OBA ADEORIYOMI AKEEM OYEBO & ANOR v. MR. MUSTAPHA LASISI & ORS (2019)

OBA ADEORIYOMI AKEEM OYEBO & ANOR v. MR. MUSTAPHA LASISI & ORS

(2019)LCN/13334(CA)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of May, 2019

CA/L/48/2011

RATIO

WITNESSES: EXPERT WITNESSES: WHETHER THE COURT IS BOUND TO ACCEPT THE EVIDENCE OF EXPERT WITNESSES

The law is well settled, as rightly stated by the learned trial judge, a Court is not bound to accept the evidence of an expert witness. See the decision in AKEREDOLU Vs. MIMIKO (2013) LPELR 21413 (SC), where the Supreme Court of Nigeria aptly held as follows:
The Court is not bound to accept the evidence of any expert, even one who has no disclosed incentive or motive other than helping the Court in the quest for justice. Therefore, when an expert witness, by his own ipse dixit portrays himself as one hawking his evidence or a mercenary who would fight any mans battle for a fee as it were, gives evidence in Court, the Court has a duty to treat his evidence with the disdain it deserves. After all, as the saying goes, he who pays the piper dictates the tune of the music.PER TIJJANI ABUBAKAR, J.C.A.

EXPERT EVIDENCE: THE COURT MUST BE CAREFUL IN ACCEPTING EXPERT EVIDENCE
It therefore goes without saying that the Court must be wary of admitting a report prepared by an expert, at the behest of any of the parties to the dispute; and clearly as a matter of law the existence of relevant and credible evidence before the Court showing that the evidence of the expert is not or cannot be true will constitute a good reason for rejecting such evidence. See ELF (NIG.) LTD Vs. SILLO (1994) 6 NWLR (Pt. 350) 258.PER TIJJANI ABUBAKAR, J.C.A.

EVALUATION OF EVIDENCE: WHAT IT ENTAILS

For the avoidance of doubt, evaluation of evidence, which is the primary duty of the trial Court, involves the assessment of evidence so as to give value or quality to it; it invariably involves a belief of the evidence of one party and disbelief of the other or a reasoned preference of one version over the other. See ANAEME Vs. OKPALA (2017) LPELR 42780 (CA); GANIYU OBATULA Vs. CHIEF E. S. B. WILKEY (2007) LPELR ? 4187 (CA).PER TIJJANI ABUBAKAR, J.C.A.

SECTION 83(3) OF THE EVIDENCE ACT LFN 2004: RATIONALE

In OLOMO Vs. APE (2013) LPELR ? 22327 (CA), this Court stated the rationale behind the enactment of section 83(3) of the Evidence Act in the following words:
“Coming to the first question of whether the trial Court was not wrong in rejecting the survey plan sought to be tendered by the surveyor same having been prepared during the pendency of this suit. Admissibility of Document – the doctrine behind not admitting a document made “when proceedings were pending or anticipated” under Section 83 (3) of the Evidence Act. “On the question of the second arm of when proceedings were pending or anticipated,” there is no doubt that Section 83 (3) of the Evidence Act is anchored on the doctrine of lis pendens which prevents the admission of documents made pende lite. Achike, JSC had in OGIDI & ORS v. DANIEL EGBA & ORS (1999) 10 NWLR (Pt. 621) 4 deprecated the admissibility of such documents made by interested parties pending litigation. He had held that the doctrine is common to both Courts of law and Equity. In the case of ABDULLAHI v. HASHIDU & ORS (1999) 4 NWLR (Pt. 638) at 645 – 647; Pats Acholonu, JCA (of blessed memory) that by the provisions of Section 91(3) of the Evidence Act, documents made during the pendency of an action for the purpose of the action and particularly after pleadings have been filed should not be admitted on the grounds that they lack evidential value and would tantamount to stealing a match against an opponent.”
The authorities are legion, for the purpose of Section 91(3) where from the nature of the duty undertaken by the person who prepared document during the pendency of the suit, he can be relied upon to speak the truth and that he will not be adversely affected thereby, the document will be admitted in evidence.PER TIJJANI ABUBAKAR, J.C.A.

SECTION 91(3) OF THE EVIDENCE ACT LFN 2004: EXPERT WITNESS EVIDENCE IS AN EXCEPTION TO SECTION 91(3)
Nevertheless, it has been recognized that the evidence of an expert witness is an exception to Section 91(3) of the Evidence Act, 2004. See the decision of this Court inIZE-IYAMU Vs. ALONGE (supra); (2007) LPELR ? 8689 (CA) pages 35 to 35, paras F D, where MSHELIA, JCA relying on the decision in SALAKO Vs. WILLIAMS (1998) 11 NWLR (Pt. 574, held as follows:
it is worthy to note the provisions of S.91(3) of the Evidence Act which provides: ?(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipates involving a dispute as to any fact which the statement might tend to establish?. In other words, by virtue of Section 91(3) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish is inadmissible? However, as rightly submitted by Respondents’ counsel, expert evidence is treated as an exception to Section 91(3) of the Evidence Act. In Apena vs. Aiyetobi supra it was held that a surveyor or any expert in his field of knowledge who makes a statement in any form in respect of a matter in Court at any stage of the proceedings is generally regarded as a person who has no temptation to depart from the truth as he sees from his professional expertise. There must be a real likelihood of bias before a person making a statement can be said to be a person interested within the meaning of Section 91(3) of the Evidence Act.PER TIJJANI ABUBAKAR, J.C.A.

COMPULSORY AQUISITION OF LAND: WHETHER THE ORIGINAL OWNER CAN STILL TRANSFER THE LAND TO ANOTHER PERSON
Consequently, interest in the land which has been compulsorily acquired cannot be transferred to another by the original owner. See: SOBOWALE & ORS. vs. GOV. OF OGUN STATE & ORS (2018) LPELR 43735 (CA); AKIBOYE & ANOR Vs ISHOLA ADEKO (2011) LPELR – 4551 (CA); YUSUF Vs. OYETUNDE (1998) 12 NWLR (Pt. 579) 485 at 493.PER TIJJANI ABUBAKAR, J.C.A.

APPEAL: WHAT THE RESPONDENT MUST DO WHEN HE WANTS THE JUDGMENT TO BE SET ASIDE ON OTHER GROUNDS SHOULD FILE A CROSS-APPEAL

It is a well settled that a Respondent seeking to set aside judgment on other grounds is entitled to file a cross-appeal or a Respondent’s notice. See KOTOYE vs. CBN & ORS (1989) LPELR 1707 (SC). In AMERICAN CYANAMID COMPANY Vs. VITALITY PHARMACEUTICALS LTD (1991) 2 NWLR (Pt. 171) Page 15, the Supreme Court, per OLATAWURA, JSC (of blessed memory) said as follows:
“In my view, invocation of the Rule postulates that the Judgment is correct but the reasons for the Judgment are based on wrong premise when there is enough evidence on record which can sustain grounds other that those relied upon by the trial Court. The Respondent’s Notice postulates the correctness of the Judgment notwithstanding the grounds of appeal by the Appellant to set it aside.”PER TIJJANI ABUBAKAR, J.C.A.

RESPONDENT’S NOTICE: WHEN A RESPONDENT SHOULD FILE A RESPONDENT’S NOTICE
Therefore, a Respondents Notice is filed by a Respondent who has not appealed against the decision of the lower Court but who is desirous of contending on appeal that the decision of the Court should be affirmed on grounds other than those relied upon by the lower Court or that the decision should be varied in any event or in the event that the appeal is allowed in whole or in part. See IDAHOSA Vs. STATE (2017) LPELR ? 43399 (CA).PER TIJJANI ABUBAKAR, J.C.A.

APPEAL: WHAT THE RESPONDENT MUST DO IF HE IS SEEKING TO SET ASIDE A FUNDAMENTAL DECISION

Where the Respondent is seeking to set aside the decision or finding which is fundamental, as in this case, Respondents Notice of Contention as in the instant case is inappropriate. The proper procedure is to file a substantive, appropriate and competent cross-appeal, since the Respondent wants a complete reversal of the decision or finding of the lower Court. See OGUNBADEJO Vs. OWOYEMI (1993) 1 NWLR (Pt. 271) 517; OGUMA ASSOCIATED COMPANIES (NIG.) LTD Vs, I.B.W.A. LTD (1988) 1 NWLR (Pt. 73) 658. PER TIJJANI ABUBAKAR, J.C.A.

