OKIUGBEDI EDJEKPO & 2 ORS V IBOYI ITHIBRI OSIA & 3 ORS
In the Supreme Court of Nigeria
Friday, March 2, 2007
ALOYSIUS IYORGYER KATSINA-ALU, JUSTICE SUPREME COURT
UMARU ATU KALGO, JUSTICE SUPREME COURT
GEORGE ADESOLA OGUNTADE, JUSTICE SUPREME COURT
MAHMUD MOHAMMED, JUSTICE SUPREME COURT
WALTER SAMUEL NKANU ONNOGHEN, JUSTICE SUPREME COURT.
1. OKIUGBEDI EDJEKPO 2.EDIDI IDOGU3.ITU AKPATABE (substituted by EJENAWO OMOKEFE)(For themselves and on behalf of Iyede Community of Isoko).
1.IBOYI ITHIBRI OSIA 2.EFEKODHA EFOMA 3.OJOJOKOJO IKEPOKPOBE4. GEORGE OHORE(for themselves and on behalf of Uruthe quarters of Enwhen Community of Isoko).
KATSINA-ALU, JSC: Delivering the Lead Judgment ) This is an appeal against the judgment of the Court of Appeal, Benin Division, delivered on 4 April 2001 in which the Court of Appeal ordered that the suit be remitted to the Delta State High Court for retrial. PAGE| 7 This is a land matter. The Appellants as Plaintiffs in suit No.UHC/12/75 brought this action for themselves and on behalf of Uruthe Quarters Enwhe Town, for declaration of title to Eto Land, N600.00 damages for trespass and an order of perpetual injunction. The Respondents herein filed a cross action as Plaintiffs against the Appellants in suit NO.UHC/19/75 for declaration of title to Uri land of Uruthe Quarters of Enwe, N1,200.00 damages for trespass and perpetual injunction. The two suits were consolidated by an order of the trial court made on 12 November 1976. By the said order of consolidation, the Appellants became the Plaintiffs while the Respondents became Defendants. At the hearing the Appellants called five witnesses while the Respondents also called five witnesses in support of their respective claims. At the close of hearing, the learned trial Judge found for the Appellants. The Respondents appealed to the Court of Appeal upon the following two issues: “(a) Whether the decision of the trial court can be supported in the face of the unresolved conflicts between the findings and the final decision of the Court? (b) Whether the absence of the testimonies of defence witnesses 1, 2, 3 and 4 following the reported loss of court Records book in which they were recorded will not deprive the Court of Appeal the privilege and or opportunity of viewing the entire proceedings of the trial court as to be in a position to agree and or disagree with the findings and or subsequent decision of the trial court.” The Court of Appeal upheld the appeal of the Respondents and ordered a re-trial of the suit. This appeal is from the decision of the Court of Appeal. Both parties filed their respective briefs of argument. The Appellants raised five issues for determination. They read as follows: 1. Were the learned Justices right in Law in dismissing the preliminary objection as to the validity and or competence of the second additional ground of appeal and the issue formulated therefrom? 2. Were the learned Justices right in holding that the learned trial Judge made an inconsistent, finding when he found that defendant did not prove extent and boundary of the land claimed by them. 3. Were the learned Justices right in holding that the principle that claimants to title to land are in duty bound to prove the extent and boundary of the land claimed .by them for which three(3) cases were cited – was not an issue in the case? 4. Were the learned Justices right in Law in setting aside the judgment of the learned trial Judge and ordering a rehearing – put in another way, is a rehearing an appropriate order to make in this case? 5. Were the learned Justices right in setting aside the judgment of the trial court on the ground that evidence of DW1-4 were missing from the records when – PAGE| 8 (a) Judgment was based on traditional evidence on record and on documentary evidence Exhibit D 1. (b) Judgment was not based on evidence of DW1-4. (c) There was no appeal against any finding made by the learned trial Judge. The Respondents have adopted the five issues submitted by the Appellants. I think issue No. 5 is most crucial to the determination of this appeal. In my view, the failure or success of this appeal will depend on whether this issue succeeds or fails. Before considering issue No. 5, I would like to dispose of Appellants’ issue No.1. It has been pointed out by Appellants’ senior counsel that in the Court of Appeal, he took objection to the second additional ground of appeal and the issue for determination formulated therefrom. It was contended that the objection was a material objection going to the root of the appeal. In considering the objection the court below erroneously based its decision on the first additional ground of appeal to which there was no objection. This is not in dispute. The second ground of appeal was indeed directed against the reported loss of the evidence of the Respondents’ witnesses DW1, DW2, DW3 and DW.4 from the Record of Appeal compiled. It was said that as a result of the loss of the evidence of the Defendants/Respondents’ witnesses, there was therefore no material for the court below to have recourse to in evaluating the decision of the trial court in relation to the evidence placed before it. My short answer to this is that, in my view, the objection is inconsequential. I say so because the issue of the loss of the evidence of Respondents’ witnesses Nos. DW1, DW2, DW3 and DW4 is an issue that the court below and indeed this court could have raised suo motu. I think this is glaringly obvious. It is only when one set of evidence is put side by side with the other set of evidence that the court would be in a position to determine which outweighs the other. In a situation, as in the present case, where there is total loss of the evidence, called by a party, the court itself can raise the issue. I now turn to issue No. 5. As I have indicated earlier on in the course of this judgment, the Respondents’ appeal to the Court of Appeal was upheld and a retrial ordered. It is not in dispute that the Record of Appeal does not contain the evidence of DW1, DW2, DW3, and DW4. These were witnesses called by the Respondents. The substance of the Appellants’ contention in the court below and in this court is that since the judgment of the learned trial Judge was predicated on traditional evidence and since DW1, DW2, DW3 and DW4 did not give evidence on traditional history, their evidence was not necessary and the court need not go into them. In this regard the Court of Appeal said: “Learned counsel pointed out that the record of appeal does not contain the evidence of DW1, DW2, DW3 and DW4. Learned Senior Advocate submitted that since the learned trial Judge PAGE| 9 gave his judgment on traditional evidence and none of the witnesses gave evidence on traditional evidence, their evidence is not necessary and that this court need not go into them. Who is correct? I must go into the summary of the learned trial Judge to find out the nature of their evidence in court in obedience to the submission of learned Senior Advocate. The learned trial Judge summarized the evidence of DW1 at page 139 of the record as follows: ‘The defendants’ 1st witness was Eduweye Gboruwa Arubay, a licenced Surveyor. He tendered plan Number A.R. 7639 dated 12/9/75 as Exhibit C and stated that in 1975, the defendants commissioned him to prepare a survey plan of the land in dispute for them. They showed him all the features in Exhibit C.’ In my humble view, this evidence of DW1 as summarized by the learned trial Judge is relevant to the findings of the learned trial Judge that the Appellants did not prove the boundaries and extent of the land in dispute. I do not agree with learned Senior Advocate that only traditional evidence is relevant. On the same page, the learned trial Judge summarized the evidence of DW2 as follows: ‘The defendants 2nd witness was Obatarhe Umukoro a descendant of Ekrusi. He stated that Uri, Ekrusi, Uvwie, Ediagbon and Ukene Afia farm belong to Uluthe. He stated that he is a descendant of Ekrusi so also one Doctor Odje …….. still under cross-examina-tion, he stated that Iyede people drove away Evwreni people from the camp and occupied it. He changed to say that he did not know whether Uri was a human being or not’ The evidence of DW3 is summarized by the learned trial Judge at page 148 of the record: “The defendants’ 3rd witness was Otomaga Isara, the spokesman of Uruabe quarters of Olomoro. The substance of his evidence was that the land in dispute belongs to Ovioto, the ancestor of the defendants and that it shares common same boundary with Olomoro land. The boundary between Olomoro land and the land in dispute is Ogberada juju in a thick forest and that Emewawa stream which is in the middle of the defendants’ land does not form a boundary between Olomoro and Enwhe land. He also stated that Enwhe was founded before Olomoro and that Olomoro was founded before Otor-Iyede. Under cross-examination, he stated that Olomoro has boundary between Otor-Iyede and that the people from Egbo quarters of Olomoro knew the boundary of the land. He denied that Emewawa stream flows into Ovu stream.” Learned trial Judge summaries the evidence of DW4 at page 140 as follows: “The defendants” 4th witness was Anthony Onomufe Efekodhe and he tendered Exhibits D and D1 (E.R. Chadwick intelligence Report of 1931 with receipt issued to him).” With the greatest respect to learned Senior Advocate, I do not agree that none of the witnesses gave traditional evidence. Some did. D.W.2 gave evidence as to the land in his capacity as a descendant of Ekrusi, and gave evidence of ownership of the land. DW3 gave traditional evidence when he said that the land in dispute belongs to Ovioto, the ancestor of the defendants. He also gave PAGE| 10 evidence of the boundary of the land; evidence which is necessary in the light of the decision of the learned trial Judge that the defendants could not prove the boundary, and extent of the land in dispute. His evidence of boundary needs to be examined by this