MRS. CLARA NKOLO OME-EBO & ANOR v. JAMES CHUKWUDUBEM EGBUNIKE & ANOR (2019)

MRS. CLARA NKOLO OME-EBO & ANOR v. JAMES CHUKWUDUBEM EGBUNIKE & ANOR

(2019)LCN/12940(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of March, 2019

CA/E/254/2015

RATIO

COURTS: COURTS ARE TO CONFINE THEMSELVES TO ISSUES RAISED BY THE PARTIES

Generally, a Court ought to confine itself to the issues raised by the parties in the determination of matters. However, where the issues are pluralized, or fragmented, or couched in such a manner as to obscure the crucial and real issues that would properly, adequately and finally determine the dispute, the Court would be entitled to distill such or other issues from the Grounds of Appeal filed. In such a situation, the Court of Appeal has the power and discretion to formulate issues from the Grounds of Appeal, which will determine the vital question between the parties. See KALU V UZOR (2006) 8 NWLR (PT. 981) 66.PER ABUBAKAR SADIQ UMAR, J.C.A.

CIVIL LITIGATION: BURDEN OF PROOF ON THE PLAINTIFF IN CIVIL CASES
The law is settled by virtue of Section 131-134 of the Evidence Act that the onus is on the plaintiff in civil case to prove by cogent and credible evidence that he is entitled to the reliefs he seeks from Court. The standard of proof therefore is on the balance of probability or preponderance of evidence. See AG BAYELSA STATE V A.G RIVERS STATE (2006) 18 NWLR (PT. 1012) 596, (2006) LPELR-615 (SC);WOLUCHEM V GUDI (1981) LPELR- 3501.PER ABUBAKAR SADIQ UMAR, J.C.A.

5 METHODS BY WHICH TITLE TO LAND CAN BE ESTABLISHED

It has been long settled since the case of IDUNDUN V OKUMAGBA (1976) 9-10 SC 227 that there are five ways of establishing title to land. Thus: (1) Traditional evidence (2) by production of document or documents of title (3) Acts of ownership such as selling, leasing, renting or farming extending over sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner (4) Acts of long possession of the land (5) proof of possession of connected or adjacent land in circumstances, rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. The proof of any one of the five ways is sufficient as each of them stands or fails on merits.PER ABUBAKAR SADIQ UMAR, J.C.A.

JUDGMENT: PERIOD WITHIN WHICH A JUDGMENT IS TO BE DELIVERED UNDER SECTIONS 291(1) AND 294 (5) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

However, Section 294 (1) of the Constitution is not to be interpreted and applied in isolation, it should be read in conjunction with Section 294 (5) which provides that the decision of the Court is not to be set aside or treated as nullity solely on the ground of non-compliance with Sub-section (1) unless a miscarriage of justice is shown to have been occasioned by reason of the delay, in order to arrive at a proper understanding of the stipulations of the Section. See PDP VS. TAIWO (2004) 8 NWLR (PT 876) 656 AT 676 AND DURO VS. INEC (2010) LPELR 1 AT 24.PER ABUBAKAR SADIQ UMAR, J.C.A.

JUDGMENT: THE EFFECT OF A JUDGMENT NOT BEING DELIVERED WITHIN THE STIPULATED PERIOD

JUSTICES

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

1. MRS. CLARA NKOLO OME-EBO
2. MR. SAMUEL AGU OME-EBO
(Suing in the name and style of Christ, Our Savior Mission, Onitsha) Appellant(s)

AND

1. JAMES CHUKWUDUBEM EGBUNIKE
(Suing through his Attorney, Tagbo Egbunike)
2. MR. OGOEGUNAM ANIWETA
(Sued for himself and as representing the members if the family of late Barrister Nnayelugo Obiekwe Aniweta) Respondent(s)

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Anambra State High Court of Justice, Holden at Onitsha, delivered on the 25th February, 2015, Per V.N. Agbata J.

However the Appellants who were 1st and 2nd Defendants at the Court below, being dissatisfied with the judgment, hence appealed to this Court vide a notice of appeal dated 12th day of May, 2015 and filed on the same date.

BRIEF FACTS OF THE CASE
The Plaintiff now 1st Respondent commenced the action against the Appellants and 2nd Respondent as 1st, 2nd and 3rd Defendants respectively sometimes in 2013. The 1st Respondent by his statement of claim dated 6th May, 2013, claimed for the following reliefs, namely:
1. A declaration that the 1st and 2nd defendants are the tenants of the plaintiff.
?2. A declaration that the plaintiff is entitled to the statutory right of occupancy over and in respect of the disputed land lying being and situate at the junction of Bishop Onyeabor Street Inland Town Onitsha by St. Stephens Road Umuezealori Vilage Onitsha the identity of which is well known to the parties in the case.