JUSTICES

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

TOBI EBIOWEI Justice of The Court of Appeal of Nigeria

Between

1. OBA ADEORIYOMI AKEEM OYEBO
2. PRINCE SHAKIRUDEEN ADETONA BELLO
(For themselves and on behalf of the Obateru Royal Family of Egbin Community) Appellant(s)

AND

1. MR. MUSTAPHA LASISI
2. MR. SAMSUDEEN SALAMI
(For themselves and as principal representatives of the Ipakan Settlers)
3. CHIEF NURUDEEN OGUNMOLA
4. MR. MUNIRU OMIDIJI
(For themselves and on behalf of the Ipakan Kekere Village, Abule Ebute of IKorodu)
5. CHIEF JULIUS BARAKA
6. HIGH CHIEF LATEEF ISIKALU
7. MR. MOSUDI IBRAHIM
(For themselves and on behalf of the Iponmi Village of Ikorodu) Respondent(s)

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Lagos State sitting in the Ikorodu Judicial Division, delivered by ABIRU, J. (as he then was) on the 20th day of October, 2010 in the consolidated Suits No: ID/44/2004 and IKD/602/2006. The Appellants as Claimants at the Court below commenced Suit No: ID/144/2005 by Writ of Summons and Statement of Claim and the accompanying processes as contained at pages 1 ? 44 of the Records of Appeal which was finally amended on the 22nd day of October, 2008 as contained at pages 531 ? 542 of the Records of Appeal. Consequently, the 1st and 2nd Respondents eventually filed an Amended Statement of Defence and Counterclaim and other accompanying processes which are contained at pages 478 ? 512 of the Records of Appeal.

With the consent of the parties, the suit was consolidated with Suit No: IKD/62/2006 on the ground that the both suits are in respect of the same subject matter as contained at pages 514 ? 515 and 543 ? 554 of the Records of Appeal. Trial commenced and all the parties called their

respective witnesses; in the end the learned trial Judge dismissed the Appellants? claims and granted the 1st and 2nd Respondents Counter-claim. The Appellants became aggrieved by the Judgment of the lower Court and filed an Amended Notice of Appeal on the 2nd day of November, 2016 which was deemed as properly filed and served on the 4th day of April, 2017. The said Amended Notice of Appeal contains 4 (four) grounds of appeal. The Amended Appellants? Brief of Argument was prepared and filed by learned Counsel Olumide Aju on 8th day of May, 2018. The 1st and 2nd Respondents? Brief was filed by learned Counsel Akin Duyilemi, on the 16th day of May, 2018; the 1st and 2nd Respondents? Brief contains two Preliminary Objections: one to the Appellants? Notice of Appeal, the other to the 5th to 7th Respondents? Notice. The 1st and 2nd Appellants, through their counsel, further filed a separate Notice of Preliminary and/or Response to the 5th to 7th Respondents? Notice.
?
The 5th to 7th Respondents Brief was filed by learned Counsel Abolanle Abdul-Salam Esq. on the 2nd day of November, 2017. The 5th to 7th Respondents also

filed a Respondents? Notice of Intention to contend that the Judgment of the Lower Court be varied. On the 9th of May, 2018, the Appellants, through their counsel, filed two separate Reply Briefs to the 1st and 2nd Respondents Brief and the 5th to 7th Respondents Brief. The 3rd and 4th Respondents did not file any Brief. Learned counsel for the Appellants crafted 3 (three) issues for determination as follows:
1. Whether in its decision regarding the identity of the land in dispute in this case, the learned trial judge properly evaluated the evidence before him. (Ground 1 of the Amended Notice of Appeal).
2. Whether in refusing to accept the investigation of the Surveyor General, the reason giving [Sic] by the learned trial judge did not occasioned [Sic] a miscarriage of justice on the Appellant. (Ground 2 of the Amended Notice of Appeal).
3. Whether the learned trial judge properly evaluated the evidence tendered before him. (Ground 3 and 4 of the Amended Notice of Appeal).

The learned Counsel for the 1st and 2nd Respondents nominated a sole issue for determination, as follows:
Whether repository of the discretion has acted

without jurisdiction or ultra vires because of the state of affairs upon which the validity of the exercise of such discretion depends?

The learned Counsel for the 5th to 7th Respondents on their part formulated 4 (four) issues for determination as follows:
1. Whether based on the evidence before the lower Court, the learned trial Judge was right to have held that the land in dispute forms part of the Resettlement Area and rightly dismissed the claims of the Appellants as Claimants in the consolidated suit ID/144/05?
2. Whether the fact that the Appellants, as Defendant in suit IKD/62/06, did not specifically deny the Claims of the 5th to 7th Respondents as contained in their Statement of Claim amounted to an admission and whether the learned trial Judge did not err in law when he failed to find for the 5th to 7th Respondents in respect thereof?
3. Whether in spite of facts showing equal settlement and joint possession of the disputed land by Ipakan Nla Village/Community, Ipakan Kekere Village/Community and Iponmi Village Community respectively before the lower Court, the learned trial Judge was right to have found in paragraph 3 at page

17 of the judgment that it was only the members of Ipakan Community that NEPA ceded the possession and right of use and occupation of the land in dispute to?
4. Whether the learned trial Judge did not omit the 5th to 7th Respondents Village, Iponmi, from his evaluation of facts of joint possession of the land in dispute before the lower Court, and thereby arrive at a conclusion prejudicial to the 5th to 7th Respondents as contained in paragraphs iii and iv at page 17 of the judgment of 20th October 2010?

1st and 2nd RESPONDENTS? OBJECTION TO THE APPELLANTS? NOTICE OF APPEAL
Learned counsel for the 1st and 2nd Respondents contended that the Writ of Summons and Statement of Claim upon which the decision of the trial Court is predicated are incompetent. Counsel argued that the said Writ of Summons and Statement of Claim dated 17th February, 2005 were signed by LAITAN FAWEHINMI & CO. contrary to Sections 2(1) and 24 of the Legal Practitioners Act, Cap, 207, LFN 1990 and therefore incompetent. Learned counsel for the 1st and 2nd Respondents relied on ANYAH Vs. IYAYI [1993] 7 NWLR (Pt. 305) Pg. 290; A.P.C. LIMITED Vs. NDIC (N.U.B.) LTD

[2006] 7 NWLR (Pt. 1002) Pg. 404 and EMMANUEL OKAFOR & ORS Vs. AUGUSTINE NWEKE & ORS [2007] 3 SC (Pt. II) Pg. 54 to argue that LAITAN FAWEHINMI & CO. is not a person entitled to practice as a barrister and solicitor, either generally or for the purpose of any office or proceedings; and that the 1st Appellant?s (Claimant?s) claim ought to have been struck out since they were not signed by a legal practitioner.

Learned counsel for the 1st and 2nd Respondents further relied on GAMBARI Vs. GAMBARI [1990] 5 NWLR (Pt. 152) Pg. 572 and INAKOJU Vs. ADELEKE [2007] 4 NWLR (Pt. 1025) Pg. 423 to submit that it is the duty of the Courts to enforce the mandatory provisions of a statute and that where there is non-compliance with a stipulated pre-condition for setting a legal process in motion, any suit instituted in contravention of the pre-condition is incompetent and the Court is equally incompetent to entertain the suit. Counsel further relied on ONWUKA Vs. ONONUJU [2009] 38 NSCQLR (Pt. 1) Pg. 33 at 63-64 to submit that any process that is contrary to the provisions of the law is a nullity and ought to be set aside. Learned

counsel urged this Court to strike out and/or dismiss this appeal and grant the counter claim of the 1st and 2nd Respondents.

Reacting to the Preliminary Objection of the Respondents, learned Counsel for the Appellants submitted that the 1st and 2nd Respondents? Preliminary Objection is totally misconceived. Counsel argued that the Appellants? suit was consolidated because the facts relate to the same subject matter. Learned counsel further argued that 1st and 2nd Respondents filed their Defence to the Appellants claim and filed their respective Reply to the Statement of Defence which was filed by the Appellants to Suit No: IKD/62/2006. It was further argued that the 1st and 2nd Respondents presented their own witnesses and fully participated fully throughout up till judgment; and that none of the Respondents raised any objection to the validity or competence of the Writ at the trial Court. Learned counsel submitted that the conduct of all the Respondents will in law be treated as a waiver of any purported irregularities that may have arisen in the manner in which the Writ of Summons and Statement of Claim was signed.
?
Learned counsel

referred to the decision of the Supreme Court in HERITAGE BANK LTD Vs. BETWITH FINANCE NIGERIA LTD ? SC/175/2015 delivered on 23rd February, 2018 and submitted that the decision in OKAFOR & ORS Vs. AUGUSTINE NWEKE & ORS (Supra) does not apply to the facts of this case because the issue of waiver of an irregular or a defective process did not arise and was not conducted. Counsel argued that the objection to the competence of the irregular Motion on Notice in OKAFOR & ORS Vs. AUGUSTINE NWEKE & ORS (Supra) was taken at the first opportunity after the Motion on Notice was filed and before hearing was conducted. Learned counsel for the Appellants submitted that having waived the said irregularity, the 1st and 2nd Respondents can no longer complain; and that the objection is therefore misconceived. Counsel reiterated that this appeal arose from a consolidated suit; that the pleadings in the Appellants? Statement of Claim are of similar facts to the Defence to the Respondents? Claim in this suit; and that it is therefore inappropriate for the 1st and 2nd Respondents to raise an objection to this appeal. Learned counsel urged this

Court to dismiss the objection.