court. DW4 tendered Intelligence Report. Intelligence Report. In most cases dig out traditional history and an appellate Court ought to examine it against traditional history of witnesses for purpose of determining the authenticity and veracity of the Report. I have examined the summary of the evidence of the witnesses of the learned trial Judge and I am of the opinion that the evidence are relevant for the purpose of determining ownership of the land in dispute. This is more so when the learned trial Judge made use of the evidence in his judgment and arrived at conclusions in favour of the respondents. Let me give one or two examples. At page 147 of the record, the learned trial Judge reacted to Exhibit Dl tendered by DW4: ‘What is more, Exhibit D1 tendered by the Defendants created a big hole in their Traditional evidence. While they pleaded in paragraph 5 of their amended statement of claim in HCO/12x/82 that Ovioto, their ancestor, came from Benin and founded Uri and with his lieutenants but Exhibit Dl tendered by them belied what they pleaded in paragraph 5 of their amended statement of claim reproduced above.’ It is re-assuring that the learned trial Judge held that the appellants gave traditional evidence. That is the correct position. The position taken by the learned Senior Advocate is not correct. The trial Judge dealt in extenso with Exhibit D1 at pages 147 to 149 of the record. This Court is entitled not only to see and read Exhibit Dl but the evidence of the person who tendered it. It will be grave injustice to the appellants if an appellate court brushes aside evidence on intelligence report. At page 149 of the record, the learned trial Judge said in his evaluation and conclusions on the evidence before him: ‘It is therefore clear from above that the traditional evidence of the defendants that their ancestor, Ovioto and his lieutenants came from Benin and founded Uri land is in violent conflict with Exhibit Dl which showed that Uruiche was a refugee from Jesse who ran away from his town during the war with Benu. There is nothing to show from Exhibit “D1” at page 7 paragraph 25(1) that at the time Ovioto went to Benin to obtain a mandate from the Oba of Benin as a (Priest King) Uluthe Quarters had not been in existence and as such it could not be true for the defendants to say that their ancestor, Ovioto founded Uluthe or any quarter in Enwhe let alone Uri land.’ At page 154 of the record, the learned trial Judge said:- ‘DW2, called by the defendants from Evwreni did not give evidence as to the boundary between Evwreni land and the land in dispute even though the 1st defendant gave evidence that they share a common boundary with Evwreni land. DW3 gave evidence to the effect that the boundary between their land and the defendants’ land is Ogberada juju but it is not shown on PAGE| 11 Exhibit C as the boundary mark between their land and the defendants’ land and to that extent, the boundary between the defendants and Olomoro land was not established by the defendants.’ The learned trial Judge may be right in his evaluation. He may be wrong. How else will this Court know the strength of his evaluation and conclusions without reading the evidence of DW2 and DW3. It is difficult to support the position taken by learned Senior Advocate without doing injustice to the appellants.” This decision cannot, in my view, be faulted. The portion of the judgment of the Court of Appeal quoted above has adequately dealt with every point in agitation. I do not intend to repeat here what the court below said. Suffice it to say that DW3 and DW4 gave traditional evidence bearing in mind the submission of learned Senior Counsel for the Appellants that the Defendants/Respondents’ witnesses did not give evidence of traditional history. This contention runs counter to the views of the learned trial Judge. This is so because with regard to Exhibit D1 tendered by DW4, the learned trial Judge said: “What is more, Exhibit D1 tendered by the defendants created a big hole in their traditional evidence.” It can be seen clearly that the learned trial Judge held that the defendants, respondents herein gave traditional evidence. Indeed, the summarized evidence of DW2 and DW3 by the learned trial Judge shows that these witnesses gave evidence of traditional history of the land in question. The question I am unable to answer is whether the summary made by the learned trial Judge is a correct and true reflection of the testimonies of DW1, DW2, DW3 and DW4. I think it is risky and presumptuous to assume that the evidence of these defence witnesses is irrelevant to the proper and just determination of this case. To come to a decision one way or the other, it is vitally important for the court below and this court to see and read for ourselves the evidence of these witnesses. In the circumstance where the entire evidence called by a party is missing in the compiled Record of Appeal, it will be difficult if not impossible to say with certainty that there has