MR. LEKAN AFOLABI v. MR. STEPHEN OLA
(2016)LCN/8297(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of March, 2016
CA/AK/141/2012
RATIO
PRACTICE AND PROCEDURE: HOW CIVIL CASES ARE DECIDED
Civil cases are decided on the preponderance of evidence or balance of probabilities. See 134 of the Evidence Act, 2011. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
LAND LAW: TITLE TO LAND; WHETHER THE MERE TENDERING OF TITLE TO LAND AUTOMATICALLY PROVE THAT THE LAND THEREIN CONVEYED BY THE INSTRUMENT BECOMES THE PROPERTY OF THE GRANTEE
It was held in the case of ARIYO V. ADEWUSI (2012) ALL FWLR (pt 640) 1400 @ 1402 that: “the mere tendering of an instrument of title to land such as a deed of conveyance or Certificate of Statutory or Customary Right of Occupancy in Court does not automatically prove that the land therein purportedly conveyed, granted or transferred by the instrument becomes the property of the grantee. The existence of the Certificate of Occupancy is merely Prima Facie evidence of title to the land it covers and no more” per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE: THE IMPLICATION OF A SITUATION WHERE TWO WITNESSES OR MORE OF A PARTY HAVE GIVEN IRRECONCILABLE AND CONTRADICTORY STATEMENT OR PIECE OF EVIDENCE IN A MATTER
Where two witnesses or more of a party have given irreconcilable and contradictory statements or pieces of evidence in a matter, every item of evidence contended which tends to corroborate or contradict either of them should be carefully weighed and considered in determining preponderance. See Odi V. Iyala (2004) 4 SC (pt 1). Since documentary exhibits are usually read together to resolve any conflict that may arise in a dispute as in the instant case, the learned trial Court in my view did the right thing by going beyond the parties’ traditional evidence to so do . See the case of Ezenwa V. K.S.H.S.M.B supra. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
APPEAL: WHETHER A PARTY MUST SEEK AND OBTAIN THE LEAVE OF THE APPELLATE COURT IN ORDER TO RAISE A FRESH POINT ON APPEAL NOT DETERMINED BY THE LOWER COURT
It was held in the case of Olagunju V. Power Holding (2011)4 SCNJ 192 @ 194 that:
“The law remain; that where a party wants/desires to raise a fresh point on appeal- a point not considered and determined by the lower Court (s)- he must seek and obtain the leave of the Appellate Court. It is trite law.” per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
LAND LAW: THE EFFECT OF PRINCIPLE “NEMO DAT QUOD NON HABET” IN THE PURCHASE OF PROPERTY
This, in my view, activates the principle of “nemo dat quod non habet.” It is to the effect that if someone purchases a property of which the seller has no right to, the purchaser will likewise have no legal claim to the property in question – Macfoy V. UAC (1952) AC 154 @ 162. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
DAMAGES: GENERAL DAMAGES: WHETHER GENERAL DAMAGES FLOWINF FROM THE WRONG COMPLAINED OF BY THE VICTIM NEED TO BE SPECIFICALLY PLEADED AND STRICTLY PROVED
The law regarding to general damages presumes damages as flowing from the wrong complained of by the victim. Such damages in law need not be “specifically pleaded and strictly proved.
In other words, general damages are compensatory damages for harm resulting from the tort for which the party has sued. See the cases of UBN Plc. V. Ajabule (2011) 18 NWLR (Pt. 1278) 152 SC; Husseni V. Mohammed (2015) 3 NWLR (pt. 1445) 100. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES:
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
MR. LEKAN AFOLABI
(For himself and members of Akiwowo Family, Ipetumodu) – Appellant(s)
AND
MR. STEPHEN OLA
(For himself and members of Akinkunmi family, Ile – Eleye, Ipetumodu) – Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Osun State presided over by Hon. Justice M. A. Adeigbe in suit No. HIF/33/2005 delivered 26th September, 2012.
The appellant as plaintiff at the lower Court commenced this action by writ of summons accompanied by a statement of claim, both dated 15th September, 2005. Statement of defence and counter claim were filed on the 25th April, 2006 by the Respondent herein.
Plaintiff/Appellant later filed an Amended Statement of claim and a further Amended Statement of claim dated 19th Nov, 2007 and 5th March, 2010 respectively. The claims of the plaintiff/Appellant against the defendant/respondent are as follows:
1. That the plaintiff’s family is entitled to customary right of occupancy in respect of the land situate, lying and being at Gbagobago/Abanda and bounded as follows:-
First side by Samolfa through Elewura -idannu Footpath River Isasa, second side by River Isaasa, Third side by Abojukun/River Isaasa and on the fourth side by old Ibadan- Gbongan Ashipa-Ife Road, excluding the portion sold to Mr. Olatunji
ascribed in certificate of occupancy dated 20th April 1982, and certificate as NO. 37 at page 37 in volume 2443 of the Register of deeds.
2. Declaration that Mr. Oladele Olatunji is entitled to the certificate of occupancy issued to him and dated 20th day of April 1982, and registered as NO. 37 at page 37 in volume 2443, of the Register of Deed sold to him by the plaintiff’s family on 12th day of January 1978.
3. N100.000.00 damages for trespass committed since 17th may 2005 and still being committed by the defendant’s family.
4. Perpetual injunction restraining the defendant’s family privies agent servants, and those claiming through them from dealing in any whatsoever with the rand in dispute.
The respondent on the other hand filed his defence and counter claimed against the appellant as follows:
(a) The Counter – claimant is entitled to certificate of occupancy of the piece and parcel of land which is the subject matter of Suit HIF/33/05.
(b) The sum of N4, 000, 000. 00 (Four Million Naira being damages for the act of trespass committed by the plaintiff in the land in dispute.
(c) Perpetual injunction restraining the
plaintiff’s family, privies, agents and servants from dealing in any way whatsoever with the land in dispute.
SUMMARY OF FACTS:
The appellant’s case is that; the land in dispute in situate, lying and being at Gbagogbago, Agbanda, Ipetumodu and the boundaries are:
First side by:- Samolofa through Elewura or Idano footpath to river Isasa;
Second side by:- River Isasa,
Third side by: Abojukunrun River/River Isasa;
Fourth side by:- Old Ibadan/ Gbongan/Ashipa/Ife Road.