RESOLUTION
It is the law, as settled by the Supreme Court of Nigeria in OKAFOR Vs. NWEKE (Supra) that a Court process must be signed by a legal practitioner known to law. In OKAFOR Vs. NWEKE (Supra), the Supreme Court struck out three Court processes filed by the Applicant because the said processes were issued and signed by “J.H.C. Okolo, SAN & Co”, a firm of legal practitioners. The Supreme Court relied on the provisions of Section 2(1) and 24 of the Legal Practitioners Act to reach the conclusion that only a person called to the Bar in Nigeria can sign Court processes. This excluded law firms who were not natural persons and could not have been called to Bar in Nigeria. The decision of the Court emphasizing mode and strict prescription on how, and by whom, processes of Court are to be signed and is hinged on the popular legal aphorism laid down in UAC Vs. MCFOY to the effect that you cannot put something on nothing and expect it to stand.
Before now, an objection to the competence of a Court process, particularly Originating processes, could be raised at any time even for the first time on appeal at the

Supreme Court. The decision of the Supreme Court in HAMZAT Vs. SANNI (2015) LPELR ? 24302 (SC) bears witness to this settled position, because the Court sustained the preliminary objection of the Respondent and struck out the Statement of Claim filed by the Appellant at the trial Court because a law firm signed the said process.
However, in a recent unreported decision of the Supreme Court, relied on by the Appellants, HERITAGE BANK LIMITED Vs. BENTWORTH FINANCE NIGERIA LIMITED Unreported decision in SC/175/2005, the Supreme Court appeared to have varied its earlier position that any Court process not signed by a person whose name is contained in the Roll of the Supreme Court is incompetent and therefore liable to be struck out. In that case, the Appellant, Heritage Bank Limited filed an appeal at the Supreme Court challenging the decision of the Court of Appeal dismissing its appeal against the judgment of the High Court of Lagos State. The Appellant, for the first time, objected to the competence of the matter before both the High Court and the Court of Appeal. The objection was based on the ground that the Respondent’s Statement of Claim, filed

on 19th of September 1990, but was issued and signed by “Beatrice Fisher & Co”, a firm of legal practitioners contrary to the provisions of Sections 2(1) and 24 of the Legal Practitioners Act as well as decision in OKAFOR Vs. NWEKE (Supra).
In its decision, the Supreme Court, per EJEMBI EKO, JSC in the leading judgment, made the distinction as to instances where the originating process, that is the writ of summons, was properly signed but other processes were not properly signed and even where the other processes, including the Statement of Claim, was improperly signed, the objection was not timeously raised by the objector. My law lord aptly held as follows and I quote:
?The facts of this case, particularly on this objection, are that in spite of the fact that the Statement of Claim was allegedly not signed by a known legally qualified Legal Practitioner, but by a firm of legal practitioners, the Appellant, as the defendant, condoned the defective process. They participated in the proceedings and evidence arising from the Statement of Claim was called after the statement of defense joining issues with the defective Statement of Claim was

filed. Judgment of the trial Court, based on the evidence elicited from the Statement of Claim, was delivered without objection.
Even at the Court of Appeal no issue was made of the alleged defective Statement of Claim. The Appellant, as the defendant, had clearly condoned the defective statement of claim and waived his right to object to this defective process. The right of the defense to object to the irregularity ex facie the Statement of Claim is a waivable right, being a private right: AG., KWARA & ANOR. v. ADEYEMO (supra); ARlORI v. ELEMO (1983) 1 SC 13. This issue, accordingly, cannot be resolved for the Appellant. I hereby resolve it against the Appellant.?
Although, as in the instant case, the Statement of Claim in HERITAGE BANK LIMITED was not signed by a person called to the Bar in Nigeria, this irregularity was merely procedural and did not strike at the root of the matter. The Court reasoned that the Appellant’s right to object to the defect was a private right which may be waived. The Court further held that the Appellant’s failure to raise an objection based on this irregularity before the lower Courts meant that it condoned

the defective process and thereby waived its right to complain. However, if it were the originating process that was signed by a person who had not been called to the Bar in Nigeria, the irregularity would have been a fundamental defect that would go to the root of the matter and would therefore affect the competence of the action. To this extent therefore, except for originating processes, Courts no longer strike out Court processes that are inadvertently signed in the name of a law firm, unless the other party objects to such irregularity at the earliest opportunity.
Therefore, in so far as the 1st and 2nd Respondents? objection borders on the competence or otherwise of the Statement of Claim purportedly signed by a law firm, Laitan Fawehinmi & Co, and the said objection was not raised at the earliest opportunity but for the first time in this appeal, the 1st and 2nd Respondents have waived their right to complain. As the Supreme Court of Nigeria aptly said, such improperly signed Statement of Claim deemed to be irregular must be objected to at the earliest opportunity during trial. The 1st and 2nd Respondents have not done so. Their

objection is therefore misconceived and is accordingly dismissed.

I will proceed to consider and determine the arguments canvassed in respect of the substantive appeal. However, it is important to observe that, upon careful perusal of the four issues formulated and arguments canvassed by the 5th to 7th Respondents in their brief of Argument, only the first issue touches on the substantive appeal filed by the Appellant, the other three issues border on the merit of the 5th to 7th Respondents? Notice of Intention to contend that the judgment of the lower Court be varied, which was filed on the 2nd day of November, 2017. To this extent therefore, I will only countenance the arguments canvassed in respect of the first issue in this appeal. The other issues and arguments thereon, shall be considered appropriately in the determination of the Respondents? Notice.

SUBMISSIONS OF COUNSEL FOR THE APPELLANTS
ISSUE ONE
Learned counsel for the Appellants referred to the findings of the lower Court at page 660 of the Records of Appeal to submit that the basis of the decision of the lower Court is not correct. Counsel argued that the

Appellants at the lower Court led evidence to establish the facts contained in the Statement of Claim in Suit No: ID/144/2005 while the Respondents led evidence on facts contained in the Amended Statement of Defence. Counsel further referred to paragraphs 4, 13, 22, 24 and 29 of the Amended Statement of Claim as contained at pages 531 ? 536 of the Records of Appeal and paragraphs 10, 13 and 17b of the Amended Statement of Defence as contained at pages 478 ? 486 of the Records of Appeal. Learned counsel for the Appellants argued that all the parties at the trial Court agreed that the disputed area was reclaimed by sand filling long after the acquisition process and long after the Ipakan people had been resettled at a place referred to as the Resettlement Area or Village in the judgment of the lower Court.

Learned counsel relied on MINI LODGE LTD Vs. NGEI [2009] NWLR (Pt. 1173) Pg. 254 at 262 and referred to page 575 of the Records of Appeal to submit that going by the averments in the Amended Statement of Claim and the Amended Statement of Defence and the testimony at page 575 of the Records of Appeal to submit that the decision of the lower

Court with respect to the identity of the land is faulty and perverse. Counsel further argued that it must be noted that based on the order made by the lower Court in this suit, the Surveyor General of Lagos wrote a report on Survey Plan No: ASR/LA/156A covering the disputed land which was admitted in evidence as Exhibit C6 which established that the property was said to belong to the OBATERU Royal Family surveyed by Surveyor Bolarinwa in Survey Plan No: ASR/LA/156A is free from Federal Government Acquisition. Counsel submitted that the learned trial Judge totally ignored Exhibit C6. Learned counsel urged this Court to set aside the Judgment of the lower Court because the Judgment is perverse and occasioned a miscarriage of justice on the Appellants.

ISSUE TWO
Learned counsel for the Appellants submitted that the learned trial Judge erred when he found that the Respondents did not consent to the Surveyor General of Lagos State being called upon to investigate and report whether or not the land in dispute in this suit falls within the land acquired by the Federal Government of Nigeria official Gazette No. 30 Vol. 68 dated 26th day of June, 1981.

Counsel cited INTERNATIONAL BANK PLC Vs. ONWUKA [2009] All FWLR (Pt. 491) Pg. 855 Ratio 1 to submit that it is the law that the record of proceedings is binding on the Court and the parties before it. Counsel further argued that the findings of the lower Court contradict the record of proceedings in the instant suit.

Learned counsel referred to the unopposed Application of the Claimants in Suit No: IKD/62/2006 at page 516 which was granted by the lower Court at page 516 of the Records of Appeal when the learned trial Judge directed the Surveyor General to undertake an investigation into the land in dispute in this matter and show whether the land falls within the portion of land acquired by the Federal Government as published in the official Gazette No. 30 Vol. 68 dated 26th day of June, 1981. Counsel submitted that the subsequent finding of the lower Court to the effect that the Respondents did not consent to the Application of the Appellants calling for the investigation of the disputed land by the Surveyor General does not exist in the record of the lower Court. Learned counsel for the Appellants referred to ANSA Vs. NTUK [2009] All FWLR (Pt. 491) Pg.

