respondent was the Chief Ajihan that gave evidence favourable to the Appellants in relation to the land in dispute as per Exhibit G.

On the whole, the trial customary court preferred the traditional evidence offered by the Plaintiffs Respondents and granted ALL the claims of the Plaintiffs Respondents. In their own words at pages 83 – 84 of the printed record first that:
“Another issue raised in the case is whether the 2nd Plaintiff (Ajihan A. Ajihan) was the person who testified with the name Otunoluwa Akinlola Ajihan in the previous suit. This, to our mind, should not be over flogged. The 2nd Plaintiff did not give evidence in this case. The position of the evidence given by a witness in previous suit and a new suit is well known to the court. The Defendants did not establish before this court that the 2nd Plaintiff was the witness who testified in the previous suit with that name”.

Secondly, that:
“On the above consideration we believe the evidence of the 1st Plaintiff on the gift of land made to Orisadiyelomo. We accept the cogent traditional evidence given by the Plaintiffs and their witnesses. The Plaintiffs have shown how Madam Ogunbi bought the land in dispute from Orunsero family and immediately passed the title to Orisadiyelomo. They have also shown how the land devolved over the years on her children by inheritance. This is opposed to the Defendants position that the female children had nothing to do with the landed property of their ancestors. That only Akintimehin had inherited all the property of Madam Ogunbi, the property that should have been inherited by all the children both male and female. The traditional history given by the defence is accordingly rejected.”

And thirdly:
“In conclusion, we are satisfied that the Plaintiffs have successfully proved their claim to a declaration of title to the land in dispute that they are the persons entitled to the customary right of occupancy over the land, the subject matter of this action ……….”

Dissatisfied with the above decision of the Customary Court, the Defendants Appellants filed a Notice of Appeal containing seven (7) grounds of appeal before the High Court of Ondo State on 13/12/2007.

On 27th October 2008, in a considered judgment delivered by Honourable Justice F. O. Aguda Taiwo, in the Ore Judicial Division of the High Court of Ondo State sitting at Ondo, the appeal of the Defendants Appellants was dismissed. Dissatisfied again with the judgment of the High Court, the Appellants filed a further appeal to this court by a Notice of Appeal dated and filed on 27/1/2009 (containing five (5) grounds of appeal). Briefs of argument were filed and exchanged by the parties.

Appellant’s brief of argument dated 30/10/2009 was filed on 18/11/2009. Respondent’s brief of argument dated 30/12/2009 was filed on 4/12/2010.
On the 17th day of September 2014 in the absence of the Counsel for both parties the Honourable Court invoked the provision of Order 18 Rule 9 (4) of the Court of Appeal Rules 2011 and the appeal was deemed argued.

Learned Counsel for the Respondents incorporated a Notice of Preliminary objection to the appeal in the Respondents brief of argument. The ground on which the application is predicated is that the Notice of Appeal dated 27th day of January 2009 is incompetent as it is not signed by a legal practitioner or the Appellants.
Counsel submitted that the Appellant filed a Notice of Appeal on the 27th day of January, 2009 and dated the same day. That the Notice of Appeal was prepared and filed by A. F. Adejayan & Co. without disclosing who actually signed the Notice of Appeal.
He submitted that the Notice of Appeal is fundamentally defective and goes to the root of the competence of appeal.
He contended that for a notice of appeal to be valid, it must be signed by either the Appellants or a duly registered legal practitioner acting on his behalf.
Learned Counsel referred to the provision of Order 1 Rule 2 of the Court of Appeal Rules 2002 (now Order 1 Rule 5 Court of Appeal Rules 2011).

He submitted further that for a person to be qualified to sign a notice of appeal as a legal practitioner, his name must be on the roll. In other words, he must be duly registered. The Appellants notice of appeal contained in pages 138-141 of the record of proceedings indicates that the notice was signed by A. F. Adejayan & Co. as solicitors to the Appellants. Counsel submitted that A. F. Adejayan & Co. is not a legal practitioner within the purview of Sections 2 and 24 of the Legal Practitioners Act Cap. 207 Laws of the Federation and is therefore not qualified to sign the notice of appeal on behalf of the Appellants.

Counsel referred to the cases of N.N.B. Plc v. Denclag (2004) All FWLR (Pt. 361) 1749 at 1765. He submitted that the Appellants notice of appeal is defective and the defects render the entire appeal of the Appellants incompetent.
Also, that a valid notice of appeal is a condition precedent to the exercise of appellate jurisdiction of this court. The position of the law, he said, is that where the notice of appeal suffers from any serious defect, the appeal itself becomes defective and subject to be struck out as incompetent. On this, Counsel referred to the case of N.N.B Plc v. Denclag Ltd (supra) at 626-627.

He prayed that the Appellants’ appeal be struck out for being incompetent, this notwithstanding the fact that the mistake in signing the notice of appeal is not that of the Appellants but his Counsel. He conceded that a party is not to be punished for the mistake of his Counsel, however, where the mistake is so fundamental as to affect the jurisdiction of the court, the court is rendered incompetent to entertain it and it does not matter at all who committed the mistake.
He referred to the case of First Bank Plc v. Alhaji Sulaiman Maiwada (2003) FWLR (Pt. 151) 2001 at 2015.