3. Order of possession of the disputed land
4. N5,000.00.00 being arrears from October 2012 to 28th of February 2013 at the rate of N1, 000.00 per month.
5. Mesne profit assessed at N1, 000, 00 (One Thousand naira) per month from March 2013 until possession is given up.
6. An order of perpetual injunction restraining the 1st and 2nd defendants whether by themselves or their privies howsoever described from trespassing or continuing to trespass over the said disputed land.
IN THE ALTERNATIVE
2. As against the 3rd defendant where the Court finds that 1st and 2nd defendants are the true owners and purchaser for value of the disputed land.
a An order compelling the 3rd defendant to pay over to the plaintiff the said sum of N10,000,000.00 (Ten Million Naira) being the sum demanded for and received by the 3rd defendant from the plaintiff as purchase sum for the disputed land for consideration that has failed.
b. N1,000,000.00 (one Million Naira) being and representing special damages being the amount paid by the plaintiff to land/estate agents as commission assessed at 10% of the N1,000,000.00 purchase price.

The case of the Appellant is that the land in dispute belonged by purchase to one Barrister Obiekwe Aniweta who by virtue of his ownership and possessory rights put the Appellants on the said land as his tenants. It is also the case of the Appellants that sometimes in the year 2000; a certain family commenced an action in Suit NO: O/755/2000 against said Barrister Obiekwe Aniweta joining the Appellants as co defendants by virtue of their capacities, as tenants. The Appellants stated that the suit was defended and same dismissed but that during the pendency of the suit, the said Barrister Obiekwe Aniweta and the Appellants entered into an agreement wherein an outright sale of the land was sanctioned by Barrister Obiekwe Aniweta to the Appellants conferring on the former not only the possessory rights which they had but also the right of ownership.

The Appellants stated further that upon the conclusion of the action in Suit NO: O/755/2000, Barrister Obiekwe Aniweta began to make fresh demands of money from them and it was against the backdrop of this that they caused a letter to be written to him reminding him of their transaction. It is also the case of the Appellants

that it was after this that Barrister Obiekwe Aniweta issued them a Quit notice and also a Notice of Owner?s intention to recover possession before he died without initiating a claim for the recovery of the land in dispute.

It is also the case of the Appellant that after the funeral of Barrister Obiekwe Aniweta, his wives wrote the Appellants ordering them to pay the rent for their use and occupation of the said land, a letter which the Appellants claimed to ignore. The Appellants state further that the next chain of event was that the 1st Respondent in this instant appeal caused a notice to quit to be served on them, the service of which provoked them to institute an action against the 1st Respondent in suit NO: O/48/2013, a suit which according to the Appellants was still pending in Court. It is also the case of the Appellants that the 1st Respondent did not file a counter-claim in the aforementioned suit rather, he chose to file a cross-action in Suit NO: O/124/2013 which is now the subject of this appeal.

?The case of the 1st Respondent on the other hand was that sometimes in October 2012, he purchased the said piece or

parcel of land at the junction of Bishop Onyeabor Street by St. Stephens road, Inland town Umuezearoli village Onitsha from the family of the late Aniweta represented by his 1st son, the 2nd Respondent hereto in the sum of N10, 000.000.00 (Ten Million Naira) by executing on behalf of the family an irrevocable power of attorney dated 19/10/12 in favour of the 1st Respondent. It is also the case of the 1st Respondent that in the course of the negotiation leading to the purchase, he observed the presence of the Appellants on the land but that he was informed that the disputed land was earlier bought in 1993 from one Joseph Chike Umunna (late) of Umuezearoli village Onitsha vide a power of attorney donated by late Umunna.

He further stated that in the year 2000, the Umuezearoli Community commenced an action against the late Aniweta vide Suit No. 0/755/200: Ezennia Chike Asika & Ors vs Nnanyelugo Obiekwe Aniweta & 2 Ors, claiming ownership of the disputed land but lost vide judgment of the Court delivered 4/12/06. It is also the case of the 1st Respondent that in the said action, the Appellants in this instant appeal were parties who were designated as 2nd and 3rd

defendant. The 1st Respondent stated further that in September, 2008, the late Aniweta served a notice to quit on the Appellants as his tenants and thereafter, followed it up with a Notice of Owners Intention to recover possession of the land from 1st and 2nd defendants.

The 1st Respondent went ahead to state that upon being served with notices the Appellants commenced arrangement to vacate the said land and as a matter of fact, found alternative premises for their religious activities but the process was aborted due to the death of Aniweta. The 1st respondent stated that he then caused a month notice to quit served on the Appellants but instead of evacuating the said premises, they instituted an action in suit No. 04/48/2013 against the him claiming inter alia statutory right of occupancy over the disputed land claiming to have bought same from late Aniweta in 2001 vide a deed of conveyance dated 30th of June, 2001 and thus they never paid rent as tenants to late Aniweta notwithstanding the tenancy agreement purporting so.

