OJO & ANOR v. OLROF NIG. LTD & ANOR
(2020)LCN/15305(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Tuesday, June 16, 2020
CA/AK/73/2016
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
- AKINLOLU OJO 2. FABUSUYI AKINLOLU (FOR THEMSELVES AND ON BEHALF OF MEMBERS OF ISOORO OSHODI AJISOLAOGUN FAMILY AKURE) APPELANT(S)
And
1. OLROF NIGERIA LIMITED 2. DR. OLAIYA OGIDAN RESPONDENT(S)
RATIO
WHETHER OR NOT THE BURDEN LIES ON A PARTY SEEKING DECLARATORY RELIEFS TO SUCCEED ON THE STRENGTH OF HIS CASE
It is trite law that where a party seeks declaratory reliefs, the burden lies on him to succeed on the strength of his own case and not on the weakness of the defence. Although where it is so obvious, the law allows the use of the defence evidence which supports the case of the claimant. PER ABDULLAHI, J.C.A.
WHETHER OR NOT PARTIES ARE BOUND BY THEIR PLEADINGS
It is trite that parties in a civil matter are bound by their pleadings. It is a settled law that litigation is fought on pleadings of the parties as it forms the foundation and basis of the plank of a case. Evidence is adduced in support of the pleadings filed and exchanged between the parties not otherwise. See the case of NWOKOROBIA v. NWOGU (2009) 172 L. R. C. N. 41 at 60 U – Z. Both the trial Court and the Appellate Court are bound by the pleadings of the parties. See DUKE v. AMBO (2014) ALL FWLR. (pt. 761) 1419 at 1433 A – B and IBWA v. IMANO LTD (2001) 3 SCNT 160. PER ABDULLAHI, J.C.A.
WHETHER OR NOT DECLARATION OF TITLE IS MADE, THE LAND TO WHICH IT RELATES MUST BE ASCERTAINED
It is well settled law that before a declaration of title is made, the land to which it relates must be fully ascertained. See AKEREDOLU v. AKINREMI (SUPRA) and UDOFE v AQUSISUA (SUPRA). PER ABDULLAHI, J.C.A.
WHETHER OR NOT THE ISSUE OF FAIR HEARING ARISES WHERE THERE IS NON-COMPLIANCE WITH THE RULES OF THE COURT
I am of the opinion that the issue of fair hearing does not arise where there is non – compliance with the Rules of Court, which are not only binding on the Court but also on the parties. It is within the inherent power of Court to ensure compliance with Rules of Court by Parties. I so hold. See KANKARA v. COP KATSINA STATE; ONIFADE v. OLAYIWOLA and UBN PLC v. ODUSOTE BOOKS STORES LTD (SUPRA). PER ABDULLAHI, J.C.A.
WHETHER OR NOT WHERE INJUNCTION IS CLAIMED, IT CAN BE GRANTED OR BINDING WHEN THE BOUNDARIES OF THE AREA TO BE AFFECTED ARE ASCERTAINED
It is a settled principle of law that where an injunction is also claimed, it can only be granted or binding when the boundaries of the area to be affected are ascertained, well – known and properly described. See EKPEMUPOLO v. EDREMODA (2009) 179 LRCH 235 at 264, K – E.PER ABDULLAHI, J.C.A.
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Learned Justice W. A. Akintoroye of the Ondo State High Court, Akure Division, delivered on 27th October, 2015, dismissing the claims of the Appellant. The Appellants herein were the claimants, while the Respondents were the defendant at the trial Court.
The Appellants commenced the action that culminated in this appeal vide a writ of summons dated 31/03/2014, claiming the following reliefs:
(a) A DECLARATION that the claimant and member of their family are the persons entitled to the Statutory Right of Occupancy in respect of a piece and parcel of land situate, lying and being at along Irese Road off Shagari Village, which is known as Isooro Oshodi family, which is more approximately described in survey plan No JOE/OD/99/609 dated 16th day of August, 1999 and titled Isooro Oshodi family land at Irese Road, Akure and Layout Plan No. AKU/ AURPO/878.
(b) A DECLARATION that the late Julius Akinlolu Otiko not being a member of Isooro Oshodi Ajisola Ogun family has no power, right or capacity to alienate, transfer or sale any portion of Isooro Oshodi family land at along Irese Road, off Shagari Village to the defendant or any person(s) whatsoever without the consent of the claimants’ family and therefore such a sale can be set aside.
(c) A DECLARATION that the late Julius Akinlolu Otiko being a tenant on the Isooro Oshodi land had no capacity and right to sale or transfer any portion of the Isooro Oshodi family land in any manner whatsoever, as such a sale should be set aside by the Court.
(d) A DECLARATION that only principal member of Isooro family can alienate the family land and any alienation done without the concurrence of the family head and principal members is null and void of no effect whatsoever.
(e) AN ORDER of Court directing any person, persons or group of persons deriving title or indirectly as privies, agents, servants from the defendants, to vacate the land of the claimants, Isooro Oshodi family and yield vacant possession of same.
(f) AN ORDER of Court restraining the defendants from committing any act of trespass on the claimants’ land and the members of their family land at Irese Road off Shagari Village, Akure in any manner whatsoever.
(g) AN ORDER of Court declaring null and void any person’s purported title documents in Certificate of Occupancy or any other title deed obtained by any person or persons deriving title from the defendants or their privies, agents and servants and setting aside the said purported title documents.
(h) The sum of N20,000,000.00 as general damages as a result of trespass committed by the defendants on the claimants’ land at along Irese Road off Shagari Village, Akure.
(i) AN ORDER of Court setting aside any title documents that might have been obtained by any group of person or anybody whatsoever from the defendants or the person through whom they derive their title.
(j) AN ORDER of perpetual injunction restraining the defendants their privies, agents, servants or any person(s) deriving title from them from further committing any act of trespass or further acts of trespass on the claimants’ family land at Irese Road off Shagari Village, Akure.
STATEMENT OF FACT
The case of the Appellants is that the land in dispute, known as Isooro Oshodi family land belongs to their family, Isooro Oshodi Ajisola-ogun family and that Akinlolu Otiko from whom the Respondents derived their title was not a member of their family but a tenant of their family land i.e the land in dispute herein. And that as such, the said Akinlolu Otiko cannot validly transfer any portion of their land to the Respondents.
