PASCA NENDE AGBA & ORS v. MRS. GRACE JUBU (2019)

PASCA NENDE AGBA & ORS v. MRS. GRACE JUBU

(2019)LCN/12944(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/MK/134/2012

RATIO

HOW DOCUMENTS ARE TENDERED AND EXHIBITED

Documents are usually tendered and marked as exhibits where their terms are in dispute and needs to be interpreted.PER JOSEPH TINE TUR, J.C.A

PLAINTIFF TO SUCCEED ON STRENGTH OF HIS CASE

But in Ibrahim Kano vs. Gbadamosi Oyelakin (1993) 3 SCNJ 65, Ogundare, JSC held at page 83 paragraphs 34 to 43 as follows:
It is the duty of a plaintiff to prove his case and in so doing he must rely on the strength of that case rather than on the weakness of the defence. He is, however, entitled to take advantage of any admission by the defence favourable to his case.PER JOSEPH TINE TUR, J.C.A

JUSTICES:

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

1. PASCA NENDE AGBA
2. PATRICK ADIGAM
3. ISAAC TYOZUA – Appellant(s)

AND

MRS. GRACE JUBU – Respondent(s)

JOSEPH TINE TUR, J.C.A.(Delivering the Leading Judgment): I am at liberty to head the resolution of this dispute as a determination by virtue of the provisions of Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered, commencement date being 29th May, 1999 to wit:-
318(1) In this constitution, unless it is otherwise expressly provided or the context otherwise requires:-
“Decision” means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.”
I could as well tag same as a decision or an opinion by virtue of Section 294(2)-(3) of the Constitution which provides as follows:-
294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a

Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
I am free to render any determination, opinion or decision independent of my learned colleagues that heard argument on this appeal or adopt in writing the determination of any of the Justice.

The appellants have appealed against the decision of Hwande, C.J., (Retired) of the Benue State High Court of Justice, holden at Makurdi, rendered on 6th October, 2009 against the appellants in favour of the respondent. The parties filed pleadings and called oral and documentary evidence to buttress their claims and defences to the subject-matter in dispute. Pages 1-6 of the printed record contain the Statement of Claim. The 2nd defendants Statement of Defence is at pages 12-13 while the 1st defendants defence/counter-claim is at pages 21-24 of the record of appeal. The respondent pleaded that the transaction between the appellants and her late husband Peter Jubu and Nenda

Agba took place on 13th March, 1982 and was evidenced in what the claimant calls Memorandum of gift and is titled AGREEMENT. See paragraphs 1-6 of the Statement of Claim. Paragraphs 1-4 of the Statement of Defence of the 1st defendant/appellant however pleaded that the transaction was a sale. Paragraph 4 of the defence further admits that the transaction was evidenced by a written undertaking dated 12th April, 1985.

Paragraphs 1-5 of the Statement of Claim plead the root of title to be a Memorandum of gift titled AGREEMENT and is dated 13th March, 1982 to wit:-
AGREEMENT
Today being 13th March, 1982, I Mr. Nenda Agba of Gboko Road do hereby agree to give part of my land situated along Gboko Road in Makurdi to Mr. Peter Jubu my relation of Nigeria Railway Corporation, Enugu to develop a house for permanent settlement.
2. I hereby confirm in written that I shall not in anyway temper or trespass on this piece of land when Mr. Peter I. Jubu made some developments.
3. The sum of N600.00 have been paid for crop and commercial compensations leaving a balance of N200.00.

4. My ownership over the said land is therefore hereby revoked with effect from the date of signing this agreement. I further agree that the contents of this agreement have been read and interpreted to the best of my knowledge and understanding.
Signed, sealed and delivered by me:
NENDA AGBA
T. MOJI Witness to the owner.
SGD. PETER I. JUBU
D.D. ATSER Witness to the buyer.

The fact that the portion of land now the subject-matter of this dispute was conveyed by the vendor to the purchaser who went into possession is pleaded in paragraphs 1-28 of the Statement of Claim to wit:-
1. The plaintiff who is a farmer and wife of late Peter Jubu is resident in Makurdi within the jurisdiction of the Honourable Court.
2. The 1st defendant is a farmer residing at Plot 100, Makurdi-Gboko within the jurisdiction of the Honourable Court.
3. The 2nd defendant is a businessman residing at Makurdi-Gboko Road also within the jurisdiction of the Honourable Court.
4. The Late Peter Jubu while he was a staff of Nigerian Railway Corporation at Enugu sometimes in the 1960s

had a friend by name Nenda Agba who was with the Nigerian Army, Enugu.
5. In consideration of their friendship, the said Nenda Agba decided to give to Peter Jubu part of his land along Makurdi-Gboko Road for permanent settlement. The Memorandum of Gift tilled AGREEMENT dated 13th March, 1982 is hereby pleaded and shall be founded upon at the trial.
6. The amount stipulated in the said Memorandum of Gift was to be compensation for crops and economic trees.
7. The plaintiffs husband applied for a Right of Occupancy vide receipt Nos.BN 7258 for commercial purpose. The Revenue Collectors Receipt Nos. BN 784316 and BN. 784324; the Application Forms and Site Plan No. BN 7258 are hereby pleaded and shall be relied upon at the trial.
8. The Late Nenda Agba had a very large area of land in the vicinity; several parts of which were sold to different people including Justice Igbetar, Patrick Awuhe Duger, et cetra.
9. The part that was given to the Late Peter Jubu is situated between that of Justice Igbetar to the East, that of Patrick Awuhe Duger to the West, Makurdi-Gboko Road to the North and the land belonging to NITEL in the South-East.

10. Sometimes about 1984, the plaintiffs husband commenced development on the land and built a Bungalow of 6 rooms in which tenants are living and a Hut that is occupied by his son, Terna Jubu. He also laid a foundation of 5 rooms with Cement Blocks and a foundation of 2 rooms with burnt bricks. Also laid on the land is a foundation for the construction of two latrines.
11. The plaintiff had been farming on this land unmolested since the time the land was acquired and during the life-time of Nenda Agba.
12. Presently, the plaintiff has crops like rice, potatoes, yams, cassava and corn on the land part of which crops have been destroyed by the defendants in an attempt to carry out some developments on the land without the permission of the plaintiff.
13. The plaintiff, apart from the developments aforestated has economic trees on the land like cashews, melina trees, palm trees and mangoes which she exercises exclusive rights of possession and use.
14. Sometimes in November, 1997 the plaintiffs husband died whereupon she applied and obtained letters of Administration from the High Court of Justice, Makurdi.

The said letters of Administration dated the 2nd day of June, 1998 is hereby pleaded and shall be founded upon at the trial.
15. The plaintiff proceeded further and paid N22,556.22 as charges for the processing of C of O in respect of the property to the Bureau of Lands and Survey. The Revenue Collectors Receipt No. BN 321141 of 3rd June, 1998 is hereby pleaded and shall be founded upon at the trial.
16. After the death of the plaintiffs husband, Kwaghkar Agba, the junior brother of the late Nenda Agba trespassed into the plaintiffs land from the South and destroyed crops whereupon, plaintiff reported him to the Police who arrested him and prosecuted him for trespass and mischief even though he was discharged.
17. Soon after the termination of the Criminal case in paragraph 16 above, the defendants trespassed into the plaintiffs land and used the plaintiffs blocks about 3,000 burnt bricks in construction on the 5 rooms foundation laid by the plaintiffs late husband.
18. In attempt to carry out the construction in paragraph 17 above, the defendants destroyed

plaintiffs crops like cassava and potatoes over a very large area of land.
19. The plaintiffs son protested in vain and lodged a report at the Benue State Urban Development Board whereupon the defendants were stopped by the staff of the Board.
20. The cost of buying and haulage of 3,000 burnt bricks is estimated at N15,600.00 calculated at N4 per a brick and N1,200 per a tipper load of burnt bricks while the cost of the potatoes and cassava destroyed is estimated at N3,000.
21. On 8th November, 1999, both parties on the invitation of Urban Development Board assembled at the Boards premises for a meeting in which the defendants were told to stop the illegal construction on the land.
22. After the meeting, the second defendant approached the son of the plaintiff, Terna Jubu and pleaded with him to abandon the issue of the land as he was prepared to pay him for it.
23. Another meeting on the same issue was scheduled to take place at the Bureau of Lands and Survey on 16th November, 1999. A letter too that effect referenced BN 7258/81 of 11th November, 1999 is hereby pleaded and shall be founded upon at the trial.

24. The meeting mentioned in paragraph 23 above could not hold at the instance of the Bureau.
25. Upon leaving the Bureaus premises, the second defendant went after the plaintiff and her son and pleaded with them to enter into negotiation with him over the land but the plaintiff and her son refused his plea.
26. The meeting referred to in paragraph 23 above was finally held on a latter date at the Bureau of Lands and Survey and at the disputed site. The minutes of the said meeting and File No. BN. 7258 are hereby pleaded and shall be founded upon at the trial.
27. The act of the defendants has caused untold hardship and damages to the plaintiff.
28. WHEREOF the plaintiff is aggrieved and claims against the defendants jointly and severally as follows:-
(a) A declaration that plaintiff is entitled to a Certificate of Occupancy over Plot No.7258 otherwise known as No.98, lying and situated along Makurdi-Gboko Road.
(b) Special damages limited to N18,600.00.
(c) General damages limited to N100,000.00.
(d) An order of perpetual injunction restraining the defendants, their agents, servants and privies from committing

further acts of trespass on Plot No.BN7258 belonging to the plaintiff.

The 1st defendant/appellant joined issue with the claimant from paragraphs 1-14 and paragraphs 1-3 of the Counter-Claim as follows:-
1. The 1st defendant admits paragraphs 1-3 of the claim.
2. The 1st defendant denies paragraphs 4-6 of the claim and plaintiff shall be put to the strictest proof thereof.
3. In further reply to the above the 1st defendant avers that the transaction was a sale of Agba’s family land and which the parties had agreed that the said Peter Jubu should pay the sum of N800.00 to which he paid the sum of N600.00 leaving a balance of N200.00 unpaid in respect part of my land which part was not certain.
4. When about several years after and when the said Peter Jubu could not pay the outstanding balance of N200.00 he made or caused to be made a fresh undertaking with the 1st defendants brother Nenda Agba on the 12th day of April, 1985 that should he fail to pay the balance between April and June, 1985 the agreement should be considered terminated forthwith. The written undertaking dated 12th day of April,

1985 is hereby pleaded and shall be relied upon at the trial.
5. The 1st defendant further avers that the said late Peter Jubu could not redeem the undertaking during the period and the agreement therefore lapsed and throughout the period and thereafter the said Peter Jubu had remained a tenant at will to their family based on the existing relationship between them knowing fully well that title had reverted to 1st defendants family.
6. That this relationship had remained cordial until the death of the said Peter Jubu sometimes in 1997 and upon the return of plaintiff who had separated from him (Peter Jubu) she began to lay claim to the land in question obviously oblivious of the development in paragraph 4 above and indeed when these bare facts were made known to her she chose to ignore same and has since been antagonistic to the 1st defendants family.
7. The 1st defendant denies paragraphs 7-13 of the claim and plaintiff shall be put to the strictest proof thereof.
8. In further reply to the said paragraphs the 1st defendant avers that any processes towards obtaining title to the land by the late Peter Jubu were unsuspended

By him because of the undertaking by him in paragraph 4 above which he knew he had failed to redeem and therefore the issue of his further processing the necessary documents at the lands and survey did not arise.
9. In further reply to the above the 1st defendant avers that whatever development the said late Peter Jubu carried out on the land was before the undertaking in paragraph 4 above and thereafter he did not and could not have carried out improvements on the land without the consent of 1st defendant and if he did (which is not conceded) it was done at his own risk.
10. The 1st defendant further avers that the foundations laid on the land were made by the 1st defendants family and the economic trees thereon were planted by them and these were made outside the parcel of land sold to late Peter Jubu (which has reversed to defendants) and the defendants have been enjoying the trees unmolested.
11. The 1st defendant admits paragraphs 14-16 of the claim but avers that it was only after the death of the said late Peter Jubu that the plaintiff returned for the sole purpose of laying claim to his properties and she had clandestinely gone to

the Bureau of Lands and Survey, Makurdi to obtain title deeds but the 1st defendant had protested through their solicitor A.A. Yaaya & Co. in a letter dated 8th November, 1999. The letter aforesaid or its copy shall be relied upon at the trial.
12. The 1st defendant denies paragraphs 17-20 of the claim and plaintiff shall be put to the strictest proof thereof.
13. In further reply to the said paragraphs the 1st defendant avers that it was the 2nd defendant who had bought his burnt bricks and commenced building on the foundation they had laid after their portion of land was sold to him (2nd defendant) and the plaintiff had no economic crops on the land and none was destroyed.
14. The 1st defendant admits paragraphs 21-28 but only to the extent that meetings were held between them and the Urban Development Board and the matter before the Board was for defendants to obtain approval before building the house and the 1st defendant is not aware if 2nd defendant approached plaintiff for settlement.
COUNTER CLAIM:
1. The 1st defendant adopts her entire averments in the statement of defence for the purposes of this counter-claim.

