RAPHAEL IGWEDIBIE V. JONAS IGWEDIBIE & ANOR (2013)

RAPHAEL IGWEDIBIE V. JONAS IGWEDIBIE & ANOR

(2013)LCN/6225(CA)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of May, 2013

CA/E/366/2007

RATIO

DUTY OF COURT: EVALUATION OF EVIDENCE

It has become settled that the evaluation of the evidence adduced in a case, the ascription of probative value thereto, and the making of findings therefrom are primarily the functions of the trial court that had the singular advantage of seeing the witnesses and observing their demeanour. See BALOGUN V. AGBOOLA 1 ALL NLR (PT. 2) 66; OGBUCHIE V. ONOCHIE (1988) 1 NWLR (PT. 470) 390: AKIBU V. OPALEYE (1974) 11 SC 189.

The determination of issues of fact therefore belongs pre-eminently to the trial court whose decision on those facts enjoys a presumption of correctness until rebuffed by an appellant. See WILLIAMS V. JOHNSON (1937) 2 WACA 253; OKOYE V. EJIOFOR (1934) 2 WACA 130; FATUNMISE V. OMISORE (1964) NMLR 123; AKINLOYE V. EYIYOLA (1968) NMLR 92.

An appellate court that has not had the same opportunity enjoyed by the trial court of seeing the witnesses has no business to substitute its own views for those of the trial court. See AJAO V. AJAO (1986) 5 NWLR (PT.45) 802; EBBA V. OGODO (1984) 1 SC NLR 372; IBANGA V. USANGA (1982) 5 SC 103; OKAGBUE ROMAINE (1982) 5 SC 130.
Where however the trial court has failed to properly utilize the advantage of seeing and hearing the witnesses or has failed to make findings on material issues or has wrongly approached the evidence of the parties and has thereby drawn wrong conclusions or made perverse findings and the credibility of the witnesses is not involved, the appellate court has a duty to intervene or interfere with the views of the trial court so as to avoid any miscarriage of justice. See ONWUGBUFOR V. OKOYE (1996) 1 NWLR (PT. 424) 252; OYADIRAN V. OKE (1997) 11 NWLR (PT. 530) 606; ENANG V. ADU (1981) 11 – 12 SC 25; FASANU V. ADEKOYA (1974) 6 SC 83.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

RAPHAEL IGWEDIBIE Appellant(s)