The Respondents on the other hand claimed that their vendor, the said Akinlolu Otiko was granted the land in dispute by the Appellants’ family vide an affidavit of transfer signed by late Chief Folorunsho Fabusuyi Oshodi and Mathew Adeloye who were head and secretary of the Appellants family at that material time. The Appellants claimed that the said Application of transfer were forged and that Mathew Adeloye was never a member of their family.
The parties filed and exchanged pleadings and the matter proceeded to trial. Respective parties called three witnesses at piece and tendered a number of exhibits. At the conclusion of trial, the learned trial Judge, in a considered judgment delivered on 27/10/2015 dismissed the claims of the Appellants in its entirely.
Dissatisfied, the Appellants filed a Notice of Appeal dated 11/11/2015 on 16/11/2015, containing 13 Grounds of Appeal.
In compliance with the extant rules of this Court, parties filed and exchanged Briefs of Arguments. The Appellants’ Brief, dated and filed on 15/8/16 was settled by Busuyi Bankole Esq., while the Respondents’ Brief dated and filed on 19/4/2017, was settled by Oluwole Adeyemo Esq. The Appellants also filed a Reply Brief dated 13/6/2017 on the same day.
At the hearing of the appeal on 23/1/2020, O. B Farounbi Esq., adopted the Appellants’ Brief and therein raised the following five (5) issues for determination of the appeal, thus:
1. Whether the Respondents who are laying exclusive ownership to a portion of the Appellants’ land vide a purported grant of same to them are not obliged to establish same enough credible, reliable and cogent evidence?
2. Whether the procedure adopted by the trial Court in refusing/neglecting to either reject or admit documents tendered at trial as exhibits during trial has not impugned on the right to fair hearing of the Appellant in the case?
3. Whether the decision of the trial Court to have suo motu opined that the reply to statement of defence filed by the Appellants are irrelevant and unnecessary is not gross violation of the right of the appellants to fair hearing?
4. Whether the failure of the trial Court to properly evaluate the evidence and exhibits tendered before it by the Appellants in proof of their case at the trial has not occasioned a miscarriage of justice?
5. Whether the Appellants are not entitled to the reliefs sought before the Court, having established their case on preponderance of evidence before the trial Court?
The Respondents also raised five (5) issues for determination, to wit:
1. Whether the Appellants led credible, convincing and cogent evidence vide survey plan No. JOE/OD/99/609 to prove their title to the specific area of the land in dispute? – GROUNDS 1, 2 AND 7 OF THE GROUNDS OF THE APPEAL.
2. Whether the decision of the trial Court with regard to the Appellants’ Reply to the Respondents’ Statement of Defence and the procedure adopted by it in admitting or rejecting documents tendered as Exhibits violated the Appellants’ right to fair – hearing – GROUNDS 3, 10 and 11 OF GROUNDS OF APPEAL.
3. Whether the area, size and identity of the portion of the dispute being claimed by the Appellants were sufficiently with certainty – GROUNDS 4 AND 5 OF THE GROUNDS OF APPEAL.
4. Whether the Appellants discharged the burden of proof on them of the allegations of fraud and forgery as to vitiate the Respondents’ title to the land in dispute – GROUNDS 6 AND 9 OF THE GROUNDS OF APPEAL.
5. Whether the findings of the trial Court are supported by available evidence on the record? – GROUNDS 8 AND 12 OF THE GROUNDS OF APPEAL.
A closer examination of the issues raised by respective parties would reveal their similarity in substance. I shall resolve the appeal on the issues raised by the Appellant the undisputed owner of the appeal.
ARGUMENT OF ISSUES
ISSUE 1
Arguing this issue, Learned Appellants’ Counsel conceded that the identity of the land in dispute is not in issue between the parties. He submitted that the said Akinlolu Otiko was a tenant of the Appellants’ family on the land in dispute and that while alive he denied selling any part of his over lords’ land to anybody. He relied on Exhibits 6 – 6a as letters from the solicitors of Akinlolu Otiko to the Appellants’ family stating that he (Akinlolu Otiko) did not sell any land to the Respondents. He furthered that the said Akinlolu Otiko was not a member of the Appellants family and that same was confirmed by the evidence of CW2, who accompanied the said Akintolu Otiko in 1980 when he came to the Appellants’ family to allow him farm the land in dispute. Counsel submitted that the said Akinlolu Otiko died in 2010 and in 2011, the Respondents were seen trespassing on the land in dispute, when challenged by the Appellants, the Respondents presented the Affidavit of transfer of the land in dispute to Akinlolu Otiko. He pointed out that parties are ad idem on the fact that the entire land belong to the Appellants’ family and that the only point of disagreement was whether or not the Appellants family at any point granted any portion of their land to the said Akinlolu Otiko through whom the Respondents derived title. Counsel submitted that the alleged signatory of the Affidavit of transfer, one Mathew Adeloye who signed the affidavit as the secretary to the Appellants’ family denied doing so when accosted by the Appellants’ family stating that his signature was forged on the said affidavit of transfer grant of the land in dispute to Akinlolu Otiko. He furthered that Mr. Mathew Adeloye further petitioned the Commissioner of Police over the forgery of his signature on the Affidavit of transfer and that a Certified True Copy of the petition was tendered but wrongly rejected by the trial Court. He contended that the content of Exhibit 3 is at variance with the oral evidence of the Respondents as to the actual date the transfer was made to Akinlolu Otiko. He furthered that since the signatory to the said Affidavit of transfer had denied making same, that the burden of proof have shifted to the Respondents to establish their title. He called in aid OLODO & ORS V. JOSIAH & ORS (2010) 12 S. C. M. 157; OLOWU V. OLOWU (1985) 3 NWLR (PT. 13) 372 and OGUGUA V. ARMELS TRANSPORT LTD (1974) NSCL 169, to the affect that, that is burden which must be discharged by cogent and credible evidence.
Counsel opined that where both parties in dispute are familiar with or know the land in dispute, the question of the identity or certainty will cease to perplex the trial and neither the party will be allowed to place clog in the wheel of justice by raising the issue of identity to becloud what is otherwise a piece of land that is well known to the parties. He referred to AGBONRAN II v. AYODELE (2002) ALL FWLR (pt. 86) 522 at 531 and ADEYORI v. ADENIRAN (2001) ALL FWLR (pt. 76) 689 at 701.
