SAMPSON IBEKWE & ORS v. UDO AZUBUIKE (2015)

SAMPSON IBEKWE & ORS v. UDO AZUBUIKE

(2015)LCN/7863(CA)

In The Court of Appeal of Nigeria

On Friday, the 13th day of May, 2016

CA/OW/114/2011

RATIO

APPEAL: WHAT IS AN APPEAL

Now an appeal has been adjudged to be an invitation to an Appellate Court to review the decision or judgment of a Lower Court and find out whether upon the oral and documentary evidence before the Lower Court and the applicable Law, the Lower Court was right in its judgment or decision appealed against. See LAWRENCE ADEBOLA OREDOYIN & ORS. VS. CHIEF AKALA AROWOLO & ORS. (1989) 4 NWLR (PART 114) 172 at 211 E ? G per OPUTA, JSC who said:
“An appeal to the Court of Appeal should be a complaint against the decision of the trial Court. We use the expression “decision” and “?judgment” so often that we scarcely ask ourselves what these expressions really mean. An appeal is an invitation to a higher Court to review the decision of a Lower Court to find out whether on proper consideration of the facts placed before it and the applicable law the Court arrived at a correct decision”. per. PETER OLABISI IGE, J.C.A.

APPEAL: THE DUTY OF THE APPELLANT NOT ONLY TO ESTABLISH A LAPSE IN THE DECISION THEY APPEAL FROM, BUT TO GO THE EXTRA MILE OF ESTABLISHING THE INJUSTICE THE LAPSE OCCASIONED

It is not enough for the Appellant to find fault with the decision of the Lower Court, the Appellant must go further to show that the judgment is perverse and has led to miscarriage of justice. See the case of SENATOR IYIOLA OMISORE & ANOR. VS. OGBENI RAUF ADESOJI AREGBESOLA & ORS. (2015) 15 NWLR (PART 1482) 205 at 309 B – C where M. D. MOHAMMED, JSC said:
“Furthermore, the appellants are duty bound not only to establish a lapse in the decision they appeal from, they must go the extra mile of establishing the injustice the lapse occasioned. See Soleh Boneh Overseas (Nig.) Ltd., V. Ayodele (1989) 1 NWLR (Pt. 99) 549 and Kate Enterprises Ltd., V. Daewoo Nig., Ltd. (1985) 2 (NWLR Pt. 5 116”. per. PETER OLABISI IGE, J.C.A.

LAND LAW: TITLE TO LAND; WHAT THE PLAINTIFF/COUNTER CLAIMANT MUST ESTABLISH IN A CLAIM FOR DECLARATION OF TITLE TO LAND

There is no doubt and this is the trite law that in a claim for declaration of title to land or any type of right of occupancy to land and by extension claim for trespass to land which in law is founded in exclusive possession, the Plaintiff/Counter Claimant must establish his right to exclusive possession with a very clear or lucid evidence. He must also demonstrate in his pleading and evidence the original founder of the land; how he came to be the founder of the land and intervening owners through who the Claimant/Plaintiff is claiming. Their particulars must be adequately pleaded. See: (1) GOODWIN C.ONOVO VS. ORS. VS. FERDINAND MBA & ORS. (2014) 14 NWLR (PART 1427) 391 at 420 F ? H to 421 A D per OGUNBIYI JSC. (2) CHUKWU EMEKA ANYAFULU & ORS. VS. MADUEGBUNA MEKA & ORS. (2014) 16 SCM 1 at 14 B ? 1 to 15 A ? B where AKA?AHS, JSC said:
A Plaintiff who claims ownership of land through inheritance must plead and give evidence of the persons who have held title or on whom title devolved in respect of the land before the plaintiff took control of the land, where evidences of traditions is relied upon in proof of declaration of title to land, the plaintiff in order to succeed must plead and establish the following facts. (i) Who founded the land (ii) How he founded it; and (iii) The particulars of the intervening owners through whom he claims down to him. See NKADO VS. EBINNO (1997) 5 NWLR (PART 503) 31; EZE VS. ATASIE (2000) 10 NWLR (PART 676) 470 (3) MR. AUDU OTUKPO VS. APA JOHN & ANOR (2012) 7 NWLR (PART 1299) 357 at 376 A ? F per ONNOGHEN JSC. per. PETER OLABISI IGE, J.C.A.

PRACTICE AND PROCEDURE: PLEADINGS; WHETHER ALL PARAGRAPHS OF THE PLEADINGS MUST BE READ TOGETHER AND NOT IN ISOLATION IN THE READING OF A PLEADING

The law is trite that in the reading of a pleading be it Statement of Claim or Defence/Counter Claim all the paragraphs of the pleadings must be read together, and not in isolation.
See: (1) ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR. V. RAYMOND EKWENEM (2009) 13 NWLR (PART 1158) 410 at 431 C ? D per ADEKEYE, JSC who said: The claim of a litigant either the Plaintiff/or Defendant depends on the averments in his pleadings in our adversary system of the administration of justice, it is the entire pleadings of the parties that are looked into to determine the plaintiff?s case, the reliefs claimed vis-? -vis the jurisdiction of the Court and the defence. Paragraphs of pleadings cannot be relied on in isolation for this purpose.
(2) CHIEF D. M. OKOCHI & ORS. VS. CHIEF AMUKALI ANIMKWOI & ORS. (2003) 18 NWLR (PART 851) 1 at 24 B ? E per NIKI TOBI JSC. per. PETER OLABISI IGE, J.C.A.