2. The 1st defendant shall contend at the hearing of the suit that the said Late Peter Jubu having failed to redeem his undertaking of 12th day of April, 1985 the agreement between him and the Late Nenda Agba had lapsed and the 1st defendant family have a reversionary interest in the land the land being family land.
3. The 1st defendant will further contend that the plaintiff being their tenants and now denying their (1st defendants) title to the land it will be improper for plaintiff to remain on the land as they are now trespassers.

The 2nd defendant/appellant however pleaded in paragraphs 1-9 of the Statement of Defence as follows:-
1. The defendant denies paragraphs 1, 6, 7, 9, 10, 11, 12, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 of the claim and shall put the plaintiff to the strictest proof at the trial.
2. The defendant admits paragraphs 2, 3, 4, 8, and 16 of the claim.
3. The defendant admits paragraph 5 of the claim to the extent that the late Nende Agba had a large piece of land and he gave part thereof to late Peter Jubu for the consideration of N600.00 but denies the rest of the averments therein

and shall put the plaintiff to the strictest proof at the trial.
4. In further answer to paragraph 5 of the claim the defendant shall contend that the said late Peter Jubu failed to pay the balance of the N200.00 agreed to by the agreement dated 12th April, 1985 by June, 1985 and to date and therefore lost the grant made to him. The defendant shall rely on the agreements dated the 13th March, 1982 and 12th April, 1985 at the trial.
5. In further answer to paragraphs 5 and 6 of the claim, the defendant shall contend that the grant made to the late Peter Jubu by Nenda Agba is not a gift and the said Peter Jubu failed to sustain the grant as he failed to pay the stipulated sum of money by June, 1985.
6. In further answer to paragraph 7 of the claim, the defendant shall contend that if any application was made at for Right of Occupancy over the land the same was made in error since Peter Jubu had no land to ask for Right of Occupancy over.
7. The defendant shall contend that part of the land belonging to the late Nenda Agba was sold to him as to the others mentioned in paragraph 8 of the claim and the portion sold to him in no way formed part

of the piece measuring 100×150 ft to the late Peter Jubu as that of the defendant lies next and immediate to the west Justice Igbetar, on which there are no economic trees of any type. The defendant has since commenced various acts of development on the piece sold to him already.
8. The entire agreement on the grant of the 100×150 ft part of the larger land of Mr. Nende Agba to Peter Jubu was terminated in June, 1985 when Peter Jubu failed to pay the N200.00 balance vide the undertaking agreement between Peter Jubu and Nende Agba. The fact of the termination of the entire deal and therefore the forfeiture of the land was an open issue known to the both families plaintiff inclusive.
9. WHEREOF the defendant shall contend that this action is incompetent, statute barred, frivolous and shall urge the same to be dismissed for lacking in merit.

The issues for determination were straight forward. The parties supported their respective pleadings with oral and documentary evidence. The documents were used by the learned trial Chief Judge to arrive at the decision now the subject-matter of this appeal. In Fashanu vs. Adekoya (1974) 1 All NLR (Pt.1)

32, Coker, JSC held at page 37 as follows:-
We did say earlier on in this judgment that this case resolves itself entirely on its facts. The appeal before us clearly attacks the findings of facts and seriously challenges the judgment in an area which is only narrowly open to a Court of appeal. The appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a Tribunal of trial and a Court of appeal would only interfere with the performance of that exercise if the trial Court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support.
The parties gave evidence and called witnesses and indeed there was on each side a great deal of hard swearing. Undoubtedly, the duty of the Court in ascertaining the truth in those circumstances is all but easy and the best of logic may be as availing to one of the parties as it is to the other. But there was

produced by both parties a large body of documentary evidence containing a number of letters and other documents and, as argued by learned Counsel for the plaintiff, it is the duty of the learned trial Judge in a case like the present to test the probability of the case of either of the parties by reference to relevant documents which represent evidence of some more or less permanent or perhaps unassailable character.
In Oscar Reynard vs. William Allan (1934) 2 WACA 52 at 53 the West African Court of Appeal held as follows:
At the outset it may be noted that this is a case in which the trial Judge took the place of jury. It has been pressed upon the Court that he heard the witnesses, saw them in the witness box, and was thus in a better position to weigh their evidence than this Court. That is perfectly true, and did the decision arrived at by the learned Judge depend solely on the view of the credibility of the witnesses taken by him this Court should be very slow to interfere.
In the case of The Glannibanta L.R. 1 Prob. Div. 283, Baggaley, J., after referring to the great weight due to the decision of a Judge of first instance

whenever, in a conflict of testimony, the demeanour and manner of the witnesses who have been seen and heard by him are material elements in the consideration of the truthfulness of their statements, goes on to say But the parties to the cause are nevertheless entitled, as well on questions of fact as on questions of law, to demand the decision of the Court of Appeal, and that Court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
And when as in this case the decision rests not only on the comparative truthfulness of the statements made by witnesses, but on its probability, and on the correctness of the conclusions drawn from their evidence by the learned trial Judge, and above all on the construction put by him on what he describes in his judgment as a mass of documentary evidence there is an ample field, apart from that of the credibility of witnesses, in which this Court can exercise an unfettered judgment in coming to the

conclusion whether the decision was right or wrong, and if on surveying this field it in fact appears that the probabilities are very strong on the side of the plaintiff, and that the documentary evidence also is overwhelming in his favour, and if in addition the difficulties raised by the learned Judge against accepting plaintiffs story are capable of a reasonable solution, as they seem to me to be, it will, I take it, be the duty of this Court to set aside the judgment of the trial Judge and enter judgment for the plaintiff.
In Kimdey & Ors. vs. Military Governor of Gongola State & Ors. (1988) 19 NSCC (Pt.1) 827 Karibi-Whyte, JSC held at page 838 lines 25-50 as follows:
This Court has been invited to reverse the findings of fact of the two Courts below that the right to the Longuda Chieftaincy between the Bonsibe and the Bonkumbebe is not rotational. There is the well settled presumption of the correctness of the findings of fact of Courts below, and the presumption must be displaced to reverse the finding of fact See Williams vs. Johnson (1937) 2 WACA 253.

It is also well settled that this Court will not lightly interfere with concurrent findings of fact of the Courts below. In Ogundipe vs. Awe & Ors. (1988) 1 NWLR 118 at page 125 this Court affirmed its often repeating proposition that it will not interfere where there have been concurrent findings of facts by the Courts below unless such findings are shown to be perverse or not the result of a proper exercise of discretion. (See Obaseki, JSC at page 125, Wali, JSC at page 127).
It is not the primary function of this or any appellate Court to make findings of facts or to appraise evidence. Also where the finding of fact is based entirely on the credibility of the witness, this Court will be reluctant to interfere. See Kponuglo vs. Kodaja (1932) 2 WACA 24. The duty to make primary findings of fact by the evaluation of the evidence before him by the additional advantage of watching the demeanour of witnesses is essentially preserved for the trial Court See Egri vs. Ukperi (1974) 1 NMLR 22. However, where the issue relates to the proper inference to be drawn from the facts proved, the Court of Appeal, including this Court, is in as good a position as the Court of trial, and will draw the proper

inference naturally following from the facts so proved See Akesse vs. Akpabio (1935) 2 WACA 264.
The Court of Appeal will reverse the findings of fact if in its opinion, it is not supported by the evidence See Lengbe vs. Imale (1959) WRNLR 325. This Court will however not reverse the finding of fact of the Court below merely because it would have found differently. See Ogundulu vs. Philips & Ors. (1973) NMLR 267.
Nnaemeka-Agu, JSC held at page 851 lines 7 to page 852 lines 1 to 13 of the judgment as follows:
No doubt, the legal proposition that where there is oral as well as documentary evidence, documentary evidence should be used as a hanger from which to assess oral testimony is a sound one. In Fashanu vs. Adekoya (supra), Coker, JSC put the principle very succinctly where he held at pages 91-92:
Undoubtedly, the duty of the Court in ascertaining the truth in those circumstances is all but easy and the best of logic may be as availing to one of the parties as it is to the other. But there was produced by both parties a large body of documentary evidence containing a number of letters and

other documents and, as argued by learned Counsel for the plaintiff, it is the duty of the learned trial Judge in a case like the present to test the probability of the case of either of the parties by reference to relevant documents which represent evidence of some more or less permanent or perhaps unassailable character.
The decisive point in this appeal is, however, that apart from Exhibits 1 and 2 which appear to favour appellants case, there are Exhibits 3 and 4 in his decision and it has not been suggested that he did not advert to Exhibits 1 and 2. Besides there is Exhibit 5, captioned The Appointment and Deposition of Chiefs (Appointment of Chief Longuda) Order 1968 stated to have commenced on the 26th of March, 1968. It bears the common seal of Numan Federation Native Authority and appears to have been signed by the Secretary. It was tendered in evidence as the Order relating to the Chief of Longuda and admitted without objection. As it bears the seal of the Authority, it concludes this case against the

appellants in that it shows the new practice of selection of the Chief. Neither in this Court nor in the Court of Appeal has its authenticity been impeached in any ground of appeal, quite apart from the fact that it was admitted in the Court of trial without objection. The learned Counsel for the appellants only tried to attack it in his oral submissions before us. In my judgment that will not do. Though it was not used in the Court below, I am entitled to draw any legitimate inference from it, as it was admitted without objection and has not been faulted (Akpapuna vs. Nzeka (1983) 1 SCNLR 1). But by far the greatest injury to the appellants case was in the oral testimony of PW1, Wilfred Kimde, the 11th plaintiff/appellant himself. Under cross-examination by the learned Counsel for the respondents, he himself showed conclusively that the history of the previous successions to the Chieftaincy stool did not support the strict alternation between the two clans which the appellants are insisting upon. He admitted that Dukel of Bonsibe was followed by Potu, also of Bonkumbebe. Similarly Githir of Bonkumbebe was followed by Delo of the same clan. At a certain

time, Suleiman, Gogo, and Yoila of Bonsibe followed one after another. So the history admitted by the appellants does not support their case in this appeal.
So, whereas Exhibits 1 and 2 tend to support the appellants case, Exhibits 3, 4 and 5 as well as a substantial body of the oral testimony tendered supported the respondents case, which was preferred by the learned Chief Judge and confirmed by the Court of Appeal. In short, in a case like this where the documentary evidence before the Court goes both ways and one side has a more substantial support of the oral testimony before the trial Court, that set of documentary evidence which has more substantial support of the oral testimony outweighs the other. If, as is the case here, the trial Court prefers that set of documentary evidence, the appellate Court should not interfere. In need not repeat that there is a presumption that a trial Judges decision on facts is correct, findings on primary facts being essentially within the province of the Court of trial. For one to appeal successfully on facts, he must

affirmatively displace that presumption: See Bakare Folorunso vs. I.A. Adeyemi (1975) 1 NMLR 128; Williams vs. Johnson (1937) 2 WACA 253. The appellants have woefully failed to displace that presumption in this case. Rather the learned Counsel on their behalf wants us to embark anew on the task of re-evaluating the same evidence which the two lower Courts have already evaluated and come to their conclusions thereon. This is exactly what we ought not to do, even if we may arrive at different conclusion thereon. This is exactly what we ought not to do, even if we may arrive at different conclusions on them: See Asani Balogun & Ors. vs. Alimi Agboola (1974) 1 All NLR (Pt.2) 66.