been no miscarriage of justice. In the absence of such evidence, I am unable to hold that the trial Judge clearly comprehended the entire case and came to a conclusion which is abundantly supported by the evidence. In the circumstances, I find myself unable to support the judgment of the trial court. It is my view that this is a proper case for an order for retrial. See Fadallah v. Arewa Textile Mill Ltd. (1997) 8 NWLR (Pt. 578)546. In the result, I hold that the Court below was right when it remitted the case to the Delta State High Court for another trial. This appeal therefore in my view has no merit. I accordingly dismiss it and affirm the judgment of the Court of Appeal delivered on 4 April 2001. The Respondents are entitled to costs of N10,000.00 against the Appellants. U.A. KALGO, JSC: I have read in advance the judgment just delivered by my learned brother Katsina-Alu, JSC in this appeal. I entirely agree with the reasoning and conclusions reached therein. All the issues canvassed by the appellants in their joint brief have been fully considered and PAGE| 12 properly resolved, in my respectful view. I therefore agree that the order of retrial is the proper order to make in this appeal. I find no merit in this appeal. I dismiss it and affirm the decision of the Court of Appeal with costs as assessed in the leading judgment. G.A. OGUNTADE, JSC: The appellants and the respondents had initiated parallel suits each against the other at the High Court of Ughelli in the old Mid-Western State of Nigeria. The two suits were consolidated for hearing. Under the consolidation arrangements, the appellants were the plaintiffs and the respondents the defendants. The dispute arose in respect of the rival claims of ownership made by each of the parties to a parcel of land identified differently as ‘Eto Land’ and “Uri Land”. The case was heard by Akpiroroh J. (as he then was). At the trial, the plaintiffs called five witnesses. The defendants also called five witnesses. At the conclusion of hearing, Akpiroroh J. (as he then was) on 8/10/90 gave judgment in favour of the plaintiffs in these words: “1. A declaration that the plaintiffs are entitled to a grant of a customary right of occupancy to that portion of Eto land, lying and situate at Iyede bush, Isoko which said land is shown as parcels A and B in survey plan No. ER 1246 and verged red. 2. N200.00 (Two hundred Naira) as damages for trespass. 3. Perpetual injunction restraining the defendants by themselves, their servants, agents and all other persons claiming through them from entering into that part of the entire land verged ‘green’ in plaintiffs’ survey plan No. E.R.1246.” The defendants were dissatisfied with the judgment of the trial court. They appealed against it before the Court of Appeal, Benin (hereinafter referred to as ‘the court below’). In their appellants’ brief before the court below, they formulated two issues for adjudication, namely: “(a) Whether the decision of the trial court can be supported in the face of the unresolved conflicts between the findings and the final decision of the court: Grounds 1 & 2 of the grounds of appeal. (b) Whether the absence of the testimonies of defence witnesses 1, 2, 3 and 4 following the reported loss of the court’s record book in which they were recorded will not deprive the appeal court of the privilege and or opportunity of viewing and or reviewing the entire proceedings of the trial court as to be in a position to agree or disagree with the findings and subsequent decision of the trial court: Ground 3 of the grounds of appeal.” Before the court below, the plaintiffs in their respondents’ brief raised a preliminary objection to the appeal brought by the defendants. The preliminary objection is on page 309 of the record of proceedings and reads: “PRELIMINARY OBJECTION TO THE 2ND ADDITIONAL GROUND OF APPEAL AND ISSUE NO.2 BASED ON IT PAGE| 13 1.04 Respondents contend that the second additional ground of appeal is incurably defective, incompe-tent, null and void in that: (a) The purported second additional ground of appeal is not directed at and is not in any respect a complaint against the judgment of Akpiroro J. against which, Appellants have appealed. (b) The purported ground did not state either an error of law or misdirection in law or on the facts; and no particulars of error or misdirection was given as required by Rules of this Honourable Court. Respondents shall at the hearing urge this Honourable court to strike out the second additional ground of appeal and with it the arguments advanced in respect thereof under Issue No. 2.” Now, what had happened between the delivery of the judgment of the trial court and the appeal before the court below was that the record book of the trial court into which the evidence of witnesses who testified was recorded got missing. As a result, the transcript of the evidence of some of the witnesses who testified before the trial court i.e. DWS. 1, 2, 3 and 4 was not available to be