The Original owner of the land in dispute was Akintayo, who settled on the land in dispute about 200 years. Akintayo farmed on the land in dispute by planting various cash and food crops. Akintayo died about 100 years ago, and some of his children inherited the land in dispute and also cultivated cash and food crops. Amongst Akinmtayo’s children were Odusikun, Kupakin and Idowu Akiwowo who later became Apetumodu of Ipetumodu between 1929 and 1947. Idowu Akiwowo inherited the land in dispute and he with his full brothers including Ola, Oni and Odefunke cultivated the land and planted cash and food crops. Odusikun, Kupakin and Rogbo who were his half brothers had
their own farmland at Ibudo, which is a place far from the land in dispute.
After the death of Akiwowo, his children who inherited the land in dispute and cultivated the land by planting cash and food crops were Awoyemi, Ojeleye, Oderin, Aworonke, Yoyin, Benjamin Afolabi and Emmanuel Oke and they are all dead. Among the grand children of Akiwowo who ‘inherited the land in dispute are Olarewaju, the plaintiff; they are all farmers on the land in dispute. The defendant is not related to the plaintiff. He is sued in a representative capacity. Samolofa- Elewura Idano foothpath-Isaasa River is the boundary between the plaintiff’s family and that of the defendant’s family. The land in dispute has not been partitioned.
Prominent among Akiwowo’s tenants was one Lamiriki from Aroje’s compound, Ipetumodu. He requested for a portion of land from Akiwowo about 70 years ago for the purpose of cultivating yams. He was put on the land and was paying twenty tubers of yam as Isakole annually until Akiwowo’s death. He also paid tribute to late Aworonke until he died about twenty years ago. His own farm was at Aba Adesiyan.
Madam Marian Aworonke Akiwowo, John
Olaniyi, head and principal member of Akiwowo family on behalf of the family sold a portion of the land in dispute to Messrs Oladele Ajani Olatunji and Abidoye Babalola through a Deed of Conveyance, which was executed on the 12th day of January, 1987. The conveyance was tendered at the lower Court as Exhibit A.
Mr. Abidoye Babalola through an affidavit dated 11th June, 1980 transferred his interest to Mr. Olatunji. The affidavit was tendered and admitted at the lower Court as Certificate of Occupancy dated 20th day of April, 1982 and registered as No. 37 at page 37 in Volume 2443 of the Register of Deeds was consequently obtained by Mr. Olatunji. The aforementioned Certificate of Occupancy was destroyed by fire in 1996 and Mr. Olatunji had to obtain a Certified True Copy in September, 1998 and was tendered and admitted as Exhibit C.
In the 1970’s, the Western State Ministry of Agriculture sited a rice multiplication field in front of Iwaro Village land. The programme was named Iwaro I and II and on Gbagogbago land, which is part of the land in dispute. Consequently, Iwaro Village became a reference point for all programmes/projects in the area hence
the survey plan attached to the Certificate of Statutory Right of Occupancy titled Iwaro.
Thereafter, Mr. Olatunji went into possession and sometimes in 1978, he cleared the land and planted maize. The under listed farmers were those he met on his land and he inherited them as tenants – Late Gabriel Adeyinka, Mr. Raji Olatunji, Mr. Lamidi ohida, Mr. Oresesan, Mr. Saliu Lamidi, Mr. Sina of Gbongan, Mr. Muyiwa Abel, Mr. Ipo Saliu Ibrahim, Mr. Saliu Jimoh, Mr. Kareem Saliu, Mr. Jimoh Sule, Mr. Dauda Saliu, Mr. Yakubu Momoh, and Papa Olatunji of Gbongan.
They paid rent to him and he issued receipts to them in the name of Delatunji (Nig.) Ltd, which is owned by him.
In 2000, Messrs kamaru Oyekanle, Mohammed and Madam Abigail from Gbongan excavated sand from Mr. Olatunji’s land, which is part of the land in dispute, and he issued receipts for money paid by them in the name of Civanjay Ventures (Nig.) Ltd. Owned by him. The receipts are Exhibits E & F. Mr. Olatunji met one Prince Taye Ayoola on his portion of land and asked how he got there. Prince Ayoola told him that it was members of ‘the defendant’s family that put him there, and he requested
him to bring them but they did not make themselves available. Consequently, he took Prince Ayoola on as his tenant and he paid N100.00.
Members of the defendant’s family started entering the plaintiff’s family land in 2001 before they were warned to stay away. The warning culminated in the defendant’s fami[ instituting an action claiming the land in dispute in Suit No.26/2002 of 11th day of June, 2002. The Customary Court, Ipetumodu in which the case was instituted was prohibited from hearing the case in 17/05/2005 and it was struck out.
The defendants afterwards, and since May, 2005, continued the trespass and even put some tenants on the land in dispute. Exhibits A1 – 33 the judgment Record of proceedings in Suit No.69/70 is relied upon.
At the trial, plaintiff testified and called two (2) other witnesses. Exhibits were tendered and admitted in evidence and marked as Exhibits A (1-33), B, C, D, E, F and “TR1” which was rejected by the Court upon the respondent’s objection. On his part, the respondent testified for himself and also called two (2) other witnesses.
At the conclusion of trial, the learned trial Judge on the 26th September,
2012 in suit NO: HIF/33/2005 delivered his judgment, partly in favour of the defendant/counter claimant.
Being dissatisfied the plaintiff brought this appeal vide a Notice of Appeal dated 22nd October, 2012 containing five (5) grounds of appeal. This is contained on pages 382-384 of the records.
Appellant’s brief of argument is dated and filed 17/12/12 while Respondent’s brief dated 29s July, 2013 was filed on the 31/7/13. There is also a Reply brief dated and filed 9/9/13. Respondent’s counsel filed a notice of preliminary objection dated 18th day of January, 2015 and filed 23rd day of February, 2015 supported by an affidavit. A counter affidavit dated and filed 27/2/2015 was filed in response. The briefs on both sides were settled by R.O. Ewuola Esq and F.O. Lawal Olatunji Esq for the Appellant and Respondent respectively.
From the grounds of appeal as contained on the record, the learned appellant’s counsel has formulated the following 5 issues for the determination of this appeal:
1. Whether by the oral and documentary evidence in this suit, the evidence of the judgment record of proceedings in suit 69/70, and the finding of the trial
judge that both were certain about the land in dispute, the trial judge was right in holding that Exhibits A, B and C contradicted the traditional History. (Ground C).