Documents are usually tendered and marked as exhibits where their terms are in dispute and needs to be interpreted. But in Ibrahim Kano vs. Gbadamosi Oyelakin (1993) 3 SCNJ 65, Ogundare, JSC held at page 83 paragraphs 34 to 43 as follows:
It is the duty of a plaintiff to prove his case and in so doing he must rely on the strength of that case rather than on the weakness of the defence. He is, however, entitled to take advantage of any admission by the

defence favourable to his case. In the instant case, if it was the case of the plaintiff that the defendant was his customary law tenant then he must plead this and prove it. This, the plaintiff has not done, and it is wrong, in my respectful view, to suggest, without production of the agreement pleaded in paragraph 6, that the transaction between the parties to it was in the nature of a customary law transaction. In Oparaji vs. Ohanu (1999) 6 SCNJ 27, Iguh, JSC held at pages 28 to 29 as follows:
I think I ought to start by restating the well settled principle of law that where two parties to a dispute voluntarily submit the issue in controversy between them to an arbitration according to customary law and agree expressly or by implication that the decision of such arbitration would be accepted as final decision, then once the arbitrators reach a decision, it would no longer be open to either party to subsequently back out of or resile from the decision so pronounced. See Opanin Kwasi and Others vs. Joseph Larbi (1952) 13 WACA 76 (P.C); Ozo Ezejiofor Oline and Ors vs. Jacob Obodo and Ors (1958) SCNLR 298; Philip Njoku vs. Felix Ekeocha

(1972) 2 ECSLR 199; Eguere Inyang vs. Simeon Essien (1957) 2 FSC 39 etc.
Arbitrations at customary law must, however, be distinguished from arbitrations under the Act. The Nigerian law recognizes and accepts the validity and binding nature of arbitrations under customary law if it is established: –
(i) that both parties submitted to the arbitration;
(ii) that the parties accepted the terms of the arbitration and
(iii) that they agreed to be bound by the decision of the arbitrators.
It ought to be pointed out that a customary law arbitration decision has the same authority as the judgment of a judicial Tribunal and will be binding on the parties and thus create an estoppel. Whether, however, such a decision will operate as estoppel per rem judicatam or issue estoppel can only be decided where the terms of the decision are clearly known and ascertained and, where they so operate, both parties are entitled to invoke the plea. See Idika and Ors vs. Erisi and Ors (1988) 1 NSCC 977 at 986; (1988) 2 NWLR (Pt.78) 563; Mogo Chinwendu vs. Mbamali and Anor (1980) 304 SC 31 at 48; Joseph Larbi and Opanin Kwasi and Anor (1950) 13 WACA

81; Opanin Kwasi and Anor vs. Joseph Larbi and Anor (supra); Ahiwe Okere and Ors vs. Marcus Nwoke and Others (1991) 8 NWLR (Pt.209) 317. I should also observe that where an arbitration under customary law is pronounced valid and binding, it would be repugnant to good sense and equity to allow the losing party to reject or resile from the decision of the arbitrators to which he had previously agreed. See Joseph Larbi and Anor vs. Opanin Kwasi and Anor (supra) and Agu vs. Ikewibe (1991) 3 NWLR (Pt.80) 385.
See also Owosho vs. Dada (1984) 7 SC 149 at page 165.

At the close of evidence, learned Counsel addressed the Court. The learned Chief Judge rendered a decision on 6th October, 2009 in favour of the respondent at page 345 lines 36 to page 347 lines 1-4 of the printed record as follows:-
It is clear from Exhibit D that the land plaintiff is claiming is not shrouded in secrecy. The identity of the land is therefore no longer vague. Plaintiff has proved through evidence the clear identity of the land she is claiming. In Dr. Okoye vs. Dumez Ltd. (1985) SC 3 at 12, Bello, JSC held that:-

registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money or rent.
It is my view that though not registered Exhibit A is admissible to prove the existence of such transaction and to also prove the amount paid for compensation as therein stated. From the facts of this case while Peter Jubu and Nenda Agba were alive, there was no interference over the land ceded to Peter Jubu by his friend. Even when Exhibit D was prepared as PW5 testified people were present and no one complained. It was after the death of Nenda Agba that the family relations of Nenda felt that the land given to Peter Jubu was too much and started interfering. Plaintiff had cause to take Kwaghkar Agba to Court for trespass as no one complained when the sketch plan in Exhibit D was taken. Such people are estapped from complaining several years after the land was ceded and Peter Jubu went into possession.
I declare the land measuring 0.697 hectres as contained in Exhibit D as the land that Nenda Agba gave to his friend Peter Jubu. I also declare

that as Peter Jubu took possession of the land before his demise his wife who has obtained letters of administration to manage Peter Jubus estate is right to seek title documents in her name over the land that was given to her husband. I declare the land in Exhibit D as rightly belonging to plaintiff and she is entitled to title documents over same 2nd and 3rd defendants were sold portions of their land by Kwaghkar Agba after the demise of Nenda Agba.
Kwaghkar sold out the land at the time plaintiff made several concerted efforts to stop him. She went to Court and also went to Urban Development Board to stop 2nd defendant from building on the land plaintiff considered her own.
All the above efforts were ignored. Plaintiff testified that 2nd defendant built stores on her foundation and added some plaintiff testified that she had 3000 burnt bricks on the land when 2nd defendant took them and built the stores. She gave the cost of one burnt brick to be N4.
That it was in the year 2000 that 2nd defendant completed the stores and put tenants therein. It is the order of Court that those stores built by 2nd defendant that fall

within Exhibit D be forfeited to plaintiff on the principle of quic quid plantato solo solo cedit. They are forfeited in place of special and general damages claimed by plaintiff against 2nd defendant.
The huts constructed by the 3rd defendant on the land within Exhibit D should be pulled out by 3rd defendant. Defendants to pull out their acts of trespass 30 days from today. Plaintiff has established her claim of ownership of the land in Exhibit D and I declare it to belong to her. The counter-claims of defendant as far as it touches the land carved out in Exhibit D is hereby dismissed.
Judgment is in favour of plaintiff.
An order of perpetual injunction is granted restraining the defendants from further trespassing on plot BN 7258 properly identified in Exhibit D.
SGD. HON. JUSTICE I. HWANDE, CHIEF JUDGE, 06/10/2009.

This appeal was argued by learned Counsel on appellants brief that had been filed on 13th March, 2017. The respondent had also filed a brief on 5th July, 2017. Learned Counsel adopted their respective briefs of argument when the appeal came up on 22nd January, 2019 for hearing.

The defendants have appealed against this decision. The Joint Notice of Appeal was filed on 29th October, 2009. Thirteen grounds of appeal accompany the Notice of Appeal. The appellants Joint Brief set forth five issues for determination at page 4 paragraph 2.01 of the brief as follows:-
1. Whether the learned trial Judge was right when he admitted oral evidence in variation of a written instrument/agreement, Exhibit A, and heavy reliance on Exhibits D and E before the Court to give judgment to the respondent (Grounds 2 and 11 of the grounds of appeal).
2. Whether Exhibit A conferred any valid title on the land in dispute on the 1st respondent and if the answer is in the affirmative, whether it conferred such title outside the portion on which the six rooms occupied (Ground 3).
3. Whether refusal of the learned trial Judge to allow appellants further amend their statement of defence and their counter-claim for the reasons given thereto does not amount to denial of fair hearing thus nullifying the entire decision of the lower

Court. (Grounds 12 and 13).
4. Whether the learned trial judge properly and adequately evaluated the evidence before him in coming to his decision in favour of the respondent (Grounds 1, 5, 6 and 7).
5. Whether the learned trial Judge was not bias in his handling of this case in favour of the respondent and against the appellants in the circumstances of this case. (Grounds 4, 8, 9 and 10).

Order 19 rule 3(1)-(5) of the Court of Appeal Rules, 2016 provides that the appellants who appeal are to file a brief of argument setting forth issues for determination as follows:-
3(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.
(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall

also be made to relevant statutory instruments, law books, and other legal journals.
(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and. wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.
(4) All briefs shall be concluded with a numbered summary of the points to raise and the reasons upon which the argument is founded.
(5) Except to such extent as may be necessary to the development of the argument, briefs need not set out or summarize judgments of the lower Court, nor set out statutory provisions, nor contain an account of the proceedings below nor of the facts of the case.

The duty of a respondent is provided in Order 19 Rule 4(1) and (2) of the Court of Appeal Rules, 2016 as follows:-
4(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.

(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis; also conform to Rule 3 (1), (2), (3), (4) and (5) of this Order.

Where the grounds of appeal have overlapped, I shall condense them for the sake of brevity. See Apampa vs. The State (1982) 6 SC 47 and Anie vs. Uzorka (1993) 8 NWLR (Pt. 309) 1 at 16 paragraph G to page 17 paragraph G the Supreme Court was of the view that formulated issues that overlap can be merged for the purpose of determining the appeal.

I do not need to embark on a detailed reviewed of the pleadings, oral and documentary evidence or submissions of learned Counsel to determine this appeal. I shall adopt the procedure by Lord UpJohn in Ijale vs. Shonibare, Privy Council Judgments (1841-1973) by Olisa Chukura, SAN, 1980 edition, 947 where his Lordship held at page 948 that:- There were many issues of fact before the trial Judge but only one relevant to this appeal, namely, an important issue as

to the existence of a ledger or produce book alleged to belong to the appellant which the respondent said, would contain entries relating to the transaction and would establish his case. The appellant denied the existence of any such book and the trial Judge decided this issue in his favour. The Federal Supreme Court differed from the trial Judge fundamentally in holding that this ledger or produce book must be in existence. Therefore it followed, as the appellant had not produced it, that the inference must be drawn that its production would prove unfavourable to him. On this ground they allowed the appeal.
In these circumstances some review of the evidence by their Lordships is necessary but they propose only to review the pleadings and evidence relating to this question and in no wise to cover the many other matters which were in controversy before the trial Judge, but did not arise on the appeal before the Federal Supreme Court or before their Lordships.
In Odutola Holdings Ltd. & Ors. vs. Mr. Kunle Ladejobi & Ors. (2006) 5 SCNJ 63, Ejiwunmi, JSC also held at pages 79-80 as follows:-

Against the reversal of this decision, the appellants have raised several issues which I have reiterated above already. But in my humble view, not all the issues raised are necessary for the determination of the appeal. This is because several of the issues raised by the appellants and which the Court below made pronouncements upon did not flow from the ruling given by the trial Court in respect of the application brought before it by the respondents.
After a careful perusal of the judgment of the Court below, the grounds of appeal filed against that decision and the subject matter of the application that led to the ruling of the trial Court, it is my respectful view that the only issue that are germane to this appeal are the 1st and 5th issues filed by the appellants. As the issues raised by the respondents are not dissimilar, they will be considered in the light of the arguments advanced in the consideration of the merits of the appeal.