AND

1. JONAS IGWEDIBIE
2. FELIX IGWEDIBIE Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): The appellant in this appeal was the plaintiff in Suit No. A/88/96 commenced at the Awka Division of the High Court of Anambra State through the Writ of summons filed on 10th May, 1996. As stated in the Writ of Summons and in paragraph 36 of the Amended Statement of Claim filed on 13/9/04, the plaintiff had claimed as follows:
(a) A Declaration that under the Amawbia native law and custom, the common law and equity, the plaintiff, the defendants and late Emmanuel Igwedibie are entitled to equal shares of the pieces or parcels of land mentioned in paragraph 15 hereof which their respective mothers contributed equal sums of money with which their said mothers redeemed the said pieces or parcels of land for and on behalf of their respective sons after the death of Igwedibie Obungene.
(b) A DECLARATION that under the Amawbia native law and custom, the common law and equity, the plaintiff, as the next-of-kin of late Emmanuel Igwedibie, and as the person who buried him and performed his funeral rites, is entitled to take and own (inherit) late Emmanuel Igwedibie’s shares of the property mentioned in paragraph 15 hereof.
(c) AN ORDER of this court that late Emmanuel Igwedibies’s shares in the pieces or parcels of land mentioned in paragraph 15 hereof be taken and owned (inherited) by the plaintiff.
(d) A DECLARATION that under the Amawbia native law and custom, the common law and equity, late Emmanuel Igwedibie is entitled, as the plaintiff and the defendants, to equal shares of the pieces or parcels of land stated in paragraph 19 hereof which he and the plaintiff and the defendants contributed equal sums of money with which the said pieces or parcels of land were redeemed, before the death of Emmanuel Igwedibie, notwithstanding that Emmanuel Igwedibie was not survived by a wife or child.
(e) A DECLARATION that under the Amawbia native law and custom, the common law and equity, the plaintiff as the next-of-kin of the deceased Emmanuel Igwedibie and as the person who buried him and performed his burial rites, is entitled to take and own (inherit) late Emmanuel Igwedibie’s shares of the property mentioned in paragraph 19 hereof.
(f) AN ORDER of this court that late Emmanuel Igwedibie’s shares in the property stated in paragraph 19 hereof be taken and owned (inherited) by the plaintiff.
(g) A DECLARATION that under the Amawbia native law and custom, the common law and equity, late Emmanuel Igwedibie is entitled, as the plaintiff and the defendants, to equal shares of the pieces or parcels of land known as and called:-
(a) Ngam land marked K in the plaintiff’s survey plan, and
(b) Ngam “Ezi Nwugha land marked “L3” in the plaintiff’s survey plan in which late Emmanuel Igwedibie, the plaintiff and the defendants contributed equal sums of money with which they financed court litigations against Mbanefo Officha family and Daniel Nwammor Nwoye family respectively and won.
(h) A DECLARATION that under the Amawbia native law and custom, the common law and equity, the plaintiff, as the next-of-kin of late Emmanuel Igwedibie and as the person who buried him and performed his funeral rites, is entitled to take and own (inherit) the late Emmanuel Igwedibie’s shares of the said pieces or parcels of land marked “K” and “K3” in the plaintiff s survey plan.
(i) AN ORDER of this court that late Emmanuel Igwedibie’s shares in the pieces or parcels of land marked “K” and “L3” in the plaintiff s survey plan be taken and owned (inherited) by the plaintiff.
(j) AN ORDER that:-
(i) all the pieces or parcels of land mentioned in paragraph 15 hereof which were redeemed by the mothers of the plaintiff, the defendants and late Emmanuel Igwedibie for and on behalf of the plaintiff, the defendants and late Emmanuel Igwedibie,
(ii) all the pieces or parcels of land mentioned in paragraph 19 hereof which were redeemed by the plaintiff, the defendants and late Emmanuel Igwedibie, and
(iii) the pieces of land marked ‘K’ and “13” in the plaintiffs survey plan be shared into four equal parts amongst the plaintiff, the defendants and the late Emmanuel Igwedibie,
Be shared into four equal parts amongst the plaintiff, the defendants and the late Emmanuel Igwedibie.
(k) AN ORDER that the late Emmanuel Igwedibie’s shares of the said pieces or parcels of land mentioned in paragraphs 15 and 19 hereof and in the pieces or parcels of land marked K and J in the plaintiff’s survey plan, be taken and owned (inherited) by the plaintiff, the next-of-kin of late Emmanuel Igwedibie.
(l) AN INJUNCTION restraining the defendants by themselves, their servants, agents and/or privies from preventing or obstructing the plaintiff and his servants, agents and/or privies from making use of one half of any of:-
(i) the redeemed pieces or parcels of land and/or
(ii) the pieces or parcels of land litigated upon and won with equal sums of money contributed by the plaintiff, the defendants and late Emmanuel Igwedibie pending the time the said pieces of land are shared as per the order of the court.
The respondents as the defendants filed their Statement of Defence And Counterclaim on 19/5/97 and sought the following reliefs by way of Counterclaim;
(a) A declaration that in accordance with the custom and tradition, a dead son without a wife and any son is not entitled to any share of land of his late father and any share the dead son already acquired should revert to the common pool of family land.
(b) A declaration that all unshared lands of late Igwedibie Obungene shall be shared into three parts to correspond with the surviving sons of late Igwdibie.
(c) A declaration that any piece or parcel of land already received by the late Emmanuel Obungene shall revert to the common pool of family land.
(d) An injunction restraining the plaintiff from intermeddling with the unshared property of late Igwedibie Obungene by way of lease, grant, alienation, mortgage and/or in any other way interfering with the said property in a manner inconsistent with the rights of the defendants.
(e) An injunction restraining the plaintiff from usurping the functions and rights of the 1st defendant as the eldest son (Di-Okpala) of late Igwedibie Obungene.