EVIDENCE: EXHIBIT; WHETHER AN EXHIBIT THAT HAS BEEN REJECTED OR EXPUNGE AS INADMISSIBLE DOCUMENT CAN BE RELIED UPON AGAIN IN THE SAME PROCEEDING

The position of the Law is that an Exhibit that has been rejected or expunged as inadmissible document cannot be relied upon again in the same proceeding as it is deemed not admitted in the first instance as it is of no probative or evidential value. The argument of the Appellants? Learned Counsel on Exhibit C go to no issue as it was a mere dissipation of energy on evidence that was no longer before the Lower Court and which is equally of no moment in this appeal same having been jettisoned. See NIGERIAN PORTS PLC V. BEECHAM PHARMACEUTICAL PTE LTD. & ORS. (2012) LPELR ? 15538 (i) at 31 per NGWUTA JSC who said: A document that is rejected when it is offered in evidence cannot be of any relevance in the matter. Also contents of a rejected document cannot fare better than the document itself.” per. PETER OLABISI IGE, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

I am of the solemn view that this Court should not interfere with the findings of the Learned trial Judge having regard to the evidence of the witnesses who testified before the Lower Court and having observed their demeanuours. Above all, the findings of the trial Judge cannot be faulted. See DR. SOGA OGUNDALLU VS CHIEF A.E.O MAC JOB (2015) 3 SCM 113 at 124 B-D per RHODES ? VIVOUR JSC, who said:
It is the duty of the trial Judge to receive all relevant evidence. That is perception. The next duty is to weigh the evidence in the con of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation. Evaluation of relevant evidence before the trial Court and the ascription of probative value to such evidence are the primary functions of the trial Court. This is no since that Court saw, heard and watched the demeanour of the witnesses when they gave evidence. Consequently where this is done the Appeal Court should always be reluctant to differ from the trial Judge?s finding. It is only where the trial Court failed to evaluate such evidence properly that an appellate Court can re-evaluate evidence. Furthermore, evaluation of a document is not within the exclusive perseve of the trial Court. A trial Court and an appellate Court have equal rights in evaluation of documentary evidecnce. per. PETER OLABISI IGE, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

1. SAMPSON IBEKWE
2. GABRIAL AGOMUO
3. ANDERSON OKEBUGWU
(For themselves and as representing the Umuobulola family of Ipupe Ubakala Umuahia) Appellant(s)

AND

UDO AZUBUIKE Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of HIGH COURT OF ABIA STATE UMUAHIA DIVISION contained in the judgment of S. N. Imo then C. J. delivered on the 22nd day of November, 2010.

The Appellants and the Respondent had been embroiled in land dispute culminating into this appeal since 1978 in Suit No. HU/80/76 Judgment was first delivered in the Suit on 10th April, 1991 which judgment was upturned by this Court (Port Harcourt Division) on 20th April, 1999 and an order of a retrial of the Suit herein de novo was made.

When the matter got back for retrial at the High Court, the parties amended their processes. The Respondent herein also counter claimed for the declaration that he owned the land. One of the main contentions in the case was whether the Claimants (now Appellants) was not caught by the doctrine of res judicata.

By their further Amended Statement of Claim the Appellants claimed at the Lower Court thus:
?WHEREFORE the Plaintiffs’ Claim against the Defendant for:
(a) A Declaration that the Plaintiffs are entitled to the Statutory Right of Occupancy

over the piece of land known as and called “ISIOKPULO” situate at Ipupe Ubakala in the Umuahia Judicial Division verged PINK in Plan No: SKS/ABDS/019/2006 filed with this Further Amended Statement of Claim.
(b) N2,000.000 (Two Million Naira) being General Damages for Trespass to the said land; and
(c) An injunction permanently restraining the Defendant by himself or through his agents servants and or workmen from further entering or breaking into or in any way dealing or interfering with the said land”.

By paragraph 19 of the Defendant’s Statement of Defence and Counter Claim the Respondent Counter Claimed thus:
A declaration of the Honourable Court, the Defendant is entitled (sic) to the Customary Right of Occupancy over that piece or parcel of land known as and called OKPUKPU AGU OGBAPITI situate and being at Umuodoche Nsulu Kindred Isingwu Village, Ama-Awo Autonomous Community formerly Aba Division but now Isiala Ngwa North Local Government Area of Abia State.
(b) 1.5 Million general damages for persistent trespass into the land of the Defendant Committed by the Plaintiffs and their representatives.

(c) Perpetual Injunction restraining the Plaintiffs either by themselves, their servants, workers, privies or representative in title from trespassing into the land dispute, attacking the Defendant and his workers when farming on the land in dispute or doing anything inconsistent with the Defendant?s Customary Right over the land in dispute?.

?The matter proceeded to hearing whereat the Claimant and Respondent respectively called four (4) witnesses in support of their respective claims. At the conclusion of trial the learned trial Judge found in favour of the Respondent and granted to him the reliefs sought on his Counter Claim. The trial Chief Judge said:
?I am more persuaded to accept the evidence of the defendant?s side than that of the claimants. I am equally satisfied that the Defendant Counter/Claimant has proved his case on balance of probabilities by preponderance of evidence. His case therefore succeeds. Accordingly, I dismiss the claimant’s case. I give judgment in favour of the defendant as follows:-
(a) I declare that the defendant is entitled to the Customary Right of occupancy over that piece or parcel of

land known as and called ?Okpukpuagu Ogbapiti? particularly depicted in Exh. D.
(b) I further make an order for perpetual injunction restraining the claimants their agents and privies from trespassing into the said land or otherwise disturbing the defendant?s possession of the land.
(c) The Claimants to pay to the defendant the sum of N100,000.00 being general damages for their trespass unto the land. I further award a cost of N10,000.00 payable by the claimants to the defendant.?

As would be expected the Appellants were aggrieved and have appealed against the judgment of the Lower Court to this Court vide their Notice of Appeal dated the 13th day of December, 2010 and filed on 22nd day of December, 2010. The said Notice of Appeal have been amended and the FURTHER AMENDED NOTICE OF APPEAL consisting of eight (8) grounds of appeal without their particulars are as follows:
?GROUNDS OF APPEAL
GROUND 1:
The learned trial Judge erred in law when he held that what was in dispute in the present case, was the same land that was litigated upon in the suit between Uwakwe and Ahaiwe, (in effect relying on the