Before I proceed to consider this appeal on the merit, I think there is the need to critically examine the grounds accompanying the Notice of Appeal for two main reasons: The first reason is that the Court of Appeal is being called upon

by the appellants to exercise the powers and authority conferred on the Court under Order 4 Rule 9(1)-(2) of the Court of Appeal Rules, 2016 which provides as follows:-
9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such Order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.
The Court of Appeal is not to interfere with the findings of fact or verdict of the Court below, or to order a new trial on the ground of misdirection unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned under Order 4 Rule 9(1)-(2) of the Rules.
The second reason is to be found in Order 7 Rule 2(1)-(4) of the Court of Appeal Rules, 2016 to wit:-
2(1) All appeals shall be by way of rehearing and shall be

brought by notice (hereinafter called the notice of appeal) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.
(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(4) The notice of appeal shall be signed by the appellant or his legal representative.
Grounds 2, 3, 6, 8, 10-11 and 13 in the Notice of Appeal complains that the learned Chief Judge erred in law in the course of determining the dispute in

favour of the respondent but in none of these grounds has the Law and the particulars been referred to. The complaints in these grounds of appeal relate to the evaluation of the pleadings, oral and documentary evidence which I shall in due course show, is within the exclusive province of learned trial Judges that embark on the hearing and determination of disputes or controversies. Grounds 4 and 12 in the Notice of Appeal are framed as follows:-
4. The learned trial Judge misdirected himself on the facts of the case thus coming to the wrong decision in awarding the entire land to the respondent.
PARTICULARS:
(a) Exhibit A shows clearly that the land given to late Peter Jubu by Nenda Agba was to enable him build a house for permanent settlement.
(b) Evidence abounds to show that late Peter Jubu applied for title documents on this land more than one year before the transaction in Exhibit A.
(c) The application stated that the late Peter Jubu wanted the land for the development of hotel.
(d) Late Peter Jubu claimed the land was a burial ground and on which

he spent much money in reclaiming.
(e) It turned out that processing of the application was suspended due to the uncertainty of the extent of the land on which he sought title over.
(f) There is no evidence from the respondent and the witnesses that late Nenda Agba, was aware of Exhibit D and was present and witnessed the survey leading to the Exhibit D.
(g) The evidence on this as summarized in the judgment of the Court is as follows: Even when Exhibit D was prepared as PW5 testified people were present and no one complained. It is not that the appellants and or Nenda Agba were present and saw the survey of the land being taken preparatory to the making of Exhibit D.
(h) Exhibit D was not made on the land, at least there is no evidence on record to that effect.
(i) There is evidence that Pasca Agba, the son to Nenda Agba lives on part of the land now awarded to the respondent, i.e. Plot No.100 Gboko Road, Makurdi, as the family house.

12. The learned trial Judge misdirected himself when he held that the amendment sought inserted

in the proposed further amended statement of defence and counter-claim are so numerous and clumsy.
PARTICULARS:
(a) The learned trial Judge failed to properly consider the affidavit in support and brief of argument accompanying the application for the further amendment sought and hence could not appreciate the areas of amendment sought.
The complaint is that the learned Chief Judge misdirected himself in the course of adjudication hence the onus is on the appellants to establish in this appeal how that has led to a substantial wrong or a miscarriage of justice to warrant this Court to interfere with the findings or verdict of the Court below in favour of the appellants. Even where that has been established, the remedy will lie in the provisions of Order 4 Rule 9(3) of the Court of Appeal Rules, 2016 which provides as follows:-
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in sub-Rule (2) of this Rule affects part only of the matter in controversy or

one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.
The Court will apply the Blue Pencil Test or Rule to Give final judgment to the parties taking into consideration the admissible materials in the record of appeal. The Blue Pencil Test or Blue Pencil Rule has been applied by the Supreme Court in a plethora of decisions to give justice to the party that adduced sufficient, cogent and admissible evidence to prove a claim or a counter-claim to the subject-matter in litigation: See Ezekpelechi vs. Ugoji (1991) 7 SCNJ (2) 196 at 258; Onifade vs. Olayiwola (1990) 11 SCNJ 10/22; Onajobi vs. Olanipekun (1985) 4 SC (pt. 2) 156 at 163; Ugo vs. Obiekwe (1989) 2 SCNJ 95 at 103-104 or (1989) 1 NWLR (pt. 99) 566 and Adejumo vs. Ayantegbe (1989) 3 NWLR 417 at 430. The Supreme Court has also held in a number of decisions that it is not every error, mistake or blunder committed by a Court that is amenable for the whole proceedings to be nullified.

Order 7 Rules 3-5 of the Court of Appeal Rules, 2016 further provides as follows:-
(3) Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the respondent.
(4) The appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of fees prescribed for making such amendment and upon such terms as the Court may deem just.
(5) Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant; provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.

This Court may not hear this appeal for the appellants have to show that the above grounds of appeal are neither vague or general in terms by alluding to the law and the particulars the learned Chief Judge (Rtd) had erred in application to arrive at a decision. It is also not in doubt that grounds 2-3, 6, 8, 10-11 and 13 are vague and general in terms contrary to the provisions of Order 7 Rule 3 of the Court of Appeal Rules, 2016. The appeal cannot be determined on issues that are anchored or foisted on incompetent grounds of appeal.
Ground 1 and 5 in the Notice of Appeal reads as follows:-
1. The decision of the Court is unwarranted and is against the weight of evidence.

5. The learned trial Judge failed to properly and adequately evaluate the evidence before him in coming to the decision he arrived at.
PARTICULARS:
If the learned trial Judge had properly and adequately evaluated the evidence he would have:-
(a) Appreciate the fact that the main purpose for which the land was given by Nenda Agba to late Peter Jubu was to enable Peter Jubu to build a house for permanent

settlement.
(b) Nenda Agba himself still lived on part of the land with members of his family after he made the gift of the portion where late Peter Jubu built the six (6) rooms zinc house on and put tenants therein until his death.
(c) Pasca Agba, DW1, the son to late Nenda Agba still lives on the family house on part of that land, which part is also included in the land now awarded to the respondent by the judgment of the Court.
(d) Part of the land is the Plot No.100 where DW1 lives and where the respondent in her evidence said she was claiming.
(e) Respondent who testified as DW4 was emphatic that the plot is No.100 Gboko Road, Makurdi. She was not re-examined on this because it represented the truth of the matter.
(f) It was only the PW5 that claimed the plot is Plot No.98.
(g) There is nowhere on the body of the claim, except for the reliefs, where the respondent said she was claiming land on Plot No.98 Gboko Road, Makurdi.
(h) Neither what is referred to as Plot No.100 by PW4 nor Plot 98 by PW5 were in existence and known to any part of the land of Nenda Agba at the time Exhibit A was signed.

(i) The entire land of Nenda Agba was a vast land from which he was making grants to others and he lived on part of the land where his children and brothers still lived.
(j) The description of the land given by PW5 is too wide to be acceptable in view of the Exhibit A and is not born out of the evidence before the Court.
(k) The Court never visited the land to see and witness what the parties were talking about on the ground.
(l) There is uncontradicted evidence that the well from which late Peter Jubu fetched water to use in the construction of his six rooms zinc house close to his six rooms belongs to the 3rd appellant.
(m) There is no evidence that late Peter Jubu contested this well with the 3rd appellant while he was alive.
The two grounds are a complaint against the weight of evidence. The question is whether they disclose reasonable ground of appeal for any ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent under Order 7 Rule 3 of the Court of Appeal.

I shall consider grounds 1-5, 7 and 9 in the Notice of Appeal together. Grounds 7 and 9 are framed in the following language:-
7. The learned trial Judges refusal to allow the 1st and 2nd appellants leave to amend their statement of defence and counter-claim and refusal to allow the 3rd appellants additional witness whose deposition on oath was filed, served on the respondent and before the Court to testify amount to denial of fair hearing and the same rendered the decision a nullity.
PARTICULARS:
(a) 3rd appellant filed deposition on oath of additional witness to call.
(b) The deposition had been served on the parties and present in the Court file before the Court.
(c) When the deponent wanted to testify by way of adopting the deposition, the learned trial Judge refused on ground that no leave was sought and obtained.
(d) The Court closed the case of the 3rd appellant without hearing the witness.
(e) This case predates the Benue State High Court (Civil Procedure) Rules, 2007, but was caught up by the new rules on the order of the Court that parties should file witness depositions.

(f) The failure to hear evidence from the additional witness of 3rd appellant amount to failure to afford him fair hearing in the circumstances of the case.
(g) The failure to hear 3rd appellants additional witness has occasioned miscarriage of justice on the 3rd appellant and indeed the appellants.

9. The learned trial Judge leaned in favour of the respondent in his handling of this case.
PARTICULARS:
(a) 1st and 2nd appellants filed a motion seeking amongst other reliefs leave of the Court to amend its statement of defence and counter-claim in Motion No.MHC/611M/2005, the learned trial Judge refused the application.
(b) 1st and 2nd appellants filed an appeal to this Court over the refusal on 1st June, 2006 and filed Motion No.MHC/119M/2006, seeking stay of further proceedings of the case at the trial Court pending the determination of the appeal and the Court refused to grant the application.
(c) 3rd appellants additional witness whose deposition was before the Court was refused to be heard by the Court.
(d) The learned trial Judge overlooked the obvious legal issues militating against the respondent but treated them

as mere none issues to find for the respondent rather than dismiss her case.
My humble opinion is that these grounds are not only vague and general in terms but a complaint that the decision is against the weight of evidence calls for the re-evaluation by the Court of Appeal of the pleadings, oral and documentary evidence. This will involve assessing the credibility or veracity of the evidence of the claimants and the counter-claimants, and their witnesses as they testified in the Court below, a privilege that is not available to Justices of the Court of Appeal. In Lion Buildings Ltd. vs. Shadipe (1976) 2 FNLR 282, Udo Udoma, JSC reasoned at pages 289-290 as follows:-
The question then is: What order ought the learned trial Judge to have made in the light of the evidence before him at the trial? According to the learned Counsel for the defendant, the claims of the plaintiffs ought to have been dismissed, but according to the learned Counsel for the plaintiffs, Chief Rotimi Williams, judgment ought to have been entered for the plaintiffs. That brings us to a consideration of the last ground of appeal argued by both Counsel,

namely, that judgment is against the weight of evidence.
We think on this question of weight of evidence, we should predicate our examination of the evidence, which was before the learned trial Judge with a quotation from an old judgment of the Full Court of Nigeria as to the principle to which a Court of Appeal should act when a judgment is appealed against as being against the weight of evidence, It is a principle which we believe has been rendered sacrosanct by age and from which we venture to suggest not Court should depart. The principle was enunciated in Macaulay Vs Tukuru (1881 – 1911) I N.L.R. 35, in these words:
When a judgment is appealed from as being against the weight of evidence, the Appeal Court must make up its own mind on the evidence, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over-ruling it, if, on full consideration, it comes to the conclusion that the judgment is wrong.
If, however, the appeal Court is in doubt, the appeal must be dismissed since the burden of proof is on the appellant.