He furthered that the root of title of the Respondents is traced to the Appellants’ family vide the grant made to late Akinlolu Otiko in the affidavit of transfer of the land dated 22nd day of March, 1996 which was tendered as Exhibits 4 – 4 b. That the deponents to the said exhibits did not attest to that because the 1st deponent is dead while the 2nd deponent who was alive, made statement to the police and wrote a petition to deny the execution of the affidavit. That the Respondents never proved the genuity or correctness of the documents. It is presumed, according to counsel that the documents transferring the land in dispute to the late Akinlolu Otiko before it was thereafter transferred to the Respondents were forged. Relied on BUREMOH v. AKANDE (2000) 15 NWLR (pt. 690) 260.
Counsel therefore contended that the Respondents failed to call credible evidence to establish their exclusive claim to the portion of the Appellants’ family land and their claim to the portion of the land must fail. He urged the Court to so hold, relying on the case of OLODO & ORS v. JOSIAH & ORS (SUPRA).
In response to this issue one (1) of the Appellants, the learned Counsel to the Respondents contended that the argument and submissions of the Appellants at page 6 of their brief that the parties are ad idem that the land in the whole area covered by Survey plan No. JOE/OD/99/609 at along Irese Road, Shagari Village, Akure belongs to the Appellants, is with due respect, an attempt to throw up unnecessary dust and becloud the issue as to the portion of the area in dispute. That the Appellants failed to prove as required by law the precise area of the land to which their claim relates taken into congnisance the fact that the area of the land in dispute is not clearly delineated and demarcated in red in the Appellants’ survey plan No. JOE/OD/99/609 which is Exhibit 5. In other words, the measurement thereof in terms of length and width is not clearly indicated therein within the larger parcel of the Appellants’ land. He furthered that contrary to the submissions of the Appellants at paras. 4.12 and 4.14 of Issue 1 of their brief that both Appellants and Respondents traced their root of title to the same Isooro Oshodi Ajisolaogun family, with which they sued in a representative capacity. It is submitted that there is nowhere in the Respondents’ statement of defence, wherein they admitted that the small portion of the land in dispute (i.e 8.650 hectares) forms part of the Appellants’ family land in the survey plan No JOE/OD/99/609 Exhibit 5. He then referred to paras. 2, 10, 20, 21, 22, 23 26, 31, 39, 49, 50, 51, 52, 57, 62 and 64 of the Respondents’ statement of Defence at pages 75 – 82 of the Record as well as Exhibit 4D, the Government perimeter survey of the Extension of Industrial Estate along Irese.
Counsel submitted that it is well settled before a declaration of title is made, the land to which it relates must be fully ascertained. Called on aid of AKEREDOLU v. AKINREMI (1989) 3 NWLR (pt. 108) 164 at 174 F and UDOFE v. AQUSISUA (1973) 1 SC. 119. He furthered that since there is no evidence before the lower Court in the instant case of ascertainable portion of land in dispute being claimed within Exhibit ‘5’ of the Appellants’ family land, the declaration sought by the Appellants must fail. He urged us to so hold based on the findings of the lower Court at page 243 lines 4 – 6 of the Record of Appeal wherein the learned trial judge held thus:
“Apart from the refusal to give viva voice evidence of the boundaries of the land, they (i.e the Appellants) also failed to indicate the said area in dispute within the land shown in Exhibits ‘5’.”
Counsel submitted that declarative reliefs are not granted on a platter of gold but as product of credible and cogent evidence proffered in support of the claim for declaration of title. That the evidence proffered by the Appellants in support of their claim for declaration of title was not sufficient to warrant a grant of same. Referred to SOLOMON v. MONDAY (2015) ALL FWLR (pt. 762) 1695 at 1716, F – G and DUMEZ (NIG) LTD. V. NWAKHOBA (2009) ALL FWLR (pt. 461) 842. He urged the Court to resolve this issue 1 in favour of the Respondents and against the Appellants.
By their reactions to the response of the Respondents, the Appellants submitted that the trial Court misapplied the evidence adduced by them as to the area of their family land which the Respondents trespassed upon, which is claimed to be 8. 650 hectares within their family land. That Exhibit ‘5’ is the family survey plan of the entire Appellants’ land wherein the Respondents trespassed. That during the lifetime of the late Akinlolu Otiko from whom the Respondents traced their title, he wrote a letter to the Appellants’ family denying ever transferring the family land through his lawyer vide Exhibits “6 – 6 a,” which the trial Court failed to evaluate nor attach any probative value in the course of its judgment and this occasioned a miscarriage of justice.
Learned Counsel argued that by the production of survey plan by the Appellants for the identification of the land, they have satisfied the requirement under the law and entitled to judgment in respect of their claim before the trial Court. Referred in aid the case of AGBEJE v. AJIBOLA (2002) 2 NWLR (pt. 750) 127 at 147. He urged the Court to resolve the issue 1 in favour of the Appellants and against the Respondents.
RESOLUTION OF ISSUE 1
This Issue 1 is predicated on the burden of proof and whether it has been established through credible, reliable and cogent evidence at the trial. It is trite law that where a party seeks declaratory reliefs, the burden lies on him to succeed on the strength of his own case and not on the weakness of the defence. Although where it is so obvious, the law allows the use of the defence evidence which supports the case of the claimant. Looking at the writ of summons and statement of claim in support thereof contained at pages 1 – 12 of the Record of Appeal transmitted to this Court on the 6th of April, 2016 and deemed properly filed and served on the 21st day of March, 2017; the claimants at the lower Court and Appellants herein sought for Declaratory Reliefs amongst others as itemized under paragraph 63 of the statement of claim.
The statement of defence is contained at pages 75 – 82 of the Record while the Reply to the statement of Defence is contained at pages 129 – 142 of the same record of appeal. It is trite that parties in a civil matter are bound by their pleadings. It is a settled law that litigation is fought on pleadings of the parties as it forms the foundation and basis of the plank of a case. Evidence is adduced in support of the pleadings filed and exchanged between the parties not otherwise. See the case of NWOKOROBIA v. NWOGU (2009) 172 L. R. C. N. 41 at 60 U – Z. Both the trial Court and the Appellate Court are bound by the pleadings of the parties. See DUKE v. AMBO (2014) ALL FWLR. (pt. 761) 1419 at 1433 A – B and IBWA v. IMANO LTD (2001) 3 SCNT 160.