Learned Counsel for the Appellants did not furnish any reply to arguments on the preliminary objection by the Respondents. Furthermore, a perusal of the Court’s file shows that the Appellant brought a motion on notice dated 7/12/2010 but filed on 8/12/2010 whereby he sought leave to withdraw Appeal No. CA/B/273/2009 and for an order of court to file a fresh appeal on the ground that “the name of the Counsel who signed the Notice of Appeal dated and filed 27th January 2009 is not endorsed underneath it but the firm’s name”.
Meanwhile, the said motion was endorsed as having been withdrawn and struck out by this Honourable Court on 20/10/2011. There are no other processes to show that the Appellants ever withdrew the Notice of Appeal of 27/1/2009.

In the instant case, the Appellants notice of appeal which was issued and filed by the firm of A. F. Adejayan & Co. rather than having being signed by A. F. Adejayan a natural person and a legal practitioner is fundamentally defective.
Furthermore, all processes predicated on the said defective notice of appeal are incompetent, null and void.

The preliminary objection by the Respondents succeeds. Notwithstanding the above ruling in favour of the Respondents, I am still obliged to consider the merit of this appeal for whatever it is worth. This is because in the event of a further appeal, I am bound to express a view on the merit of the appeal for the consideration of the Supreme Court.

Learned Counsel for the Appellants nominated three (3) issues for this appeal. They are:
1. Whether the plea of estoppel per res judicata is not applicable to this suit to avail the defence of the Appellants as held by the lower court.
2. Whether the lower court is/was right to have held that Exhibits G and H as well as all other documents tendered in relation to suit No. ORCC/13/98 are baseless and irrelevant to the proceedings.
3. Whether the Respondents had given a cogent traditional evidence in proof of their case as required by law to warrant the lower court sustaining the decision of the trial court in that regard or put differently, whether the lower court is right in sustaining the decision of the trial court having found that the trial court wrongly applied the principle in Kojo II v. Bonsie.

Learned Counsel for the Respondents on the other hand believes that there are only two (2) issues calling for determination and they are:
1. Considering the facts of the case and having regards to Exhibits G and H as well as all other documents tendered in relation to suit No. ORCC/13/98, whether the Appellants could be said to have successfully raised the defence of res judicata. (Grounds 2, 3 and 4).
2. Whether the trial court properly evaluated and weighed all the evidence in the case before coming to a decision (Grounds 1 and 5).

Learned Counsel for the Appellants argued issues 1 and 2 together and reproduced the Respondents claim before the trial court as follows:
“A declaration that the Plaintiffs are entitled to customary right of occupancy over the large expanse of land situate, lying and being at Ofefe after river Ore known as ‘Ofefe Land’ in Ore, Odigbo Local Government Area of Ondo State which land is bounded as follows:
On the first side by Olorunsero family land.
On the second side by Adegbehin family land.
On the third side by Adegbehin family land.
On the fourth side by old Agbabu Road.

Learned Counsel then referred to the cases of Odutola v. Oderinde (2004) 118 LRCN 4072 and Afolabi v. Governor, Osun State (2003) 109 LRCN 1287 which laid down the principles for the application of estoppel res judicata as follows.
1. That the issue and subject matter are the same in the previous suit as in the present suit.
2. That the parties or their privies as the case may be are the same in the present case as in the previous suit.
3. That a court of competent jurisdiction must have given the adjudication in the previous case.
4. That the previous decision must have finally decided the issues between the parties.

Counsel submitted on condition (1) above that Appellants claim in suit No. ORCC/13/98 as per the consent judgment Exhibit H was that the Plaintiffs are the persons entitled to be granted the certificate of occupancy over the parcel of land situate, lying and being at Ofefe after river Ore, Odigbo Local Government Area of Ondo State of Nigeria bounded as follows:
On the 1st side by the Orunsero family land as shown on peg 13, 12 of the survey plan No. JOE/OD/91/199 dated 5th August 1991 straight to river Ogiran Aitinu.
On the 2nd side by Terere river in Ogbe.
On the 3rd side by old Agbabu Road.
On the 4th side by river Ogiran Aitinu.

Counsel submitted that the 1st Respondent in his evidence in chief before the trial court contained at page 7 of the record of appeal while giving the features separating the land in dispute from their boundary men stated at line 15, thereof “we share the boundaries with Orunsero family land at Omi Lakurudu. We are now having boundaries with Omi Lakurudu called peg 12. We are also having boundaries with Adegbehin family by Omi Atere, Ogiran Aitinu”.

Learned Counsel submitted that Exhibit E tendered by the Respondents at the trial court to show the boundary of the land in dispute with the Orunsero family on one side at peg 12 thereof is also the same plan to which reference was made by the Appellants in their claim and terms of settlement as per Exhibit ‘H’ and that the subject matter of action in both suits that is, the land at ‘Ofefe’ after river Ore, the issues arising thereof and the boundaries are the same.