Defendant?s plea of estoppels per rem judicatam).
GROUND 2:
The learned trial Judge erred in law when he dismissed the claimants? case whereas they proved their case based on traditional history.
GROUND 3:
The learned trial erred in law, when he held in a passage in his judgment that ?the claimants admirably traced the history of the land? and family?s history connecting the land, but failed to grant the claimant?s declaration of title to the land in dispute.
GROUND 4:
The learned trial Judge erred in law when he held in a passage of his judgment that ?it is therefore my finding that what is in dispute in the present case was the same land that was litigated upon in the suit between Uwakwe and Ahaiwe. I am more persuaded to accept the evidence of the Defendant?s side than that of claimants. I am equally satisfied that the defendant/counter claimant has proved his case on balance of probabilities by preponderance of evidence, his case therefore succeeds?
GROUND 5:
The learned trial Judge erred in law when he held that ?the defendant in similar manner testified as

to the history of the land and his family history relating to the land. I must say however that the claimants made so much case about the defendant?s ancestors being stranger and not owning any land, of their own and thereby wrongly granted the Defendant/Counter Claimant?s Counter Claim.
GROUND 6:
The learned trial Judge erred in law when he held in a passage of his Judgment as follows: the defendant in tracing their history and that of the land testified that the land belonged to them from time immemorial, that their ancestor Appollos Uwakwe pledged the land in dispute to Obadiah Ahaiwe, when he sought to redeem it. Mr. Ahaiwe refused and there were Court cases that ended in favour of the Defendant’s?family, the claimants admitted there was such case but stated that the land in dispute was different from the one in Court now, Exhibit ?C?, the notice and grounds of Appeal confirm there were such cases.
GROUND 7:
The decision of the learned trial Judge now appealed against is generally against the weight of the Evidence.
GROUND 8:
The learned trial Judge erred in law when he considered and gave probative

value to the evidence of the defendant and his witnesses as contained in their written statements when the said written statements of the defendant and his witnesses did not comply with the mandatory provisions of Section 13 of the Oaths Act, Section 109 of the Evidence Act and Order 2 Rule 8 (1) of the Abia State (High Court) Civil Procedure Rules, 2009 (now repealed).

The Appellants/Brief of Argument dated 14th day of May, 2015 was filed same date. The Respondent Brief of Argument dated 2nd day of June, 2015 was filed on 5th day of June, 2015. The Appellants filed Appellants? Reply Brief of Argument on 1st day of July, 2015. It is dated the 29th day of June, 2015. The appeal came up for hearing on 15th day of February 2016 when the Learned Counsel to the Parties adopted their Briefs of Argument.

The Learned Counsel to the Appellants Anaga Kalu Anaga Esq. distilled four Issues for determination of the appeal. They are as follows:
1. Whether the Defendant/Counter Claimant pleaded enough root of title and proved his root of title to be entitled Counter Claim, by the judgment of the trial Court (distilled from grounds 5 and 6 of the grounds

of Appeal.
2. Whether the Learned trial Judge rightly held that what is in dispute in the present case, was the same land that was litigated upon in the Suit between Uwakwe and Ahaiwe (distilled from Grounds 1 and 4).
3. Whether the Claimants/appellants proved their case on preponderance of evidence to be entitled to judgment (Grounds 2 and 3 of the grounds of appeal).
4. Whether the Learned trial Judge of the Court below was right in Law to have considered the defence and Counter Claim of the defendant when the written statement of the defendant and his witnesses did not comply with the mandatory provisions of Section 13 of Oaths Act, Section 109 of the Evidence Act and Order 2 Rule 8 (1) of the Abia State (High Court Civil Procedure Rules. 2009 now repealed) (Grounds 8).

The Respondent?s Learned Counsel P. O. Ehiogu Esq., formulated three questions for the determination of this appeal namely:
1. Whether the Respondent herein and defendant in the Court below, pleaded enough root of title and proved same to be entitled to his Counter Claim which the Court below awarded him.
2. Whether the Learned trial Judge in the Court

below rightly held that what is in dispute in the present case now on appeal herein, is the same land that was litigated upon in the suit between Uwakwe and Ahaiwe.
3. Whether the Respondent herein Counter Claim in the Court below proved their case on preponderance of evidence to be entitled to judgment awarded to them by the Court below.

I am of the view that the appeal herein can be resolved on the Issues distilled by the Appellants which Issues 1 intend to treat serially.

ISSUE 1
Whether the Defendant/Counter Claimant/Respondent pleaded enough root of title and proved his root of title to be entitled to his Counter Claim, by the judgment of the trial Court. (Grounds 5 and 6).

The Learned Counsel to the Appellant Anaga Kalu Anaga Esq., started by explaining the import or meaning of a Counter Claim and how a Claimant or Counter Claimant must establish his root of title before he could be entitled to any consequential entitlement to relief and declaration of ownership in land matters. He relied on numerous cases including ASUGUMA V. GAMBA (1998) 8 NWLR (Pt. 560) 60.

?The Learned Counsel to the Appellants submitted that the

Respondent failed to plead enough facts concerning his root of title against the Appellants. That the five ways of establishing ownership of title to land is applicable to the Respondent. That the respondent chose traditional method of proving ownership of the land in dispute. That paragraph 2 of the Respondent?s Pleading wherein he made attempt to trace his title fell far short of the requirement of the law as that was the only pleading relied upon by Respondent in respect of who founded the land, how he founded it and particulars of intervening owners. According to Learned Counsel, the closest pleading to the requirements of Law is paragraph 17 page 23 of record which learned Counsel to Appellants says the method of proving land. That no credible evidence was given by the Respondent to establish his title to the land. He relied on the cases of SENMONU OLAHUNDE & ORS. VS. PROF. S. K. ADEYOJU (2000) (PART 111) 118 and MOGAJI VS. OGUNLEYE ONI (1990) 9 NWLR (PART 135) 754.

That the Respondent?s pleading was insufficient as what he pleaded was contradicted by his own witnesses DW3 who testified that the land was deforested by Mr. Odeche, the

defendant?s great grand?father and that the land in dispute was Odeche?s share of their family land.

The Appellants submitted that the evidence and facts given are mutually contradictory. That Odeche cannot be the one who deforested the land and at same time respondent was talking of Odeche?s share of his family property. That the DW4 (the Respondent) in his evidence mentioned one Appollos Azu as his father, one Frank Uwakwe as his grand-father and then Odeche as his great-grand-father. That Respondent was contradicted by DW3 who never mentioned Frank Uwakwe as one of Odeche?s Children. That DW3 also failed to mentioned APPOLOS AZU the Appellants therefore submitted that Udeche was not and could not have been the Respondent?s progenitor as claimed by him. That the Respondent failed to establish his title by cogent and convincing evidence. They urged the Court to resolve Issue 1 against Respondent.