It is the contention of the Appellants by their para. 4.1 of the brief of argument that the parties to this case are in ‘ad idem’ that the land in the whole area which is covered by survey plan No. JOE/OD/99/609 at along Irese Road, Shagari Village, Akure belongs to the Appellants’ family that the portion claimed to have been sold to the Respondents by one Akinlolu Otiko during his lifetime which is covered by Certificate of Occupancy is the portion of the Appellants’ family land now in dispute. Therefore, the identity of the land in dispute is no longer in issue as parties are in agreement as to the identity of the land in dispute, given the description of same in the Certificate of Occupancy tendered as exhibits before the trial Court as Exhibits ‘B’ – B2’.
I painstakingly perused the Record of Appeal and keenly examined all the Exhibits in this appeal with the view of tracing the point of ‘ad idem’ of the parties on issue of identity of the land in dispute as contended by the Appellants in their brief of argument at para. 4. 1 of the said brief. Throughout my exhaustive perusal of the record and exhibits tendered, I could not trace meeting of the minds of the parties (ad-idem) as envisaged by the Appellants in their brief of Argument. No where clearly demonstrated such an argument between the parties. This Court cannot embark on a voyage of discovery outside the records transmitted to it which contained the evidence proffered by the parties.
It is my deduction that Exhibit ‘5’, the Appellants’ survey plan No. JOE/OD/99/609 did not describe with particularity the said 8. 650 hectares, which is the portion of land in dispute on which they claimed the Respondents had trespassed into and sought declaration and damages. It is not sufficient in law for the purpose of declaration of title and trespass for the Appellants to lay claim generally to be the owners of a vast area of land by virtue of Exhibit ‘5’ without showing inside the vast area of land the portion in dispute.
It is well settled law that before a declaration of title is made, the land to which it relates must be fully ascertained. See AKEREDOLU v. AKINREMI (SUPRA) and UDOFE v AQUSISUA (SUPRA).
From the Record of appeal perused through, the Appellants failed to prove their title vide Exhibit ’5’ tendered by them to ascertain the portion of land in dispute. I therefore found the findings of the learned trial Judge at page 242, lines 21 – 25 of the Record of Appeal justifiable, thus:
“Since it is not the entire family land of the claimants that is in dispute, since it is not the case of the claimants that the Defendants trespassed on the entire land shown in Exhibit ‘5’ which they claimed as their family land, I am of the opinion that it is mandatory for them (claimants) to describe vividly the area trespassed upon by the defendants which is now in dispute.”
The Appellants failed woefully to provide precise and ascertainable description of the portion of land in dispute. This I found and so hold in line with the holden of the Court below at page 243 lines 4 – 6 of the records thus:
“Apart from the refusal of the vivid voice evidence of the boundaries of the land, they (i.e Appellants) also failed to indicate the said area in dispute within the land shown in Exhibit ’5’.”
In view of the above, the lack of credible and cogent evidence to support the declaratory reliefs sought by the Appellants have the resultant effect to resolving the first issue against the Appellants and in favour of the Respondents.
ISSUE 2
This issue No. 2 as quoted above is argued by the Learned Counsel for the Appellants to the effects that the trial Court failed to give its ruling on some documents tendered as exhibits during the trial but only to reject them at the time of Judgment. He said that it amounted to a serious procedural error which has vitiated the entire proceedings and the right of fair hearing in the case which occasioned a serious miscarriage of justice. Referred to and relied on WASSAH & ORS v. KARA & ORS (2014)12 SCM. 258.
He referred to the rejected documents in the course of writing judgment as petition writing to the police by one Mathew Adeloye through his Counsel, Mr. Asani of ASANI & CO., and the statement made by the said Mathew Adeloye. That the two documents are Certified True Copies tendered by the Appellants at the trial and opposed to by the Respondents. He said that Counsel was prevented from cross examination with the documents as their status remained speculative, for they were neither rejected nor marked admitted as exhibits at the trial. Counsel contended that the trial Court relied on a text book written by late Akinlolu which was only admitted as exhibit and marked it Exhibit ’1’ in the course of writing its judgment. That the position taken by the trial Court in this case is at variance to the decision of the Supreme Court in WASSAH & ORS v. KARA & ORS (SUPRA).
He submitted that in view of the foregoing procedure adopted by the learned trial judge which infringed on the right of fair hearing in the case, the judgment emanating from such trial cannot stand. Relied on FRN v. AKUBUEZE (2010) 12 (pt. 2) SCM. 79.
In response to this issue 2, the Counsel to the Respondents submitted that all authorities concur that where a maker of a document is not called to testify, the document will not be accorded probative value, not withstanding its status as a certified public Document. Relied on NYESOM v. PETERSIDE (2016) ALL FWLR (pt. 842) 1573 at 1637 E and BELGORE v. AHMED (2013) (pt. 705) 246.
He said that the documents were not tendered by the maker in person of Mathew Olaniyi Adeloye during the trial but were tendered through CW1, Mr. Akinlolu Fasuyi to which the Respondents’ Counsel raised an objection to at page 191 lines 1 – 9 of the Records.
According to counsel, despite the decision of the learned trial Judge at page 238 lines 9 – 10 of the Record that the Reply to the Respondents’ Statement of the Defence was unnecessary and irrelevant, the lower Court still revisited the issue of the admissibility of the said documents in a well considered Ruling on the Respondents’ objections there to at page 232 lines 20 – 25 and pages 233 -234 of the Record.
That at page 191 of the Record, the lower Court allowed arguments to be canvassed by both Appellants’ and Respondents’ Counsel for and against the admissibility of the said two documents in respects of which it reserved its Ruling that from part of the judgment now being appealed against. He said that the decision of the lower Court in respect of the said two documents at pages 232 line 15 – 18 and 234 lines 22 – 24 of the Record cannot be faulted in the circumstances of this case.
Counsel submitted that the Appellants acted in breach of Order 3 Rule 2 (1) (d) of the High Court of Ondo State (Civil Procedure) Rules, 2012 by deliberately refusing to front load or accompany their filed processes with a copy of the said petition dated 8/11/2013 written by Asani & Co. on behalf of Mathew Olaniyi Adeloye.