On condition (2) Counsel submitted that the 1st Respondent who gave evidence as the head of Orisadiyelomo family aforesaid, in 1999 instituted Suit No. ORCC/14/99 against the Appellants herein before the same Customary Court over the same parcel of land at “Ofefe” as per Exhibit J states as follows:
“Declaration that the Plaintiffs family is entitled exclusively to an order of customary right of occupancy over that parcel of land situate, lying and being at “Ofefe” i.e. between Adeoye and Omi-Ore in Odigbo Local Government of Ondo State of Nigeria.
The boundaries of the land are:
On the 1st side Orunsero family.
On the 2nd side by Adegbeyin family.
On the 3rd side by Ondo-Agbabu Road.
On the 4th side by Ogiran river.

Counsel submitted that Ogiran river is the feature separating the land in dispute from Adegbeyin family on one side showing clearly that Adegbeyin family also appears on two sides in Suit No. ORCC/14/99, that the suit lasted in court between 1999-2004 when same was withdrawn from the court by the 1st Respondent. The Exhibit J relating to the said suit No. ORCC/14/99 was tendered at the trial court by the Appellants in support of their plea of estoppel per res judicata.

Learned Counsel submitted further that from the claim in Exhibit ‘J’ that is Suit ORCC/14/99, and the period which the case lasted in court, the 1st Respondent who sued the Appellants herein in a representative capacity was quite aware of the pendency of the case in Suit No. ORCC/13/98 as per Exhibit H and that this position he (1st Respondent) affirmed at page 9 lines 13-23 of the record of appeal. That, further to the above, the 2nd Respondent during the trial of the case in Exhibit H before the same was settled aforesaid gave evidence in favour of the Appellants stating that the land in dispute belongs to them and how same was vested on the appellants. That, Exhibit G was tendered at the trial been the evidence given by the 2nd Respondent to show that the 2nd Respondent who equally hails from the Appellants maternal family was aware of the suit in Exhibit H and qualifies as a privy to the Appellants in the said suit.

Counsel referred to the cases of Balogun v. Adejobi (1995) 27 LRCN 255 at 289; Ekenna v. Nkpakara (1997) 50 LRCN 1224 at 1249 and Ogundaini v. Araba (1978) 1 LRN 280 at 291 and submitted that party includes his privy under Section 54 of the Evidence Act. Also, that our courts have defined party for the purpose of estoppel per res judicata to include not only a person named as such in a suit but includes one who cognizant of the proceeding and of a fact that a party thereto is professing to act in his own interest allows his battle to be fought by the partly intending to take the benefit of the championship in the event of success.

He submitted that a certified true copy of Exhibit G aforesaid was tendered by the 2nd Appellant as DW3 without any objection at the trial but that the submission of Counsel to the Appellants to invoke S. 149 (d) of the Evidence Act against the Respondents on the ground that the 2nd Respondent failed to give evidence was discountenanced by both the trial customary court and the appellate lower court.

On condition (3) Counsel submitted that the parties are agreed that the court that sat on suit No. ORCC/13/98 Exhibit H, Suit No. ORCC/14/99 Exhibit J and the suit subject matter of this appeal is a competent court of law. Counsel submitted on the fourth condition of plea of res judicata enumerated above that it not in dispute between Counsel in the two lower courts that Exhibit ‘H’ which is a consent judgment is capable of creating an estoppel.

He referred to the case of Ibezim v. Ndulue (1992) 1 NWLR (Pt. 216) 153 at 169 where it was held that a judgment by consent is intended to put a stop to litigation between the parties just as much as a judgment which result from the decision of the court after the matter has been fought out to the end and it would be mischievous not to give a fair and reasonable interpretation to such a judgment and to allow questions that were really invoked in the action to be fought over again in a subsequent action. Counsel urged us to discountenance the findings of the lower court contained at pages 129 – 135 of the record on the plea of estoppel per res judicata. That, for example at page 134 of the record, the trial court reproduced the boundaries contained in the original claim filed by the Appellants in Suit No. ORCC/13/98 and not the boundaries upon which the consent judgment was based to come to the conclusion that the boundaries in the two suits are not the same. That, the court below at page 130 of the record then had this to say.
“I have examined the previous judgment of the lower court and make the following finding that Exhibit G which in Suit No. ORCC/13/98 was tendered at the lower court by DW3 in relation to the evidence supposedly given by the 2nd Plaintiff as Chief Otunoluwa Ajihan. Even though evidence was led by the witnesses of the Defendants relating to the judgment in Exhibit ‘H’, the plea of estoppel was raised by the Defendants/Appellants Counsel for the first time in his address after the conclusion of trial, whereas normally the place for raising the plea at the defence to the Plaintiff’s action (sic)”.

And at page 135 of the record that:
“……… In the light of the above, I disagree with the submissions of the Appellants Counsel that Exhibit H (the consent judgment of the lower court in Suit No. ORCC/14/98 created an estoppel per res judicata in the present action. Ground 2 of the appeal is therefore dismissed. The entire Suit No. ORCC/13/98 and all the documents tendered relating to it are irrelevant to the present proceedings”.