2. Whether trial Court was right in refusing to make a pronouncement on the allegation of obtaining the Certificate of Occupancy by fraud by Mr. Oladele Olatunji who is not a party to the suit before adjudicating that the counter claimant as entitled to the C of O on the land in dispute. (Ground B).
3. Whether the trial Court was right in assuming jurisdiction on the counter claim when the date of the alleged trespass was not in the pleading of the defendant/counter claimant instead of determining it based on the plaintiff’s evidence. (Ground C).
4. Whether the trail judge was right in granting an injunction against the plaintiff when the defendant/counterclaimant had failed to prove his legal right. (Ground A).
5. Whether the trial Court was right in awarding the sum of N500,000.00 as general damages based on the pleadings and evidence before it. (Ground D).
Learned counsel for respondent on his part distilled 3 issues for the determination of the appeal as follows:
1. Whether the appellant Appeal is properly before this Honourable Court to warrant this Honourable Court to exercise of its jurisdiction over it.
2. Whether by the pleadings, documentary evidence tendered by both parties coupled with oral testimonies of the parties at the trial Court to prove their respective claims, the judgment of the trial Court can be faulted. (Grounds A, B, and c of the Notice of Appeal filed by the Appellant).
3. Whether the trial Court was right to have awarded a sum of N500, 000.00 as general damages having refused the Respondent’s special damages after he had found that the land in dispute belonged to the Respondent. (Ground D of the Notice of Appeal).
I have seen that the issues raised by both sides are similar, except issue No. 1 as raised by the respondents. I shall be adopting all the issues formulated by the learned counsel for the appellants and respondents’ issue NO 1 for the determination of the appeal, after I have resolved the preliminary objection raised herein by the counsel for the respondents.
PRELIMINARY OBJECTION:
The Respondents’ counsel raised a preliminary objection on the following
grounds: That;
(1) The appellant’s notice of appeal filed by the appellant was dated 22nd October, 2012 whereas on the face of it, it was said to been filed on 19th day of October, 2012.
(2) At the time the notice of appeal was filed, the said notice of appeal was not, in existence as ripe for filing as a document takes effect on the date it was dated.
(3) Having filed a notice of appeal dated 22nd October, 2012 on the 19th of October, 2012 (4 days before it takes effect) the appellant’s Notice of Appeal is incompetent.
Counsel’s argument is that the Notice of Appeal is not properly before the Court and thus the Court lacks jurisdiction to entertain same.
It is trite in law that an incompetent Notice of Appeal does not confer jurisdiction on the Court. Being an originating process, a Notice of Appeal if held to be incompetent, it is worthless and cannot be used in the law Court for whatever purpose.
See Mobil Oil (Nig,) Plc. v. Yusuf (2012) 9 NWLR (Pt. 1304) 47.
However, the mere undating of a process does not on its own invalidate it, if same has been properly signed and filed in the Court registry within the time
prescribed by law.
Order 7 Rule 11 of the Court of Appeal Rules, 2011 is clear on this issue. It states that:
“An appeal shall be deemed to have been brought when the Notice of Appeal has been filed in the registry of the Court below”
Therefore, the Notice of Appeal filed by the appellant on the 19/10/12 is competent, notwithstanding that it was dated, 22/10/2012.
I hold that the Preliminary Objection raised by the learned counsel for the respondent fails. It is accordingly dismissed.
The Respondent’s preliminary Objection having been dismissed, it will only amount to an academic exercise to delve into the respondent’s Issue No. 1 which is exactly the crux of the preliminary objection, it was also earlier adopted as part of the issues for the determination of the appeal.
The respondent’s issue No. 1 will therefore be ignored. The appellant’s issues will sufficiently determine the appeal and are hereunder further reproduced.
1. Whether by the oral and documentary evidence in this suit, the evidence of the judgment record of proceedings in suit 69/70, and the finding of the trial judge that both were certain about the land in
dispute, the trial judge was right in holding that Exhibits A, B and C contradicted the traditional history. (Ground C)
2. Whether trial Court was right in refusing to make a pronouncement on the allegation of obtaining the Certificate of Occupancy by fraud by Mr. Oladele Olatunji who is not a party to the suit before adjudicating that the counter claimant as entitled to the C of O on the land in dispute. (Ground B).
3. Whether the trial Court was right in assuming jurisdiction on the counter claim when the date of the alleged trespass was not in the pleading of the defendant/counter claimant instead of determining it based on the plaintiff’s evidence. (Ground C).
4. Whether the trail judge was right in granting an injunction against the plaintiff when the defendant/counterclaimant had failed to prove his legal right. (Ground A).
5. Whether the trial court was right in awarding the sum of N500,000.00 as general damages based on the pleadings and evidence before it. (Ground D).
ARGUMENTS ON ISSUES:
1. Whether by the oral and documentary evidence in this suit, the evidence of the judgment record of proceedings in suit 69/70, and
the finding of the trial judge that both were certain about the land in dispute, the trial judge was right in holding that Exhibits A, B and C contradicted the traditional history. (Ground C)
Learned counsel for the appellant began by citing the case of ABU V.S. ODUGBO (2001)7 MJSC 87 @ 126 PARA E-F He argued that plaintiff was consistent per traditional history and settlement of the land in dispute.
That the plaintiff’s family land is situated and being at Gbagogbago/Agbanda while that of the defendant is at Iwaro. That plaintiff traced the traditional history of the land through his forefathers. That Iwaro was mentioned in the survey plan attached to the certificate of occupancy dated 20/4/82. Relying on the case of State V. Oladotun (2011) 5 (pt 1) MJSC 130 @ 146 Para G., counsel quoted paragraph 21b of the further Amended Statement of claim to contend that the averment therein was not controverted by the defendant.
Learned counsel submits that there is no conflict in the traditional evidence given by the plaintiff as to his ownership of the disputed property and the documentary evidence he tendered in support. He urged us to hold that
there was no material conflict in the plaintiff’s evidence before the Court.
That, civil cases are determined based on the preponderance of evidence.