901 and argued that the trial Court acted on speculations in the way it dealt with the evidence of the Surveyor General of Lagos State which resulted in miscarriage of justice against the Appellants.

Learned counsel argued that the findings of the learned trial Judge at page 661 of the Records of Appeal which suggested that the Respondents were not opposing the Application calling for investigation by the Surveyor General of Lagos State over the disputed land so land as it had nothing to do with them is an imputation of the learned trial Judge because none of the parties stated so at page 516 of the Records of Appeal. Counsel submitted that the Respondents consented to the said Application provided the Appellants bear the cost and that the lower Court adjudicated on mixed facts of the case contrary to the pleadings and evidence before it. Counsel urged this Court to accept and affirm the testimony of the Surveyor General of Lagos State as contained at pages 559 ? 561 of the Records of Appeal; and to set aside the Judgment of the lower Court because the decision is perverse.

ISSUE THREE
Learned counsel for the Appellants referred to the

findings of the lower Court in the judgment herein with respect to Exhibit D18; counsel argued that the said Exhibit D18 is a Counter Survey Plan drawn by an interested party during the pendency of the instant case at the lower Court and that the said Exhibit D18 came about after the Independent Report and Composite Plan of the Surveyor General of Lagos State had been admitted in evidence as Exhibits C6 and C7 respectively as contained at page 516 of the Records of Appeal. Counsel argued that the Composite Plan by the Surveyor General of Lagos State is independent, consented to by all the parties and was admitted in evidence by the learned trial Judge.

Learned counsel further referred to SANNI Vs. OGUNBODE [2001] 8 NWLR (Pt. 714) Pg. 84, Paras E ? F to submit that admitting Exhibit D18 in evidence in the first place is to allow the Respondents to castigate the testimony of the Surveyor General of Lagos State who is an expert and independent Surveyor. Counsel further referred to CHINWUBA Vs. ALADE [1997] 6 NWLR (Pt. 507) Pg. 88, Ratio 1 to submit that by virtue of Section 90(3) of the Evidence Act, any statement made by a person interested at a time

when proceedings are pending or anticipated involving a dispute as to any fact which the statement might tend to establish is inadmissible. Learned counsel submitted that the analysis of the total evidence before the lower Court by the learned trial Judge is faulty; counsel urged this Court to set aside the entire Judgment for this reason and on the ground that the entire Judgment is not supportable in law. Counsel further urged this Court to allow this appeal and grant all the reliefs sought by the Appellants.

SUBMISSIONS OF COUNSEL FOR THE 1st and 2nd RESPONDENTS
Though learned counsel for the 1st and 2nd Respondents distilled a sole issue for determination in this appeal; the learned counsel referred to FAGBENRO Vs. AROBADI [2006] 19 WRN Pg. 1 to submit that it is not the business of an appellate Court to substitute its own views for that of the trial Court where the trial Court has unquestionably evaluated the evidence and appraised the facts in the case. Counsel submitted that the subject matter of this appeal a parcel of the land acquired by the Federal and/or State Government initially for Naval School and subsequently for Lagos Thermal

Station and/or for other purposes connected with same including the resettlement of displaced Ipakan Villagers.

Learned counsel referred to the official Gazette No. 30 Vol. 68 dated 26th day of June, 1981 admitted as Exhibit C1 and Survey Plan No. LS/E.D.214/79 dated 3rd day of August, 19883 prepared by E. A. Adeniran and admitted as Exhibit CC; counsel relied on Sections 148 and 151 of the Evidence Act, 2011 to submit that there is presumption of validity in favor of Gazettes, Public Maps and Charts and that this Court should come to the conclusion that Exhibits C1 and CC1 are both valid and regular since they were not challenged by any of the parties before the lower Court. Learned counsel further referred to Section 128 of the Evidence Act, 2011 and BUNGE Vs. GOVERNOR OF RIVERS STATE [2006] 12 NWLR (Pt. 995) Pg. 573 at 616-617, Paras. G – A to submit that Exhibits C1 and CC1 speak for themselves and the Court can simply rely on them without more.
?
Learned counsel referred to pages 563, 566-567 and 572-573 of the Records of Appeal to submit that while D. O Olatubosun testified as an expert witness on behalf of the Appellants as contained in his

Witness Statement on Oath dated 30th October, 2009 and tendered Survey Plan MISC No. 1913 dated 1st of August, 2008; on the other hand, L. A. Animashaun testified as an expert witness on behalf of the Respondents. Counsel argued that D. O Olatubosun admitted under cross-examination that he did not visit the disputed land; and that L. A. Animashaun established that the Survey Plan tendered by D. O Olatubosun was lacking in detailed information. Learned counsel submitted that both the oral and documentary evidence of D. O Olatubosun were of no assistance to the lower Court and therefore unreliable; counsel urged this Court to affirm the decision of the lower Court with respect to the testimony of D. O Olatubosun.

Learned counsel referred to ALADU Vs. STATE [1998] 8 NWLR (Pt. 563) Pg. 618; SHELL PETROLEUM COMPANY LTD Vs. FERA [1994] 1 NMLR Pg. and OZIGBO Vs. COP (1976) 2 SC Pg. 67 to submit that the instant case as made out by the respective parties before the lower Court rested heavily on conflicting opinions of expert witnesses and that the lower Court in such circumstance is inherently vested with the discretion to reject one and accept the other without

having to give reason for preferring anyone over the other. Counsel further relied on BELLO Vs. RINGIM [1991] 7 NWLR (Pt. 206) Pg. 688 (CA) and submitted that the law is settled that when the evidence of an expert is discredited under the fire of Cross-Examination, the Court must be wary of seeking assistance or guidance from that evidence; and that the Court is not bound to accept the opinion of such an expert. Learned counsel further cited ODUSOTE Vs. ODUSOTE [1971] 1 All NLR Pg. 219 at 223 and ECHAKA CATTLE RANCH LTD Vs. N.A.C.B. LTD [1998] 4 NWLR (Pt. 547) Pg. 526 SC to contend that the Appellants? failed to show that the trial Court acted ultra vires or without jurisdiction; and that the Appellants failed to show the exercise of the discretion by the learned trial Judge in rejecting the evidence of CW2 prejudiced their case or caused a miscarriage.

Learned counsel for the 1st and 2nd Respondents referred to FAGBENRO Vs. AROBADI (Supra) and OLALEKAN Vs. WEMA BANK [2006] 13 NWLR (Pt. 998) Pg. 617 SC to submit that it is the primary duty of the trial Judge who saw and heard the witnesses to evaluate their evidence and ascribe probative value to

same; and that the lower Court in the instant case rightly, and judicially, exercised its discretion to accept and/or reject the evidence led by the parties before it; and equally considered the clear and unequivocal admissions of the Appellants witness before arriving at a decision. Counsel referred to FAGBENRO Vs. AROBADI (Supra); ABEKE Vs. STATE [2007] 3 SC (Pt. II) Pg. 105 at 128 and EZUKWU Vs. UKACHUKWU [2004] 17 NWLR (Pt. 902) Pg. 227 to submit that the Appellants failed to establish that the lower Court failed in its duty of evaluation of the evidence and failed to take proper advantage of hearing and seeing the witnesses testify; and that this Court will not substitute its view for that of the trial Court in the present circumstances?.

Learned counsel contended that the trial Court properly evaluated the oral and documentary evidence including the Exhibits on records together with the admissions made by the witnesses under cross-examination. Counsel argued that there is no miscarriage of justice occasioned to the Respondents and that the trial Judge was right in giving judgment in favor of the Respondents having concluded that the expert evidence

of the then acting Surveyor General of Lagos State had no probative value vis–vis the evidence of DW2 which was more reliable. Learned counsel referred to pages 397 ? 400, 422 and 436 to argue that the Respondents initially opposed the Appellants? application to call the Surveyor General of Lagos State as witness; that the Respondents? opposition was not recorded because of power outage; but that on the later date when the Application was heard, the Respondents did not oppose same on the understanding that the said Surveyor General of Lagos State will be the witness of the Appellants and not testify on behalf of the Respondents.