Leaned Counsel submitted that contrary to the above finding and conclusion of the court below, it is trite that proceeding relating to pleading is not applicable in the customary court and that in the instant case the Appellants led evidence and tendered Exhibits G, H and J aforesaid to show that they rely on the defence of estoppel pre res judicata.

He further submitted that the yard stick for admitting documents in customary courts is it’s relevancy and not by any adherence to the strict rules of the Evidence Act. Also, that Exhibit G is relevant to the proceeding before the two courts below to proof the plea of estoppel and contradict the case put forward by the Respondents. Moreso, said Counsel, when the 2nd Respondent avoided giving evidence before the trial court to avoid being confronted with “his previous evidence on oath” and that customary courts are enjoined to do substantial justice without any adherence to the rules of technicality.

He referred to S. 62 of the Customary Courts, Laws of Ondo State 1980 and the cases of Nwanguma v. Ikyande (1992) 8 NWLR (Pt. 258) 192; Ovah v. Ikalile & Ors (1995) 31 LRCN 135; Abubaka v. Bebeji (2007) 147 LRCN 1091 at 1132.
Learned Counsel submitted further on the above issues that it is not necessary to attach a dispute plan to successfully raise the plea of estoppel per res judicata as held by the courts below where the identity or the description of the land involved is not in dispute as applicable to Suit No. ORCC/13/98 Exhibit H and the instant case. And, that, where a plea of res judicata is successfully raised, it is not only the parties who are estopped by res judicata but also the jurisdiction of the courts to entertain the same issues previously determined by a court of competent jurisdiction between the same parties is ousted as well. He referred to the case of Oshodi v. Eyifunmi (2000) FWLR (Pt. 8) 1271.

Learned Counsel for the Respondents responded to Appellants Issue 1 and 2 in his treatment of his own issue J. He submitted that it is clear that the plaintiffs Respondents instituted this action for themselves and on behalf of members of Orisadiyelomo family of Ore Odigbo against the Defendants Appellants for themselves and on behalf of members of Akintimehin family of Ore.

He drew our attention to the fact that Suit No. ORCC/13/98 is a proceeding between members of Akintimehin family represented by High Chief Lisa Akinsole, Prince Enock Omoniyi and Prince Ojo Adebayo and members of Orunsero family of Ore represented by Chief Samuel Olawanle and Chief Johnson Olatomide. He referred the court to Exhibits G and H. He submitted that the trial customary court and the court below were right to have rejected the plea or the defence of estoppel per rem judicata.

Learned Counsel for the Respondents also outlined four (4) conditions for the application of the doctrine of res judicata as was the case with the appellants Counsel.
He submitted that from the descriptions of the parties above, the parties in the instant suit are clearly not the same with the parties in the consent judgment Exhibit H.

Counsel submitted further that the Appellants submission at pages 6 to 7 paragraphs 5.09, 6.01 and 6.02 which tend to show that the Respondents were aware of Suit No. ORCC/13/98 – Exhibit H, more especially by their action in Exhibit J and thereby qualify as a party in Suit No. ORCC/13/98 is predicated on the doctrine of estoppel by “standing by”.
However, that the doctrine of estoppel by standing by will only apply where it will be against injustice and common sense to allow a person who stood by and watched another fight his own battle intending to take the benefit of the championship, in the event of success.
The question to ask, said Counsel is: Who are those that would have taken the benefit of the decision in ORCC/13/98? That, in answering the question, the members of the Respondent family who are neither members of the Plaintiffs family in ORCC/13/98 nor that of the Defendants family in the said suit could not have benefited from the decision.

Furthermore, said Counsel, the provision of Section 54 of the Evidence Act LFN 1990 and the cases of Balogun v. Adejobi (1995) 27 LRCN 255 at 289; Ekenna v. Nkpakara (1997) 50 LRCN 1224 at 1249 and Ogundaini v. Araba (1978) 1 LRN 280 at 291 referred to by the appellants in their brief do not support their case. That the case of Ogundaini v. Araba also reported in (2009) All FWLR (Pt. 482) at 1012 decides that a purchaser cannot be stopped by a decision in an action touching the vendor’s title which was commenced after the purchase unless he was made a party to the action. That, this is not so in the instant case. That, the Appellants Counsel further argued that the Respondents having instituted an action against the Appellants vide Exhibit J and later caused same to be withdrawn during the pendency of ORCC/13/98 qualified them as a party to the suit (ORCC/3/98).

On the above, Respondents Counsel submitted that considering the fact that the Respondents did not participate in the proceeding of ORCC/13198, they could not be regarded as privy. Similarly, said Counsel, the principles enunciated in the cases of Balogun v. Adejobi (supra) and Ekenna v. Nkpakara (supra) are quite different from the present case. That,
(a) Neither of the parties in Suit No. ORCC/3/98 i.e. Akintimehin family and Orunsero family professes to act in Plaintiffs Respondents interest.
(b) The Respondents could not in any way benefit from the success of either party in suit No. ORCC/13/98.