He said that since the Rules of Court makes it mandatory that originating processes must be front loaded both in the claim and defence, the Courts have consistently held that failure to comply with the front loading requirements would render incompetent all processes hinged on such, namely the claim or defence or process in a legal proceedings. Cited ABE v. SKYE BANK PLC (2016) ALL FWLR (pt. 819) 1081 at 1101C; N.R.W. IND. LTD v. AKINGBULUGBE (2011)11 NWLR (pt.1257) 131 and F.B.N. v. MAIWADA (2013) 7 NWLR (pt. 1352) 444.
Counsel opined that the Appellants’ Reply dated 22/10/2014 cannot stand alone without accompanying petition dated 8/11/2013 as both go along with each other as a single process. He submitted that both the Reply dated 22/10/2014 and the partition dated 8/11/2013 are incompetent and invalid. That the trial Court did not err when it refused to countenance the said Petition as well as the Reply. He furthered that the decision of the learned trail judge to mark the statement of Michael Olaniyi Adeloye dated 25/10/2013 “REJECTED” is justified and fortified by the decision of the Supreme Court in NYESOM v. PETERSIDE (SUPRA) at 1637, E where it held that where the maker of a document is not called to testify, the document will not be accorded any probative value. That in the instant case, the maker of the document was not called to tender same and for him to be cross –examined on it. That a party who did not make a document is not competent to give any evidence on it, as the maker must be called to test it credibility and veracity. He urged us to so hold on the authority of IKPEAZU v. OTTI (2016) ALL FWLR (pt. 833) S.C 1946 at 1988, A – B and uphold the Ruling of the Court below on this issue. It was submitted by Counsel that where an appeal attacks procedure leading to Judgment and not the contents, the Appellant is deemed to concede that the judgment is correct on the issue joined in the matter, evidence relating thereto and the applicable law. Reliance on MFA v. INONGHA (2014) ALL FWLR (pt. 727) SC. 628 at 648.
Counsel said that the Appellants and their Counsel were physically present in Court on 8/12/2014 and 15/7/2015 when the learned trial judge decided the Ruling in respect of the said documents will form part of his Judgment. That there was no objection to it. Referred to pages 190 – 191 and 200 – 202. He submitted that the Appellants were not over reached nor complained of such at the trial Court and cannot turn around to complain of breach of procedure of fair hearing in his appeal.
Cited ETIM v. EKPE (1983) 1 SCNLR 120 and MILITARY GOVERNOR, LAGOS STATE v. ADEYIGA (2012) 205 LRCN 1 at 33, F – P. He urged us in the light of the above to resolve this issue No. 2 against the Appellants and in favour of the Respondents.
In reaction to the response, the learned Counsel for the Appellants contended that the Reply to the statement of Defence dated 222/10/2014 was filed in line with the requirement of the Rules of the High Court of Ondo State, 2012 and therefore validly relied upon at the trial without objection raised as to its competency before the lower Court. That it was held to be unnecessary and irrelevant without allowing Counsel to address the trial Court on its validity or otherwise. That the Court of trial ought to have allowed the parties canvassed the issue before resolving it. Relied on EMEKA v. OKADIGBO & ORS (2012) 12. SCM. 67.
On the “Rejected” documents which were pleaded, Counsel contended that they ought not to have been treated as private documents, particular the one obtained from a public officer, rather supposed to be considered as a public document C.T.C within the provision of Sections 104 and 146 of the Evidence Act, 2011.
That such a C.T.C of public document can even be tendered from the bar. He referred to the case of ABDULLAHI v. FRN (2016) 4 SCM. 35 at 45 – 46.
RESOLUTION OF ISSUE 2
This issue is predicated on the procedure adopted by the learned trial Judge in reserving his ruling on two documents tendered by the Appellant at the trial. The reserved ruling was delivered in the course of Judgment rejecting the said document in evidence. Looking at the provision of Order 3 Rule 2 (1) (d) of the High Court of Ondo State (Civil Procedure) Rules, 2012, thus:
“All Civil Proceedings commenced by writ of Summons shall be accompanied by the copies of every document to be relied upon at the trial.”
And Order 15 Rule 1 (1) of the same Rules states inter alia:
“A Statement of claim shall include the relief or remedy to which a claimant claims to be entitled and in line with the Provision of Order 3 Rule 2 (1) (a) to (f).”
From the Record of Appeal, it shows that the Appellants’ Reply to the statement of Defence of the Respondents filed on 22/10/2014 was not accompanied with the petition dated 8/11/2013 as required by the Rules. In other words, the Appellants did not front load a copy of the said petition dated 8/11/2013 with their Reply.
The Rules of the Court as quoted above make the front loading of documents sought to use and rely upon at the trial a mandatory requirement. Failure to comply with the front loading requirement would render incompetent the process hinged on such, namely the Claims, Defence or Reply as the case may be. See ABE V. SKYE BANK PLC (SUPRA); N.R.W. IND. LTD v. AKINGBULUGBE(SUPRA) and F. B. N v. MAIWADA (SUPRA).
The decision of the learned trial Judge to mark the statement of Michael Olaniyi Adeloye dated 25/10/2013 “REJECTED” is justified and fortified by the decision of the Supreme Court in NYESOM v. PETERSIDE (SUPRA) at 1637, where it held that where the maker of a document is not called to testify, a document will not be accorded any probative value. The legal position remains that a party who never made a document is not competent to give any evidence on it as the maker must be called to test its credibility and veracity. This is in line with the decision in IKPEAZU v. OTTI(SUPRA).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The attack by the Appellants’ Counsel on the procedure adopted by the learned trial judge is not substantial to nullify the proceedings because once a party complaining about breach of procedure has taken a step in the proceedings, he is deemed to have waived the breach. See the case of M. T. N. (NIG.) v. MR. AKINYEMI ALUKO (2013) ALL FWLR (pt. 732) 1701 at 1731, C.
In view of the above, this issue 2 is resolved in favour of the Respondents and against the Appellants herein.
ISSUE 3
This issue which is predicted on fair hearing is argued by the learned Counsel for the Appellants to the effect that the Reply of the Appellants to the Respondents’ statement of Defence dated 22/10/2014 is in line and compliance with the provision of Order 18 Rules 1 and 3 of the Ondo State High Court (Civil Procedure) Rules 2012 and same was used for the case at the trial without any objection.