In Mogaji vs. Odofin (1978) 4 SC 91, Fatayi-Williams, JSC as he then was) held at pages 93-94 as follows:-
When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before the judge. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it; if that supports it bearing in mind the cause of action, he will then find for the plaintiff. If not, the

plaintiffs claim will be dismissed. In certain circumstances, however, the claim is either struck out or the plaintiff is non-suited. Incidentally, in deciding which evidence has more weight than the other, a trial judge sometimes seeks the aid of admissions made by one party to add more to the weight of the evidence adduced by the other party. This is precisely why the totality of the evidence must be considered and why a trial Judge must weigh the conflicting evidence adduced by both parties and then draw his own conclusions. Of course, the procedure set out above will be unnecessary if the plaintiffs case is so patently bad that no reasonable Tribunal could possibly act upon it. In such a case, the trial Judge will dismiss the plaintiffs claim without calling upon the defence.
In short, before a judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side

of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the judge will naturally have regard to the following: (a) whether the evidence is admissible; (b) whether it is relevant; (c) whether it is credible; (d) whether it is conclusive; and (e) whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted
It would appear from the above that what the defendants are now complaining about is precisely what this Court has criticized in the above case. In short, the trial Judge in that case condemned the defendant without considering the totality of the case before him and weighing the respective cases of the parties on the imaginary scale of justice!

It is manifest that the trial Judge in the case in hand has also not put the defendants case on that imaginary scale and found it wanting in weight. We therefore think that his approach to the case is grossly unfair to the defendants. With respect, it appears to us that the trial judge, at the time he found for the plaintiffs, had not considered the defendants case at all. We think, again with respect, that it is an under-statement to complain that the judgment is against the weight of evidence. What happened is worse than that. No imaginary scale was used in this particular case and the question of weight does not therefore arise.
See also Olubode vs. Salami (1985) 2 NWLR (Pt.7) 282 at pages 294-298.
The Court of Appeal does not interfere with findings of fact by a lower Court except they are unsound or perverse, particularly where the veracity or credibility of the witnesses calls for examination. See Ebba vs. Ogodo (1984) 4 SC 84; Woluchem vs. Gudi (1981) 5 SC 319; Balogun v. Akanji (1988) 2 SCNJ 104 at 122 and Ishola vs. Okwoja (1982) 7 SC 314 at 350.

In Barau vs. Customs and Excise (1982) 2 NCR 1, Fatayi-Williams, C.J.N. held at pages 21-23 as follows:-
In view of the above, I am not surprised that the learned Chief Judge disbelieved the belated testimony of the respondent that he had no knowledge of the prohibition order or that he had no fraudulent intent to evade the prohibition order or be concerned in the said evasion. Having made his finding, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to assess the credibility of the respondent from his demeanour in the witness-box and otherwise, it is not open to the Federal Court of Appeal to substitute its own assessment of the respondents testimony for that of the learned Chief Judge. The Federal Court of Appeal is certainly in error in so doing.
In Akinloye vs. Eyiyola (2) this Court held (1968) NMLR at 95) that:-
Where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.

Again, in Fabuniyi vs. Obaji (14) this Court dealt with the evaluation of evidence by an appeal Court in more detail as follows (1968 NMLR at 247):
A Court of Appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performances. It is settled law, however, that such findings of facts or the inferences from them may be questioned in certain circumstances. See Benmax vs. Austin Motor Co. Ltd. (1955) A.C. 370]; Akinola vs. Fatoyinbo Oluwo & Ors. (1962) All NLR 224]; Lawal Braimob Fatoyinbo & Ors. vs. Selistu Abike Williams (1 FSC 67). The result of the authorities is simply this, that where the facts found by the Court of trial are wrongly applied to the circumstance of the case or where the inferences drawn from those facts are erroneous or indeed where the findings of fact are not reasonably justified, or supported by the credible evidence given in the case, a Court of Appeal, is in as much a good position to deal with the facts and findings as the Court of trial. [These words do not appear in the report of the case at (1967) 1 All NLR 241). It only remains for me to add that, having regard to my own

observation on the evidence made earlier, none of the reasons which could justify re-evaluation of the evidence by an appeal Court are present in the case in hand.
In 1974, this Court again considered the limitations placed on a Court of Appeal in re-evaluating evidence accepted by a trial Court in Balogun vs. Agboola (6). We observed in our judgment in that case as follows ([1974] 1 All NLR at 73; (1974) 10 SC at 118-119):
The ascription of probative values to evidence is a matter primarily for the Court of trial and it is not the business of a Court of Appeal to substitute its own views of undisputed facts for the views of the trial Court. Interference by a Court of Appeal with respect to issues of fact is by law confined within very narrow and limited dimensions and we are clearly of the view in this case that the Western State Court of Appeal took a mistaken view of the law when it embarked, as it did, on a fresh appraisal of the evidence of witnesses to whom the learned trial Judge had himself listened and whom he had seen face to face when they (the Court of Appeal) were dealing only with the cold sullen print of the records before them.

That, if I may say so, is precisely what has happened in the present case. The learned Chief Judge who saw and heard the respondent, watched his demeanour in the witness-box, assessed the honesty or otherwise of his performance on the day he brought the carpets into the country, and made certain findings of fact having regard to all these circumstances. The Justices of the Federal Court of Appeal, without the benefit of this trial atmosphere, when dealing only with the cold sullen print of the records before them decided to set aside the Chief Judge’s findings of fact. Like this Court in Balogun vs. Agboola (ibid.), I – have no hesitation in restoring the findings of fact of the learned trial Judge.
Having thus restored the findings of the learned Chief Judge, it follows that the question of assessing the evidence adduced by the respondent on a balance of probabilities would not, and did not, arise. This is because there would be nothing to balance against the evidence adduced by the prosecution, which the Chief Judge accepted. It must be remembered that the defence of the respondent was,

for good and sufficient reasons, if I may say so, totally rejected by the learned Chief Judge.
In case the significance is overlooked, all the grounds of appeal filed and argued before the Federal Court of Appeal were grounds of law. Even the misdirections complained of in some of the grounds of appeal related either to the standard of proof required for the two offences, or to the ingredients to be proved, or to the mens rea required for the commission of the offences. Therefore, to contend, as my brother Bello, JSC has done in his judgment, which he has been kind enough to allow me to see in draft, that the Federal Court of Appeal could and did make findings of fact (which this Court ought to have accepted as binding) is, with respect, to demonstrate a misconception of one of the points canvassed before this Court, which is that it is not the business of the Court of Appeal, particularly in the case in hand, to substitute its own findings of fact for those of the trial Chief Judge who saw and heard the witnesses.
The appellants have to discharge the onus of showing that the inferences and conclusions drawn by the learned Chief Judge cannot

be supported by the pleaded facts, oral and documentary evidence. See Ogboda vs. Adulugba (1971) 1 All NLR 68 at 71 and Anyaoke vs. Adi (1986) 3 NWLR (Pt.31) 731 at 742. Issue 5 is anchored on grounds 4, 8, 9 and 10 in the Notice of Appeal. The issue ascribes bias against the way and manner the learned trial Chief Judge handled the proceedings in the Court. But what is of importance is that the parties ventilated their grievances before the learned Chief Judge (Rtd.) under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 that took effect from 29th May, 1999 to wit:-
36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.
The appellants have to show that they did not have a fair hearing within a reasonable time or that the Court below was not constituted in such manner as to

secure its independence and impartiality as defined in Section 36(1) of the Constitution. The independence and Impartiality of the Court of trial constitutes what is a fair hearing provided the trial was conducted and concluded within a reasonable time by a Court or other tribunal established by law. No argument has been adduced by the appellants to show how any of the conditions prescribed by the National Assembly for the determination of the civil rights and obligations of the appellants under Sections 36(1) and 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 altered has been violated as to saddle the learned trial Chief Judge with bias. The learned authors of Blacks Law Dictionary, 9th edition defines judicial bias at page 182 as follows:-
Judicial bias:- A judge’s bias toward one or more of the parties to a case over which the judge presides. Judicial bias is usually not enough to disqualify a judge from presiding over a case unless the judges bias is personal or based on some raext-judicial reason.

InDeduwa & Ors. vs. Okorodudu & Ors. (1976) 1 NMLR 236, Alexander, C.J.N. held at pages 245-249 as follows:-
The principles to be applied in these circumstances have been stated many times in a number of dicta. In R. vs. Rand (1866) L.R. 1 C.P. 230, Blackburn, J., said at page 232:
There is no doubt that any direct pecuniary interest however small in the subject of inquiry does disqualify a person from acting as a judge in the matter.
In The Queen vs. Mckenzie (1892) 2 Q.B. 519, it was contended that a conviction by justices for an offence against Section 7 of the Conspiracy and Protection of Property Act, 1875 should be quashed on the ground that three of the convicting justices were disqualified by reason of interest and bias. The facts were that the prosecutor was the local agent of a shipping federation, whilst the justices were shareholders in shipping companies whose ships were insured in societies which were members of the federation. It was admitted that the justices had no pecuniary interest in the matter. The Court held further that the justices

so-called interest was too indirect to sustain an allegation of pecuniary interest or bias on their part.
It is not disputed that the learned Judge in the present case has never received any pecuniary benefit from the Trust and there is indeed no evidence of this. Nor is there evidence of his having any proprietary interest in the subject matter of the Trust which could be regarded as a legal or equitable interest in a jurisprudential sense.
We are firmly of the opinion and we hold that the learned Judge had no pecuniary or proprietary interest in the Trust and therefore no legal interest as could have disqualified him on that ground from hearing this action, notwithstanding the fact that the Itsekiri Communal Land Trustees were parties in the consolidated suits. This ground of appeal therefore fails.
We shall now deal with Grounds (3) and (4) together since the arguments in respect of these grounds appear to be inextricably interwoven and, also, because in our opinion the issues of real likelihood of bias and fair hearing are interdependent in the circumstances of this case. Section 22(1) of the

Constitution provides:-
In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such a manner as to secure its independence and impartiality
It is, of course, beyond question that the High Court at which the learned judge presided is a Court established by law and constituted in such a manner as to secure its independence and impartiality. The question to be answered and decided in this context is therefore, what is a fair hearing. A fair hearing must, of course, be a hearing that does not contravene the principles of natural justice. Evershed, M.R., said in Abbot vs. Sullivan (1952) 1 K.B. 189, 195: The principles of natural justices are easy to proclaim, but their precise extent is far less easy to define. However, the two essential elements of natural justice with which we are concerned in this appeal are that:
(1) No man shall be judge in his own cause; and
(2) Both sides shall be heard, or audi alteram partem.