The Appellants, said Counsel, have the duty to show that either of this condition apply to the present case and this the Appellants have failed to show.
Counsel submitted that aside from the above, it was also the contention of the Appellants in paragraph 6.01 of page 6 of Appellant brief that the 2nd Respondent gave evidence in favour of the Appellants and that Exhibit G was tendered to that effect. Respondents Counsel noted that the submission of the Appellants Counsel on this score is inaccurate. That, Exhibit G is a Certified True Copy of proceedings tendered by DW3.
That on the face of Exhibit G, the name of the witness who testified in Exhibit G is Chief Otunoluwa Akinola Ajihan who described himself as a farmer and public letter writer.

Learned Counsel drew our attention to the cross-examination of the DW3 who tendered Exhibit ‘G’ on the real identity of the 2nd Respondent who he claimed to have given evidence in Exhibit “G”. At page 37 of the record DW3 stated inter alia:
“……. I know the 2nd Plaintiff very well. I know him to be Akin …….. the title Otunoluwa is a title that belongs to his father and his real name is Akin Ajihan Ogunmade ….”

Counsel submitted that it was in consequence of the above that the trial court held that the Defendants (i.e. Appellants) did not establish before the court that the 2nd Plaintiff was the witness who testified in ORCC/13/98.
He submitted that clear finding of fact by a trial court should not be disturbed by the Appellate Court if the findings are supported by evidence and are not in conflict with any law on admissible evidence and they are not perverse or amount to a miscarriage of justice the Appellate Court will give clear approval to the findings. He referred to the case of Awoyoolu v. Aro (2006) all FWLR (Pt. 308) 1319 at 1327 – 1328.

Moreover, said Counsel, the submission of the Counsel to Appellants to the effect that this court should invoke S. 149 (d) of the Evidence Act against the case of the Respondents for failing to call the 2nd Respondent to give evidence, at the trial is misleading Counsel argued that Section 149 (d) of the Evidence Act is only saying that where there is failure to call evidence and not where there is failure to call particular witness.
Thus, the presumption therein will arise in a proper case against a party to the proceedings who withholds a particular piece of evidence on the issue and not because he fails to call a particular witness.
On this, Counsel referred to the case of Adediji v. Kolawole (2004) All FWLR (Pt. 214) 91 at 108.

He further submitted that there is no way the Respondents will know in advance that Exhibit G will be tendered by the Appellants. And, that in any event the Appellants had the opportunity to confront PW1 with Exhibit G, but they did not.
On the 2nd condition of a plea of res judicata, that the claims or issues are the same, Respondents Counsel referred to page 4 of the record and Exhibit H and submitted that the claims or issues in dispute in both cases are not the same. On the 3rd condition as to subject matter, Counsel referred to the claims and the description of land by the Plaintiffs Respondents at page 4 of the record in contrast to the land covered by the said consent judgment Exhibit H that was described as follows:
“On the 1st side by the Orunsero family land as shown on peg 13, 12 of the Survey Plan No. J.O.E./91/99 dated 5th August 1991 straight to river Ogiran Aitiun.
On the 2nd side by Terere river in Ogbe
On the 4th side by river Ogiran Aitinu”.

Learned Counsel drew our attention to page 36 lines 15 – 17 of the record where DW3 gave evidence that the name Sadoile family land was written on the face of Exhibit E. That there is evidence on page 3 line 21 – 22 that another name for Orisadiyelomo is Sadoile.
Counsel submitted that the position of pegs 13 to 12 of Exhibit E is different from the position of the land in dispute where the name Sadoile family land is written.

Learned Counsel referred to the evidence of PW1 at page 7 and that of PW3 at page 18 of the record both of whom confirmed that the description of the land in Exhibit H is different from the land in dispute in the instant case. That PW1 described the boundary and the features forming the boundaries of the land in dispute. He stated that the Respondents share boundaries with Omi Lakurudu at a place called peg 12 of Exhibit E and, PW3 also confirmed that the land are not the same.

Learned Counsel described the view expressed by the Appellants at paragraphs 5.05 – 5.06 of their brief that Terere river is the same as Omi Atere as erroneous and misleading as there is nowhere in the record of appeal where it was shown that Terere river is the same as Omi Atere.

Respondents Counsel also debunked the contention in paragraph 6.08 at page 9 of the Appellants brief of argument that it is not necessary to attach a dispute plan to successfully raise the plea of estoppel per rem judicata where the identity or the description of the land involved is not in dispute as applicable to Suit No. ORCC/13/98 as well as the instant case.

Counsel submitted that there is nowhere in the record of appeal where parties agreed that the identity of the land in Suit No. ORCC/13/98 as well as the instant case are the same. That, as a matter of fact the 1st Respondent gave evidence at the trial that:
“I am not aware that the land or that case is the present one on this matter”.

He submitted that the land in Suit No. ORCC/13/98 is not tied to any Survey Plan. That the position of the law is that a previous judgment in respect of a piece of land which is not tied to a plan cannot operate as an estoppel. He referred to the cases of Archibong v. Ita (2004) All FWLR (pt. 197) 930 at 965 and Mbamaenyi v. Abose (1995) 7 NWLR (Pt. 405) at 54.
Learned Counsel then justified the reasoning of the court below at page 134 of the record to the effect that:
“I however agree with the submissions of the Respondents Counsel that before a previous judgment in respect of a piece of land can operate as estoppel, it must be tied to survey plan defining the boundaries”.