He cited the case of Lords V. Inyambe (2000)12 SCNJ 177 @ 178 (2). He is of the view that the land in dispute was certain. He argued that the uncertainty of the land was not made an issue by the defendant /respondent. Counsel referred to the cases of Ofanma V. Youdubagha (2006)1 SCNJ 94 @ 106 (2) and Ogbu V. Wokoma (2005)14 NWLR (Pt 999)118. On the preponderance of evidence, counsel cited the case of Olaiya V. Olaiya (2002) MJSC 45 @ 57 para E-G, argued that the plaintiff through his pleadings and evidence on record did prove his case. Counsel referred to the plaintiff’s evidence under cross-examination at page 224 paragraph 1 that, the testimony is in tandem with paragraphs 4-6 of the Further Amended Statement of claim; that, the land in dispute is as described as situate, lying and being at Gbagogbdgo, Agbanda, Ipetumodu and bounded to wit:-
First side by:- Samolofa through Elewura or Idano footpath to river Issa;
Second side by:- River Issa:-
Third side by: Abojukunrun River/River
Issa;
Fourth side by :- Old Ibadan/ Gbonga/ Ashipa/Ife Road.
That, Akinlayo, the original owner of the land, settled on same about 200 years ago. That plaintiff proved his title to Gbagogbago land through traditional history/ settlement as in the case of Idundun V. Okumagba (1976) 1 NWLR 200.
It is plaintiff’s argument that defendant denies interest in Gbagogbago and Agbanda farmland as contained in item 7 of the defendant’s statement of claim at pages 259-266 of the record. That the defendant lays claim to Iwaro land as verged red on the survey map. Counsel referred to Nwankwo V. Yar’dua (2010) 3 (pt. iv) MJSC 1 @ 28 para A-B. He argued that the land upon which Exhibit C i.e. Certificate of Occupancy was granted to Mr. Oladele Ajani Olatunji was on Gabgogbago land. That there was no relief for the nullification of the said Exhibit C in the defendant’s reply to Amended Statement of claim, as there was no evidence of fraud. That the defendant’s counter-claim on the alleged activities of Mr. Oladele Ajani Olatunji who was not a party to the suit at the lower Court was not in order. That, for a party to be bound, he ought to be joined as a party.
He referred to the case of Gowon V. Ike- Okongwu (2003) 4 MJSC 120 @ 127 Para F. Learned counsel submits s that the nullification of the certificate of Occupancy dated 20/4/82 in favour of Mr. Oladele Ajani Olatunji was null and void. He urged the Court to so hold. Learned counsel contended that the counter claim is incompetent, that no date was stated as to when plaintiff unlawfully entered the land in dispute. That this Court should decline jurisdiction on the counter-claim. He submits that it is not the duty of the Court to speculate as to the time of the trespass. He relied on the following authorities: Agu V. Odofin (1992) 3 SCNJ 161 @ 162 (1) and NPA V. Lotus (2005)12 SCNJ 167 (6,7).
Appellant’s counsel stressed that Mr. Oladele Olatunji not been a party in this case, that judgment cannot be given against him. He referred the Court to paragraph 12(c) (4) of the Reply to Amended Statement of Claim and paragraph 23 of the Amended Deposition on oath of Stephen Ola. He further referred to the case of Babalola V. Alaworoko (2001) 6 SCNJ 146 @ 150 (10).
Learned appellant’s counsel argued that Mr. Olatunji did not obtain his Certificate of
Occupancy by fraud as alleged by the defendant at paragraph 11(i) of the Reply to Amended Statement of Claim. That fraud was not proved. To support his argument, counsel cited the following authorities:
He cited the following cases to buttress his point: W. A. Breweries V. Savannah Ventures (2002) 5 SCNJ 269 @ 274; Olalomi V. N. I. D.B. (2009) 7 MJSC (Pt. 111) 136 @ 141 (4).
Appellant’s counsel submits that the lower Court lacked the jurisdiction to entertain the defendant’s counter – claim, that same was statute barred. He relied on Section 3 of the limitation Law of Osun State, 2003 which states that:
“No action shall be brought by any person to recover land after the expiration of ten years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims, to that person”.
That Mr. Oladele Olatunji got the Certificate of Occupancy in respect of the land in dispute on 20th April, 1982 having been on it since 1978. That same was registered as No. 37 at page 37, Vol. 2443 of the Deeds Register. That action in this suit commenced in 2005 and the defendants counter – claim is dated
24/3/2011. That the period when the right of action (if any) accrued to the defendant and when he counter claimed exceeds ten (10) years. That same is statute barred robbing the lower Court of the jurisdiction to hear the matter, counsel cited the cases of Management Enterprise Ltd. V. Jonathan Otunsanya (1987) 2 NWLR (pt. 55); Owie V. Ighiwi (2005) 3 MJSC 82 @ 120 paragraph 9.
Learned counsel for the respondent on the other hand is of the contention that the respondent has nothing to do with the appellant’s land at Ugbagogbago but the portion sold to Mr. Oladele Olatunji (PW2) by the appellant’s family. That the disputed land is respondent’s family land and is on Iwaro land.
Counsel is of the view that since the appellant is also claiming that the land sold by their family to Mr. Oladele Olatunji covered by Exhibit ‘C’ is their family land and on Gbagogbago, that it is clear the said land is one in dispute.
That the question is whether the disputed land is on Gbagogbago the plaintiff/appellant’s side or on Iwaro land owned by the respondent’s family.
Learned counsel argued that Exhibit ‘A’, ‘B and ‘C” supports the fact that the
land in dispute is located on Iwaro land as found by the learned trial Court. He referred to the evidence of PW2 on the record in support of his arguments. That a party cannot be allowed to use oral evidence to contradict, vary or discredit the contents of a document. That appellant failed to invite the officials of the Ministry of Agriculture as witnesses and also cannot explain why Exhibits A, B and C bear Iwaro as the location of the land in dispute instead of Gbagogbago. That documentary evidence is the best form of evidence and could be used in resolving issues of conflicting evidence. He referred to the following cases: Skye Bank V. Akinpelu (2010) 42 NSA QR 540 – 541 and Bunge V. Government of Rivers State, 27 NSC QR 104.
Learned respondent’s counsel contends that Madam Aworonke Akinmowo and Olaniyi knew the location of the land sold to PW2 as indicated in Exhibit ‘A’. That Mr. Abidoye Babalola who transferred the disputed land to PW2 also knew the location of the land to be at Iwaro as in Exhibit ‘B’.