In his response to the submissions made under Issue 1 by the Appellants? Learned Counsel, the Learned Counsel to the Respondent submitted that the Respondent Counter Claimant ably proved the root of title to the

piece of land litigated upon by the parties at the Court below. That the land is known as OKPUKPABU OGBAPITI. He relied on the evidence of DW1, DW2 and DW3 who he said adopted their witness, Written Statement on Oath under the current Abia State High Court (Civil Procedure) Rules, 2009. That DW1 maintained that the Ancestor of Appellants one OBEDIAH AHAIWE and Respondent?s father Frank Uwakwe fought legal battle over the land in dispute between 1946 – 1952. That DW2 maintained also that the land in dispute belongs to the Respondent.

That the Respondent and his witnesses gave cogent evidence to show the land in dispute belongs to Respondent. That on the contrary it was the appellants who claimed the land belonged to them that gave conflicting and evasive evidence before the Court. That while the Respondent and his witness gave unshakeable evidence that the land was on pledge to their ancestors Obediah Ahaiwe from Respondent?s ancestor Frank Uwakwe.

?That the Respondent has established he owns the land through three of the five methods laid down by Supreme Court. That the burden was on the appellants to prove their case. That the

finding of the trial Court was proper in the circumstance of this case.

It is not enough for the Appellant to find fault with the decision of the Lower Court, the Appellant must go further to show that the judgment is perverse

and has led to miscarriage of justice. See the case of SENATOR IYIOLA OMISORE & ANOR. VS. OGBENI RAUF ADESOJI AREGBESOLA & ORS. (2015) 15 NWLR (PART 1482) 205 at 309 B – C where M. D. MOHAMMED, JSC said:
“Furthermore, the appellants are duty bound not only to establish a lapse in the decision they appeal from, they must go the extra mile of establishing the injustice the lapse occasioned. See Soleh Boneh Overseas (Nig.) Ltd., V. Ayodele (1989) 1 NWLR (Pt. 99) 549 and Kate Enterprises Ltd., V. Daewoo Nig., Ltd. (1985) 2 (NWLR Pt. 5 116″.

The Appellants having heavily complained that the pleading of the Respondent fell short of the requirement of pleading in proof of declaration of title to land. That in this case, Respondent did not as a Counter-Claimant plead his root of title hence he was not able to prove that he is entitled to the reliefs granted in his favour by the Lower Court.

?There is no doubt and this is the trite law that in a claim for declaration of title to land or any type of right of occupancy to land and by extension claim for trespass to land which in law is founded in exclusive possession, the

Plaintiff/Counter Claimant must establish his right to exclusive possession with a very clear or lucid evidence. He must also demonstrate in his pleading and evidence the original founder of the land; how he came to be the founder of the land and intervening owners through who the Claimant/Plaintiff is claiming. Their particulars must be adequately pleaded.
See: (1) GOODWIN C.ONOVO VS. ORS. VS. FERDINAND MBA & ORS. (2014) 14 NWLR (PART 1427) 391 at 420 F ? H to 421 A ? D per OGUNBIYI JSC.
(2) CHUKWU EMEKA ANYAFULU & ORS. VS. MADUEGBUNA MEKA & ORS. (2014) 16 SCM 1 at 14 B ? 1 to 15 A ? B where AKA?AHS, JSC said:
A Plaintiff who claims ownership of land through inheritance must plead and give evidence of the persons who have held title or on whom title devolved in respect of the land before the plaintiff took control of the land, where evidences of traditions is relied upon in proof of declaration of title to land, the plaintiff in order to succeed must plead and establish the following facts.
(i) Who founded the land
(ii) How he founded it; and
(iii) The particulars of the intervening

owners through whom he claims down to him. See NKADO VS. EBINNO (1997) 5 NWLR (PART 503) 31; EZE VS. ATASIE (2000) 10 NWLR (PART 676) 470?
(3) MR. AUDU OTUKPO VS. APA JOHN & ANOR (2012) 7 NWLR (PART 1299) 357 at 376 A ? F per ONNOGHEN JSC.

The Appellants stated that the Respondent only tersely pleaded his title in paragraphs 2 and 17 of the Statement of Defence and Counter Claim and that the DW1 contradicted facts pleaded. That Respondent in his evidence mentioned one Appollos Azu as his father and one Frank Uwakwe as his grand-father. That DW3 did not mention Appolos Azu as he only identified the Defendant with ORUMEKE STOCK. I am of the view that the Appellants were stereotyped in the manner they read and understood Respondent?s pleading.

either the Plaintiff/or Defendant depends on the averments in his pleadings in our adversary system of the administration of justice, it is the entire pleadings of the parties that are looked into to determine the plaintiff?s case, the reliefs claimed vis-? -vis the jurisdiction of the Court and the defence. Paragraphs of pleadings cannot be relied on in isolation for this purpose.?
(2) CHIEF D. M. OKOCHI & ORS. VS. CHIEF AMUKALI ANIMKWOI & ORS. (2003) 18 NWLR (PART 851) 1 at 24 B ? E per NIKI TOBI JSC.

It thus means that in this case the Court is under a duty to read as a whole the pleadings of the respondent as contained in the Statement of Defence particularly paragraphs 6, 7, and 8 thereof and as pleaded under the pleadings relating to the Counter Claim especially paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 16 and 17 thereof.
I have calmly perused the Defendant?s Statement of Defence and Counter Claim and I have no doubt in my mind that the Respondent pleaded abundantly enough and sufficient root of title and proved through his witnesses and by his own evidence that the land actually belonged to the Respondent.

The reasons are clearly discernible from the pleadings and evidence given by the parties at the trial.

Contrary to the submission of the Learned Counsel to the appellants to the effect that the genealogy of Respondent was hazy in that while he mentioned one Appollos Azu as his father and one Frank Uwakwe as his grandfather his witness DW3 did not mention Appolos Azu in his testimonies.

The submissions of the Appellants is unfounded. This is because the Appellants acknowledged in their pleadings the pedigree and genealogy of the Respondent in their pleadings paragraphs 12 and 13 of the Statement of Claim where Appellants pleaded as follows:
?12. In or about March, 1976 the Defendant by himself, agents, servants and or workmen without the leave license or consent of the Plaintiffs again broke and entered into the said land planted cassava in the area of this land verged PINK in the Plans here-before mentioned.
13. The Plaintiffs sued the father of the Defendant, Apollos Azu now late. The suit got to the Court of Appeal, Port Harcourt which ordered a retrial in the High Court.?