Furthermore, said Counsel, the case of Oshodi v. Eyifunmi (2000) FWLR (Pt. 8) 1271 cited by the Appellants in their brief, do not support their case, that in Oshodi’s case (supra) the court found that from the pleadings that the parties are clearly ad idem as to the land in dispute in both cases being the same. But, that the Appellants in the instant case have not been able to shoe that the parties are ad idem that the land the subject matter of this suit is the same with that of Suit No. ORCC/13/98.

Learned Counsel for the Respondents conceded that in terms of paragraph 6.07 of page 8 of the Appellants brief of argument that pleading is not applicable in the customary court. But, added, that it is however settled that an appellate court will not set aside the decision of a lower court which is right and just merely because the lower court gave wrong reasons for the decision. That, the paramount consideration for the appellate court is whether the decision is right and not necessarily what the reasons are. He referred to the case of A.I.C. Ltd v. NNPC (2005) All FWLR (Pt. 270) 1945 at 1977.

The Learned Counsel for the Appellant perhaps unwittingly has raised three separate but related issues of estoppel in issues 1 and 2 of this appeal.
The contention that the consent judgment Exhibit H and the instant case are decisions of the same Customary Court (competent court) and with the same parties and/or privies and subject matter raises the issue of estoppel per rem judicata or res judicata properly so called.

The contention that the Respondents were aware of and stood by in the pendency of Suit No. ORCC/13/98 – Exhibit H buttressed by their filing of Suit No. ORCC/14/99 – Exhibit J which was later withdrawn raises the issue of estoppel by standing-by.
The contention again by the Appellants that one Chief Otunoluwa Akinola Ajihan whom the Appellants believe or regarded as the same person as the 2nd Plaintiff in the instant case gave evidence favourable to the Appellants in Exhibit H via Exhibit J raises a point of issue estoppel.

Applying the above principles and their distinctions to the facts and circumstances of the present case, it is obvious that the two courts below were right in all the circumstances of the case for disallowing the Appellants plea of estoppel of record or estoppel per rem judicatam in relation to the consent judgment Exhibit H and the present case. This is because neither the parties nor the claims, issues or subject matter are the same in the present case as it was in Exhibit H. For a plea of estoppels per rem judicata or estoppel by record to succeed, a party relying on it must establish the following facts, namely:
(a) that the parties or their privies involved in both the previous and the proceedings in which the plea is raised are the same; (b) that the claim or issue in dispute in both proceedings are the same; (c) that the res or the subject matter of the litigation in the two cases are the same; (d) that the decision relied upon to support the plea is valid, subsisting and final; and (e) that the court that gave the previous decision relied upon to sustain the plea was a court of competent jurisdiction.
Finally all the above conditions must co-exist for the plea to succeed and the burden is on the party who sets up the defence of estoppel per rem judicatam to establish the above pre-conditions conclusively.
Balogun v. Ode (2007) 4 NWLR (Pt. 10123) 1; Dagaci of Dere v. Dagaci of Ebwa (2006) 7 NWLR (Pt. 979) 382; Ekong v. Udo (2002) 16 NWLR (Pt. 792) 1.

In relation to the instant case, it could be said more particularly that while the consent judgment in Exhibit H was between the present Appellants family and the Orunsero family, the present suit is between the Respondents Orisadiyelomo family and the Appellants Akintimehin family. Clearly the first condition (as enumerated above) for a valid plea of res judicata fails as the parties in the judgment sought to be relied upon Exhibit H and in the proceedings wherein it is invoked are not the same. See Omokhafe v. Esekhomo (1993) 8 NWLR (Pt. 309) 58 at 68, 73; Bankole v. Petu (1991) 8 NWLR (Pt. 211) 523 at 543; Shonekan v. Smith (1964) All NLR 168 at 172.

Similarly, the Respondents could not have been held to have stood by merely by their been aware of Suit No. ORCC/13/98 Exhibit H, when in fact they proceeded to file Suit No. ORCC/14/99 Exhibit J until they withdrew same when they got to know that the suit Exhibit H does not concern their family land.
I do agree with the learned Counsel for the Respondents that neither of the party in Suit No. ORCC/13/98 i.e. Akintimehin family and Orunsero family professes to act in the interest of the Respondents. And, also that the Appellants could not show that Respondents would in any way benefit from the success of either party in Suit No. ORCC/13/98.

On Exhibit G, that is the evidence of Chief Otunoluwa Akinola Ajihan in Exhibit H, the finding of fact of the Customary Court confirmed by the Court below that the Appellants were not able to establish that the Chief Otunoluwa Akinola Ajihan who witnessed in Exhibit H was the same person as the 2nd Plaintiff Respondent in the instant case defeats the possibilities of any claim of admission against the interest of the Respondents and/or issue estoppel.