The plaintiffs Reply to Statement of Defence and Answer to Counterclaim was filed on 16/7/99. The suit had earlier been heard by two Judges of Anambra State High Court who could not complete trial before it was eventually heard to conclusion by C.E. Iyizoba J. (now JCA). The plaintiffs called 7 witnesses while the defendants called 4 witness. The records of the proceedings in the suit before the two previous learned Judges (Hon. Justice Olike and Hon. Justice Ononiba) containing the evidence of the witnesses that had testified were tendered before Iyizoba J. pursuant to Section 34(i) of Evidence Act.
The pleadings and evidence show that the parties to the suit are sons of one Igwedibie Obungene now deceased. The plaintiff and one Emmanuel Igwedibie who is also deceased are children of the same mother while the two defendants belong to the same mother, both women being the wives of the deceased Igwedibie Obungene. The late Igwedibie Obungene had pieces or parcels of land which he pledged for various loans he obtained but could not redeem the pledges before he died and his four sons (the three in this case and the late Emmanuel) contributed money to redeem the pledged property. Emmanuel Igwedibie however died after the redemption but before the sharing of the property. The plaintiff who is Emmanuel’s brother of full blood and who claimed to have buried him and performed his burial rights insisted that though Emmanuel died without any wife or child, he (Emmanuel) should have equal shares with the others and the shares should belong to him (plaintiff).
The defendants on the other hand as half brothers of Emmanuel resisted the plaintiffs claim and insisted that such sharing is not in line with the custom and tradition of Amawbia under which a man who dies childless and without a wife has no inheritance in the father’s landed property.
At the end of the trial and after the filing and exchange of final addresses by the learned Counsel, the learned trial judge in the judgment delivered on 27/6/2006 dismissed the claim of the plaintiff while the counterclaim of the defendants was granted in part with the court holding that the unshared lands of Igwedibie Obungene be shared into three parts for the plaintiff and the defendants, and that the late Emmanuel who died without wife or child was not entitled to any share of the property.
The plaintiff who was dissatisfied with the judgment of the High Court of Anambra State (hereinafter called the trial court) filed Notice and Grounds of appeal on 23/8/06 with 9 grounds of appeal in commencement of this appeal as amended by the Amended Notice of Appeal filed on 28/3/11 with 7 grounds of Appeal:
In the Appellants Brief of Argument prepared by Chief Eze Duruiheoma SAN and filed on 28/3/11, the lone issue formulated for determination is as follows:-
Did the trial court fully and correctly evaluate all the evidence led on the question of whether a man who dies after his father and after contributing money for the redemption of family land is disentitled from a share of the redeemed land because he was not married and had no children? And were the findings of fact made by the Trial Court not perverse in view of what the Trial Court had earlier said about the plaintiff and his evidence.
If the answer to the above is yes did that not lead to a miscarriage of justice? (Grounds 1, 2, 3, 4, 5, 6 and 7).
The respondent’s Brief of Argument settled by Emmanuel O. Achukwu Esq. of Counsel was filed on 17/5/11, the learned Counsel also raised one issue for determination, which is;
Whether the learned trial judge properly evaluated the evidence before her and came to a just determination of the case.
In his argument of the issue formulated in the Appellant’s Brief, the learned Senior Advocate of Nigeria contended that the question before the trial court was which of the versions of the native law and custom espoused by the parties is correct, and in resolving this question the Trial Court was expected to evaluate all the evidence led by the parties and ascribe probative values to them.
Evaluation of evidence, it was submitted involves a consideration of evidence given by the parties and a determination of the credibility of the witnesses as well as ascription of probative value to the evidence evaluated. The cases of MAIYAKI V. STATE (2008) 15 NWLR (PT.1109) 173; LAGGA V. SARHUNA (2008) 16 NWLR (PT. 1114) 427 and BASIL V. FAJEBE (2001) 11 NWLR (PT. 725) 592 were cited in support of this submission.
It was contended that the learned trial judge did not evaluate the evidence of the plaintiff s witnesses in this case in the prescribed manner particularly the evidence of Francis Anieuno who was 100 years old, evidence of Stephen Umeh a retired headmaster who was aged 93 years, evidence of Nze Isaac Nwoye, a pensioner of 82 years at the time of the testimony, and the evidence of Onuora Chiedozie, all of which were admitted as depositions under Section 34 of the Evidence act. It was contended also that Exhibit C was not evaluated.
The Senior Counsel contended that the evidence of these witnesses which was taken in earlier proceedings and tendered as depositions in the trial court having satisfied the conditions under Section 34(1) of Evidence Act and were admitted in evidence were in the same position as those led before the learned Trial Judge, and the court owed a duty to evaluate them like the others. It was contended that the rejection of the evidence of all the witnesses who had testified before the two earlier Judges in the suit was not a reasoned affair and there was no attempt to put the evidence on the imaginary scale of justice.
It was the contention of the Senior Counsel that had the trial court properly evaluated the evidence in the case, the evidence of the defendants would not have been preferred to that of the plaintiff. It was contended that the court should not have accorded any credit to the evidence of the DW2 who claimed to have testified on behalf of the Okpala Igwe in Council, citing NITEL LTD. V. IKPI (2007) 8 NWLR (PT. 1035) 96.