transmitted to the court below for the purpose of the defendants’ appeal. It is apparent from the judgment of the trial court however that it had referred to the evidence of DWs. 1, 2, 3 and 4 in its judgment. It needs be said that since the fact that the evidence of DWs. 1, 2, 3 and 4 was missing could not have formed a part of the proceedings of the trial court or the judgment of the said court, the defendants were clearly in error to have raised a ground of appeal on it and to have proceeded further to formulate an issue thereon. See Saraki v. Kotoye  NWLR (Pt. 262) 156. In the circumstances of this case, the question of the missing evidence of DWs. 1, 2, 3 and 4 would in the appeal of the defendants before the court below amount to a fresh issue on appeal as the said issue never arose before the trial court. The defendants could only raise the matter by first seeking and obtaining the leave of the court below to raise the fresh matter on appeal: See Uor v. Loko  2 NWLR (Pt. 77) 430; Abaye v. Ofili  1 NWLR (Pt. 15) 134. The court below, mistakenly in my view, did not fully understand that the plaintiffs’ preliminary objection was directed against the second additional ground of appeal filed by the defendants and the second issue for determination which I reproduced earlier. The additional ground 2 from which the aforementioned 2nd issue for determination was formulated reads: “The appeal is constituted and/or entered for hearing and determination in the Court of Appeal by the trial court in breach of the Appellants’ Constitutional Right of Appeal in THAT:(1) Section 220(1)(a) of the Constitution of the Federal Republic of Nigeria 1979 (As Amended) confers on the Appellants a Right of Appeal. PAGE| 14 (2) The Record of Proceedings of the lower court are not fully compiled and transmitted to this Honourable Court by the Registrar of the Lower Court as mandatorily required by Order 13 of the Court of Appeal (Amendments Rules, 1984). (3) The evidence of DW1, DW2, DW3 and DW4 are recorded to be missing at Page 80, lines 16-21 of the Record of Appeal. (4) The evidence of DW1, DW2, DW3 and DW4 are substantial and crucial for the prosecution and determination on the merits of the Appellants’ appeal. (5) The loss of part of the record is apparent on the face of the Record of Appeal.” Now at pages 344-345 of the record, the court below said: “Let me now take the preliminary objection. It is directed against the second additional ground of appeal. That ground with particulars read in full: ‘The learned trial Judge erred in law in dismissing the defendants’ claim for declaration of title on the ground that the defendants failed to establish with definitive certainty the extent and the boundaries of the land they were claiming. PARTICULARS OF ERRORS (a) At the beginning of the judgment (Page 145 lines 18-28) of the Record of Appeal, the trial judge found that he was satisfied that the boundaries identity and extent of the land in dispute called by different names by the plaintiffs and the defendants was not in issue in the case. (b) Exhibits ‘A’ and ‘C’, the survey plan of the land tendered by the plaintiffs and the defendants respectively both showed the same land in dispute. (c) The defendants had no onus of proving what was not in issue between the parties.” I am in grave difficulty to agree with the preliminary objection. Learned Senior Advocate, with the greatest respect, is not correct that the additional ground of appeal is not directed at and is not in any respect a complaint against the judgment of the learned trial Judge. The ground of appeal clearly complains against the judgment of the learned trial Judge. Again, I do not, with the greatest respect, agree with learned Senior Advocate that the ground of appeal did not state either an error of law or misdirection in law or on the facts. The ground clearly contains the words ‘erred in law’ and that means an error of law or errors of law. The ground could not have been clearer. I also do not agree with learned Senior Advocate that no particulars of error were given as required by the rules of this Court. With the greatest respect, the additional ground of appeal contains three particulars of error. In the circumstances, the preliminary objection fails and it is dismissed.” PAGE| 15 It is apparent from the passage of the judgment of the court below reproduced above that the court below mistakenly considered the validity of the first additional ground of appeal and not the second additional ground of appeal against which the plaintiffs’ preliminary objection was directed. The question before us in this Court is whether or not the error should be taken as vitiating the judgment of the court below. It is convenient for me at this stage to consider that question along with the 5th issue for determination raised before us in this appeal by the Plaintiffs’ now appellants). The said issue reads: “5. Were the learned Justices right in setting aside the judgment of the trial court on the