?The case of the 2nd Respondent is no different from that of the 1st Respondent only to add that the 2nd Respondent who was sued

for himself and representing members of the family of Late Barrister Obiekwe Aniweta added that after the demise of the late Barrister Obiekwe Aniweta, the successors of the deceased, represented by his very self sold the land in dispute to the 1st Respondent. It is also the case of the 2nd Respondent that to enable the 1st Respondent take possession of the said land, a fresh notice to quit was served on the Appellants who in reaction took out an action against the 1st Respondent in Suit NO: O/48/2013 and a cross-action initiated by the 1st Respondent against the 2nd Respondent for declaration of title and in the alternative against him for the purchase price paid to him as consideration.

At the conclusion of trial and address of counsel, the trial Judge in his judgment held at pages 173 ? 174 of the records that:
?The Plaintiff is therefore, entitled to judgment; and I so hold. The plaintiff is the person entitled to the statutory right of occupancy over the portion of land situate at the junction of Bishop Onyeabor Street and St. Stephen?s Road, Umuezearoli Village, Inland Town Onitsha; which portion of land is well known to the

parties. Consequently, the 1st and 2nd defendants are hereby ordered to give up immediate possession of same in favour of the Plaintiff. I make no order as to costs.?

The Appellants, in order to prosecute this appeal, on the 10th day of July, 2015 filed an Appellant?s brief of argument dated the 10th day of July, 2015. A Reply Brief to the 1st Respondent?s brief dated 14th December, 2015 and filed on the same date, and lastly, a Reply Brief to the 2nd Respondent?s brief dated 12th August, 2015 and filed on the same date. The said briefs were all settled by ALEXANDER IFEANYI C. AGOBGU ESQ., who identified six issues for the determination of this appeal as:
a) Whether the learned trial judge rightly held that the Appellants were at all times Aniweta?s tenants? (Ground 6)
b) Whether the learned trial judge rightly held that Aniweta did not sell the land to the Appellants in the view of Exhibits P4, D1 and D3? (Grounds 1, 2, 3, 4 and 5)
c) Whether the learned trial judge rightly proceeded to trial without conducting Pre-trial conference? (Ground 7).
d) Whether the learned trial judge breached the

Appellant?s constitutional rights when he delivered the judgment outside the 3 months period and without affording the Appellants opportunity to readdress the Court? (Grounds 8 and 9)
e) Whether the learned trial judge should not have disqualified himself in view of his decision in suit NO. 0/755/2000? (Ground 10)
f) Whether the learned trial judge duly considered the case before him and analyzed the evidence in his judgment? (Ground 11).

The 1st Respondent on the other hand on the 2nd day of October, 2015 filed its Respondent?s Brief dated same 30th September, 2015. The said brief was settled by MIKE UCHENNA IKEM ESQ., who identified four issues for determination which are:
a. Having regard to all the evidence documentary and otherwise before the trial Court whether the learned trial judge (hereinafter referred as ?the Judge?) was not correct to have held that the appellants were Aniweta?s tenants and therefore by implication did not buy the land in dispute from him and whether he considered all the relevant evidence before him to arrive at his said decision?(ground 1-6 and 11)

b. Whether it was mandatory under the Rules of the High Court Anambra State 2006 for the judge to first conduct a pre-trial conference proceedings before the trial proper of the suit and whether his failure to do so had thereby rendered the trial proper incompetent, null and void and robbing the Court of its jurisdiction.(ground 7)
c. All the counsel for the parties having earlier adopted their respective written address, whether the Appellants? right to fair hearing was breached when the judge proceeded to deliver judgment without the appellants re-adopting their said written address and was miscarriage of justice occasioned thereby (grounds 8and 9)
d. With the knowledge that the judge conducted the trial in the suit No. 0/755/200 in which Aniweta was the 1st defendant and the appellants were the 2nd and 3rd defendant respectively, whether it is now open to the appellants to complain against his conducting the trial in suit No. 0/124/13 when they had voluntarily taken part in the said proceedings without protest or objection and whether the appellants did not waive their rights, if any. (grounds 10)

?The 2nd Respondent on the 3rd day of August, 2015 filed its

Respondent?s Brief dated same 3rd day of August, 2015. The said brief was settled by A.O. OBIANWU ESQ., who identified two issues for determination which are:
a. Whether or not the judgment of the lower Court was without proper evaluation of pleadings and evidence led and therefore resulted in miscarriage of justice. Grounds 1, 2, 3, 4, 5 and 6.
b. Whether or not the judgment of the court below was tainted by irregularities weighty enough to warrant setting it aside. Grounds 7, 8, 9, 10 and 11.