The Respondent pleaded in paragraphs 5, 6 and 8

concerning the land and his father and grandfather Frank Uwakwe thus:
?5. The Defendant states that the Defendant?s grandfather Frank Uwakwe pledged the land in dispute to one Obediah Ahiwe ? close relative of the Plaintiffs for the sum of ?1 in about the year 1946. The said pledgor Frank Uwakwe went to Mr. Obediah Ahiwe the pledgee to redeem the land in dispute in 1952.
6. The Defendant states that the pledgee, Obediah Ahiwe refused to accept the redemption sum of ?1 from the pledgor ? Frank Uwakwe. This led the pledgor to file an action at Apumiri Native Court, which the pledgor won.
8. The Defendant states that in 1965, Mr. Frank Uwakwe, the Defendant?s grandfather sued the pleadgee ? Mr. Obediah Ahiwe at Nsulu Native Court to accept his redemption fee of ?1 over pledge of the land in dispute -Okpukpu Agu Ogbapiti land. The Defendant states that the said Nsulu Native Court ordered Obediah Ahiwe to accept the redemption sum of ?1.

The Appellants did not deny the Respondent?s assertion but went into explanation in their Reply to Statement of Defence and Defence to Counter

Claim paragraphs and 5 thereof thus:
?5. With regard to paragraphs 5 to 10, the Plaintiffs state that Obadiah Ahaiwe hailed from the Otirioma Section of Umuobulola family. The estate of Obulola had been shared between his four sons. He was not the head of the family at the time of the Court actions. The portion he disputed with Frank Uwakwe was Obadiah?s portion of Otirioma?s share.
6. The Plaintiffs state?further that Obadiah did not contest that portion of land on behalf of the Umuobulola family as a whole. It is not part of the land presently in dispute as even the Defendant?s Survey Plan attests to.?

This is a direct acknowledgement that the Respondent?s grandfather was Frank Uwakwe.
Again the Respondent pleaded in paragraph 11 of his Counter Claim thus:
?11. The Defendant States that in 1966 when his father Appollos Azu gave out the redemption fee of 1 to Mr. Obediah Ahiwe he entered the land in dispute and farmed on it.?

The Appellants in their Reply to Statement of Defence and Counter Claim to the above quoted paragraph 11 of Respondent pleadings pleaded in thus in

paragraph 8 of their Reply as follows:
?8. Paragraph 11 is false. The year 1966 was when the Defendant?s ancestor trespassed into the land of the Plaintiffs.?

To my mind the above also shows the Appellants are not in doubt about the genealogy of Respondent. The Appellants have failed to satisfy this Court that the Lower Court was wrong in giving judgment to the Respondent on his Counter Claim.

I have gone through the witnesses Statements on Oath filed as sworn to by Respondent and his witnesses and their adoption as their evidence-in-chief in support of the Respondent?s case. I have also considered the Cross examination of the said witnesses and I am convinced that the finding of the trial Court is fully supported by the oral and documentary evidence before the said Court. It is pre-eminently within the domain or province of the trial Court to assess and ascribe probative value to the oral and documentary evidence before the trial Court. The trial Court was also at a vintage position to weigh or assess the demeanour of witnesses as to who to believe or disbelieve.
See (1) OMISORE V. AREGBESOLA Supra page 275 B ? G

per NWEZE JSC.
(2) CHIEF JAMES O. OLONADE & ANOR. VS. H ? B SOWEMIMO (2014) 14 NWLR (PART 1428) 472 at 495 G ? H to 496 per M. D. MOHAMMED who said:
?Firstly, evaluation of relevant and material evidence and the ascription of probative value to such evidence are the primary functions of the trial Court which saw, heard and assessed the witnesses as they testified. Where the trial Court unquestionably evaluates the evidence and justifiably appraises the facts, as it has been manifestly shown to have been done in the instant case, it is not the business of the Lower Court, an appellate Court, to substitute its own views for the views of the trial Court. The application of this trite principle by the Lower Court cannot, certainly, be a basis for the reversal of the Court?s decision. See Mogaji v. Odofin (1978) 4 SC 91; Ojokolobo v. Alamu (1998) 9 NWLR (Pt. 565) 226 and Sha v. Kwan (2000) 5 SC 178, (2000) 8 NWLR (Pt. 670) 685.
Secondly, in a civil matter such as this, the Court decides the case on the balance of probabilities or preponderance of evidence. The trial Court does this by first deciding which evidence it

accepts from each of the parties, putting the accepted evidence adduced by the plaintiff on one side of the imaginary scale and that of the defendant on the other side of the scale and weighing them together. The Court then decides which side?s evidence is heavier, not by the number of witnesses called by either party or on the basis of the one being oral and the other being documentary, but by the quality or probative value of the evidence be it oral and/or documentary. See Fagbenro v. Arobadi (2006) 7 NWLR (Pt. 978) 172. I agree with learned counsel to the respondent that appellants cannot be heard to propound differently. The trial Court having conducted the evaluation of evidence adduced by parties before it in the manner the law requires, the Lower Court?s endorsement of that Court?s judgment remains unassailable.?

?The totality of the evidence before the Lower Court makes the judgment of the Lower Court unassailable as the grant of the Counter Claim to the Respondent is justified in the circumstance.
Issue 1 is resolved against the Appellants.

?ISSUE 2
Whether the trial Judge rightly held that what is in dispute

in the present, was the same land that was litigated upon in the suit between Uwakwe and Ahiwe.(Grounds 1 and 4).

The Learned Appellants Counsel submitted that in raising the issues of estoppels per rem judicatam, the defendant failed to show in his pleading or in his evidence which part of the land or whether it is all the land in dispute that has been litigated upon between the parties in the past.

He referred to evidence of Respondent on page 77 of the record and submitted that Exhibit ?C? which the Respondent relied upon for the plea of Res Judicata was not certified in accordance with Section 111(1) of the Evidence Act cap 112 LFN1990 was rejected by the trial Court.