The learned trial judge in the court below was therefore not wrong when he stated at page 133 of the record that:
“The evidence given by the witness Chief Otunoluwa Akinola Ajihan tendered as Exhibit G is therefore not relevant to the present proceeding. There was also no evidence that that witness who gave evidence contained in Exhibit G was a witness in the present proceeding where his previous evidence would have been relevant for the purpose of proving the truth of what he said previously.
Even if it was the same witness such evidence may only be used for cross-examination as to credit and is of no higher value than that. The relevant fact is whether or not the proceedings were between the same parties in both suits which are not so in this case. The lower court was therefore right not to have placed any reliance on Exhibit G in arriving at their decision. All references by Appellants Counsel in the entire appeal to Exhibit G ………… are of no consequence …….”

Finally in relation to Issue 1 and 2 there is no gainsaying that where there is a concurrent finding of fact by two courts below as in the instant issue, supported by evidence and not perverse or in conflict with any law. An appellate court will approve rather than disturb such a finding of fact which is not perverse.
Awoyoolu v. Aro (2006) All FWLR (Pt. 308) 1319 at 1327-1328.
By the above considerations, issue 1 and 2 are resolved against the Appellants.

On issue 3, Learned Counsel for the Appellants submitted that the kernel of the Respondents claim is proof of ownership of the land in dispute by traditional evidence i.e. that their maternal ancestor Orisadiyelomo who died hundreds of years ago became seized of same through her mother Madam Ogunbi who purchased same for Orisadiyelomo after the death of Ogunbi’s eldest child Akintimehin who was the paternal ancestor of the Appellants. That in contrast the Appellants in their defence at the trial contended that the land in dispute was inherited by Akintimehin after the death of her mother Madam Ogunbi and following the death of Aake, the other younger brother to Akintimehin who died childless. That the Appellants strongly contest that Akintimehin did not predecease his mother as claimed by the Respondents whereby the Appellants placed reliance on Exhibit G which supports the case of the Appellants and sharply contradicts the Respondents case.

Learned Counsel submitted that for a party to rely on proof by traditional evidence he must proof who founded the land, how the land was founded and the particulars of the intervening owners through whom he claims before the land devolved on him.
He refers to the cases of Ewo v. Ani (2004) 117 LRCN 3608; Oyedaro v. Keji (2005) 123 LRCN 17.

Counsel submitted that in the instant case, the Respondents apart from stating that Madam Ogunbi purchased the land in dispute for Orisadiyelomo failed to state the particulars of their ancestors who enjoyed the land after the death of Madam Orisadiyelomo until quite recently in 1965 when the Respondents said they settled customary tenants on part of the land in dispute but that the submission of Appellants on this point before the courts below were discountenanced. Counsel submitted further that once the lower court found that the trial court wrongly applied the rule in Kojo II v. Bonsie (1957) 1 WLR 1223, the court ought to allow the appeal for there will be nothing left to sustain the traditional evidence put forward by the Respondents, for, where radical title relied upon has not been proved, it will no longer be necessary to consider acts of possession which are no longer acts of possession, but rather acts of trespass. He referred to the case of Nkado v. Obiano (1997) 50 LRCN 1084 at 1127.

Learned Counsel submitted that it is trite law that the evaluation of evidence and ascription of probative value to it is the primary duty of the trial court, however, an appellate court will interfere where the trial court does not properly evaluate the evidence before it.
He referred to the case of Iwuoha v. NIPOST Ltd (2003) 110 LRCN 1622 and submitted that if Exhibit G wherein the 2nd Respondent gave evidence in favour of the Appellants in Suit No. ORCC/13/98 has been properly considered and applied by the court below it ought to allow the appeal.

Learned Counsel to the Respondents reacted to Appellants Issue No. 3 in his treatment of his own issue 2. He drew our attention to the fact that the following facts were not in dispute:
(1) That the land in dispute originally belonged to the Orunsero family of Odigbo land.
(2) That Madam Ogunbi bought the land in dispute from Orunsero family of Odigbo.
(3) That Madam Ogunbi was the mother of Akintimehin and others.

He submitted that there is however evidence from the Respondents that the children of Orisadiyelomo inherited the said land and started farming thereon after the death of Orisadiyelomo. There is also evidence on the part of the Respondents that as a result of boundary dispute between members of Orunsero family and Respondents family in respect of part of the land where the Respondents share boundary with Orunsero family and consequent upon the settlement of the dispute by Orunja-in-Council, the Respondents decided to put rent paying tenant on the land In the year 1965.

Counsel submitted further that in view of the Appellant admission of the Respondents assertion that Madam Ogunbi was the owner of the land in dispute the Respondents has no duty to prove the person who founded the land, how he founded it and the person through whom the land devolved on Madam Ogunbi.
He referred to the case of Anukam v. Anukam (2008) All FWLR (Pt. 413) 1255 at 1267-1269.

Also, on the further argument canvassed by the Appellants Counsel that the Respondents failed to state the particulars of their ancestors who enjoyed the land after the death of madam Orisadiyelomo, Respondents Counsel submitted that the land still maintains the character of family land. That PW1 stated that after the death of Orisadayelomo, her children inherited the land and started farming thereon until there was a boundary dispute between the family of Orisadiyelomo and that of Orunsero which was settled by Orunja-in-Council. After which rent paying tenants were put on the land.