APPELLANTS? ARGUMENTS
The Appellants? counsel, Alexander Ifeanyi Agbagbogu in his brief of argument submitted that there is no doubt that the Appellants? initial entry into the land was as tenants and that is the purport of exhibit of exhibit P10. Counsel submitted further that anybody who asserts that the appellants are tenants must establish same by showing evidence of rent payment. He cited Section 131 of the Evidence Act. It is also the contention of counsel that the decision of the Court is perverse and cannot be supported by any evidence. Counsel submitted further that it is not sufficient for a Judge

to utter the words: “I believe? or ?I disbelief? he must state the reasons for believing or disbelieving. He cited the case of ATANDA V AJANI (1989) 3 NWLR (PT. 111) 511, NWOKE V OKERE (1994) 5 NWLR (PT 343) 159

It is the submission of counsel that the Respondents? claim that Exhibit D was forged was not proved and the Court held that the Aniweta?s signature are irregular but considered it unsafe to resolve it. He submitted that the Judge sought and employed the oral testimony of Aniweta as found in exhibit P10 to nullify the documents. He emphasized that oral testimony cannot alter a document. He referred to SECTION 128 (1) EVIDENCE ACT, 2011; NWOKEDI V ORAKPOSIM (1992) 4 NWLR (PT 233) 120 UBN LTD V SAX NIG LTD (1994) 8 NWLR (PT 361) 150.

Counsel went further to argue that a party can rely on an unregistered registrable instrument and once he relies on it as a receipt and it is coupled with consideration, the effect is that the holder has an equitable right/title.

Appellants? counsel submitted the Court did not conduct or order pre-trial conference. He contended that a pre-trial/hearing is a jurisdictional issue and cannot

be waived as the parties did not also waive their right and thus the trial commenced without the requisite jurisdiction. He referred to MENAKAYA V MENAKAYA (1996) 9 NWLR (PT. 472) 256. Counsel also submitted that judgment was delivered outside the statutory time prescribed by the constitution. He argued that final addresses in the suit was adopted on 3/12/14 and adjourned to 25/2/25 for judgment. He cited Section 294 (1) Constitution of FRN. He submitted further that there was strike on 25th February, 2015 but the trial judge did not reflect it and by the time it was called off, the following occurred-
a. The period within which the judgment was to be delivered had expired.
b. The judge was transferred to Idemili Judicial Division

It is the contention of counsel to the Appellants that upon resumption the learned trial judge should have directed that hearing notices be issued on the parties and give all the parties opportunity to re-adopt their final address.

He contended that judgment which was delivered on 5/5/2015 is copied at pages 166-174 bore the date Wednesday 25/2/2015. He urged this Court to resolve this issue in their favour and vitiate the proceedings.

He contended further that the learned trial judge’s clear view and perception of the case were totally blurred because of his attachment to exhibit P4 and began to interpret exhibit P4 and accord it meaning that were not there at all. He submitted that when the trial judge described the tenancy relationship between the Appellants and Obiekwe as being the basis of deciding Exhibit 4, then why would he sit in the trial over his own judgment? He argued that the learned trial judge should have recused himself from the case the moment it dawned on him that he had earlier on dealt with a similar case.

Counsel also submitted that the trial judge did not evaluate the evidence properly before rejecting them. He referred to ADEBAYO V ADUSEI (2004) 4 NWLR (PT 862) 44; AGBONIFO V AIWEROBA (1988) 1 NWLR (PT 70) 325. He submitted that the learned trial judge also failed to ascribe the proper probative value to Exhibits D1 and D2. In the end he urged the Court to allow the appeal and set aside the judgment of the court below.

RESPONDENTS ARGUMENTS
On the part of the 2nd respondent, counsel on his behalf,

A.O Obianwu Esq. submitted that the Appellants by paragraph 4.03 of their brief had admitted that the Appellants’ initial entry into the land in dispute was as tenants by reason of clause 4 of the tenancy agreement which commenced from 30th April, 2000 and ended the 31st May, 2001. He submitted further that the trial Judge considered the signature in the Deed of conveyance tendered as Exhibit D1 by the appellants with other signatures in the Exhibits tendered in the proceedings such as Exhibit P10 (tenancy agreement) and came to the decision that the alleged signatures were irregular and rightly embarked on the consideration of other evidence tendered in this case. These according to counsel were the judgment in suit No. 0/755/2000 (Exhibit P4); the evidence given by Aniweta in the said suit (Exhibit P5); statutory notices (Exhibits P6 & P8) and the purported letter to Aniweta dated 16/11/08 (Exhibit D3) etc. He contended that failure to sue, coupled with Aniweta’s uncontradicted evidence in Exhibit P5 that the Appellants were his tenants on the disputed land which according to the judge was the basis of the proven facts that the Appellants were indeed his

tenants, this fact thereof, cannot now be denied by the Appellants, hence his decision that the Appellant did not purchase the land from Aniweta but were his tenant thereon.

He contended on the issue of pre-trial conference that Order 25 Rule 1(3) HCR 2006 provides for the defendant to apply for dismissal of the suit where the plaintiff fails to apply for the issuance of pre-trial conference Notice as required by the Anambra State High Court Civil Procedure Rules. He submitted therefore that it is not a jurisdictional issue.