Learned counsel for the 1st and 2nd Respondents submitted that when a Survey Plan is produced specifically for use in a civil proceeding, a party who does not agree with its content must file a Counter-Plan to oppose same as rightly done by the Respondents in the instant case upon being granted leave by the Court as contained at pages 489 ? 508 and 549 of the Records of Appeal. Counsel referred to ONWUJUBA Vs. OBIENU [1991] 4 NWLR (Pt. 183) Pg. 16 and LATINWO Vs. AJAO [1973] 2 SC Pg. 99 to submit

that having admitted the two conflicting Survey Plans, the trial Court, also having heard the two expert witnesses correctly compared and contrasted the two Survey Plans tendered in evidence by the opposing parties and arrived at a correct decision. Learned counsel referred to Section 83 (3) of the Evidence Act, 2011 to submit that as a general rule, expert evidence is exempted from the application of Section 83 (3) of the Evidence Act, 2011.
Learned counsel referred to IYAMU Vs. ALONGE [2007] 6 NWLR (Pt. 1029) Pg. 84 CA; SALAKO Vs. WILLIAMS [1998] 11 NWLR (Pt. 574) Pg. 505 and ANYAEBOSI Vs. R.T. BRISCOE (NIG. LTD.) [1987] 3 NWLR (Pt. 59) Pg. 84 SC; [1997] 18 NSCC (Pt. 11) Pg. 805 to submit that an expert?s statement is tied to his learning and not the result that may flow from his opinion and the fact that he is paid by one of the parties is irrelevant. Learned counsel urged this Court to hold that the evidence of DW2 as contained at pages 571 ? 573 of the Records of Appeal is admissible and reliable as held by the trial Judge. Counsel urged this Court to dismiss this appeal with cost and affirm the Judgment of the lower Court, the subject

of this appeal.

SUBMISSIONS OF COUNSEL FOR THE 5TH TO 7TH RESPONDENTS
Learned counsel for the 5th to 7th Respondents, noted that a Court is not bound to treat expert opinion as conclusive proof of the facts contained therein, referring to ROCKONOH PROPERTY CO. LTD Vs. NIGERIA TELECOMMUNICATIONS PLC & ANOR (2001) 14 NWLR (Pt. 733) 468; MISR (NIG) LTD Vs. IBRAHIM (1974) 5 SC 55 at 62; AIKHIONBARE Vs. OMOREGIE (1976) 12 SC 11 at 27; FAYEMI Vs. ONI (2009) LPELR – 4146 (CA), before submitting that the lower Court was right to have rejected the evidence of the expert witness called by the Appellants.

Learned counsel, referred to the motion dated 17th March, 2008 filed by the Appellants and submitted that it is evident that parties were ad idem as to the land in dispute, and the only issue before the Court is whether the said land is free from acquisition by the Federal Government.

APPELLANTS? REPLY
Learned counsel for the Appellants argued that the sole issue formulated by the 1st and 2nd Respondents is incompetent and unrelated to any of the grounds of appeal. Counsel relied on AFRICAN PETROLEUM LTD Vs. OWODUNNI [1991] 8 NWLR

(Pt. 210) Pg. 391 at 243 to urge this Court to strike out the sole issue formulated by the 1st and 2nd Respondents and the arguments thereunder. Learned counsel further submitted, that in the event this Court considers the 1st and 2nd Respondents issue as formulated; the Appellants maintain that the learned trial Judge should have treated the evidence of the Surveyor General as conclusive rather than comparing same with the subsequent evidence produced by the Respondents since it was the agreement of the parties to call for the testimony of the Surveyor General of Lagos State. With respect to the application of Section 83(3) of the Evidence Act, 2011, learned counsel for the Appellants argued that the 1st and 2nd Respondents failed to plead or lead any evidence to show that the said expert who gave evidence in their favor is an independent contractor and not an interested party; and that no legal decision was cited in support of the Appellants? contention. Counsel urged this Court to disregard the 1st and 2nd Respondents? submissions and to allow the Appeal.

RESOLUTION
I have carefully considered the arguments canvassed by the respective

parties and the authorities relied on and in my view this appeal can be determined on the issue whether the learned trial judge was right when he entered judgment against the Appellants?

It is essentially the Appellants? complaint that the trial judge erred when in establishing the identity of the disputed land, and ownership thereof, refused to accept the investigation of the Surveyor General. At page 661 of Volume II of the record of appeal, the learned trial judge expressed the following views:
?In making a case on this core issue, the Claimant in Suit No. ID/144/2005, who is also the Defendants in Suit No IKD/62/2006, approached this Court by a motion on notice dated the 17th of March, 2008 seeking for an order of Court directing the Surveyor General of Lagos State to investigate whether the land in dispute fell within the parcel of land acquired by the Federal Government and make a report thereon. Counsel to the Defendants in Suit No. ID/144/2005 and the Claimants in Suit No. IKD/62/2006 stated that they were not opposing the motion so long as it had nothing to do with them?.?

?With due respect to the learned trial

judge, the record of proceedings of 3rd of June, 2008 bear witness to the fact that the Defendants/Respondents did not object to the Appellants? motion seeking an order to direct the Surveyor General of Lagos State to make a report regarding the disputed land, as aptly captured at page 516 of the records of appeal, the following transpired;
?MR. AJIBOLA: We have a pending application in Suit ID/144/2005 praying the Court to make an Order directing the Surveyor General of Lagos State to investigate and (sic) whether or not the land in dispute in this matter fall within the part of land acquired by the Federal Government by Federal Republic of Nigeria Official Gazette No. 30 Vol. 68 dated 26th of June, 1981. It is supported by an Affidavit and we move in terms.
MR. ISHOLA: We are not opposing so long as the Applicant will bear the cost of the exercise.
MR. DUYILEMI: We are also not opposing so long as the Applicants will bear the cost of the exercise.
COURT: ORDERED as prayed. The Surveyor General is hereby directed to undertake an investigation into the land in dispute in this matter and show whether the land falls within the

portion of land acquired by the Federal Government by Federal Government Official Gazette No. 30 Vol. 68 dated 28th June, 1981. The Surveyor General shall forward the outcome or a composite plan and report to this Court. The Applicants shall solely bear the cost of the exercise.?

In the light of the above therefore, it is apparent that there is nothing on record to support the findings of the lower Court that the Respondents did not oppose the Appellants? motion ?so long as it had nothing to do with them?; rather the only reservation of the Respondents solely borders on the expenses to be incurred in procuring the Surveyor General to make the necessary report to the Court, which they were not ready and willing to bear. The findings of the learned trial judge on this point is therefore with all due respect perverse.
?
After the order directing the Surveyor General to investigate the status of the land, and upon the preparation of the report by the Surveyor General, the Appellants amended their processes in order to accommodate the composite plan, and call the Surveyor General as their witness in this case. See pages 543 to 544 of

Vol. II of the record of appeal. On this basis, the Surveyor General becomes witness for the Appellants as CW2 for the purpose of the dispute before the Court. The question is whether the learned trial judge is bound to accept the independent report and composite plan of the Surveyor General admitted in evidence as Exhibit C6 and C7 respectively. I must answer in the negative. The law is well settled, as rightly stated by the learned trial judge, a Court is not bound to accept the evidence of an expert witness. See the decision in AKEREDOLU Vs. MIMIKO (2013) LPELR ? 21413 (SC), where the Supreme Court of Nigeria aptly held as follows:
?The Court is not bound to accept the evidence of any expert, even one who has no disclosed incentive or motive other than helping the Court in the quest for justice. Therefore, when an expert witness, by his own ipse dixit portrays himself as one hawking his evidence or a mercenary who would fight any man?s battle for a fee as it were, gives evidence in Court, the Court has a duty to treat his evidence with the disdain it deserves. After all, as the saying goes, ?he who pays the piper dictates the

tune of the music.?
Although, it will appear that the report made by the Surveyor General of Lagos State was made at the instance of the Court, there are facts on record that can sufficiently displace that presumption. In the first place, it was the Appellants that paid for the expenses in making the composite report; Secondly, contrary to the order of Court directing that the report be made and submitted directly to the Court, the said report/composite plan admitted as Exhibit C7 was submitted to the Appellants, who then transmitted the report to the Court. Thirdly, the Surveyor General was thereafter called as a witness for the Appellants, with a clear inference that any evidence to be elicited from him will be in favor of the Appellant. It therefore goes without saying that the Court must be wary of admitting a report prepared by an expert, at the behest of any of the parties to the dispute; and clearly as a matter of law the existence of relevant and credible evidence before the Court showing that the evidence of the expert is not or cannot be true will constitute a good reason for rejecting such evidence. See ELF (NIG.) LTD Vs. SILLO (1994) 6

NWLR (Pt. 350) 258. The learned trial judge rightly held at page 662 of Vol. II of the records of appeal that where there is overwhelming and non-controversial evidence establishing the identity of the land in dispute, a Court is entitled to disagree with a licensed surveyor?s evidence although he is an expert. A fortiori, it is my view therefore the identity of the land is not in dispute at all, as the Appellants want this Court to believe. It is evident from the motion dated 17th day of March, 2008 filed by the Appellants seeking an order of Court to direct the Surveyor General of Lagos State to investigate the purported acquisition by the Federal Government. As a matter of fact, the Appellants specifically sought for ?an order directing the Surveyor General of Lagos State to investigate whether the land in dispute is free from Government acquisition, and if free, to chart the title Documents on it and make a report on same?. See page 397 of Vol. I of the records of appeal. Therefore, the Appellants? contention that the identity of the land is in dispute is totally unfounded. To this extent therefore, the learned trial judge rightly

rejected the evidence showing the contrary.