He contended that the position taken by the trial Court contravened the principle of Audi Alteram Patem when it bye – passed and excluded the Appellants from the proceedings. Relied on MUHAMMED S.M.D. v. TERSOO KPELAI (2001) FWLR (pt. 69) 1404, Ratios 3 and 4 and FOLBOD INV. LTD v. ALPHA MERCHANT BANK LTD (1996) 10 NWLR (pt. 478) 344.
That the Court closed its eyes to the Reply to statement of Defence and refused to consider the process duly filed which led to wrongful conclusion that the documents which includes the C.T.C. of the statement made by Mr. Mathew Olaniyi Adeloye and the C.T.C. of petition written by Asani & Co on behalf of Mathew Olaniyi Adeloye marked “Rejected” during the course of judgment writing has occasioned a serious miscarriage of justice.
That if the trial Court had allowed argument to be canvassed in support of the relevance of the said process at the trial, it would have taken a different position.
In response to the issue 3 of the Appellants, the learned Counsel to the Respondents contended that it is not in all cases where the Court takes a point ‘Suo motu’ that will result in the reversal of the Judgment so reached. That the Appellants must convince the Court that the point so taken ‘Suo motu’ is substantial and has led to a miscarriage of justice against them. Cited the case of YAKUBU v. OMOLABOYE (2006) 136 LRCN 1225 at 1233 and 1234, A.
He said that a careful perusal of most of the averments in the paragraphs of the Appellants’ Reply to the statement of Defence of the Respondents are mere repetitions of the averment in the statement of claim at pages 3 -12 of the Records. He referred to paras. 2 – 45 of the Appellants’ Reply to the statement of Defence at pages 129 – 135 of the Records. Counsel submitted that the arguments and submissions of the Appellants at paras. 6.5 and 6.6 of Issue 3 of their brief to the effect that the decision of the trial Court to ignore the reply to the statement of Defence obviously misled the Court into arriving at a wrong decision/conclusion which occasioned a miscarriage are not supported by position of judicial authorities.
He furthered that the Supreme Court decision in OBOT v. C. B. N.(1993) 8 NWLR (pt. 310) 140 at 159, B – C bring out vividly the hollowness in the Appellants’ argument that the trial Court ought to have allowed them to address it on the issue of Reply before taken a decision thereon.
That a reply is generally unnecessary if the sole aim is to deny allegation contained in the statement of Defence. The proper functions of a Reply is to raise, in answer to the Defence, any matter which must be specifically pleaded which makes the Defence not maintainable or which otherwise might take the defence by surprise or which raises issues of facts not arising out of the defence. Relied onAKEREDOLU v. AKINREMI (1989) 3 NWLR (pt. 108) 164 at 172, F.
Counsel submitted that the reasoning and conclusion of the learned trial judge in respect of the Appellants’ Reply at page 238 lines 6 – 10 of the Record where he held that:
“Most of the facts averred in it are meant to deny facts that were pleaded by the Defendants in their defence.”
It is justified by Order 15 Rules 7 (1) of the High Court of Ondo State (Civil Procedure) Rules, 2012. He referred to para. 2 of the Reply at page 129 of the Record wherein the Appellants denied all the paragraphs of the Respondents’ statement of Defence.
He furthered that since there is no Counter – claim filed by the Respondents in this Suit and the sole object of the Appellants’ Reply is just to deny the allegations contained in the Statement of Defence, the said Reply is not a Reply in law since issues are deemed to have been joined in respect of the allegations made in the statement of Defence. That the said reply is an unnecessary duplication of Court process and the lower Court was right when it disregarded most of the paragraphs in the Reply. That where parties have joined issues in their pleadings, a Reply need not deal with such averments in the statement of claim. Cited IWUOHA v. NIPOST LTD (2003) ALL FWLR (pt.160) SC. 1535 at 1559, F – G.
It is submitted that the issue of fair hearing does not arise where there is non – compliance with the Rules of Court. That the argument and submission of the Appellants at para. 6. 3 of issue 3 of their brief:
“That failure of the trial Court to utilize the process duly filed before it… contravened the principle of Audi Alteram Patem” is not supported by position of legal authorities.
Counsel submitted that it is within the inherent power or jurisdiction of Court to ensure compliance with Rules of Court by Litigant and to strike out any process not filed in accordance with the relevant Rules. Cited KANKARA v. C. O. P. KATSINA STATE (2003) ALL FWLR (Pt. 184) 214 at 226, B –D; ONIFADE v. OLAYIWOLA (1990) 7 NWLR (pt. 161) 130 and U. B. N. Plc v. ODUSOTE BOOK STORES LTD (1995) 9 NWLR (pt. 421) 553, A.
He further submitted that the decision of the learned trial Judge to ‘Suo motu’ disregard most of the paragraphs of the Appellants’ Reply at page 238 of the Record is in line with the duty of Court to ensure compliance with its Rules. That the Rules of Court are meant to be obeyed. Cited G.M.O. NWORAH & SONS CO. LTD v. AKPUTA (2011) 191 LRCN 153 at 181, P – Z.
He argued that there is no Rule of Law or Practice that says that Counsel must address the Court in respect of process filed in violation of its Rules before the Court can take a decision thereon as the Court is inherently empowered to ensure compliance with the Rules and Regulations governing process of Court. Relied onU. B. A. PLC v. LAWAL-OSULA (2003) ALL FWLR (pt. 178) 1080; MOGAJI v. N.E.P.A. (2003) ALL FWLR (pt. 153) 239 at 249 – 250, and A. R. C. v. J. D. P CONST. (NIG) LTD (2003) ALL FWLR (pt. 153) 251 at 270, F – G.
In reaction, the learned Counsel for the Appellants submitted that the holden of the trial Court is in breach of the fair hearing of the Appellants which goes to the jurisdiction of the trial Court at the hearing of the case. Referred to NIIT ZARIA v. DANGE (2008) 9 NWLR (pt. 1091) 127 and O.O.M.F LTD v. NACB LTD (2008) 12 NWLR (pt. 1098) 412 and also Section 36 (1) of the 1999 Constitution (as amended).
That the reply to the statement of Defence was validly filed and competent before the Court of trial, yet it was disregarded without allowing the Counsel to address on its validity or otherwise. Referred to the case of EMEKA v. OKADIGBO & ORS (2012) 12 SCM. 67.