On the issue of delivery of judgment outside the mandatory ninety days window, learned counsel submitted that no miscarriage of justice was occasioned under Section 294(5) of the 1999 Constitution (as amended).

The 1st respondent?s counsel also in response to ground 10 argued that the appellant cannot complain of the trial judge conducting the case in view of his sitting over suit No. 0/124/13 when they had taken steps voluntarily without objection. He urged the Court to resolve this issue in favour of the respondent.

?In his response, the 2nd Respondent?s counsel in his brief of argument pointed out that both

pleadings and evidence led by the 1st and 2nd defendants? two witnesses, the Respondent had consistently maintained that late Aniweta never sold his land to the Appellants in the first place. They maintained that they could not have sold the property without surrendering original title documents to the Appellants. He argued that the Appellants never requested for handwriting experts to be involved which the learned trial Court treated with abundance of caution. The 2nd respondent was in alliance with that of the 1st respondent that there was proper evaluation of the evidence led by the parties in this case and that it is not true that the learned trail Judge failed to properly evaluate the evidence led orally and documents tendered in support of them as a look at the judgment would clearly show.

?In the reply brief to the 2nd respondent, the Appellants amongst other arguments submitted that the Appellants were never nonchalant but the pressure ought to be more on late Obiekwe Aniweta to proceed to recover his land. With respect to the 1st Respondent, the Appellants? counsel maintained that in considering whether there was a real

likelihood of bias, the Court does not look at the mind of the judge or the parties. It does not look to see if there was real bias, but the Court looks at the impression which would be given to other people even if he was as impartial as could be. He referred this Honourable Court to ONIGBEDE V BALOGUN (2002) FWLR (PT. 99) 1062.

RESOLUTION OF ISSUES
I have painstakingly read through the pages of the record of appeal before this Honourable Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. The issues for determination canvassed respectively by the parties are well examined and considered.

Appeal, which will determine the vital question between the parties. See KALU V UZOR (2006) 8 NWLR (PT. 981) 66.

In effect of the above, I consider the issue stated below as being apt and germane for the determination of the instant appeal.

ISSUES FOR DETERMINATION
?Whether the learned trial judge properly evaluated the evidence led and rightly came to the conclusion that the appellants failed to prove their case so as to be entitled to the reliefs sought.?
The law is settled by virtue of Section 131-134 of the Evidence Act that the onus is on the plaintiff in civil case to prove by cogent and credible evidence that he is entitled to the reliefs he seeks from Court. The standard of proof therefore is on the balance of probability or preponderance of evidence. See AG BAYELSA STATE V A.G RIVERS STATE (2006) 18 NWLR (PT. 1012) 596, (2006) LPELR-615 (SC);WOLUCHEM V GUDI (1981) LPELR- 3501.

The case of the Appellants is that they are the joint purchasers for value of the piece of land situate at junction of Bishop Onyeabor Street by St. Stephens Road Inland Town Onitsha which they averred that they bought from their

landlord, late Barr. Obiekwe Aniweta in 2001 during the pendency of the suit NO: 0/755/2000 which the late Obiekwe Aniweta defended successfully in conjunction with the Appellants as parties. According to the Appellants, they did not have the original of the title documents from Barrister Obiekwe Aniweta before his demise.

However, it was not in dispute between the parties that late Obiekwe Aniweta had issued statutory notices to the Appellants, which the Appellants claimed they countered through their solicitor by writing to late Obiekwe Aniweta to desist from disturbing their quiet and peaceful enjoyment of the property.

that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. The proof of any one of the five ways is sufficient as each of them stands or fails on merits.

The Appellants? claim herein relates with production of documents of title conveyed to them by late Obiekwe Aniweta. This claim is reflected in paragraph 7b of the statement of defence at page 74 of the records thus:
?Paragraph 7(d) of the statement of claim is denied. The defendants were tenants to late Obiekwe Aniweta up to 2001 when they bought the land for a valuable consideration. The defendant shall rely on deed of conveyance issued to them as receipt. Another separate receipt was also issued.
(c) paragraph 7(e) of the statement of claim is admitted. The defendants and Obiekwe Aniweta had a tacit agreement that, in spite of the sale of 2001, since Obiekwe Aniweta was sued, he would defend the suit in further protection of the title he conveyed to the defendants. Again, he pleaded with them that he needed money to pursue the case. Thus, after the judgment and he attempted to intimidate the defendants, he was rebuffed

(D) paragraph 7(f) of the statement of claim is admitted. The defendants were shocked by the volte-face made by late Obiekwe Aniweta. They promptly retained a solicitor who wrote the said Obiekwe Aniweta a letter. The said latter is hereby pleaded.?