It was contended that the learned trial judge had, in the course of review of evidence, certified the plaintiff as a witness of truth and discredited the defendants, by which the plaintiff should have succeeded, but he did not, due to non-evaluation of the evidence of the plaintiff’s witnesses.
It was contended also that the finding of the learned trial judge that the contribution by the plaintiffs late brother to the money used to redeem the pledge was not an investment but a repayment of debt shows lack of proper evaluation of evidence and the conclusion was not supported by any evidence.
It was submitted that having described the plaintiff as a witness of truth whose evidence she believed without qualification, the learned trial judge could not summersault and believe the opposite of what she had believed, as this amounts to a court overruling itself or sitting on appeal over its decision, citing the case of IBM (NIG) LTD. V. SPEEGAFFS COMPANY (NIG) LTD. (1997) 3 NWLR (PT. 494) 423.
It was contended that the trial court failed to evaluate exhibit C which is the evidence of an agreement at one time that the redeemed lands be shared into four equal parts showing the fact that the right of the deceased Emmanuel to partake in the sharing was recognized.
The learned SAN argued that the findings of fact of the trial court that late Emmanuel Igwedibie was not, on account of his death entitled to share from the lands of his father after contributing for the redemption was arrived at without proper evaluation of evidence led at the trial, or upon the court overruling itself, and such finding is perverse.
The Senior Counsel submitted that in line with the decisions in A.T.E. CO. LTD. V. MILITARY GOVERNOR OGUN STATE (2009) 15 NWLR (PT. 1163) 26; G.K.F.I. (NIG) LTD V. NITEL PLC. (2009) 15 NWLR (PT. 1164) 344 this court should intervene and upset the findings of fact made by the trial court which did not result from a proper evaluation of evidence led at the trial and are perverse.
As argued by the learned Counsel for the respondents, two questions arose before the trial court for determination in the case;
(a) Whether Emmanuel Igwedibie contributed money towards the redemption of the parcels of land pledged by their father.
(b) If he had so contributed money, whether he was entitled to a share of such lands having died without a child and wife.
In respect of the first question, the learned trial judge considered the evidence of the witnesses who testified before Hon. Justice Olike and Hon. Justice Ononiba as well as that of the plaintiff who testified as PW4 and who the court described as a witness of truth and knew what he was talking about from his demeanour. All these show that the learned Judge considered the testimony of the witnesses before the two previous Judges and evaluated same before concluding that Igwedibie Obungene pledged 16 parcels of land which were redeemed either by the four sons that survived him or on their behalf.
On the finding that contribution for redemption of a pledged property was not an investment, the learned Counsel contended that the trial judge arrived at this finding after evaluating the evidence before it, and as all the reasons for the conclusion of the witnesses for the plaintiff that such a contribution was an investment was obvious, the court did not need to produce their evidence one after the other, and with reliance on YASHIE V. UMAH (2003) 45 WRN 115, the court held that a pledge of land is a loan of money upon security of land and that redemption of pledged land is a repayment of loan and not an investment.
It was the contention of Counsel that the court rejected the evidence of all the witnesses who had testified before the two Judges for the plaintiff and gave reasons for preferring the evidence of the defence witnesses on whether loan repayment is an investment because the evidence of the defence on the issue was the highest available in Amawbia. The reason for the conclusion of the learned judge on the issue is impeccable and unassailable.
The learned Counsel argued that it is not correct that the court’s finding that the plaintiff was a witness of truth and the defendants were discredited should mean that the plaintiff’s claim should succeed; because a court is entitled to believe the plaintiff on one issue and disbelieve him on another issue, and in the instant case, the issue of whether the redemption of a pledged land is an investment or loan repayment is a matter of law for which the evidence of the parties will play no role.
On the position of exhibit C, it was contended that the document has no value because the maker was not called as a witness and no reason was given for this failure, the content is therefore an inadmissible hearsay.
The learned counsel submitted that where the trial court had properly evaluated the evidence before it and had made the correct findings of fact, an appellate court will not interfere with the findings of fact or substitute its own views for that of the trial court. The cases of ASINIOLA V. FATODU (2009) 10 WRN 155; OKINO V. OBANEBIRA (2001) 3 WRN 156; IGAGO V. STATE (1999) 12 SCNJ 140; OMOTUNDE V. OBA (2005) 52 WRN 103; FATOBA V. OGUNDAHUNSI (2003) 11 WRN 56; and FAGBENRO V. AROBADI (2006) 19 WRN 1 were cited in support of this submission.
The learned counsel then urged us to resolve this lone issue in favour of the respondents on the basis that the learned trial Judge had properly evaluated the evidence before the court and came to a just determination of the case.
At the hearing of this appeal the learned Counsel for the parties adopted their respective brief of argument and urged us to allow or dismiss the appeal in accordance with the argument in the Brief.
Thus undoubtedly the only issue raised and argued in this appeal is the evaluation of evidence by the trial court.
It has become settled that the evaluation of the evidence adduced in a case, the ascription of probative value thereto, and the making of findings therefrom are primarily the functions of the trial court that had the singular advantage of seeing the witnesses and observing their demeanour. See BALOGUN V. AGBOOLA 1 ALL NLR (PT. 2) 66; OGBUCHIE V. ONOCHIE (1988) 1 NWLR (PT. 470) 390: AKIBU V. OPALEYE (1974) 11 SC 189.