That the finding of the trial Court that Ahaiwe as?shown as descendant of Claimants’ family was wrong in that the trial Judge cannot hide under that cover to hold that the land in dispute in the present case is the same as the one litigated upon between the parties in the past.

?He referred to evidence of Respondent on page 77 of the record and submitted that Exhibit ?C? which the Respondent relied upon for the plea of Res judicata was not certified

in accordance with Section 111(1) of the Evidence Act Cap. 112 LFN 1990 was rejected by the trial Court.

That the finding of the trial Court that Ahaiwe is shown as descendant of Claimants’ family was wrong in that the trial Judge cannot hide under that cover to hold that the land in dispute in the present case is the same as land litigated upon between Uwakwe and Ahaiwe. That the trial Judge was also wrong in pleacing reliance on the judgment of the Court of Appeal Port Harcourt having regard to the finding of the Court of Appeal per NSOFOR JCA.

That Exhibit ?C? which the Lower Court partly relied upon in holding that the land in dispute in the previous case is the same land in dispute in the present case is inadmissible with or without objection. That the land is not the same.

That Exhibit ?C? is inadmissible. He relied on AJAYI VS. FISHER (1956) SCNLR 279 and SHENU VS. AFRIBANK PLC (2003) 4 WRN 42 at 88.

?In his own reply to the Appellants? submission, the Learned Counsel to the Respondent P. O. Ehiogu Esq., supported the finding of the trial Judge that the land in dispute now on appeal herein is the same land

litigated upon by Obediah Ahaiwe on the side of Appellants and Frank Uwakwe on the side of Respondent. That the reliance on Exhibit ?C? by Appellants has no meaning in that Exhibit ?C? was later rejected by the trial Judge. That the Appellants never proved nor established how and in what respect the present land in dispute is different from the land in dispute in previous litigation. That the land is known as ?OKPUKPU ?AGU-OGBAPITI? but the Appellants chose to give it a different name ? ?ISIOKPULO? without giving the name of land in dispute between Obediah Ahaiwe Vs. Frank Uwakwe.

That nothing has been argued or urged on this Court by Appellants to enable this Court interfere with the findings of fact made by the Learned trial Judge. He relied on the case of SEATRADE GRONINGEN B. V. VS. MR. P. A. AWOLAJA & ORS. (2002) FWLR (Pt. 93) 2059 at 2070 ? 2071 H ? B. That by their Cross Examination of DW3 the Appellants knew the land was on pledge to Appellants.

?In the Appellants’ Reply Brief paragraph 2.02, the
Appellants said the question was asked of DW3 under Cross Examination and

the answer elicited from DW3 were all hypothetical and not referable to the case under trial or land in dispute. That they did not amount to admission in Law.

?Now the Learned trial Judge said on pages 104 to 105 concerning the identity of the land in dispute vis–vis the land in dispute in previous litigation between the parties as follows:
?As to whether it was the same land that was disputed, I will refer to the findings of the Court of Appeal in particular as well as that of Njiribeako, J. showing that the parties were not in doubt that both parties notwithstanding the names they call the land identified the land in dispute. The claimants under cross-examination stated that the land contested for in those cases was the personal land of Ahaiwe inherited from his father. In their evidence, the claimants testified that the land in dispute originated from their common ancestor. Ahaiwe is shown as a descendant of that source. There is no evidence showing that the land in dispute is the inheritance of a particular branch of the kindred. Under cross-examination the claimants admitted that Ahaiwe?s branch of the kindred is represented

in this Suit. It is therefore my finding that what is in dispute in the present case was the same land that was litigated upon in the suit between Uwakwe and Ahiwe. I am more persuaded to accept the evidence of the defendant?s side than that of the claimants.?

The position of the Law is that an Exhibit that has been rejected or expunged as inadmissible document cannot be relied upon again in the same proceeding as it is deemed not admitted in the first instance as it is of no probative or evidential value. The argument of the Appellants? Learned Counsel on Exhibit ?C? go to no issue as it was a mere dissipation of energy on evidence that was no longer before the Lower Court and which is equally of no moment in this appeal same having been jettisoned. See NIGERIAN PORTS PLC V. BEECHAM PHARMACEUTICAL PTE LTD. & ORS. (2012) LPELR ? 15538 (i) at 31 per NGWUTA JSC who said:
?A document that is rejected when it is offered in evidence cannot be of any relevance in the matter. Also contents of a rejected document cannot fare better than the document itself.”

?The finding of the trial Judge show that he relied

on the evidence given on all sides including admissions of the Appellants to find that the land in dispute in the present case was the same land that was litigated upon in the suit between Uwakwe and Ahaiwe.

The pleadings in the Appellants Reply to Statement of Defence and Counter Claim of the Respondent also attest to the fact the same land that has always being in dispute between the parties and their families is now the land in dispute in this suit on appeal.

The fact that the land was/is called by different name(s) will not whittle down the fact that the parties are fully aware and abreast of the land in dispute notwithstanding that Appellants called it ISIOKPULO while the Respondent call it ?OKPUKPU AGU OGBAPITI?. It is mere matter of nomenclature since both of them know the land on the ground.
See: (1) JOHN I. OGBU V. BEST WOKOMA (2005) LPELR ? 2293 P 1 at 24 A ? B per AKINTAN JSC who held:
?The Law is also settled that where the parties, by the evidence adduced both oral and documentary, are ad idem on the identity of the land in dispute, the fact that different names, are given to the land or the area

where land is located is called different names is not fatal to the party claiming such land.
(2) MICHAEL AIYEOLA VS. RAMOTA YEKINI PEDRO (2014) 13 NWLR (PART 1424) 409 at 441 C G PER ODILI JSC who said:
It is to be noted, bearing the submissions either way in mind and not losing sight of the facts on ground, inclusive of the pleadings, evidence and the evaluation put up by the Court of Appeal that when the identity of the land is certain, the name given to any particular piece of land is of no moment and of little assistance or value in ascertaining the precise boundaries or features of the land. I place reliance on Ifeadi v. Atedze (1998) 13 NWLR (Pt. 581) 205. There is no law or practice which establishes that a plan is a sine qua non in a claim for declaration of title to land. But there must be some clear description to make a disputed land ascertainable. Thus, where there is no difficulty in identifying the extent of the land in dispute or the parties have agreed that an identifiable piece of land is in dispute between them, even if they refer to that land by different names, a declaration of title to land can be made

without a plan thereof. Therefore, in a claim for declaration of title, once there are some descriptions in the evidence which make a disputed land ascertainable, the identity of the land is proved and a grant can be made with or without a survey plan. Emiri v. Imieyeh (1999) 4 NWLR (Pt. 599) 442 at 463 & 465 per Kalgo JSC; Etiko v. Aroyewuni (1959) SCNLR 308; Ibuluya v. Dikko (1976) 6 SC 97; Akinhanmi v. Daniel (1977) 6 SC 125; Rotimi v. Macgregor (1974) 1 All NLR (Pt. 11) 325; Ezeudu v. Obiagwu (1986) 2 NWLR (Pt. 21) 208.