RESOLUTION OF ISSUE 3
In the instant case, the trial Court at page 237 lines 9 – 12 of the Record of Appeal held thus:
“I made mention of a process of Court that was filed by the claimants on 22nd October 2014 which they called ‘Reply to statement of Defence of the Defendants.’ It has fifty – one (51) paragraphs in all. I went through the process a number of times, and I came to know that it has very little or no purpose at all to serve in this case.”
At page 238 lines 6 – 10 of the Record, the learned trial judge concluded inter – alia:
“There is no counter – claim filed in this case. Most of the facts averred in it (i.e the reply to the statement of Defence of the Defendants) are meant to deny facts that were pleaded by the defendants in their defence. It is my view that this reply is unnecessary and irrelevant.”
Flowing from the above, I will not be convinced that the learned trial judge ignored Reply to the statement of Defence as envisaged by the learned counsel for the Appellants in his submissions. Neither would I accept the impression created about the disregard of the said process. My reference to the Records disclosed that the reasoning and conclusion of the learned trail judge in respect to the Appellants’ Reply at page 238 of the Record where he held thus:
“Most of the facts averred in it are meant to deny facts that were pleaded by the defendants in their defence”
Is justified by Order 15 Rule 7 (1) (SUPRA).
I am of the opinion that the issue of fair hearing does not arise where there is non – compliance with the Rules of Court, which are not only binding on the Court but also on the parties. It is within the inherent power of Court to ensure compliance with Rules of Court by Parties. I so hold. See KANKARA v. COP KATSINA STATE; ONIFADE v. OLAYIWOLA and UBN PLC v. ODUSOTE BOOKS STORES LTD (SUPRA).
It is therefore mere shadow boxing and hair splitting on the part of the Appellants to hinge the denial of fair hearing on the fact that the lower Court disregarded ‘Suo Motu’ with most of the facts in the Reply as unnecessary and irrelevant. The Appellants completely shut their eyes to page 237 lines 12 -17 of the Record where the lower Court gave instances when filing a Reply would be necessary. This position received the judicial blessing of the Apex Court in the case of AKEREDOLU v. AKINREMI and OBOT v. C.B.N (SUPRA).
The Appellants have not shown that the decision of the lower Court to disregard most of the facts in the said Reply, which are merely repetitions, has led to miscarriage of justice as the trial Court is not bound to countenance a process filed in violation of it rules. Where the process is abused, the Court has a right to protect itself against such abuse by making an order to discountenance same.
This I found and so hold. See MOGAJI v. N. E. P. A. and A. R. C. v. J. D. P. CONST. (NIG) LTD(SUPRA).
Flowing further from aforesaid, the submission of the learned Counsel for the Appellants in their Reply brief to the effect that the holden of the trial Court is in breach of the right of Fair Hearing of the Appellants which goes to the jurisdiction of the lower Court is of no moment. I so hold.
This Issue 3 is resolved against the Appellants and in favour of the Respondents.
ISSUE 4
In arguing this issue 4, the learned Counsel for the Appellants said that the trial Court failed to properly evaluate Exhibits 6 – 6a tendered by the Appellants and admitted without objection. That the failure led to a gross miscarriage of justice. That the Court of Appeal has the power to review an evidence of this nature in order to arrive at the justice of the matter on appeal. Relied on HENSHAW v. EFFANGA (2009) 11 NWLR (pt. 1151) 65 CA and ODOFIN v. MOGAJI (1978) 2 NSCC 277.
He said that the Court closed its eyes to the contents of Exhibit 6 – 6a which communicated the transaction between the vendor and the Respondents. That the said exhibit contained vital information wherein late Akinlolu Otiko the Respondents’ vendor denied ever selling family land, that nothing was said of the exhibit and that a Court of law has the duty to make pronouncement on all exhibits before it. Referred to MOMOH v. UMORU (2011) 6 SCM. 99.
Counsel opined that the failure in duty by the trial Court to place any probative value on Exhibit 6 – 6a when same was tendered to prove an issue has actually undermined its duty and this has occasioned a miscarriage of justice which the Court of Appeal is enjoined to redress in this appeal. Cited BUHARI v. INEC (2008) 19 NWLR (pt. 1120) 246 at 414 paras. J – H.
In response, the learned Counsel to the Respondents referred to paras. 5.17 to 5.37 under Issue 2 of the Respondents where the issue of the document under reference in issue 4 of the Appellants was sufficiently addressed. He adopted and rely on same in response to this issue. He contended that assuming but not conceding that the Certified True Copies of the said two documents referred to herein are even admitted, the said statement of Mathew Adeloye dated 5/12/2013 and the petition written by Asani & Co on behalf of Mathew Adeloye will not sustain the Appellants’ allegation of fraud or forgery for failure of the Appellants to call Mathew Olaniyi Adeloye who is a material and living witness to the said allegation of crime. Consequently, it is submitted that the lower Court’s decision at page 248 line 1 – 5 of the Record, that there is no credible evidence in respect of the fraud or forgery of the signatures remains unassailable. We are urged to so hold.
Counsel furthered that the letter from M. O. Otitoju & Co. dated 5/7/2009 to the effect that the trial judge failed to act on Exhibit 6 – 6a is of no moment as the said Exhibit 6 – 6a cannot stand the true findings of facts by the trial Court based on its inconsistent and contradictions with Exhibits ‘2 – 2a, ‘ B – B2’ and ‘ C – C1; the Affidavit of transfer of ownership, Certificate of Statutory Right of Occupancy and the land transfer Agreement respectively.
In reaction, the learned Counsel for the Appellants merely indicated that the Appellants and the person whose signature was forged took steps to complain to the appropriate authority (Nigeria Police) and the person whose signature was forged caused a petition to be written to the police complaining about such forgery. He said that the Court of Appeal should discountenance the argument of the Respondents that the fraud alleged was not proved.
RESOLUTION OF ISSUE 4
The issue of Exhibit 6 – 6a has been discussed and resolved under issue 2 in this Judgment. I will only add here from the argument canvassed that the said documents of Mathew Olaniyi Adeloye dated 5/12/2013 and the petition written by Asani & Co. on behalf of Mathew O. Adeloye will not sustain the Appellants’ allegation of fraud or forgery for failure of the Appellants to call Mathew O. Adeloye who is a material and living witness to the said allegation of crime to testify. Furthermore, there is nowhere that was shown, such allegation of fraud or forgery was established and proven. Consequently, the learned trial judge holden at page 248 lines 1 – 5 of the Record of Appeal, that there is no credible evidence in respect of the fraud or forgery of the signatures remain unassailable. I so hold.