In reaching a decision in favor of the 1st and 2nd Respondents, the learned trial judge considered the evidence of the two surveyors called by the parties. As earlier mentioned, the Appellants called the Surveyor General of Lagos State as their witness, and consequent upon this, the 1st and 2nd Respondents commissioned another Surveyor to prepare a composite plan which was admitted in evidence as Exhibit D18 through the said Surveyor as witness for the 1st and 2nd Respondents. At pages 662 to 664 of Vol. II of the records of appeal, the learned trial judge held as follows:
?The question now is, – on the side of which of the two surveyors does the weight of evidence led in this matter tilt? In answering this question, there is nothing wrong in this Court comparing the several plans tendered by the parties and comparing the boundaries and location of the land in one with those in the other in an attempt to arrive at the correct decision of the case?
All the parties in this suit agreed that the parcel of land acquired by the Federal Government was delineated on survey plan No LS/E.D.214/79.

Exhibit CC1. It was this survey plan that both surveyors super imposed in their respective composite plans, Exhibit C7 and Exhibit D18, to arrive at a conclusion. Therefore, the composite plan that correctly reflects the boundaries of the parcel of land reflected on Exhibit CC1 would be more accurate than a composite plan that does accurately reflect the boundaries. Looking at Exhibit CC1, it reflects a road running from Ijede Town on the western side of the land though Igbin Village to Ipakan Kekere Village and then to Ipakan Nla Village on the eastern side of the land. Now, this road is not the southern boundary of the acquired land and the entry of the road into the acquired land is marked by pillar No GN 462 and Exhibit CC1 shows that there was still a sizeable portion of land between the road, i.e. between pillar No GN 462, and the southern boundary of the land as demarcated by pillar Nos GN 461, GN 477B and PBU 474 before the lagoon.
Looking at Exhibit C7, the composite plan prepared by the Surveyor General of Lagos Stated, the road running from Ijede Town into the acquired land was stated to be the southern boundary of the acquired land and the

entry of the road into the land was marked with pillar No GN 461 and pillar No GN 462 was moved to a place higher than the road. Exhibit C7 effectively cut off the sizeable portion of the land between the road and the southern boundary of the acquired land, i.e. between pillar No GN 462 and pillar No GN 461, as reflected on Exhibit CC1 from its depiction of the acquired land and it went further to locate the land in dispute within that sizeable portion of the acquired land. Exhibit D18, on the other hand, properly located the southern boundary of the Town into the acquired land and the southern boundary of the acquired land before the lagoon there was a sizeable portion of land and that the land in dispute in this suit was within that sizeable portion of the land this was the basis of its conclusion that the land in dispute was within the acquired land?
? It is very clear to any honest person with a modicum of common sense and personal integrity that Exhibit C7 did not properly reflect the boundaries of the acquired land as delineated on Exhibit CC1 and that it cannot thus be a true reflection of the relationship between the acquired land

and the land in dispute. Exhibit C7 was based on a faulty factual basis and can only be a source of misinformation. It is hereby rejected by this Court. This Court accepts Exhibit D18 as showing a true reflection of the relationship between the acquired land and the land in dispute?.?

It is clear from the above findings of the learned trial judge that Exhibit C7, the composite plan made by CW2, the Surveyor General of the Lagos State, is manifestly unreliable that no reasonable tribunal or Court can rely on same in reaching a conclusion in favor of a party seeking to rely on same. The Appellants have not challenged this specific finding of the learned judge. The Appellants? complaint in this appeal, without more is that the trial Court is bound to accept the report and composite plan made by CW2 and admitted as Exhibit C6 and C7 respectively merely because they were purportedly made by an independent party. I am unable to accept the contention of learned Counsel for the Appellants? the contention is not well founded. As I have earlier stated, a Court is not bound to accept the evidence of any expert witness because the decision is

that of the Court and not that of the Expert. See DOHERTY Vs. YUSUF & ORS (2017) LPELR ?41998 (CA).
Learned Counsel for the Appellants raised storm that the learned trial judge erred in law when he relied on Exhibit D18 in reaching his conclusion and giving judgment against the Appellants. According to the learned Counsel, Exhibit D18 is faulty for two reasons. First, where an independent surveyor agreed to by parties is so called, his testimony will be binding on both parties, and neither of them will be allowed to castigate his testimony. I have already considered this argument and I will reiterate that the submissions of learned Counsel for the Appellants on this point is misconceived. The law is settled that the Court is not bound by the testimony, evidence and/or report of an expert witness and parties cannot by agreement (except in cases of admission which requires no further proof), make such evidence binding on the Court. For the avoidance of doubt, evaluation of evidence, which is the primary duty of the trial Court, involves the assessment of evidence so as to give value or quality to it; it invariably involves a belief of the evidence

of one party and disbelief of the other or a reasoned preference of one version over the other. See ANAEME Vs. OKPALA (2017) LPELR ? 42780 (CA); GANIYU OBATULA Vs. CHIEF E. S. B. WILKEY (2007) LPELR ? 4187 (CA).

Secondly, Appellants? counsel relied on the provisions of Section 91(3) incorrectly stated in the Appellants? Brief as Section 90(3) of the Evidence Act, 2004 applicable to the instant case to submit that Exhibit D18 is also faulty having been made during the pendency of the suit. The said Section 91(3) which is imparimateria with Section 83(3) of the extant Evidence Act of 2011 renders inadmissible ?any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish?. In OLOMO Vs. APE (2013) LPELR ? 22327 (CA), this Court stated the rationale behind the enactment of section 83(3) of the Evidence Act in the following words:
“Coming to the first question of whether the trial Court was not wrong in rejecting the survey plan sought to be tendered by the surveyor same having been prepared during the

pendency of this suit. Admissibility of Document – the doctrine behind not admitting a document made “when proceedings were pending or anticipated” under Section 83 (3) of the Evidence Act. “On the question of the second arm of when proceedings were pending or anticipated,” there is no doubt that Section 83 (3) of the Evidence Act is anchored on the doctrine of lis pendens which prevents the admission of documents made pende lite. Achike, JSC had in OGIDI & ORS v. DANIEL EGBA & ORS (1999) 10 NWLR (Pt. 621) 4 deprecated the admissibility of such documents made by interested parties pending litigation. He had held that the doctrine is common to both Courts of law and Equity. In the case of ABDULLAHI v. HASHIDU & ORS (1999) 4 NWLR (Pt. 638) at 645 – 647; Pats Acholonu, JCA (of blessed memory) that by the provisions of Section 91(3) of the Evidence Act, documents made during the pendency of an action for the purpose of the action and particularly after pleadings have been filed should not be admitted on the grounds that they lack evidential value and would tantamount to stealing a match against an opponent.”
?The authorities are legion, for the

purpose of Section 91(3) where from the nature of the duty undertaken by the person who prepared document during the pendency of the suit, he can be relied upon to speak the truth and that he will not be adversely affected thereby, the document will be admitted in evidence. As the Supreme Court, per CHUKWUMA-ENEH, JSC said in NIGERIA SOCIAL INSURANCE TRUST Vs. KLIFCO LIMITED (2010) LPELR ? 2006 (SC) at pages 26 to 28, paras D ? G,
?the rationale of the provision is that (the maker) must be a person who has no temptation to depart from the truth on one side or the other ? person not swayed by personal interest, but completely detached judicial, impartial, independent
Ordinarily, one would have expected that the Surveyor General called as CW2 would have no temptation to depart from the truth in this case since he was directed in his official capacity to make a report to the Court regarding the acquisition status of the disputed land; rather as the trial Court found, a finding which was not appealed against, the evidence elicited from the Surveyor General including the report and composite plan (Exhibit C6 and C7)

made by him are manifestly unreliable, indicating that the maker was swayed by interest other than the need to establish the truth regarding the matter before the Court. On the other hand, even though Exhibit D18 was also made during the pendency of the proceedings in Court, the learned trial judge was persuaded to rely on same after comparing same with other Exhibits made before the commencement of the suit, and which established the fact that the land in question had indeed been acquired by the Federal Government. Put simply, the fact that Exhibit C6 & C7 on one hand and Exhibit D18 were made during the pendency of the suit is not enough to render it inadmissible. This is because the interest that is envisaged by law which disqualifies, is a personal interest not merely interest in broad terms.
Nevertheless, it has been recognized that the evidence of an expert witness is an exception to Section 91(3) of the Evidence Act, 2004. See the decision of this Court inIZE-IYAMU Vs. ALONGE (supra); (2007) LPELR ? 8689 (CA) pages 35 to 35, paras F ? D, where MSHELIA, JCA relying on the decision in SALAKO Vs. WILLIAMS (1998) 11 NWLR (Pt. 574,