As regards the first principle, the truism that, Judges, like Caesars wife, should be above suspicion was given due recognition in the dictum of Brown, L.J., in Leeson vs. General Council of Medical Education (1890) 43 Ch.D. 366, 385. We have already dismissed the argument that the learned judge had a legal interest which disqualified him from hearing the action however, the examination of the allegation of interest or bias or real likelihood of bias on the part of the trial Judge in the conduct of the proceedings before him goes much further than this. Although the smallest pecuniary interest will disqualify a Judge, there are other grounds based on public policy on which bias or the real likelihood of bias may disqualify a Judge. Lush, J., said in Serjeant vs. Dale (1877) 2 Q.B.D. 558, 567:
The law, in laying down this strict rule, has regard not so much perhaps to the motive which might be supposed to bias the Judge as to the susceptibilities of the litigant parties. One important object, at all events, is to clear away everything which might engender suspicion and distrust of Tribunal, and so to promote

the feeling of confidence in the administration of justice which is so essential to social order and security.
Again, in Metropolitan Properties vs. Lennon (1969) 1 Q.B. 577, Lord Denning, M.R. said at page 599:
In considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the chairman of the Tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact, favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then, he not sit. And if he does sit, his decision cannot stand Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough…
There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman, as the case may be, would, or did, favour one

side unfairly at the expense of the other. The Court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: the judge was biased.”
Although the decision in that case concerned the chairman of a rent assessment committee, and the allegation made was that the decision of his rent assessment should be upset on the footing that he had an interest in the matter of a disqualifying character, we nevertheless find ourselves in entire agreement with the approach of Lord Denning to the question of real likelihood of bias, an approach we consider to be applicable to the circumstances of the present case which we shall later describe in some detail.
The test of a real likelihood of bias was also explained and applied in Obadara & Ors. vs. Commissioner of Police (1967) NMLR 39 and in Oyelade vs. Araoye & Attorney-General (1968) NMLR 41 confirming Obadaras case, but in somewhat different circumstances.

In Obadaras case Brett, Ag. C.J.N. said at page 44:-
The principle that a judge must be impartial is accepted in the jurisprudence of any civilized country and there are no grounds for holding that in this respect the law of Nigeria differs from the law of England or for hesitating to follow English decisions.
We shall first of all test the submissions and arguments of learned Counsel in the light of these most authoritative principles. All arguments, therefore, by learned Counsel for the appellants or the respondents calculated or tending to show the learned judge was in fact biased or not biased, need not be considered further if there is a foundation of fact for holding that the impression created by his conduct of the proceedings in the minds of reasonable people was that, in the circumstances, there was a real likelihood of bias on his part. If such impression was created, he should not have proceeded to hear the action and in such circumstances his decision at the conclusion of the hearing would not be allowed to stand.
The fact that on a number of occasions spread over a number of days prior to the

hearing, the Court awarded costs in respect of a number of interlocutory applications either to the appellants or to the respondents in a matter considered to be fair and just, or that he granted an adjournment when he could have dismissed or struck out the appellants case in default of their attendance, is neither here nor there. We have also decided that, for the purposes of our consideration of Grounds (3) and (4), it is not necessary for us to delve into the contempt proceedings against the appellants, other than referring to their conviction for contempt by the learned judge in the course of the proceedings prior to the hearing when, as already mentioned, the first, second and third appellants were each sentenced to pay a fine of N100.00 or in default of payment to serve six months imprisonment with hard labour. In addition each was to enter into a bond to keep the peace and too be of good behaviour generally for one year, in the sum of N1,000.00 in self-recognizance.
It was submitted by learned Counsel for the respondents that the failure by the appellants to attend Court for the trial of the action was an act of utter

irresponsibility. That may well be so. However, the appellants may also have absented themselves at a time after the impression could have been created in their minds, as well as in the minds of reasonable people who had witnessed the proceedings prior to the hearing, that there was a real likelihood of bias on the part of the learned judge, if he should decide ultimately to hear the action.
Chief Williams submitted that there are two types of bias:-
(1) An allegation attacking the qualification of the Tribunal to try the case, that is, an attack on the constitution of the Tribunal and
(2) hostility to a partys case or to the party,
and that, in the latte case, it is not possible for a person to claim lack of fair hearing unless he participates in the trial. We contended further that in every case where the Court has held there was not a fair hearing there has been a trial. In Mohammed vs. Kano N.A. (1968) 1 All NLR 424, Ademola, C.J.N. (delivering the judgment of the Court), said at page 426:-
We think a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing.

We therefore see no difference between the two. The true test of a fair hearing it was suggested by Counsel is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case. We feel obliged to agree with this.
What has to be construed is the document that evidenced the transaction. In NIDB vs. Olalomi Industries Ltd. (2002) 5 NWLR (Pt. 761) 532 at 555 paragraph G to wit: a document speaks for itself and that oral testimony is inadmissible to vary, add to or take away from the contents of the document. See also Popoola Ayinla vs. Sapara (1968) 1 All NLR 530 at 533.
When a contract is reduced into writing, the writing gives the terms agreed upon Per Bairamian, F.J., in Mandilas & Karaberis Ltd. vs. Otokiti (1963) 1 All NLR 22 at 26. See also Ihezukwu vs. UniJos (1990) 21 NSCC (Pt. 3) 80 at 88 lines 25-35; Olaniyan & Ors. vs. UniLag (1985) 2 NWLR (Pt.9) 599; A.A. Macaulay vs. NAL Merchant Bank Ltd. (1990) 6 SCNJ 117 at 133 per Agbaje, JSC and Owoniboys Technical Services Ltd. vs. UBN Plc (2003) FWLR (Pt.180) 1529/1552.

In Dagogo vs. Attorney-General of Rivers State (2002) FWLR (Pt.131) 1956 the disputed document was marked Exhibit SF1. At page 1979 paragraph A to page 1980 paragraphs A- B, Ikongbeh, JCA (of blessed memory) said:
With all due respect, I do not agree with these contentions. From the competing claims and contentions made before the trial Court, it cannot, in my view, be said that the sole or principal question entailed by the plaintiffs action was the construction of Exhibit SF1. The very validity or, at least, the efficacy of the document was in dispute. The defendants/appellants placed materials before the Court that tended to show the document no longer had the force that the plaintiffs/respondents attributed to it. By these materials they sought to show that it had been overtaken by other circumstances that came into being after the making of it. The plaintiffs/respondents themselves admitted some of the facts and were indeed aware of them from the very beginning, which explains why they made the prayer for a declaration that the document was still

subsisting and binding the very first of the reliefs sought. They themselves clearly recognised that ever before there could be any question of the construction of Exhibit SF1 they had to get the Court to determine whether that document was still subsisting and binding. If it was no longer valid or subsisting there could never be talk of interpreting it. In the circumstances, I think it would be utter abuse of language to say that the construction of that document was the sole or principal question in the case. It was certainly not the sole question. A principal question in any controversy must be that upon which all other questions depend. In other words, it is the primary and decisive question.
Viewed in this light, I would say that the principal question raised by the plaintiffs/respondents action was whether or not Exhibit SF1 was still subsisting and binding, certainly not whether its provisions meant one thing or the other. Before one can come to consider what a disputed document means one first has to determine whether or not the document has the life or efficacy attributed to it. Of course, if there

is no dispute as to its validity or efficacy then there would be no necessity for such determination. All that would then be required would be to decide which of two competing interpretations to place on its contents. It is not possible to determine whether the document, especially of the nature of Exhibit SF1, was still subsisting and binding by construing the provisions of it. That would be putting the proverbial cart before the equally proverbial horse. That would be an impossible or, at least, an impractical contraption. It cannot work. Or, even worse, attempting such an exercise would be to present ones self with the circular egg-chick scenario; which one comes first? The question whether or not a document like Exhibit SF1 is still subsisting and binding can be in my view, only be determined on evidence aliunde, not from within. The respondents have not pointed to anything in the document to indicate that the validity or efficacy of it can be determined from within it. I can see none.
Since the construction of Exhibit SF1 was not the sole or principal question upon which the first relief to which the

plaintiffs claimed to be entitled depended, it follows, in my view, that the plaintiffs were caught by the provisions of Order 1 Rule 2(2)(a) and, so could not use originating summons to commence the action giving rise to this appeal.
So also were they, in my view, caught by Order 1, Rule 2(b). From the affidavits filed on behalf of the opposing parties it was crystal clear that there was likely to be a serious and substantial dispute of fact. There was likely to be a hot dispute as to whether, in fact, Exhibit SF1 was still valid and subsisting. And, as I already pointed out, without resolving his disputed question of fact there can be no question as to the meaning to give to the contents of the document. This was why I agreed with Dr. Ibik, when I was dealing with this first issue for determination, that the learned trial Judge was wrong in ignoring the affidavit evidence placed before him by the defendants/appellants concentrating only on Exhibit SF1″.”
In Tangale Traditional Council vs. Fawu (2002) FWLR (Pt.117) 1137, M.M. Muktar, JCA (as he then was) held at page 1164 paragraphs A- E to wit:

It is not in doubt that the insertions were made on a standard bye-law form. Indeed, one can see from the said exhibit that the words Tangale Waja were slotted in various appropriate gaps throughout the length of the exhibit, but then whatever way one looks at it, one will be bound to go back to the nagging and pertinent question of whether Exhibit Q is already a law, or a binding one for that matter. I agree that a Court is not allowed to embark on a voyage of discovery on its own, but must apply itself to the issues submitted to it by the parties. See Atikpekpe vs. Joe (1999) 6 NWLR (Pt.6307) page 428 relied upon by learned SAN for the appellant, and the case of Alhaji R.A. Salami vs. Savannah Bank of Nigeria Ltd. (1990) 2 NWLR (Pt.130) page 106. This case is distinguishable from the instant one, because in that case the Tribunal did in fact descend into the arena by calculating the number of votes in the exhibits before it, whereas in the case on hand what the learned Judge did was to examine the document and comment on her observations, an act which the law permits her to do. It is trite that documents placed before a Court

of law are for the purpose of examination and evaluation, and it is the duty of the Judge to ensure that such documents are considered in the interest of justice, for such documents are not tendered just for the fun of it. Documentary evidence must also be evaluated and in the course of evaluation a Judge is expected to closely examine the document and comment on it. I fail to see that the Judge went beyond what was expected of her in evaluating the evidence before her, as is manifested in her finding. I find it inconceivable that she went on a voyage of discovery. As I have said earlier on, the finding of the learned Judge on Exhibit Q1 was not attributed solely to the non-production of its original copy, but on various abnormalities discerned from the document itself.
A document whose authenticity is challenged, its maker should be called by the party who pleaded and tendered it at the hearing. See G. Chitex Ind. Ltd. vs. Oceanic Bank Int. (Nig.) Ltd. (2005) All FWLR (Pt.276) 610 at 624 paragraphs D- E to wit:
Exhibit H which was offered as proof of the loss of N3.5 million is not

an authentic document to entitle the appellant to claim such damages. Where a document is challenged and impugned as unauthentic, the maker of the document should be called to support the document, otherwise no weight should be attached to it. Where such damages are suffered and claimed in an action for breach of contract, there must be convincing evidence to prove the damages.
In Ogun vs. Asemah (2002) FWLR (Pt.128) 1328 the Court held at page 1341 paragraphs E- G as follows:-
It is apparent from the irregular setting of Exhibit C that it has the semblance of a deed conveying interest in land. A close scrutiny of Exhibit C definitely portrays the decisions taken at a meeting overtly presided over by His Highness, the Otaru of Igarra in his Palace on the 8th day of July, 1981. The said final decisions are reflected in paragraphs (b), (c), (d) and (e) above. I have also observed that the buyers, sellers, and witnesses signatures inserted in Exhibit C can hardly correlate with the wording therein. Those who signed can at best be

described as the persons present at the meeting. It is trite that in construing a document, the Court should look beyond its format in order to ascertain the intendment of its wording. In the instant case, a visit into the pleading of he respondents will clarify any lingering doubt as to what Exhibit C is meant to serve.
In S.F.F. Ltd. vs. S.G.B. (Nig.) Ltd. (2003) FWLR (Pt.186) 693 the Supreme Court held at page 703 paragraphs H- G as follows:-
Where there are two conflicting assertions before a Court, as in our present case, the Court is duty bound to consider the two assertions carefully and to decide on balance of probabilities which of the assertions the Court will accept. See: Omoregbe vs. Edo (1971) All NLR (Pt.1) 282 and Odutola vs. Aileru (1985) 1 NWLR (Pt.1) 92. The trial Judge has failed to make findings of fact on issues joined on the pleadings. It is also clear that he neither assessed nor evaluated the evidence adduced before him. The appeal therefore has merit and should be allowed. In Adeyemo vs. Arokopo (1988) 2 NWLR (Pt.79) 703. The Supreme Court held at page 717 per

Karibi-Whyte, JSC that:
It is both elementary and fundamental to the proper administration of justice that the Court of trial must consider all evidence adduced before it and carefully make findings on them before coming to its judgment in the case. This duty imposed on the trial Court involves a utilization of the advantage of seeing the witnesses testify and forming impressions about their credibility. Thus where all the evidence before the trial Court has not been considered before giving judgment it cannot be said with any measures or certainty, that the trial Judge considered all the case before it. Thus there is a yawning gap through which obvious injustice could intrude undisturbed. The jurisdiction as to consideration of oral evidence and making findings of fact therefrom properly belongs to the trial Court.
Now what remains to be determined is the order to make. Either to send the case back to the lower Court for retrial which is the relief being sought by the appellant or for this Court to assess and evaluate the evidence of the witnesses and draw proper inference and enter judgment accordingly which the respondent urged us to.