Counsel argued that except fraud is pleaded, oral evidence cannot be allowed to discredit the content of a documentary evidence. He referred
to the authorities in Anyanwu & Ors. V. Uzo Waika & Ors. (2009) 10 SCM 1 @ 16 – 17 Paragraphs E – F, E – J; A. G. Bendel State V. U. B. A. (1986) 4 NWLR (pt. 37) 547.
As to the appellant’s oral explanation of the location of the disputed land, respondent’s counsel submits that failure of the respondent to controvert same was not fatal to the respondent’s case. He referred to the case of Maerskline & Anr. V. Addide Investment Ltd. & Anr. (2002) 4 SCNJ 433.
On the alleged activities of Mr. Oladele Olatunji, counsel for the respondent argued that Mr. Oladele Olatunji was not mentioned anywhere in the respondent’s counter claim. That even if the respondent failed to join him as party to the suit, that he ought to have applied to be joined as a party since he has interest in the land in dispute having bought same from the appellant. Counsel contends that parties include those who had the opportunity of attending the proceedings and those who ought to have been made parties. That a person whose interest is involved in an action and knowingly chose to standbye is bound by the result of the action in the same way as if he were a party. He
referred to the cases of Alhaji Adetoro Lawal v. Bello salami (2003) FWLR (pt. 87) 638 @ 661 and the Registered Trustees Committee Health Practice & Ors. V. Medical Health Workers & Ors. (2008) 4 SCM 134 @ 180.
On the relief for nullification of the Certificate of Occupancy (Exhibit C), learned respondent’s counsel submits in line with the findings of the lower ‘Court that the land covered by exhibit ‘C’ belonged to the respondent per Leg ‘A’ of the respondent’s claim, thus, nullifying Exhibit “C”.
Counsel argued that since the trial Court invalidated the sale of land covered by Exhibit “C”, that same becomes invalid. That the nullification of Exhibit C is proper and being consequential order made by the trial Court to enable the respondent enjoy his land.
As to the issue of fraud raised by the counsel for the appellant, respondent’s counsel is of the view that where a document of title to land is produced, that such documents must pass the test as spelt out in Akinduro V. Alanya (2007) 12 SCM (pt. 2) 122 @ 134. They are:
i. Whether the document is genuine and valid.
ii. …………………………………….
iii. Whether the grantor had the authority and capacity to make the grant
iv. Whether infact the grantor had in fact, what he purported to grant; and
v. ………………….
Learned counsel for the respondent stressed that Exhibit ‘C’ is not valid, considering the trial Court’s decision on it. That same was not duly executed as the grantor did not have what he purportedly granted.
On Section 3 of the Limitation Law of Osun State cited by the appellant’s counsel, learned respondent’s counsel is of the view that same was not canvassed at the trial Court. He submits that the Limitation Act was not pleaded by the appellants at the trial Court.
That for the appellant to rely upon it, he ought to have specifically pleaded same. Counsel contended that, the appellant having not raised argument on limitation law at the lower Court, that the result is that trial Court did not consider whether or not respondent’s counter – claim was statute barred.
Relying on the authority in Osun State Government V. Danlami Nig. Ltd. (2007) 65 SCM 145 @ 163, learned respondent’s counsel argued that a fresh matter can only be raised on appeal with the leave
of Court which must first be sought and obtained. Counsel urged us to resolve this issue in favour of the respondent and against the appellant.
In their Reply brief, learned counsel for the appellant reacted in response to this issue, that, the judgment of the trial Court can be faulted based on the pleadings and documentary evidence, especially Exhibits A1-33. In trying to bring out facts contained in suit 69/70 which is the Exhibit A1-33 as on the record to support his argument, counsel referred to pages 124 lines 13-15, 133 lines 14-15, 148 lines 34-36, 149 lines 30-32,148 lines 22- 27, 148 lines 18-19, 125 lines 41-42 and 129 lines 10-11 of the record.
Learned counsel argued that the plaintiff in suit 69/70 (Exhibit A1-33) who is the present defendant’s father testified that the plaintiff’s land was boundary to the disputed land. He asserted that from the foregoing, the land in dispute was part of Akiwowo’s larger land on Gbagogbago on the right side facing Ibadan direction. Learned appellant’s counsel maintained that Akiwowo and his descendants were not tenants of the defendant’s family but boundary man. That Oladele Olatunji was Akiwowo’s
tenant so also Akinwusi’s descendants. That the testimony given by pastor Akinwusi on page 91 of the record in his deposition was contradictory. Counsel excerpted paragraph 4 of page 376 of the record to support his argument.
Learned counsel urges this Court to consider the excerpts of Exhibit A1-33 as captured in their Reply brief to allow this appeal.
RESOLUTION OF ISSUE ONE
By the evidence on record, oral and documentary, the description/location of the land in dispute is not in dispute. Both parties traced their traditional history to their forefathers. Plaintiff/appellant described their land to be at Gbagogbago/Abanda, while the defendant’s land is situate at Iwaro.
Evidence on record shows that the land in dispute is covered by a deed of conveyance registered as No 42 page 42 Vol. 2225 in the land registry (Exh. ‘A’) part of which the plaintiff’s family representatives sold to Mr. Oladele Ajani Olatunji and Abidoye Babalola measuring 28.635 hectares or 71.598 acres with Statutory Right of occupancy dated 20/4/82 and registered as No. 37/37/2443 in the land registry Osun State in favour of Mr. Oladele Olatunji and which is tendered
and marked as Exhibit “C”. Exh. B is an affidavit tendered by the plaintiff in evidence. The Respondent is contending that the land in dispute, specifically the portion occupied by Mr. Oladele Olatunji is not part of Gbagogbago land belonging to the plaintiff’s family which he is not contesting but that, same make part of his own family land at Iwaro. It is clear to me that the land in dispute is known to both parties, as gathered from their evidence on record. The question is, where is it actually located
Let me swerve a little to the plaintiff’s traditional history. PW1, Lekan Afolabi gave evidence by tracing the origin of the land in dispute to his ancestor, Akintayo, who settled thereon (Gbagogbago/Abanda/Ipetumodu) about 200 years ago. That Akiwowo who later became the Apetumodu of Ipetumodu inherited the said land. Witness testified that Gbagogbago was bound on 4 sides:
(1) Samolafa Elewura footpath
(2) Saba River
(3) Abojukunu Isasa and
(4) Old Ibadan-Gbongan-Ashipa-Ife old Road.