held as follows:
it is worthy to note the provisions of S.91(3) of the Evidence Act which provides: ?(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipates involving a dispute as to any fact which the statement might tend to establish?. In other words, by virtue of Section 91(3) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish is inadmissible? However, as rightly submitted by Respondents? counsel, expert evidence is treated as an exception to Section 91(3) of the Evidence Act. In Apena vs. Aiyetobi supra it was held that a surveyor or any expert in his field of knowledge who makes a statement in any form in respect of a matter in Court at any stage of the proceedings is generally regarded as a person who has no temptation to depart from the truth as he sees from his professional expertise? There must be a real

likelihood of bias before a person making a statement can be said to be a ?person interested? within the meaning of Section 91(3) of the Evidence Act
In the instant case, there is no record of any ?real likelihood of bias? in order to make the evidence elicited from L. A. Animashaun, the surveyor called by the Respondents. I am therefore unable to agree with the contention of learned Counsel for the Appellants? on this point. Arguments of counsel, no matter how eloquently canvassed cannot take the place of evidence. In my view, the learned trial judge was right when he admitted in evidence and relied on the Composite plan made by the Respondents? Surveyor in this case. The learned trial judge had the peculiar advantage of examining and comparing the various plans before him. I must say that the assessment and findings made by the learned judge are in line with the decision of this Court in UTB Vs. AWANZIGANA (1994) 6 NWLR (Pt. 348) 56, where this Court held that a Court is entitled to accept the evidence of an expert if it is credible particularly where unchallenged and comes from an expert with

demonstrable skill, and glaring dispassion; and that where the evidence of an expert is generally an aspect of the entire evidence to be evaluated by the Court, the Court must not abdicate its role to evaluate the evidence before it, including the expert evidence. In the present case, the learned trial judge correctly evaluated the evidence before the Court and came to the right conclusion that Exhibit D18 is credible and it establishes that the land in dispute falls within the expanse of land acquired by the Federal Government.

The implication of the above, that the disputed land falls within the land acquired by the Federal Government is therefore that the Appellants? claim in Suit No. ID/144/2005 fails in its entirety. Once there is compulsory acquisition of land, the title of the former owner becomes extinguished by reason of the acquisition and the title in the acquired land becomes solely vested in the acquiring authority. Consequently, interest in the land which has been compulsorily acquired cannot be transferred to another by the original owner. See: SOBOWALE & ORS. vs. GOV. OF OGUN STATE & ORS (2018) LPELR ? 43735 (CA);

AKIBOYE & ANOR Vs ISHOLA ADEKO (2011) LPELR – 4551 (CA); YUSUF Vs. OYETUNDE (1998) 12 NWLR (Pt. 579) 485 at 493. I am therefore in agreement with the learned trial judge that having failed to show to the Court that it has any jot of claim or right over the land in dispute consequent upon the acquisition, the Appellants are handicapped in seeking any relief in respect of the land.

As a result, therefore, all the issues in this appeal are resolved in favour of the Respondents against the Appellants. There is no scintilla of merit in this appeal and it is hereby dismissed by me. The Judgment of the High Court of Lagos State delivered on the 20th day of October 2010, by ABIRU, J., (as he then was) is hereby affirmed.

Cost of N500,000.00 is awarded in favor of the 1st and 2nd Respondents against the Appellants.

5th TO 7th RESPONDENTS? NOTICE
The 5th to 7th Respondents filed a Notice of Intention to vary the judgment of the lower Court on the 2nd day of November, 2017 on the following grounds:
1. The learned trial judge erred in law when he failed to find for the 5th to 7th Respondents on the facts of their Statement of Claim

which are admitted by the Appellants and the 1st and 2nd Respondents.
2. The 5th to 7th Respondents had sued the Appellants in Suit No. IKD/62/2006 in a representative capacity ?for themselves and on behalf of Iponmi Village/Community of Ikorodu? as 3rd to 5th Claimants.
3. The 3rd and 4th Respondents had sued the Appellants in Suit No. IKD/62/2006 in a representative capacity ?for themselves and on behalf of Ipakan Kekere Village/Community of Ikorodu? as the 1st and 2nd Claimants.
4. The facts before the learned trial Judge showed clearly that Iponmi Village/Community and Ipakan Kekere Village/Community, respectively, exist as distinct and independent villages/communities.
5. The facts before the learned trial Judge showed clearly that the ?the people of Iponmi Village/Community? is not the same thing as the ?people of Ipakan Kekere Village/Community?, but each exists with its own distinct identity and hegemony.
6. The Appellants as the 1st and 2nd Defendants in Suit No. IKD/62/2006 only denied the averments in the Statement of Claim with respect to the 1st and 2nd Claimants and the 3rd

and 4th Respondents herein.
7.The Appellants as the 1st and 2nd Defendants in Suit No. IKD/62/2006 did not deny the averments and claims of the 3rd to 5th Claimants in the said suit and who are also the 5th to 7th Respondents herein.
8. The learned trial Judge ought to have found in favour of the 3rd to 5th Claimants on the facts of their Statement of Claim, uncontroverted and undenied by the 1st and 2nd Defendant in Suit No. IKD/62/2006.
9. The learned trial Judge erred in law when he suo motu raised and relied on extraneous fact and thereby held that the village/community of the 5th to 7th Respondent had ceased to exist as an independent village/community.
10. The facts before the learned trial Judge clearly showed that each of the displaced villages of Ipakan Nla, Ipakan Kekere and Iponmi were resettled in their distinct name and identity, as particularly shown by Exhibit D1.
11. The learned trial Judge misdirected himself when on one and same breath he held as pages 13, 14 and 16 of the judgment in the consolidated suits as follows:
?It was not in contest in this matter that the members of Ipakan Kekere Village, Ipakan

Nla Village and Iponmi Village were resettled by NEPA on the disputed land. It was not in contest that it was to all the people resettled on the built up portion of the land in dispute that NEPA conceded the use of the undeveloped portion of the land in dispute by its letter, Exhibit 4?
Page 14 ? quotes:
?In other words, the undeveloped portion of the land in dispute was given to all the people resettled on the built up portion of the land in dispute.?
Page 16 ? quotes:
?This Court had found that it was the members of Ipakan Community that NEPA ceded the possession and right of use and occupation of the land in dispute.
12. The foregoing holdings clearly omitted the priorities of Iponmi Village, the community of the 5th to 7th Respondents and shows the said village had been removed from the evaluation of facts before the learned trial Judge, and thereafter it was on that basis that the injurious decision of the Court contained in paragraphs iii and iv on page 17 of the judgment of 20th October, 2010 came about.
13. It was a distinct fact before the learned trial Judge that the peoples of Ipakan

Nla Village/Community, Ipakan Kekere Village/Community and Iponmi Village/Community, respectively, are with distinct identity and are independent of each other and were represented by their respective community leaders.
?
The 1st and 2nd Respondents challenged the competence of the 5th to 7th Respondents? Notice. The 1st and 2nd Respondents? filed what they labelled ?Notice of Preliminary Objection and/or Response to 5th to 7th Respondents? Notice? dated 11th day of May, 2018 and filed 14th day of May, 2018. Looking at the said process, it seems to me that the 1st and 2nd Respondents by a Notice of Preliminary Objection challenged the competence of the 5th to 7th Respondents? Notice and at the same time canvassed argument in the said Notice. This is irregular. As I am aware, a Notice of Preliminary Objection is meant to contain only relief sought and the grounds upon which the objection is predicated. It is not an avenue for the party raising objection to canvass arguments in support of the Objection. Argument in support of objection is raised in the brief of argument or Written Address as the case may be. Needless to say

that the purpose of the Notice is to give the opposing party an opportunity of reacting to the objection and avoid springing any surprise. See ABUBAKAR & ANOR Vs. JOSEPH & ANOR (2008) LPELR ? 48 (SC). Even though I have found that the Notice of Preliminary Objection filed by the 1st and 2nd Respondents seems irregular, it is my view that since the issue raised by the 1st and 2nd Respondents are fundamental and touch on the competence of this Court to determine the Respondents? Notice, I shall consider the said objection. As a matter of fact, the 5th to 7th Respondents appear to have waived the irregularity in the said process because they failed and/or refused to file any response thereto.