ground that evidence of DWs. 1 – 4 were missing from the records when – (a) Judgment was based on traditional evidence on record and on documentary evidence Exhibit Dl. (b) Judgment was not based on evidence of DW 1-4. (c) There was no appeal against any finding made by the learned trial judge.” I think with respect, that the submission of the appellants’ counsel, if upheld would trivialize the importance of a right of appeal conferred by the Constitution of Nigeria on parties to a dispute in a case. A right of appeal is not a matter of ‘tokenism’. It is an important and overriding right which enables the appellate court to consider with gravity the issues agitated in a particular appeal. It is not open to an appellate court to assume that the trial court would not have been influenced in the process of arriving at its conclusion by the totality of the evidence called by parties. And where, as in this case, an appellant raises the issue “whether the decision of the. trial court can be supported in the face of unresolved conflicts between the findings and the final decision of the court”, as the defendants did in their appeal before the court below, there was a clear and sufficient invitation to the court below to consider the totality of the evidence before the trial court and to decide whether (1) there were unresolved conflicts in the evidence of witnesses and (2) the findings made by the trial court justified the final conclusion arrived at by the trial court. To be able to respond to such an issue, the court below would need to consider the totality of the evidence before the trial court. Order 3 rule 2(1) of the Court of Appeal Rules opens with the words “All appeals shall be by way of rehearing.” I take those opening words to mean a rehearing on the issues raised before the Court of Appeal. It seems to me that there was no way the court below could have performed its constitutional duty of hearing the defendants’ appeal without insisting on seeing such part of the record of proceedings before the trial court as would enable it to decide whether or not conflicts in the evidence of witnesses were resolved and whether the findings made justified the final conclusion reached by the trial court. PAGE| 16 My reasoning above brings me to a consideration of the point whether or not the mistake of the court below in considering the defendants’ first additional ground of appeal rather than the second would vitiate the judgment of the court below. I do not think that the mistake could have such a major impact. This is because the failure to transmit to the court below the transcript of the evidence of D.Ws. 1, 2, 3 and 4 was a serious occurrence which on its own would have disabled the court below from exercising its jurisdiction to adjudicate on the appeal before it. The omission was so far-reaching that the court below would have raised the matter itself even if the defendants had not raised it. It therefore matters but little that the question of missing evidence had not been discussed by the trial court. It was such an occurrence that the court of appeal would have been in duty bound to raise the matter. The result is that the mistake made by the Court of Appeal has not led to a miscarriage of justice affecting its decision to order that the case be re-heard. I agree entirely with the lead judgment of my learned bother Katsina-Alu JSC. I would also dismiss this appeal with N10,000.00 costs against the plaintiffs/appellants in favour of the defendants/respondents. MAHMUD MOHAMMED, JSC: This appeal concerns rival claims of ownership to a parcel of land described as ‘Eto land’ or ‘Uri land’ made by each of the parties in consolidated suits heard by the High Court of Justice Ugheli in the then Mid-Western State! At the end of the hearing, Akpiroroh J. (as he, then was) in his judgment delivered on 8th October, 1990, found in favour of the Plaintiffs declaring them as entitled to a grant of a customary right of occupancy to a portion of the land in dispute. The Defendants who were dissatisfied with the judgment appealed against it to the Court of Appeal Benin, raising two issues for determination in their Appellant’s brief of argument. However, while compiling the record of appeal, it turned out that part of the proceedings of the trial High Court containing the record of evidence of witnesses DW1, DW2, DW3 and DW4 called by the Defendants was missing. Consequently, the Defendants’ appeal was heard on the incomplete record of appeal resulting in the Court of Appeal allowing the Defendants’ appeal, setting aside the judgment of the trial Court and sending the consolidated suits back to the trial Court for hearing de novo. Aggrieved by the decision of the Court of Appeal delivered on 4th April, 2001, the Plaintiffs have now appeal to this Court. In this Court, the Plaintiffs are the Appellants while the Defendants are Respondents. In the Appellants’ brief of argument filed on their behalf by their learned senior Counsel, the follo