That Aworonke, the daughter of Akiwowo and head of Akiwowo family and one Olaniyi sold part of the land to Mr. Oladele Olatunji. Plaintiff also
gave evidence that Gbagogbago land was distinct from Iwaro land.
The defendant as DW3 pleaded and gave evidence that the disputed land is at Iwaro, that his ancestors had settled on the land about 250 years ago.
That Idowu Akiwowo who later became the Apetu of Ipetumodu came to Iwaro land to seek for a parcel of land for farming purposes as a tenant, and in return to pay Ishakole. That after the death of Akiwowo, plaintiff’s family mistook the land in dispute to be their inheritance.
Civil cases are decided on the preponderance of evidence or balance of probabilities. See 134 of the Evidence Act, 2011. PW3 in evidence tendered Exhibits A, B and C (Deed of conveyance, sworn Affidavit and certified true copy of Statutory Right of Occupancy dated 20th April, 1982 and registered as No. 37 at page 37, vol. 2443 of the Osun State register of Deeds. A closer look at Exhibits A, B, and C as tendered by the Plaintiffs’ side confirm the learned counsel for the respondent’s argument that the Exhibits support the case of the respondent, as those documents indicate the location of the land in dispute to be at Iwaro and not Gbagogbago as claimed by the
plaintiff. It is to be noted that the land in dispute is covered by Exhibit ‘C’. It is clear to me that, indeed, there is conflict in the traditional history as given by the plaintiff, as same does not conform with the facts of the documents i.e. Exhibits A, B and C tendered in support of their case, indicating that the disputed land is located at Iwaro. I am in accord with the respondent’s counsel that Documentary evidence being the best evidence, no oral evidence will be allowed to discredit or contradict its contents unless fraud is pleaded. See the cases of Sky Bank Plc V. Akinpeleu (2010) All FWLR (Pt. 526) 460 SC and Ezenwa V. K.S.H.S.M.B (2011) 9 NWLR (pt 1251) 89 CA.
The learned trial Court held on page 377 of the record that:
“There is conflict in the traditional evidence led by the plaintiff on his ownership of the land in dispute, and the documentary evidence he tendered to support his facts in recent years.
Exhibits A, B, and C tendered by the plaintiff to support his traditional history are contradictory with the traditional history.”
I am convinced that the position of the learned trial Court excerpted above is in order and I
agree with same. It was held in the case of ARIYO V. ADEWUSI (2012) ALL FWLR (pt 640) 1400 @ 1402 that: “the mere tendering of an instrument of title to land such as a deed of conveyance or Certificate of Statutory or Customary Right of Occupancy in Court does not automatically prove that the land therein purportedly conveyed, granted or transferred by the instrument becomes the property of the grantee. The existence of the Certificate of Occupancy is merely Prima Facie evidence of title to the land it covers and no more”
Additionally, I do not think that it is the only area of contradiction against the appellant. A close look at the evidence of PW1 under cross-examination suggests to that effect. At page 224 of the record on one hand, PW1 said:
“Iwaro village is not part of Gbagogbago, Iwaro village is a distinct land.”
On the other hand on the same page he said:
“I am not saying that Gbagogbago Abanda are not part of Iwaro land. The Iwaro family put a tenant on Oladele Olatunji farmland and Oladele Olatunji challenged the tenant…”
Where two witnesses or more of a party have given irreconcilable and contradictory statements or
pieces of evidence in a matter, every item of evidence contended which tends to corroborate or contradict either of them should be carefully weighed and considered in determining preponderance. See Odi V. Iyala (2004) 4 SC (pt 1). Since documentary exhibits are usually read together to resolve any conflict that may arise in a dispute as in the instant case, the learned trial Court in my view did the right thing by going beyond the parties’ traditional evidence to so do . See the case of Ezenwa V. K.S.H.S.M.B supra.
On Section 3 of the Limitation Law of Osun State cited by the appellant’s counsel as to competency of the respondent’s counter claim, I hold a contrary view to the arguments proffered by counsel. It is common knowledge that special defences are specifically pleaded. I have gone through the record, there is no where in the appellant’s pleadings where the appellant pleaded enabling facts to allow the Court to hold that the action is statute barred. It was necessary and not doing so was fatal to the appellant’s case. See the case of Udo Trading Co. V. Abere (2001) 5 SCNJ 274. The issue was not canvassed at the lower Court and leave of this Court
was not sought and obtained before it was raised herein. It is therefore a fresh issue before this Court which was raised not in compliance with legal practice. It was held in the case of Olagunju V. Power Holding (2011)4 SCNJ 192 @ 194 that:
“The law remain; that where a party wants/desires to raise a fresh point on appeal- a point not considered and determined by the lower Court (s)- he must seek and obtain the leave of the Appellate Court.
It is trite law.”
The argument put forward by the appellant herein that the matter was statute barred and that the lower Court had no jurisdiction to attend to the ‘defendant/counter claimant’s counter claim goes to no issue. I am rather in accord with the defendant/respondent that the appellant having not specifically pleaded those facts before the trial Court and limitation law being a special defence, cannot rely on it on appeal. It is also true that, the learned trial Court did not consider whether or not the respondent’s counter claim was statute barred; this was a result of the failure of the plaintiff/appellant to plead or raise the issue thereat.
Thus, the learned trial Court’s determination
of the defendant’s counter claim was in order.
On the basis of all that I have said above and bearing in mind all the evidence on record, I am of the view and so hold that, the appellant herein has not been able to satisfy us that the decision of the learned trial judge on this issue, in his judgment delivered on the 26th September, 2012 was in error. I am, on the evidence on record, persuaded to resolve the issue under consideration in favour of the respondent and against the appellant.
Appellant’s counsel argued issues 2, 3 and 4 together. They read as follows:
2. Whether trial Court was right in refusing to make a pronouncement on the allegation of obtaining the Certificate of Occupancy by fraud by Mr. Oladele Olatunji who is not a party to the suit before adjudicating that the counter claimant as entitled to the C of O on the land in dispute. (Ground B.)
3. Whether the trial Court was right in assuming jurisdiction on the counter claim when the date of the alleged trespass was not in the pleading of the defendant/counter claimant instead of determining it based on the plaintiff’s evidence. (Ground C).