There is nothing cogent and convincing analysed by the learned Appellants’ Counsel in support of the alleged failure of the trial Court to properly evaluate the evidence and exhibits tendered before it by the Appellants, which as claimed occasioned a miscarriage of justice.
In view of the foregoing, this issue 4 is resolved against the Appellants and in favour of the Respondents.
ISSUE 5
In the course of arguing this issue 5, the learned Counsel for the Appellants said that they called three (3) witnesses in proof of their case. That the evidence of the witnesses for the Appellants is to the effect that the land at along Irese Road, Shagari Village devolved into them through their ancestors as they relied on traditional proof of title in establishing their claim and equally tendered survey plan of the land as Exhibit 5 before the trial Court.
That PW2 called by the Appellants’ who happened to be cousin to the late Akinlolu Otiko, the purported vendor of the Respondents gave evidence at page 32 – 33 of the record of Appeal to the effect that Akinlolu Otiko is not a member of the Appellants’ family and that he is related to the late Akinlolu Otiko from the paternal side. That by Exhibit E – E1, late Akinlolu Otiko’s mother is from Ayalodi family and could not be related to Appellants’ family. That this piece of evidence was reinforced by evidence of CW3 who is from the maternal side of late Akinlolu Otiko family.
Counsel contended that the Appellants haven proved their case by tracing their root of title, they are entitled to the relief sought against the Respondents. Referred to the case of OKWEJIMINOR v. GBAKEJI & ORS (2008) 3 SCM. 134.
He opined that the onus of proof has shifted to the Respondents to proof through cogent, reliable and credible evidence how the land in dispute devolved unto the Respondents who are claiming exclusive ownership of a portion of the Appellants’ family Land.
In response, the learned Counsel to the Respondents stated that in view of the specific findings of facts of the trial Court to the effect that it is not the entire land that Exhibit 5 represent that is in dispute, which is supported by evidence after analysis of the evidence led by both parties, urged us to hold that the findings is justified and not perverse.
He said, it is perverse that the Appellants submissions at paras. 8. 3 – 8. 5 of Issue 5 of their brief are not based on the findings of the trial Court. That the Appellants having failed to prove that Exhibits ‘2 – 2 a’; ‘C – C1’ and ‘E – E1’; namely the affidavit as to ownership of land dated 21/5/96 and land transfer Agreement dated 12/1/96 were forged, the lower Court had no option than to dismiss the Appellants’ Suit.
He said that ‘ex-facie’ there is no evidence on Exhibi 4 – 4 a dated 22/3/96 which shows that late Akinlolu Otiko’s mother was from Ayalodi family. It is the Appellants’ misconceived story which was disbelieved by the lower Court. Counsel submitted that where there are conflicting pieces of evidence, a party whose evidence is supported by documentary evidence has more credibility. Cited EYA v. OLOPADE (2011) 5 SCNJ 98 and SOLOMON v. MONDAY (2015) ALL FWLR (pt. 762) 1695 at 1714 C – D.
He further submitted that the decision of the trial Court was principally based on the credibility of witnesses of the Respondents. Moreover, the learned trial judge properly, judiciously and judicially evaluated the evidence led before him and came to the right conclusion by dismissing the Appellants’ claim.
Counsel urged the Court to resolve this issue against the Appellants and in favour of the Respondents.
RESOLUTION OF ISSUE 5
This issue 5 has been treated under issue 3 which I adopt the resolution and abide by it. In the instant case, the Appellants as claimants at the lower Court sought reliefs for order of declaration and order of perpetual injunction against the Respondents vide their writ of Summons and Statement of claim at pages 2 – 14 of the Record of Appeal. However, throughout the pleadings of the Statement of claim, no where the Appellants describe with certainty or precision the boundaries of the specific area of land in dispute, which is just 8. 650 hectares, over which they are seeking perpetual injunction against the Respondents.
The judicial position is that land to which a declaration is sought must be sufficiently identified. See ODESANYA v. EWEDEMI (1962) ANLR (pt. 2) 320 at 321. It is a settled principle of law that where an injunction is also claimed, it can only be granted or binding when the boundaries of the area to be affected are ascertained, well – known and properly described. See EKPEMUPOLO v. EDREMODA (2009) 179 LRCH 235 at 264, K – E.
The trial Court not only found that the Appellants failed to prove their case but also came to the rightful conclusion that the Appellants did not deserve the exercise of its discretion in their favour when it held at page 243 lines 1 – 7 of the Record thus:
“Throughout the trial of this case, claimants never saw the need of stating the boundaries of the area in dispute, which is said to be just 8.6 hectares; a fractional part of the family land said to be 80.6 hectares by the claimants. Apart from their refusal to give viva voce evidence of the boundaries of the land, they failed to indicate the said area in dispute within the land shown in Exhibit ‘5’. No separate dispute plan was filed by the claimants.”
This findings and reasoning of the trial Court is apt and can be supported by the authority of TUKURU v. SABI (2013) 222 LRCN (pt. 1) 65 at 87 and 88 A. Where the Supreme Court held that the duty of a claimant of title to land is to show clearly the area of land to which his claim relates, the exact boundaries and its extent.
Based on the aforementioned, this issue 5 is resolved against the Appellants and in favour of the Respondents.
Having resolved all the five (5) Issues formulated by the Appellants against them and in favour of the Respondents, this appeal lacks merit and hereby dismissed in its entirety. The judgment of the trial High Court of Ondo State sitting in Akure, delivered by W. A. Akintoroye, J., on the 27th of October, 2015 is affirmed.
Parties to bear their costs of prosecuting the appeal.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have perused the draft of the leading Judgment anchored by my learned brother, Ridwan Maiwada Abdullahi, JCA before now, and agree that the appeal be dismissed on the resolution of the issues raised in favour of the respondent.
PATRICIA AJUMA MAHMOUD, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, Ridwan M. Abdullahi, JCA. All the issues raised in the appeal were properly resolved. I have nothing to add in that regard.
I agree with the reasoning and conclusion of my learned brother which I adopt in dismissing this appeal. I too make no order as to cost.
Appearances:
B. Farounbi, Esq., with him, E. O. Agboola, Esq. For Appellant(s)
Oluwole Adeyemo, Esq. For Respondent(s)