1st and 2nd RESPONDENT?S OBJECTION TO THE 5th-7th
RESPONDENTS? NOTICE
Learned counsel for the 1st and 2nd Respondents also raised a Preliminary Objection against the 5th to 7th Respondents? Notice. In support of this objection, learned counsel for the 1st and 2nd Respondents referred to Order 9 Rule 4 of the Court of Appeal Rules to contend that a Respondent?s Notice must be filed and served within 30 days of

service of the Notice of Appeal where the decision is a final decision of the lower Court. Counsel referred to the Notice of Appeal at page 721 ? 738 and 783 – 790 of the Records of Appeal to argue that the Notice of Appeal filed in the instant appeal was filed and served as far back in 2010; and that the 5th to 7th Respondents? Notice dated 1st of November, 2017 is incompetent having been filed 7 years after the service of the Notice of Appeal. Learned counsel cited ELIOCHIN NIGERIA LTD Vs. MBADIWE [1986] 1 NWLR (Pt. 14) Pg. 45 and BRIGGS Vs. BOB MANUEL [2003] Vol. 106 LRCN Pg. 717 at 726 to further submit that the 5th to 7th Respondent?s Notice is incompetent and ought to be struck out.

Learned counsel for the 5th to 7th Respondent?s further referred to AMERICAN CYANAMID COMPANY Vs. VITALITY PHARMACEUTICAL [1991] 2 NWLR (Pt. 171) Pg. 15 at 31; A.G. OYO STATE Vs. FAIRLAKES HOTEL (No. 2) [1989] 5 NWLR (Pt. 121) Pg. 255 at 239 to submit that the purpose of Respondents? Notice is that the Judgment of the Lower Court is correct but the reason for the judgment is based on wrong premise whereas there is enough evidence on record

to sustain the Judgment on grounds other than those relied upon by the lower Court. Counsel further argued that the 5th to 7th Respondents whose claim before the lower Court was dismissed did not indicate that the Judgment of the lower Court was based on the wrong premise or contained other grounds upon which the reliefs sought in the Respondents? Notice could be sustained. Learned counsel further cited EMEKA Vs. OKADIGBO [2012] 18 NWLR (Pt. 1331) Pg. 55; PACERS MULTI-DYNAMIC Vs. DANCING SISTERS [2000] 3 NWLR (Pt. 648) Pg. 241 and ANYADUBA Vs. NIGERIAN RENOWNED TRADING COMPANY LTD [1990] 1 NWLR (Pt. 127) Pg. 407 to submit that 5th to 7th Respondents? Notice cannot co-exist with the Notice of Appeal earlier filed by them which is deemed abandoned; and that same amounts to an abuse of Court process.
?
Learned counsel further argued that the reliefs sought by the 5th to 7th Respondents cannot be sustained under a Respondent?s Notice. Counsel referred to the findings of the lower Court at page 810 of the Records of Appeal to contend that the 5th to 7th Respondents cannot ask for a reversal in their favor of the findings of facts made or the

Judgment of Court given against them on the issues contested before the lower Court. Learned counsel referred to WILLIAMS Vs. DAILY TIMES [1990] NWLR (Pt. 124) Pg. 1 at 21 and ADEKEYE Vs. AKIN-OLUGBADE [1987] 3 NWLR (Pt. 60) Pg. 214 at 216 to submit that the approach by the Respondent is not supported by any law or Rules of Court as they can only seek for reliefs through a Notice of Appeal and/or a Cross Appeal and Not through a Respondent?s Notice. Counsel urged this Court to dismiss the 5th to 7th Respondents? Notice and the arguments canvassed in support of same on the ground that the Respondents? Notice is incompetent.

RESOLUTION
Order 9 Rule 4 of the Court of Appeal Rules, 2016 is clear and provides as follows:
?4. Any notice given by a Respondent under this Order must be served on the Appellant and on all parties to the proceedings in the Court below who are directly affected by the contentions of the Respondent and must be served –
(a) in the case of an appeal against an interlocutory order, within fifteen days after the service of the notice of appeal on the Respondent; and
(b) in any other case within

thirty days, after the service of the notice of appeal on the Respondent.?
Contrary to the erroneous contention of the 1st and 2nd Respondents? counsel, it is on record that the Amended Notice of Appeal in this appeal was filed on the 2nd day of November, 2016 but deemed as properly filed and served on the 4th day of October, 2017. By the tenor of Order 9 Rule 4(b) (supra), the 5th to 7th Respondent are expected to file and serve their Respondent Notice within thirty days after the 4th of October, 2017 when the Amended Notice of Appeal was deemed as properly filed and served by the Court. The 5th to 7th Respondents? Notice was filed on the 2nd day of November, 2017 within the thirty days prescribed by the Rules of Court. Although there is nothing on record to establish the date the said Notice was served on the 1st and 2nd Respondents? as well as the Appellants,it is incumbent on the 1st and 2nd Respondents to show to the Court that the process was served outside the thirty days. This was not done, as the 1st and 2nd Respondents argued under the impression that the time within which the 5th to 7th Respondents will be expected to

file and serve their Respondent?s Notice begins to run from the time when the initial Notice of Appeal was filed by the Appellants on the 2nd day of November, 2010 found at pages 721 to 738 of Vol. II of the records of appeal. It is therefore clear that the relevant Notice of Appeal in this case is the Amended Notice of Appeal which is brought to life by the deeming order made by this Court and it is on the day the deeming order was made that the time begins to run for the purpose of the Rules. The first leg of the 1st and 2nd Respondents? objection is therefore grossly misconceived.

The second leg of the objection relates to the purpose of Respondents? Notice. It is a well settled that a Respondent seeking to set aside judgment on other grounds is entitled to file a cross-appeal or a Respondent’s notice. See KOTOYE vs. CBN & ORS (1989) LPELR ? 1707 (SC). In AMERICAN CYANAMID COMPANY Vs. VITALITY PHARMACEUTICALS LTD (1991) 2 NWLR (Pt. 171) Page 15, the Supreme Court, per OLATAWURA, JSC (of blessed memory) said as follows:
“In my view, invocation of the Rule postulates that the Judgment is correct but the reasons for the

Judgment are based on wrong premise when there is enough evidence on record which can sustain grounds other that those relied upon by the trial Court. The Respondent’s Notice postulates the correctness of the Judgment notwithstanding the grounds of appeal by the Appellant to set it aside.”
Therefore, a Respondents Notice is filed by a Respondent who has not appealed against the decision of the lower Court but who is desirous of contending on appeal that the decision of the Court should be affirmed on grounds other than those relied upon by the lower Court or that the decision should be varied in any event or in the event that the appeal is allowed in whole or in part. See IDAHOSA Vs. STATE (2017) LPELR ? 43399 (CA).
Looking through the grounds contained in the 5th to 7th Respondents? Notice vis-a-vis the issues canvassed in their Brief, it is clear that the 5th to 7th Respondents are by the said Notice seeking a reversal of the crucial findings made by the learned trial judge inter alia that ?the entire lands of the three villages, Ipakan Nla, Ipakan Kekere and Iponmi were acquired by the Federal Government and the members of

the three villages were resettled at the NEPA Resettlement. Thus, the villages had ceased to exist as independent villages and communities ? and it is the Defendants in Suit No: ID/144/2005 that are the appropriate persons to act on behalf of the community
Where the Respondent is seeking to set aside the decision or finding which is fundamental, as in this case, Respondents Notice of Contention as in the instant case is inappropriate. The proper procedure is to file a substantive, appropriate and competent cross-appeal, since the Respondent wants a complete reversal of the decision or finding of the lower Court. See OGUNBADEJO Vs. OWOYEMI (1993) 1 NWLR (Pt. 271) 517; OGUMA ASSOCIATED COMPANIES (NIG.) LTD Vs, I.B.W.A. LTD (1988) 1 NWLR (Pt. 73) 658. It is the case of the 5th to 7th Respondents that, contrary to the views expressed by the learned trial judge, it is clear on the face of their Statement of claim that they sued in their distinct name and identity for themselves and as leaders and representatives of the Iponmi Village/Community. This, no doubt, is a direct challenge to a crucial finding by the learned trial judge. Such an

error cannot only be reversed upon a determination of an appeal predicated on a substantive cross-appeal filed by the 5th to 7th Respondents. The Respondents? Notice filed by the 5th to 7th Respondents in this case is inappropriate since the finding sought to be varied or reversed is crucial to the conclusion made by the learned trial judge. It is incompetent and hereby struck out.

In the circumstance therefore, the 1st and 2nd Respondents? Objection to the competence of the Respondents Notice is sustained.

JAMILU YAMMAMA TUKUR, J.C.A.: I had a preview of the lead judgment just delivered by my learned brother TIJJANI ABUBAKAR JCA and I adopt the judgment as mine with nothing useful to add.

TOBI EBIOWEI, J.C.A.: I had the privilege of reading In draft the judgment just delivered by my learned brother, TIJJANI ABUBAKAR. JCA. I agree with the judgment and I have nothing to add.

Appearances:

Olumide-AjuFor Appellant(s)

A .T. Abdul-Salam for 5th and 7th RespondentFor Respondent(s)

Appearances

Olumide-AjuFor Appellant

AND

A .T. Abdul-Salam for 5th and 7th RespondentFor Respondent