The trial Judge was on strong wicket when he held that the land in dispute between Ahaiwe and Obadiah is the same land in the present case. The finding is supported by the pleadings and the evidence before the trial Court.
Issue 2 is resolved against the Appellants.

ISSUE 3
Whether the claimants/Appellants proved their case on preponderance of evidence to be entitled to judgment (Grounds 2 and 3)

The decision of a Court must be anchored on facts which were tested and found by the trial Court to be true and can sustain or negate a claim. See POPOOLA BAMGBEGBILN & ORS VS ORIARE & ORS (2009) 13 NWLR

(PART 1158) 370 at 400 D- E per MUHAMMAD J.S.C.

Therefore a claimant seeking declaration to statutory right or custom and right of Occupancy to land has the onus to show by positive and credible evidence that he actually acquired his title to the lands in any of the five ways or method laid down by our apex Court. The claimant must rely on the strength of his own case and not on the weakness of the Defendants case because a declaratory relief is never granted on admission of a Defendant. See MICHAEL AIYEOLA RAMONA V. PEDRO (2014) 13 NWLR (PART 1424) 409 at 443 C-F per PETER ODILI JSC who said:
It is no longer a matter for debate on the fact that a Court does not make declarations of title either on mere admission in pleadings or in default of defence without hearing appropriate evidence and being satisfied with such evidence. It is for that reason that the party laying claims satisfy the Court by evidence and not by an admission in the pleadings of the defendant supporting this entitlement to the declaration sought. The fact is not lost in mind that the Court still has a discretion of granting or not granting the declaration, however,

the success of such a claimant in action depends entirely on the strength of his own case and not on the chance thing of the weakness of the defence. Okedare v. Adebara (1994) 6 NWLR (Pt. 3349) 157; Bello v. Eweka (1981) 1 SC 101; Motunwase v. Sorungbe (1988) 4 NWLR (Pt. 92) 90; Kodilinye v. Odu (1935) 2 WACA 336?.

The Appellants had argued that they proved their case by calling four witnesses and that evidence of the witnesses corroborated one another. That the appellants testified in support of their pleaded case and proved the founder of the land and how the land in dispute devolved on the Appellants and that their evidence was not contradicted or challenged under cross examination. That the evidence of traditional title set up by the claimants conflicted with that of Defendant and as such the principle by which to resolve the conflicts is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable.

?That the Survey Plans of Claimants show that appellants land stretched beyond rail line. That Claimants possession is a long one suggesting the inference that the land

belonged to Appellants.

In reply to the above submissions under Issue 3, the Respondent?s Learned counsel submitted that the Counter Claimant satisfied the Court below of his right to the land in dispute. That Respondent established his traditional history of his family ownership of the land. He relied on the case of IDUNDIM VS OKUNKAGBA Supra and ATANDA VS AJANI (1989) S 3 NWLR (Pt. 111) 511. That the trial Judge relied on the quality of evidence given by the Counter – Claimant and thus the trial Court was satisfied with the probative value and weight of the evidence in respect of the Counter ? Claim. He relied on the case of BABA WUROMA VS. ALAAJI MODU GASHUA & ANOR (2002)S FWLR (Pt. 106) 103 at 1050 B-D. He urged the Court to affirm the decision of the Lower Court.

Now what the learned trial Judge said concerning the tracing of family?s history on the side of the claimant and respondent is that they both admirably traced their family histories. For avoidance of doubt he said.
?The Claimants admirably traced the history of the land and the family history connecting the land. The defendant in similar manner

testified as to the history of the land and his family history relating to the land.?

In expressing his preference out of the two competing histories the Learned trial Judge opined:
?I must say however that the Claimants, made so much case about the defendants’ ancestors being strangers and not owning any land of their own. The defendant in tracing their history and that of the land testified that the land belonged to them from time immemorial. That their ancestors, Appolos Uwakwe pledged the land in dispute to Obediah ahaiwe. When he sought to redeem it Mr Ahaiwe refused and there were Court cases that ended in favour of the defendant?s family. The claimant admitted there was such a case or cases but stated that the land in dispute was different from the one in Court now Exh. C. the Notice and grounds of appeal confirm there were such cases. (Pages 104 of record)?

On page 105A the Learned trial Judge went further thus:
?I am more persuaded to accept the evidence of the defendant?s side than that of the claimants. I am equally satisfied that the defendant Counter Claimant has proved his case on the

balance of probabilities by preponderance of evidence.?

I am of the solemn view that this Court should not interfere with the findings of the Learned trial Judge having regard to the evidence of the witnesses who testified before the Lower Court and having observed their demeanuours. Above all, the findings of the trial Judge cannot be faulted. See DR. SOGA OGUNDALLU VS CHIEF A.E.O MAC JOB (2015) 3 SCM 113 at 124 B-D per RHODES ? VIVOUR JSC, who said:
?It is the duty of the trial Judge to receive all relevant evidence. That is perception. The next duty is to weigh the evidence in the con of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation. Evaluation of relevant evidence before the trial Court and the ascription of probative value to such evidence are the primary functions of the trial Court. This is no since that Court saw, heard and watched the demeanour of the witnesses when they gave evidence. Consequently where this is done the Appeal Court should always be reluctant to differ from the trial Judge?s finding. It is only where the trial Court failed

to evaluate such evidence properly that an appellate Court can re-evaluate evidence. Furthermore, evaluation of a document is not within the exclusive perseve of the trial Court. A trial Court and an appellate Court have equal rights in evaluation of documentary evidecnce?.