On the contention of the learned Counsel for the Appellants that the trial court wrongly applied the principle in Kojo II v. Bonsie (supra). Respondents Counsel conceded that the Respondents urged the lower court to apply the rule in Kojo II v. Bonsie (supra) but that the trial court did not in fact apply the rule. He submitted that what the trial court did at page 81-84 of the record was to weigh the cases of the parties on an imaginary scale and thereby determine which evidence of the two parties was weightier. That the trial court considered all relevant issues in the case before it reached a conclusion one way or the other.

Learned Counsel submitted further relying on the case of Ibikunle v. Lawani (2008) All FWLR (Pt. 398) 359 at 371 that where both parties in a claim for title to land rely on traditional history as proof, it is the duty of the trial court to weigh on the imaginary scale and determine which evidence of the two is weightier.
He referred to the case of Ezeahoikwa v. Muoneke (2005) All FWLR (Pt. 256) 1327 All FWLR (Pt. 256) 1327) at 1341 to submit that the evaluation of evidence is pre-eminently the duty of the trial court and that there is nowhere in the record where the court below found or held that the trial court wrongly applied the rule in Kojo II v. Bonsie (supra).

Learned Counsel for the Appellants has raised two main points in his issue No. 3. The first is his contention that the two courts below wrongly found in favour of the Respondents who relied on traditional evidence but failed to prove who founded the land, how it was founded and the particulars of the intervening owners. The second is the Appellants contention that the court below did not frown on the misapplication of the rule in Kojo II v. Bonsie (supra) when in fact the lower customary court did not find the Respondents case credible.

On the first point, Learned Counsel for the Respondents was right to have said that the Appellants having admitted the Respondents case that Madam Ogunbi was the owner of the land in dispute which she purchased from the Orunsero family the Respondents became relieved of the duty of proving who founded the land and through whom the land devolved on Madam Ogunbi. Indeed the bone of contention between the parties in the case is whether in accordance with the Appellants story the land in dispute was inherited by Akintimehin the first son of Madam Ogunbi or whether Akintimehin in fact predeceased Madam Ogunbi and that the land in dispute was purchased for Orisadiyelomo the first daughter of Madam Ogunbi by the said Madam Ogunbi.

In the instant case, the title of the common ancestor of the parties is not in dispute and therefore the Plaintiff Respondent was relieved of the duty to prove who founded the land and the particulars of the intervening owners.
See Adebo v. Saki Estates Ltd. (1999) 7 NWLR (Pt. 612) 525; Ajibulu v. Ajayi (2004) 11 NWLR (Pt. 885) 458; Dosunmu v. Joto (1987) 4 NWLR (Pt. 65) 297.

Secondly, in the instant case the court below was right to have held that the trial customary court did not in fact apply the rule in Kojo II v. Bonsie (supra) to the case of the parties.
Indeed, a careful and holistic study of the judgment of the trial Customary Court reveals that the trial court weighed the case of the parties on an imaginary scale in accordance with the rule in Mogaji v. Odofin (1978) 4 S.C. 91 and in preferring the totality of the case of the Plaintiffs Respondents to that of the Appellants came to the conclusion that the Plaintiffs Respondents case was cogent and credible.

In the instant case, if the trial court had indeed made any allusions to the rule in Kojo II v. Bonsie (supra) as suggested by the learned Counsel to the Appellants it must have been done only in the evaluation of the totality of the evidence presented by the parties and perhaps also ex abundante cautella. This in itself to my mind does not tilt the justice of the case because the principle in Kojo II v. Bonsie (supra) establishes that where there is conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, the best way is to test the traditional history by reference to the facts in recent years as established by evidence and see which of the two competing histories is more probable. The principle offers a guideline when a court is evaluating the evidence as to which of the versions of the evidence on two conflicting histories is more probable in a pleaded traditional history as their source of title.
See Balogun v. Akanji (2005) 10 NWLR (Pt. 933) 394; Odofin v. Ayoola (1984) 11 S.C. 72
For these reasons, Issue No. 3 is also resolved against the Appellants.
Having resolved the three (3) issues in this appeal against the appellants, the appeal lacks merit and ought to be dismissed.
However, having regards to my earlier ruling on the preliminary objection to this appeal by the Respondents that the Appellants Notice of Appeal is incompetent, this appeal is struck out.
N30,000 costs is awarded to the Respondents.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the leading Judgment of My Lord, Owoade, JCA so lucidly and eruditely prepared (of course he is an erudite professor of law and Jurist of re-known acclaim!).

I am content to concur as even the ground upon which the act originating the instant appeal is hinged is a collapsible pedestal and a non – starter in law as it is an incompetent notice of appeal. The Notice of Appeal is struck out and the decision of the trial court is sustained; accordingly, as it cannot be inquired into, save for speculative imprimatur and systemic obligations.

JAMES SHEHU ABIRIYI, J.C.A.: I agree.

Appearances

A. F. AdesayanFor Appellant

AND

A. O. Oyibo Esq.For Respondent