The evaluation of evidence entails the assessment of the evidence and apportioning of value thereto, and the procedure to be followed is as clearly stated in the famous dictum of Fatayi -Williams JSC (as he then was) in A.R. MOGAJI & ORS V. MADAM RALIATU ODOFIN & ORS (1978) 4 SC 91 at 94 at;
“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 see which is heavier not by the number of witnesses called by each party but by the quality or probative value of the testimony of those witnesses.” See also CHIEF WOLUCHEM & ORS V. CHIEF GUDI & ORS (1981) 5 SC 291.
In the instant appeal the appellant has contended that the trial court failed to evaluate the evidence in the manner required by law with particular reference to the evidence of Francis Anievuo, Stephen Umeh, Nze Isaac Nwoye and Onuorah Chiedozie, all of who had testified in the earlier proceedings in the case and whose evidence came before the trial judge under Section 34 of the Evidence Act.
The judgment of the learned trial judge is on pages 176-198 of the record of appeal wherein the reliefs of the appellant as plaintiff and the respondents as Counter Claimants are stated on pages 176-179 while the facts of the case as gleaned from the pleadings are on pages 179-181. The learned trial judge made a review of the evidence of the parties’ witnesses on pages 181- 184 as well as the Written Addresses of Counsel and issues formulated by them on pages 184-188.
After identifying the issues in the case, the learned judge considered the issue of whether the late father of the parties, Igwedibie Obungene pledged land and this was resolved on pages 188 – 191 of the record. The learned trial judge copiously considered the evidence of Onwubiko Anika, Edwin Nwankwo, Nze Isaac Nwoye who were PW4, PW6 and PW3 respectively before Hon. Justice Olike and exhibits J and K tendered there as well as witnesses who actually testified before her to find in favour of the appellant and to hold that the late Igwedibie Obungene actually pledged 16 parcels of land to people during his lifetime and that he did not redeem the pledges before he died. The learned judge held further that the two wives of Igwedibie Obungene redeemed 7 of these pledges while the sons including Emmanuel Igwedibie contributed money to redeem the remaining 9 parcels of land and to fight the suit that involved their family property contrary to the assertion of the respondents.
The learned Judge gave reasons for the findings and at page 191 the court stated that;
“For the same reasons as above, I believe and accept the evidence of the plaintiff that he and Emmanuel Igwedibie contributed money for the prosecution of the land disputes of Igwedibie Obungene family.”
On the status of the pledged property that were redeemed by the wives and children of the deceased the learned judge found, and rightly in my view, that a pledge is always a pledge, and that, “The true position is that on the redemption of the pledged property title reverts back to Igwedibie Obungene, The pledgor”. It was held that redemption of pledge is not an investment but a repayment of loan.
The learned trial judge stated at page 193 that;
“But the plaintiff and the defendants and all witnesses who testified before me are in agreement that the custom of Amawbia is that where a son died after his father leaving no wife and no issue, he is not entitled to a share of his father’s property.”
The court accepted the case of the defence witnesses that under native law and custom, a person such as Emmanuel Igwedibie who died childless and without a wife has no share in the family land whether pledged or not and notwithstanding that he had contributed money to redeem the pledge. Reasons were given for the prefence of the evidence of the defence witnesses. On that same issue, the trial judge rejected the evidence of the witnesses who had testified to the contrary for the plaintiff before Hon. Justice Olike and Hon. Justice Ononiba. I do not consider the fact that the names of these witnesses were not mentioned by the learned judge as sufficient ground to fault the evaluation of their evidence carried out by the learned trial judge.
The learned SAN had contended that the trial judge having believed the plaintiff should not have dismissed his case eventually.
Let me say with respect to the senior Counsel that the belief of the learned judge that the appellant was truthful on the issue of redemption of pledge and court action which is just one of the issues in the case does not make the appellant permanently truthful on all other issues or at all times. Indeed the evidence of a witness can be believed and accepted in one part and disbelieved or even rejected in another part. See AJERO V. UGORJI (1999) 10 NWLR (PT. 621) 1.
The appellant has contended that exhibit C was not evaluated, and that if the trial court had done so, it would have held that the defendants were estopped from asserting anything to the contrary.
I have examined exhibit C. It is a letter written by one Anthony Igwedibie, who was not called as a witness at the trial, but tendered by the plaintiff (as PW4) who was not the maker. The plaintiff had testified in the proceedings of 1/2/05 at page 112 of the record that:
“I know Anthony Igwedibie. He is the son of 2nd defendant. He wrote me a letter at one point telling me that the father admitted to him that my brother Emmanuel made monetary contributions towards the redemption of the pledged parcels of land.”
Again I cannot support the contention of the learned SAN here. The evidence of the plaintiff as above shows that it qualifies as hearsay and therefore of no value in law. See SUBRAMANIAM V. PUBLIC PROSECUTOR (1956) 1 WLR 965. I agree with the respondents’ Counsel that the maker of exhibit C ought to have been called or reasonable explanation given for failure to do so as required by Section 91(1) of the Evidence Act (now Section 83(1) of Evidence Act 2011. See COKER V. FARHAT (1952) 4 WACA 216: ETIKO V. AROYEWUN (1959) 4 FSC 129.