Where a party claims interest or ownership or title to land, such instrument conveying interest to such party must prove the authenticity of such title document where such becomes an issue. This he will do to satisfy the requirement under the case of IDUNDUN V OKUMAGBA (supra). Therefore, when title becomes an issue, the Court is duty bound to look into surrounding circumstance to ascertain whether such title emanated from proper custody or genuinely obtained. By implication, mere tendering of title document in an attempt to establish title is not sufficient. Thus, Production of a conveyance does not automatically entitle a party to a claim of declaration. The production and reliance on an instrument of grant carries with it the need for the Court to inquire into some or all of a number of questions. I am particularly concerned here with the findings of the learned trial Judge at page 172-178 of the records where he made insightful remarks thus:

?Throughout the lifetime of the late Obiweta, the 1st and 2nd defendants never challenged his title to the land in dispute. Rather, according to the 1st defendant as DW1, ?we and Obiekwe Aniweta had a tacit agreement that in spite of the sale of 2001, since Obiekwe Aniweta was sued, he would defend the suit in further protection of the title he conveyed to us?. It is, indeed a wonderful explanation. I am however, not impressed.
Exhibit D3, a letter written by counsel to the 1st and 2nd defendants, only goes to show that Obiekwe Aniweta denied ever selling the land in dispute to the 1st and 2nd defendants. He then proceeded to issue them the statutory recovery of possession notices. By the instrumentality of exhibit D3, the 1st and 2nd defendants had threatened to sue the late Obiekwe Aniweta with respect therof. Unfortunately, however, they never did so until he died in December, 2008.
I will continue to wish that the 1st and 2nd defendants had made good their threat to sue the late Obiekwe Aniweta. If only they had done so, they would have been in position to confront him with exhibit

D; and the Court would have been in the vantage position to resolve the issue one way or the other. Unfortunately, however, they failed to do and Obiekwe Aniweta died. It is, indeed, a very costly omission; and coupled with the fact that suit NO: 0.755/2000 was decided on the basis of the proven fact that 1st and 2nd defendants were the tenants of the late Obiekwe Aniweat on the land in dispute, it seems to me too late in the day to deny that it was so
I am therefore, of the most considered opinion that at all times material to this suit, the 1st and 2nd defendants were the tenants of the late Obiekwe Aniweta on the land in dispute. I do not agree they purchased same from him.?

When the findings of trial Court are cogent and reasonable, this Court would not readily interfere, especially when in this case, I have opportunity of reviewing the record of proceedings in juxtaposition to the findings of the Court below on material facts such as time, events and facts. Like I said in the forgoing, production of document is one aspect of proving title, but satisfying the Court that such document was genuine and properly executed by the affected parties

is a different thing entirely. The Court should not accept and act on documents hook-line-and-sinker. I think in the circumstance of this case no Court worth its salt would blindly accept the deed of conveyance tendered by the Appellants, believe same to be properly executed without minding or probing into its regularity, more so, when it was claimed that the Appellants bought the land in question from late Obiekwe Aniweta when they were his tenants. It casts serious doubts on the claim of the Appellants that they bought the land in 2001 and waited until 2008 to begin to exert their right of ownership after the 1st Respondent issued them with statutory quit notices.
The Appellants picked hole on the trial Judge that he centred his findings on the allegation that exhibit ?D1? was forged. He complained that the judge ought to have made more findings on that. I do not think that the issue affected the reason of sense of adjudication of the trial Court. The Judge only made comments in the passing but did not base his decision of exhibit D1. The learned Judge simply and safely alluded as shown in page 171 as thus:

?I am not unmindful of the fact that I am entitled to compare the supposed signature of late Obiekwe Aniweta, as shown on exhibit ?D1? with his signature in other documents which are exhibits before me, that I may be better enabled to ascertain the authenticity or otherwise of exhibit ?D1?. Indeed, I have done so already, there is no doubt in my mind that the signatures are irregular. It appears to me unsafe, therefore to resolve the nutty issue of whether or not the late Obiekwe Aniweta did sign exhibit FD1 on the basis only of the signature thereon. This is particularly so because, exhibit ‘p4? the judgment of this Court in suit No. 0/755/200 evidence the controversy between Umuezearoli family and Bar. Aniweta over the land in dispute.?
The Court did not base its decision on the perception of the alleged forged document. So the question of proof thereon did not arise and being a document forming part of the pleadings and records, the Court was entitled to appraise and comment on it.
?Beyond the foregoing, it is more suspect that the Appellants were summoned by the family of late Obiekwe Aniweta but they refused to honour the

invitation. Such attitude points to the fact that something was not right with the title which the Appellants paraded. It supports the saying that where a man pursues his right with fear, it means he has no such right available to him.
I wish to once more reiterate that this Court does not embark on a voyage of discovery over the findings of the lower Court. It can only interfere when there are obvious reasons to do so.