The learned Chief Judge (Rtd.) evaluated the oral and documentary evidence using the pleadings to arrive at a just decision. There is no merit in this appeal which I dismiss with N100,000.00 cost to the respondent.

ONYEKACHI AJA OTISI, J.C.A. I read in advance the lead Judgment delivered by my learned Brother, Joseph Tine Tur, JCA, in which the appeal of the Appellant has been dismissed. I agree that the appeal is without merit. I only wish to make brief comments on the complaint of denial of fair hearing.

By Motion on Notice filed on 17/10/2005, the Appellants sought leave of Court to further amend their statement of defence and counter claim. The reason for this application as given in the affidavit in support was as follows, page 104 of the Record of Appeal:
l. That he has been further informed by the applicants, and he verily believes
a. that the respondent has been giving out portions of the land in dispute to sundry persons who have carried out sundry developments on the land and are carrying on businesses of various types paying the respondent various sums of money.

b. That there is need for the applicants to amend their statement of defence and counter-claim to take cognizance of this development and to ask that the respondent renders account of whatever money she has collected as proceeds from the rents of the plot.
m. that this application is made in the interest of justice.
n. That the amended statement of defence and the counter-claim are hereto attached as Exhibit A.

In the written address filed by the Appellants Counsel in support of the motion, he stated, page 105 106 of the Record of Appeal:
“Since the filing of this case, the respondent has not only carried out further developments on the land in dispute outside what she initially claimed but has also either sold out portions of the land and or allocated portions of the land to other persons who have carried out various developments, and are now doing diverse businesses on the plot. All the persons on the land at the instance of the respondent have been paying rentage of various amounts to the respondent. The respondent has not disclose(sic) how much she has been and is collecting from the persons she

borught(sic) to the land and there is need for accounts to be rendered by her to the applicants. There is therefore the need to further amend the statement of claim and counter claim accordingly.
The respondent will not be prejudiced by the grant of this application as it is only meant to bring all that is invovled(sic) in the dispute out on the table for effective and effectual determination by the Court.
The Court has power to grant the reliefs herein sought and the Court accordingly urged to grant the application in the interest of justice.”

In refusing the application on 19/1/2006, the lower Court held, page 225 of the Record of Appeal:..Order 26 Rule 2 of the High Court Civil Procedure Rules allows amendment that are necessary for the purpose of determining the real question in controversy.
The affidavit evidence before me on the issue of the proposed amendment does not convince me that it is done bona fide. Moreover the amendments so inserted in the purposed (sic) further amended statement of defence and counter claim are so numerous and clumsy the numbering of the paragraphs has been altered as pointed out

by respondents counsel.
Some paragraphs have also been left out in other places. I am convinced that the aim of seeking fresh amendment in the case is not aimed (sic) bringing all the issues before the Court for effectual determination of the case once and for all rather to cause unnecessary delay.
(Emphasis mine)

Interestingly, as at the time the application was made and refused, the Respondent, as plaintiff, had not closed her case. In fact, she as PW4 was cross examined by the Appellants Counsel on 20/2/2006, page 228 of the Record of Appeal. Her other witnesses, PW5 and PW6 concluded their testimonies on 22/4/2008, page 250 of the Record of Appeal. Hearing in the matter was finally concluded and written addresses of Counsel for the respective parties adopted on 31/7/2009, page 306 of the Record of Appeal. Judgment was given by the learned trial Chief Judge on 6/10/2009, pages 338-347 of the Record of Appeal. In other words, hearing proceeded for almost four more years after the application for leave to further amend the statement of defence and counter claim was refused.

The Appellants contend that the refusal of the lower Court to grant their application to amend their pleadings was in breach of their rights to fair hearing. For the Respondent, it was submitted that the amendment sought was immaterial to the issues in controversy before the lower Court.

Order 26 Rule 2 of the Benue State High Court (Civil Procedure) Rules, 1988 provided:
The Court or a Judge in Chambers may, at any stage of the proceedings allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall made as may be necessary for the purpose of determining the real question in controversy between the parties.
Pronouncing on the test to be employed in determining whether an amendment ought to be allowed, the Supreme Court in Akaninwo & Ors v. Nsirim & Ors (2008) LPELR-321(SC), page 10 – 12 of the E-Report:
The circumstances under which a Court may grant or refuse leave to amend pleadings are clearly set out in Order XXXIV of the Rules of the High Court of Justice of Rivers State under which the Defendants/Appellants’ application was filed. It reads:-

“The Court may at any stage of the proceedings, either of its own motion or on the application of either party order any proceeding to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just.”
In the exercise of the no doubt discretionary powers conferred, the Court must have more regard to substance. In other words as a general rule, an amendment of any proceeding including pleadings under Order XXXIV quoted earlier, will be granted if it is for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties.
The law is indeed well settled that an amendment of pleadings should be

allowed at any stage of the proceedings unless it will entail injustice to the other side responding to the application. The application should also be granted unless the applicant is acting mala fide or by his blunder, the applicant has done some injury to the respondent which cannot be compensated in terms of costs or otherwise.
In Adekeye & Ors v. Akin-Olugbade (1987) LPELR-104(SC), Oputa, JSC said, pages 14-15 of the E-Report:
The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs.
See also: Ogidi v. Egba (1999) LPELR-2302(SC); Oforishe V. Nigerian Gas Co. Ltd (2017) LPELR-42766(SC).
It is correct to submit as the Respondent has done that the exercise by the Court of the power to allow an amendment is discretionary. However, judicial discretion must be engaged judicially and judiciously. The exercise of discretion by a Judge ought to be in line with the provisions of the law and on the basis

of correct and convincing reasons; Ogah v. Ikpeazu & Ors (2017) LPELR-42372(SC); Barau v. Mafua (2014) LPELR-23962(CA).
The reasons given by the learned trial Judge for refusing the amendment, as reproduced above were, in summary:
1. That amendment was not convincingly brought bona fide;
2. That the amendments sought were numerous and clumsy;
3. That the numbering of the paragraphs had been altered;
4. That the amendment was not aimed at bringing all issues before the Court for effectual determination of the case once and for all;
5. The amendment would cause unnecessary delay.
It is evident that the reasons given by the learned trial Chief Judge for refusing the application for amendment were not in line with considerations that ought to guide his decision on the matter. As rightly submitted by the Appellants Counsel, these were not legal reasons at all. The proposed Further Amended Joint Statement of Defence and Counter Claim is found at pages 107 – 111 of the Record of Appeal. The particular amendments sought to be made were not specified therein, as would usually be the case. However, no matter how

numerous and clumsily done the amendments sought to be made may have been presented, it is well settled that negligence, carelessness or blunder of counsel is not a reason to refuse an amendment; Adekeye & Ors v. Akin-Olugbade (supra). The Respondent as plaintiff had not closed her case as at the material time. The hearing dragged on for almost four more years. The amendment would not have been overreaching the Respondent. In the locus classicusOjah & Ors v. Ogboni & Ors (1976) LPELR-2366(SC), the Supreme Court pronounced, page 10 of the E-Report:
It is well settled law that an amendment of pleadings should be allowed unless
(1) it will entail injustice to the respondent;
(2) the applicant is acting mala fide; (See Tildesley v. Harper (1878) 10 Ch.D.393 at p.396).
or
(3) by his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise. (SeeTildesley’s case (supra); Oguntimeyin v. Gubere (1964) 1 All NLR176 at p.179; and Amadi v. Thomas Aplin & Co. Ltd.(1972) 1 All NLR.409).

In Okafor v. Ikeanyi & Ors (1979) LPELR-2418(SC), at page 13-14 of the E-Report, the Supreme Court restated the principle thus:
The correct principle for the guidance of a Court in the exercise of its discretionary power under the Order was fully considered by this Court in Chief Ojah & Ors. v. Chief Eyo Ogboni & Ors. (1976)4 S.C. 69. Of pleading for the purpose of determining the real questions in controversy between the parties ought to be allowed unless such amendment will entail injustice or surprise or embarrassment to the other party or the applicant is acting mala fide or by his blunder the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise. In other words, the discretion ought to be exercised so as to do what justice and fair play may require in the particular case.
(Emphasis mine).

In my considered view, the learned trial Judge failed to exercise his discretion to allow the amendment sought by the Appellants in accordance with the Rules of Court. Notwithstanding, this Court can only interfere with the exercise of discretion by the learned trial Chief Judge if that exercise is shown to have occasioned a miscarriage of

justice; Ogah v Ikpeazu (supra) at page 32 of the E-Report. The question now is whether the amendments sought to be made by the Appellants were material to the issues in controversy before the lower Court and whether the Appellants suffered a miscarriage of justice as a result of the decision against their application.

In issue before the lower Court was a parcel of land in Makurdi. The Respondents case was that one Nenda Agba, granted part of his land along Makurdi-Gboko Road, Makurdi to her deceased husband, Peter Jubu in March, 1982. After the grant, Peter Jubu applied for a Right of Occupancy over the land. The Respondent alleged the Appellants trespassed into the said land. The Appellants disputed the grant of the entire land in issue to Peter Jubu by Nenda Agba. Their defence was that Nenda Agba, now also deceased, had made the grant of only a portion of the said land to late Peter Jubu to enable him construct a residential abode. They allege that the Respondent was laying claims to the parcel of land larger than the portion of land granted to her late husband, Peter Jubu. The Appellants counter-claimed for portions of the land in dispute to which they

claimed title and also sought to restrain the Respondent from further acts of trespass thereon. Thus, the amendments sought to be made to the pleadings of Appellants were relevant to their counter claim but not relevant to the main claim before the trial Court. In other words, if the entire land in dispute was adjudged to belong to the Respondent, as sought in the main claim, then the portions alleged to have been given out or rented out by her would be within her authority to so do. The amendment of the pleadings in the counter claim could not therefore have at all affected the issues in controversy in the main claim. The said amendment was only relevant to the counter claim.