It is the law that admissibility of a document which is essentially based on its relevance and the weight to be attached thereto are different issues, thus a document that is admissible may lack weight or evidential value. See THE UNITED NIGERIA INSURANCE COMPANY LIMITED V. UNIVERSAL COMMERCIAL AND INDUSTRIAL CO. LTD. (1999) 3 NWLR (PT. 593) 17. As stated in MOGAJI V. ODOFIN (supra) what goes into the imaginary scale of justice is credible evidence. Let me state also that the learned trial judge had already found in favour of the appellant on the fact exhibit C was tendered to establish, and the failure to rely on exhibit C which is deficient in value is not fatal to the court’s decision.
From the foregoing I am of the firm view that the learned trial judge thoroughly evaluated the evidence in this case and made appropriate findings therefrom and the necessity to disturb the findings or for this court to embark on another exercise of evaluation of same evidence so as to substitute the view of this court do not arise. See U.A.C. (NIG.) LTD. V. FASHEYITAN (1998) 11 NWLR (PT.573) 185; VANDERPUYE V. GBADEB0 (1998) 3 NWLR (PT.541).
I resolve the lone issue in this appeal against the appellant.
I therefore find no merit in the appeal and it is accordingly dismissed.
I award N30,000.00 costs in favour of the respondents.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother, I.O. Akeju, JCA. I am in complete agreement with the reasoning and conclusion contained therein.
For the same reasons articulated in the lead judgment which I adopt as mine, I also dismiss the appeal.
I abide by the consequential orders.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had read the judgment just delivered by my learned brother ISAIAH OLUFEMI AKEJU JCA. I am in complete agreement with his reasoning and conclusions. I also hold that the appeal lacks merit and is accordingly dismissed. I abide by the order as to costs.

Appearances

Eze Duru Iheoma, SAN (Jakandi, C.N. Nwachukwu and Chidinma Duru with him)For Appellant

AND

Emmanuel Achukwu with J.N. OkongwuFor Respondent