The questions which the Court has to determine when a title document is produced are: (a) whether the document is genuine and valid; (b) whether the document has been duly executed, stamped and registered; (c) whether the grantor has the capacity and authority to make the grant; (d) whether the grantor had in fact, what he purported to grant and; (e) whether it had the effect claimed by the holders of the instrument. See: NGENE V. IGBO (2000) 4 NWLR (PT. 651) 131 ROMAINE V. ROMAINE (1992) 4 NWLR (PT. 238) 650.” PER OKORO JCA.

Again, the Appellants contended that the trial was a nullity on the ground that the Court did not conduct pre-trial conference before hearing in the matter. I have perused through Order 25 Rules 1-7 of Anambra High

Court Civil procedure Rules. It states thus:
?Within 14 days after close of pleadings, the plaintiff shall apply for the issuance of pre-trial conference notice as in Form 17.
Upon application by the plaintiff under Sub rule (1) above, the Judges shall cause to be issued to the parties and their legal practitioners (if any) a pre-trial conference notice as form 17 accompanied by a pre-trial information sheet as in form 18 for the purposes set out hereunder.?
I am of the opinion that if the Appellants were so keen on having a pre-trial conference done because they consider such exercise germane to their action at the Court below, they ought to have invoked the provisions of Rule 3 of the same Order being vehemently relied on. Order 25 Rule 3 provides that:
(3) If the Plaintiff does not make the application in accordance with Sub-rule 1 of this rule, the defendant(s) may do so or apply to dismiss the action.
Despite the alternative options available to the Appellants at the Court below, it is rather mind disturbing that they failed to take the opportunity availed them by the Rules by drawing the attention of the Court to it.

Rather, the Appellants instead took fresh steps which amounts to nothing but a waiver. It is therefore wondered why the Appellant who waived such right has decided to blame the Court for his woes. In the case of ARIORI & ORS. V. ELEMO & ORS. REFERRED TO IN THE CASE OF ODU’ A INVESTMENT CO. LTD. V. TALABI (1997)10 NWLR (PT.523) 1; (1997)7 SCNJ. 600, IDIGBE, JSC. AT PAGE 22 of the NSCC Report, defining the word waiver, had this to say:-
“By way of a general definition, waiver – the intentional and voluntary surrender or relinquishment of a known privilege and a right, it therefore, implies a dispensation or abandonment by a party waiving of a right or privilege which at his option, he could have insisted upon.”” Per Ogbuagu, J.S.C. (P.84, Paras.C-F)
The move by the Appellants to pontificate and justify his shortcomings by urging this Court to set aside the judgment of the lower Court on this ground is most appalling. The attempt to paint such as a jurisdiction matter is completely irritating and I have no difficulty in holding that this ground of appeal lacks merit. It is hereby dismissed as such on grounds of its frivolity.

Away from these issues, the Appellants contended that the trial judge was bias when he did not recuse himself from trying the matter owing to his interest. I do not think there was basis for the Judge to do so. See AKOH VS ABUA(1988) 3 NWLR (PT 85) 696. The Court held that;
?An allegation of bias on the part of the trial judge or tribunal other than on the basis of a pecuniary interest must be supported by clear, direct, positive, unequivocal and solid evidence from which real likelihood of bias could reasonably be inferred and not mere suspicion.?
Bias or likelihood of bias by a presiding judge is determined by a number of factors. One of which must be that the judge had personal interest or benefitted in the matter in which he adjudicated. In this case, the Appellants has not expounded the interest of the trial Judge in this case nor gave reasons why such interest affected the outcome as would be seen from the judgment. The Appellants also did not make any attempt to protest or object to independence of the trial Judge. It is only where it is manifestly clear that miscarriage of justice was occasioned due to an interest held the judge

that this Court can make necessary orders. It stands to reason that when an issue of bias arises, same must be proven to show express or implied bias. Likelihood of bias can be inferred when the law says that an allegation of bias must be supported by clear, direct, positive, and unequivocal evidence and not mere suspicion. It presupposes that a burden is placed on he who asserts bias. It is a burden placed by the law, and it does not shift. The Appellants have been unable to establish any likelihood of bias; PER PEMU, J.C.A.(P. 46, PARAS.D-F) IN ITSUELI & ANOR V SEC & Anor LPELR 4343.
Therefore, once I am not able to see reasons to upturn the judgment of the lower Court, the issue of bias has been planted by the Appellants as an elaborate hoax. I therefore dismiss the allegation in its entirety.