4. Whether the trial judge was
right in granting an injunction against the plaintiff when the defendant/counterclaimant had failed to prove his legal right. (Ground A).
Learned counsel began by quoting the defendant as DW4 on cross examination on pages 337 and 338 of the record.
Counsel is of the contention that there was contradiction in the evidence of the witness (DW4) who is also the respondent herein. That the contradiction was fatal to the counter claimant’s case. That Mr. Olatunde Olatunji was never a plaintiff in this suit. That defendant counter claimed against Mr. Olatunde Olatunji who was not a party and have not been seen in the land in dispute.
Counsel went ahead to argue that a Court lacks jurisdiction to make an order affecting the interest of a person not joined as a party. He cited the case of Okonta V. Philips (2010) 12 MJSC 93 @ 95 (12).
Learned appellant’s counsel proceeded to quote the defendant in his Reply to the Amended Statement as on pages 259 – 263 of the record as follows:
“that the ancestors of the defendants’ family by name Edunjobi settled on Iwaro land over 250 years ago”.
At the end of his calculations, plaintiff’s counsel
arrived at the conclusion that the difference between when Akintayo and Edunjobi, plaintiff and ‘respondent’s ancestors respectively got on the land in dispute is 43 years.
That neither the plaintiffs’ ancestor (Akintayo) nor his descendents were tenants to Edunjobi family.
In reaction to issues 2, 3 & 4 of the appellant above, learned respondent’s counsel adopts his earlier arguments contained in paragraphs 6.02 to 6.40 of their brief of argument.
He submits that Mr. Oladele Olatunji is a privy in estate to the appellant.
That it was a misconception on the part of the appellant that Respondent’s counter claim was not made out against Mr. Oladele Olatunji. Learned counsel referred to the respondent’s counter claim dated 24th March, 2010 on pages 265 – 266 of the records. He argued that Mr. Oladele Olatunji’s activities on the land in dispute was at the instance of the appellant who brought him there.
Counsel further referred the Court to the learned trial Court’s decision on page 380 of the record. He urged us to resolve this issue in favour of the respondent and against the appellant.
RESOLUTION:
Respondent’s counter
claim as contained on pages 265 – 266 of the record is hereunder reproduced.
(a) The counter claimant is entitled to the Certificate of Occupancy of the piece and parcel of land which is the subject matter of suit HIF/33/2005.
(b) The sum N4,000.00 (Four Million Naira Only) being damages for the act of trespass committed by the defendant on the land in dispute.
(c) Perpetual injunction restraining the defendant’s family, privies, agents and servants from dealing in anyway whatsoever with the land in dispute.
It is clear from the respondent’s counter claim above that the subject matter in contention is the land covered by Exhibit C which is the certificate of statutory Right of Occupancy in the name of Mr. Oladele Olatunji. From the evidence of the respondent as quoted by the appellant in paragraph 5. 04 of their brief of argument, respondent maintained that they never sold the land in dispute to the appellant. Juxtaposing the evidence given by the respondent with the view of the appellant’s counsel as to contradiction as argued in paragraph 5. 05 of the appellant’s brief of argument, respondent’s case to me preponderates more on the
balance of probability.
Moreso, the law encourages Courts to decide cases on the evidence of both parties without ignoring the other. See Otito V. Odidi (2011) 7 NWLR (pt. 1245) 108.
On the issue of jurisdiction which affects the interest of person not joined as a party in suit, the appellant’s argument is that this Court lacked the jurisdiction to entertain the respondent’s counter claim. It was held in the case of Cameroun Airlines V. Otutuizu (2011) 4 NWLR (pt. 1238) 512 SC that:
“It is the duty of plaintiff to sue all relevant or interested parties. However, if the plaintiff fails to do so, it does not mean that his action would fail”.
The respondent’s counsel’s argument is that Mr. Oladele Olatunji is privy in Estate to the appellant. That his activities on the land in dispute was at the instance of the appellant.
It is common practice that an interested party, even if not joined as a party in a suit, can apply to the Court to be joined as a party.
The learned trial Court held on page 379 of the record that:
“Since it has been held that the land covered by the Certificate of Statutory Right of Occupancy is not that of
the plaintiff’s family, the purported sale of the land in dispute to Mr. Oladele Olatunji is invalid null, void and of no effect and the Certificate of Statutory Right of Occupancy granted him on the land is also invalid, null and void and of no effect.”
The learned trial Court was right in determining firstly whether the plaintiffs had the right to sell the disputed land. That having been settled by the learned trial judge, it is my view that the interest of 3rd party (PW2 Mr. Oladele Olatunji) does not even arise because plaintiff did not have the right of sale of the land in dispute. He does not own the land in dispute and thus, wrongly sold same.
I am in accord with the argument of the learned counsel for the respondent that the appellant has no right or power of alienation to transfer the disputed land to PW2.
This, in my view, activates the principle of “nemo dat quod non habet.”
It is to the effect that if someone purchases a property of which the seller has no right to, the purchaser will likewise have no legal claim to the property in question – Macfoy V. UAC (1952) AC 154 @ 162.
I wish to state that the facts of this case vary
from that contained in the case of Okonta V. Philips (2010) 12 MJSC, cited by the counsel for the appellant.
I am satisfied with the findings of facts and conclusion arrived at by the learned trial Court upon the evaluation of evidence led in this case. The law is trite that where the findings and conclusion of the lower Court is a result of proper evaluation of evidence before it, Appellate Court has no business interfering with same. See Onuoha V. State (1998) 5 NWLR (Pt. 548) 118.
I have thoroughly gone through the evidence on record and the decision of the lower Court; I have seen no reason to fault same.
This issue is resolved against the appellant and in favour of the respondent.
ISSUE FIVE:
Whether the trial Court was right in awarding the sum of N500, 000. 00 as general damages based on the pleadings and evidence before it (Ground D).
Learned counsel for the appellant is against the award by the trial Court of the sum of N500, 000. 00 damages against the plaintiff. He is also of the view that respondent’s counter claim was incompetent.
That the learned trial Court lacked jurisdiction to entertain the counter claim and
that assessment of damages should be based on pleadings and evidence adduced. That there was no such evidence on record. He cited the case of Messengers V. Nwachukwu (2004) 6 SCNJ 56.