Expounding on circumstances that may constitute a miscarriage of justice, Peter-Odili, JSC in Oke & Anor v. Mimiko & Ors (2013) LPELR-21368(SC) held, pages 37- 39 of the E-Report:
“On what amounts to miscarriage of justice, this Court has in a long line of judicial authorities set out some definitions on what can in the course of adjudication be termed “miscarriage of justice”. Tobi JSC in Gbadamosi v. Dairo (2007) 3 NWLR (pt.1021) 282 at 306 treated it thus:-

“Miscarriage of justice connotes decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantiated rights of the party. Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it.”
In Aigbobahi v. Aifuwa (2006) 6 NWLR (pt. 976) 270 at 290 – 291 this Court said:
“…miscarriage of justice can be said to be such a departure from the rules which permeate all judicial process as to make what happened not in the proper sense of the word judicial procedure at all. What constitutes a miscarriage of justice vary, not only in relation to particular facts, but with regard to the jurisdiction invoked by the proceedings in question. It is enough if what is done is not justice according to law.”
The two definitions above say it as it is and in simple term would mean that when in the course of a proceeding the goal post is shifted to the detriment of one of the parties or where it can be said that from what had transpired from the very beginning of the judicial process or at any point during the

exercise of the judicial proceedings that the scale of justice had been tilted to favour one party thus jeopardizing the equal right of the other party then a miscarriage has occurred.”
There is a miscarriage of justice where there are grave or serious errors in the proceedings as to make the proceedings fundamentally flawed. It simply means that the Court has failed to do justice; per Rhodes Vivour, JSC in Nwankwoala v FRN (2018) LPELR-43891(SC). When there has been a denial of fair hearing, a miscarriage of justice would result.

Clarifying on when the principle of fair hearing can be said to have been breached, Tobi, JSC in Ejeka v State (2003) LPELR-1061(SC) said at page 13 of the E-Report:
“The principle of fair hearing is breached where parties are not given equal opportunity to be heard in the case before the Court. Where the case presented by one party is not adequately considered, the affected party can complain that he was denied fair hearing. Fair hearing is not an abstract term that a party can dangle in the judicial process but one which is real and which must be considered in the light of and circumstances of the case.

A party who alleges that he was denied fair hearing must prove specific act or acts of such denial and not a mere agglomeration of conducts which are merely cosmetic and vain.”
Thus, fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. In so far as the parties have been given equal opportunity to be heard on the matter submitted to the Court for adjudication, they cannot be heard to complain of breach of the fair hearing principles; INEC v Musa (2003) LPELR-24927(SC); Nwora & Ors v. Nwabueze & Ors (2019) LPELR-46803(SC); Duke v. Government of Cross River State & Ors (2013) LPELR-19887(SC). But, where such opportunity has not been accorded any of the parties, there will be a denial of fair hearing and a miscarriage of justice occasioned.

The Appellants were heard on their defence to the main claim. The main claim was successfully prosecuted by the Respondent and the decision of the trial Court now affirmed in this appeal. In my considered view therefore, although the reasons given by the learned trial Judge for refusing the application to amend the Appellants pleadings

were not acceptable legal reasons, in line with a judicious exercise of discretion by the learned trial Chief Judge, the Appellants have not shown that they suffered any miscarriage of justice. I therefore also dismiss the appeal.

JOSEPH EYO EKANEM, J.C.A.: I was before now obliged with a copy of the judgment of my learned brother, Tur, JCA.

In the respondents brief of argument, a preliminary objection is raised with a prayer that the appeal be dismissed. The grounds of the preliminary objection may be summarised thus:
1. Issue 5 is a fresh issue for which leave to raise has not been obtained.
2. Ground 1 in the notice of appeal is not a proper omnibus ground.
3. Grounds 2, 3, 6, 7, 8, 10, 11 and 13 are of mixed law and facts and leave ought to have been obtained to raise them.
4. Grounds 1, 4, 5, 9 and 12 are founded on evaluation of evidence and are therefore incompetent.

Issue 5 in the appellants brief of argument complains that the trial Court was biased in the handling of the matter. It is a complaint against the conduct of the trial Judge and so it is not a fresh issue.

Ground one of the notice of appeal reads:
The decision of the Court is unwarranted and is against the weight of evidence.”

Undoubtedly, the standard omnibus ground in a civil matter is that the,
Judgment is against the weight of evidence.”

Nevertheless the addition of the sentence that the decision of the Court is Unwarranted does not make ground one any less an omnibus ground.

It must be noted that the judgment being appealed against is a final judgment of the trial High Court sitting at first instance. By virtue of Section 241(1)(a) of the Constitution of Nigeria, 1999 (as amended) an appeal in that circumstance from the High Court to the Court of Appeal is as of right and that is irrespective of the nature of the grounds of appeal whether of law, facts or mixed law and facts.
The preliminary objection is frivolous and unmeritorious I therefore overrule it.

In respect of issues 1 and 2 in the appellants brief of argument, the trial Court held that Exhibit A was a gift of land from NendeAgba to Peter Jubu. I agree with the trial Court.

Exhibit A indicates that title was passed to Peter Jubu, the husband of the respondent. Clause 4 thereof is very instructive. It states;
My ownership over the land is therefore hereby seized (sic) with effect from the date of signing this document.”

The contention of the parties is as to the dimension of the land to which Exhibit A relates. Appellants counsel referred to the provision in Exhibit A that the land was given to Peter Jubu to develop a house for permanent settlement. It was his submission that the description is vague and so the respondent cannot secure reliefs under it or at the best the size of the land should be restricted to the house built thereon by Peter Jubu. There is no doubt that the subject matter of Exhibit A is not described or adequately described or identified. It is my view that oral evidence can be led to ascertain the subject matter of Exhibit A.
In Ekpechi V Owhonda (1998) 3 NWLR (Pt. 543) 618, 637, Uwaifo, JCA (as he then was) relying on the old case of Ogilvie V Foljambe (1817) 3 Mer. 51 stated that;
It follows from the authorities that where the subject matter of a grant is

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inadequately described or identified, extrinsic evidence is allowed to be led to make it certain. It must appear possible that the subject matter can be made certain and in addition evidence must actually be led to make it certain
Counsel for appellant was therefore not right in arguing that oral evidence could not be led in respect of Exhibit A.

The PW5 testified that he witnessed the signing of Exhibit A and that they were taken round the land by the grantor and that he was conversant with the boundaries of the subject matter of the grant. I have looked at Exhibit A again. Indeed PW5 signed it as a witness. He therefore was eminently qualified to testify as to the boundaries of the land. He gave evidence of the boundaries of the land which substantially agreed with the evidence given by the respondent (PW4). He further testified that he was present when Exhibit D, the site plan of the land, was made. He identified Exhibit D as the sketch of the plot. The only difference between his evidence and that of the PW4 is that she (PW4) referred to the plot as 100 but the PW5 referred to it as plot 98. The trial Court did not

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find this to be fatal. It held at page 345 of the record as follows:
The fact that the plaintiff wrongly referred to the plot as 100 alone does not distort the identity of the land

I agree with the trial Court. The important thing is that the boundaries as testified to by the PW4 and PW5 are the same or substantially the same.

Counsel for appellants submitted that since Exhibit A was not registered as required by the Land Registration Law Cap. 88 Laws of Benue State, it ought not to have been admitted in evidence. He urged the Court to expunge it from the record. In the first place, the document was pleaded and tendered as a memorandum and was therefore admissible in evidence as such. See Okoye V Dumez (Nig) Ltd (1985) 1 NWLR (Pt. 4) 783.
Furthermore, the Land Registration Law Cap. 88 Laws of Benue State is incapable of rendering inadmissible a document that is otherwise admissible under the Evidence Act. This is because evidence is a matter under the Exclusive Legislative List in item 23 of Part 1 of the Second Schedule to the Constitution of Nigeria, 1999 (as amended). A State legislature can not legislate on it.

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Only the National Assembly can so legislate.
In Benjamin V Kalio (1985) 15 NWLR (Pt. 1641) 38, 51 – 52 a full Panel of the Supreme Court (per Eko, JSC) held as follows:
In my firm view, the argument of the appellant, that Section 20 of the Land Instrument (Preparation and Registration) Laws, Cap. 74 of the Laws of Rivers State, has rendered Exhibit L, a land instrument, unpleadable and inadmissible in the proceeding of the trial Court goes to naught. It does not fly in view of the current and prevailing state of the constitutional law, admissibility of Exhibit L is governed by Evidence Act; not the Rivers State Instrument (Preparation and Registration) Laws Cap. 74. In my judgment, a piece of evidence pleadable and admissible in evidence by dint of the Evidence Act cannot be rendered unpleadable and inadmissible in evidence by a law enacted by a State House of Assembly under the prevailing constitutional dispensation.”

On account of what I have stated above, I resolve issues 1, 2 and 4 against the appellants.

The contention of the appellants in issue 3 is that the refusal of the trial Judge to allow the appellants to

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further amend their statement of defence and counter claim amounted to a denial of fair hearing. Respondents counsel contended to the contrary.

A close reading of the affidavit in support of the motion to amend at pages 103 and 104 of the record of appeal shows that the amendment was essentially to bring facts before the Court to show that the respondent had been giving portions of the land in dispute to sundry persons. The fact was to feed the counter claim of the appellants for an;
Order of the Court directing the plaintiff to render accounts of proceeds from the rents on the land to the 1st defendant.”

The aim of an amendment is to enable the Court to determine the real question in controversy between the parties. See Order 26 Rule 2 of High Court Civil Procedure Rules of Benue State. The only issue or main issue in the respondents claim was whether it was the whole land in dispute that was granted to Peter Jubu. The refusal of the application therefore can not therefore be said to have resulted in unfair hearing in respect of the main suit.

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The most that can be said is that it may have impacted on the issues sought to be canvassed in the counter claim. Nevertheless since the trial Court held that the land granted to Jubu was the whole land in dispute, the refusal of the application for amendment did not occasion a miscarriage of justice. This is because having become the administratrix and beneficiary of the estate of the late Peter Jubu, respondent could give portions of the land to persons of her choice. Therefore the counter claim of the appellants for account, even if it had been allowed, would not have been of any moment.
I therefore resolve issue 4 against the appellants.

Issue 5 complains that the trial Court was biased in his handling of the matter. Charging a Judge with bias is a serious matter. There must therefore be evidence from which such a conclusion can be reached. There must be circumstances from which a reasonable man would think it likely or probable that the Judge did favour one side unfairly at the expense of the other side. The Court looks at the impression which would be given to people other than the Judge. If right minded people would think that, in the circumstances, there was a real likelihood of

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bias, then the Judge should not sit and if he sits, his decision can not stand. See Olue V Enenwali (1976) ANLR 70 and Akingbole V FRN (2018) 14 NWLR (Pt. 1640) 395.
In this instance, the complaint of bias against the trial Judge is based on alleged errors and misdirection in the decision and judgment of the trial Court. I have already answered some of those complaints above. The mere fact that a Judge errs or is said to have erred in his decisions is not by itself enough circumstance to draw an inference of bias. The party who alleges bias needs to show how such alleged errors or misdirection amounted to bias. It must be remembered that a Judge does not and has never taken an oath not to err. His oath is not to be biased.
I can not see how the trial Judge in this instance can be rightly accused of bias.
Issue 5 is resolved against the appellant.
It is for the above reasons that I agree with my learned brother, Tur, JCA, that the appeal has no merit. I accordingly dismiss the same.

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Appearances:

B.O. Ukaba, Esq. with him, E.U. Uzowuru, Esq. For Appellant(s)

T. J. Yaji, Esq. with him, T. T. Amaokimin, Esq., T. Gusa, Esq. and L.S. Gbileve, Esq. For Respondent(s)

Appearances

B.O. Ukaba, Esq. with him, E.U. Uzowuru, Esq. For Appellant

AND

T. J. Yaji, Esq. with him, T. T. Amaokimin, Esq., T. Gusa, Esq. and L.S. Gbileve, Esq. For Respondent

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