The Appellants raised the issue of non-evaluation of evidence by the trial Court. The law is that evaluation of evidence is the sole and direct responsibility of the tribunal or the judge. There is no yardstick for such evaluation. What is paramount is that judgment accords with justice and the adjudicator gave reasons and ascribed probative value to relevant evidence to the

extent that any independent reader going through it would believe that justice of the case was attained. See:ALAKE V. STATE (1992) 9 NWLR (PT. 265) 260 SC.
I am mindful of the facts that the trial Court made reference to exhibits admitted at the trial in the judgment. My conclusion is that he studied and rightly acted on them by applying the facts to the law. He needs not to write thesis as expected by the Appellants. Evaluation or appraisal of evidence means assessment or estimation of evidence so as to give credit or value to it. Reviewing or making a summary of evidence does not constitute evaluation. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. See OGUNLEYE V OYEWOLE (2000) 14 NWLR (PT. 687) 290 AT 303; ONWUKA V EDIALA (1989) 1 NWLR (PT 96) 182 AT 208. I have the view that the learned trial judge devoutly performed and discharged his responsibility in accordance with the law. I therefore commend him the thoroughness of the learned jurist.

?On the issue of failure to re-adopt final addresses or delivery of judgment outside 3 months

period raised by the appellant, I think counsel for the Appellants misconceived the law. Section 294 (2) of the Constitution of Nigeria, 1999 did not contemplate re-adoption as a remedy for curing the defect of delivering judgment outside the ninety days window. A party who seeks to nullify a judgment or rulings on the ground that it was delivered more than 90 days after addresses must show that he has suffered injustice as a result of the failure to do so. As already stated, the Records show that the decision of the Lower Court was delivered outside the ninety days period. However, Section 294 (1) of the Constitution is not to be interpreted and applied in isolation, it should be read in conjunction with Section 294 (5) which provides that the decision of the Court is not to be set aside or treated as nullity solely on the ground of non-compliance with Sub-section (1) unless a miscarriage of justice is shown to have been occasioned by reason of the delay, in order to arrive at a proper understanding of the stipulations of the Section. See PDP VS. TAIWO (2004) 8 NWLR (PT 876) 656 AT 676 AND DURO VS. INEC (2010) LPELR 1 AT 24.

Therefore the regnant legal position will seem to be that the effect of non-delivery of a decision by a Court within ninety days is that such a decision would no longer be set aside for being a nullity unless the delay had occasioned a miscarriage of justice. See ATUNGWU vs. OCHEKWU(2004) 17 NWLR (PT 901) 18; IGWE vs. KALU(2002) 5 NWLR (PT. 761) 678; ACB vs. AJUGWO (2011) LPELR 1 at 34 – 35 and MOLEGBEMI vs. AJAYI(2011) LPELR 1 at 30 – 32. In this case did the trial judge forget or obscure some material or recondite issues of facts that would have assisted him in doing justice by the delay in delivering the judgment?
In this case, the Appellants have not advanced how that failure deprived them of justice. I therefore do not see how this failure occasioned miscarriage of justice, capable of setting aside the judgment. The issue holds no water and accordingly, it is hereby resolved in favour of the Respondents.

?The material consideration is whether the judgment complained was one on the merit. A judgment is on the merits, when it is based on the legal merit of the parties as distinguished from mere matters of practice, procedure, jurisdiction or form. A judgment on the

merits is therefore, one that determines on an issue either of law or facts, which party is right. See OLASEHINDE V FEDERAL HOUSING AUTHORITY (1999) 9 NWLR (PT 619) 448 AT 456, CARDOSO V DANIEL (1989) 2 NWLR (PT 20) 1 AT 45.

In the end, it is my considered view that the judgment of the lower Court has met the justice in this case. I have no other option than to give it further judicial legitimacy. On the whole, this appeal lacks merit and it is hereby accordingly dismissed. The judgment of the High Court of Justice, Anambra State, sitting at Onitsha judicial division, as delivered by V.N. Agbata J on the 25th day of February, 2015 in suit NO. O/124/2015 between James C. Egbunike (suing through the attorney, Tagbo Egbunike) V Mrs. Clara Nkoli Ome-Ebo & 2 Ors. is hereby affirmed. I award the cost of N150, 000.00 (One Hundred and Fifty Thousand Naira Only) in favour of the Respondents against the Appellants.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, ABUBAKAR SADIQ UMAR JCA. He has dealt exhaustively and conclusively with all the issues in the appeal. I agree with his

reasoning and conclusions. I abide by the orders in the lead judgment.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.

?For the more detailed reasoning in the lead judgment of my learned brother, I equally find no merit in the appeal and I accordingly dismiss it.
I adopt the consequential orders in the lead judgment.

Appearances:

A.I. Agbo, Esq.For Appellant(s)

M.U. Ikem with him, E.C. Ikenu, Esq., E.I. Agbonu, Esq. and C.O. Ndiwe, Esq. for the 1st Respondent.

J.U. Ezenwa for the 2nd RespondentFor Respondent(s)

Appearances

A.I. Agbo, Esq.For Appellant

AND

M.U. Ikem with him, E.C. Ikenu, Esq., E.I. Agbonu, Esq. and C.O. Ndiwe, Esq. for the 1st Respondent.

J.U. Ezenwa for the 2nd RespondentFor Respondent

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