Learned counsel argued that there was no basis for such exorbitant award of damages considering the facts before the Court. On when an Appellate Court will interfere with the amount and the award of general damages, learned counsel referred to the following authorities: Oduwole V.. West (2010) 5 – 7 (Pt. iv) MJSC 1 @ 30: Neka Ltd. V. ACB (2014) 1 SCNJ 193 @ 197 (2).
Counsel urged the Court to set aside the judgment of the lower Court and grant the appellant’s claim.
On this issue, respondent’s counsel is of the contention that the appellant misconstrued the trial Court’s decision.
He submits that the trial Court did not award N500, 000. 00 to the respondents as special damages; that same was refused. That the Court awarded to the respondent, General damages. Counsel submits that when suffered, the law presumes general damages to be direct, natural or probable consequences of the act complained of. He relied on the following cases in support of his
argument.
Ganiyu Badmus & Anr. V. A. O. Abegunde (1999) 71 LRCN, 2912 @ 2925; Ijebu – Ode Local Government V. Adedeji Balogun & Company (1991) 1 NWLR (pt. 166) 138 @ 158.
In drawing a distinction between general and special damages, counsel submitted that special damages must be pleaded with all its particulars and must be proven. That general damages is essentially reserved for the trial Court’s exercise of discretion. That in the award of general damages, it is not for the Appellate Court to interfere.
Counsel cited the following cases: Shell Petroleum Development Co. of Nig, V., Nelson Okonedo (2007) ALL FWLR (pt.368) 1104 @ 1139 paragraphs G – H; His Highness of Uyo I V. Egware (1974) I ALL NLR 293 @ 295; Nwachukwu V. Egbuchu (1990) 3 NWLR (Pt. 139) 435 and Bello V. Ringin (1991) 7 NWLR (pt. 206) 668.
Learned counsel further stressed that the award of general damages as well as exemplary damages is entirely the trial Court’s discretion; that the Court of Appeal will not interfere with such an award unless:
(a) The trial Court acted under a mistake of law
(b) The trial Court was acted in disregard of principles.
(c) The trial Court has acted under misapprehension of fact
(d) The trial Court has taken into account irrelevant matter or failed to take into account relevant matters.
(e) Where injustice will result if the Appeal Court does not interfere.
(f) Where the amount awarded is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damaged.
Counsel relied on the following cases:
Aniekan Amos Peters V. Ass. Insp. Gen. of Police (2001) FWLR (Pt.49); Obi Okudo V. IGP & Ors. (1998) 1 NWLR (pt. 533) 336; UBN Ltd. V. Odusote (1995) 9 NWLR (pt. 4210) 558.
It is learned counsel’s submission that the appellant did not complain of any of the above stated conditions to warrant interference by this Court.
“He urged us to resolve this issue in favour of the respondent and against the appellant.
Respondent’s counsel drew our attention to paragraph 3. 0 (Sub 1 & 3 ) of the appellant’s brief of argument to note that issues 1 and 3 emanated from ground C of the appellant’s grounds of appeal, which according to him is contrary to practice. That a party cannot formulate more than one
issue from a ground of appeal. He referred to the authority in Yadis V. Great Nig. Insurance Co. Ltd, (2007) 10 SCN, 183 @ 202.
Counsel urged the Court to strike out issues 1 and 3 on the ground of proliferation of issues.
Learned counsel for the appellant reacted in their Reply brief by submitting that issues 1 and 3 of the appellant’s brief are complementary to each other. That issue 3 was argued together with issues 2 and 4 of the appellant’s brief of argument.
RESOLUTION OF ISSUE NO 5:
The learned trial Court, after exhaustive evaluation of evidence before it and having found that the land in dispute covered by Exhibit C, the Certificate of Statutory Right of Occupancy belonged to the family of the defendant and not to the plaintiff’s family, granted all but the 2nd leg of claimant’s claims. The trial judge awarded N500, 000. 00 (Five Hundred Thousand Naira) damages against the plaintiff but refused the counter claimant’s claim for N4, 000.000.00 (Four Million Naira) special damages.
See pages 380 – 381 of the record.
The law regarding to general damages presumes damages as flowing from the wrong complained of by the
victim. Such damages in law need not be “specifically pleaded and strictly proved.
In other words, general damages are compensatory damages for harm resulting from the tort for which the party has sued. See the cases of UBN Plc. V. Ajabule (2011) 18 NWLR (Pt. 1278) 152 SC; Husseni V. Mohammed (2015) 3 NWLR (pt. 1445) 100.
The Apex Court held in UBN Plc. V. Ajabule (Supra) to wit:
“As a general principle an Appellate Court would not intefere with an award of damages by a trial Court simply because, faced with a similar situation and circumstances, it would have awarded a different amount. However, there are guiding principles which would make an Appellate Court interfere with an award of a trial Court, where it is clearly shown:
(a) That the trial Court acted upon wrong principles of law, or
(b) That the amount awarded by the trial Court is ridiculously too high or too low; or
(c) That the amount was an entirely erroneous and unreasonable estimate having regard to the circumstances of the case.
See also the case of F. A. T. B. Ltd. V. P. I. C. Ltd . (2003) 12 SCNJ 3.
Guided by the authorities cited and considering the
circumstances of this case, the evidence on record, I have seen no reason to fault the finding of the learned trial Court on this issue. This Court will in the circumstance, not interfere with the finding of the learned trial Court. The issue is resolved against the appellant and in favour of the respondent.
In the circumstances of the resolution of the issues against the Appellant as made, I hereby dismiss the appeal herein with a cost of N30, 000 only against the Appellant and in favour of the Respondent.
MOJEED ADEKUNLE OWOADE, J.C.A.: I had the privilege of reading in advance the leading judgment just delivered by my learned brother, Mohammed Ambi-Usi Danjuma, J.C.A.
He has comprehensively dealt with all the issues raised for determination. I adopt his reasoning and conclusions reached therein. I too dismiss the appeal.
I abide by the order as to costs.
JAMES SHEHU ABIRIYI, J.C.A.: I read before now in draft the judgment just delivered by my learned brother Mohammed A. Danjuma, J.C.A.
For the reasons contained in the leading judgment, I too dismiss the appeal.
I abide by the order as to costs.
Appearances
R. O. Ewuola For Appellant
AND
O. J. Omirin with him, O.O Ekuobara For Respondent