The Appellants are at pain to clearly pinpoint anywhere in the record or evidence that supported their alleged position that the trial Judge was wrong. The findings could not have been otherwise.
Issue 3 is resolved against the Appellants.

ISSUE 4
Whether the Learned trial Judge of the Court below was right in law to have considered the defence and counter claim of the Defendant when the witness statement of the defendant and his witnesses did not comply with the mandatory provisions of Section 109 of the Evidence Act and Order 2 Rule 8(1) of the Abia State High Court Rules,?2009 (now repeated) (Ground 8)

The bone of contention here according to the appellant is that the case now on appeal was tried at the Court below when the Abia State High Court (Civil Procedure Rules 2009 was still in operation. That by Order 3 Rule 8 (1) of the said Rules, the defendant

was mandated to file his written statement of Oath and those of his witnesses. He referred pages 30-47 of record as containing the witness statement on Oath of Respondent?s witnesses.

Appellant submitted that the witness statement on Oath were neither taken before a person legally authorized to administer Oaths nor were the Oaths clauses inserted in any of them within the contemplation of Order 2 Rule 8 of Abia State High Court, Court Procedure Rules, 2009 and that they did not comply with Section 13 of the requirement of Section 13 of the Oath Act . He relied on the case of ONWUKA NKEIRUKA (MRS) VS. DIMOBI JOSEPH & ORS (2009) 5 NWLR (PART 113) S 505 at 526 D-E ? 526 C-D Learned counsel tried to distinguish the case of KALU IGU UDUMA VS PRINCE ARUA ARUNSI & ORS (2012) 7 NWLR (PART 1298) 55 where in this Court stated that a witness statement with defects but sworn before an authorized person will be treated as mere irregularity. That such statements as made in this case by Respondent and his witnesses are a nullity and they could not be adopted as evidence in the proceeding.

?In his reply, the learned Counsel to the respondent

submitted that the written depositions of the respondent?s witnessed filed by the Respondent were sworn before the Oaths Commissioner at the Registry of the Court below. The depositions and Oaths according to the Respondents’ Learned counsel were properly taken and done. That there was no breach of Section 13 OF Oaths Act and Section 109 of Evidence Act. That assuming there was any breach, the appellant have waived their right to complain.

?I have calmly examined pages 30 – 47 of the record of appeal and found that each of the Defence witnesses prepared their evidence in chief with the title of suit HU/80/76. The said witnesses (each of the witnesses) immediately after signed their evidence in chief and sworn Affidavit affirming that each of them would be a defence witness. They stated in the said affidavits that they will adopt their written testimonies as settled by P.O. Ehiogu Esq., the Defendant?s Learned Counsel. The Affidavit of each of the Defence witnesses were duly sworn before the Commissioner for Oath at the High Court registry Umuahia on 28th day of July, 2009. See pages 29, 34 -35, 40 – 41 and 46 ? 47 of the record.<br< p=””

</br<

Notwithstanding minor defects I am convinced that the Affidavits of the witnesses of the Defendant having been sworn before the commissioner for Oaths complied substantially with the conditions stipulated in the High Court of Abia State (Civil Procedure) Rules, 2009 Section 109 of the Evidence Act and Section 13 of the Oaths Act.

The mistake in the manner the witness statement on Oath were prepared is the mistake of learned counsel to the Defendant. The said mistake is however not substantial as to vitiate the said processes after all the appellants fully participated in the proceeding thereafter and cross examined the said witness on their witnesses statement as acknowledged and dully referred to in their various Affidavit Sworn before Commissioner for Oaths. Thus the case of KALU IGU USUMA VS PRICE ARUA ARUNSI & ORS (2012) 7 NWLR (PART 1298) 55 will inure for the benefit of the respondent.

The minor defect can only be blamed on counsel and the Registry that accepted the witness statements for filing. That being the case the Respondent cannot be visited or punished for the sin he did not commit.
See (1) M. S. OLUCHI ANYAWOKO VS. CHIEF

(MRS) OKOYE & ORS. (2010) 1 SCM 21 at 32 E ? H per TABAI, JSC who said:
?I agree entirely with the above opinion of the Court below. In Clement v. Iwuanyanwu (1989) 3 NWLR (Part 107) 39 at 50 this Court per Oputa JSC articulated this principle when he declared:
?I think it is trite law that Rules of Court are Rules of Procedure. They do not by themselves and of themselves alone confer jurisdiction. They merely regulate the exercise of a jurisdiction aliunde
It is untenable therefore for the Appellant to contend that the breach of the provisions of Order 6 Rule 8 of the Rules of Court robbed the Court of any jurisdiction. The jurisdiction of a Court donated either by the Constitution or by Statute remains unaffected by breaches of Rules of Court. The sustained challenge of this issue of jurisdiction founded on the breach of Order 6 Rule 8 of the Federal Capital Territory High Court Rules was, with respect, grossly misplaced, not worn the time and trouble of the Court and even counsel for the parties?.
(2) CHUKWUMA OGWE & ANOR V. I.G.P. & ORS. (2015) 1 SCM 226 at 238 H to 239 A per M.

D. MUHAMMED JSC who said:
?Firstly, a document or process is deemed duly filed when it is taken to the Court registry, assessed, by the officer assigned the responsibility and paid for. The appellant cannot be made to suffer for any shortfall. To do otherwise is to hold him to account for another person?s lapses. In CC.B (Nig) Plc. v. AG Anambra State and Anor. (1992) 8 IMWLR (Pt. 261) 528 this Court per Olatawura JSC held at page as follows:-
The Court will not visit the ?sins? of the Court Registry on a litigant or his counsel unless it was shown that the litigant and/or his counsel was a party therefore or had full knowledge of the sin or mistake and encouraged or condoned the act therefore, on the authorities. Justice equity, fairness and good conscience must persuade me to hold further that this appeal deserves to succeed and it infact does.? (Underlining mine for emphasis).?

In the result, the attempt by the Appellants to render the said witness Statements on Oath a nullity borders on technicality. The Court is always interested in doing substantial justice and not technical dissemination

of injustice. See: OMISORE VS. AREGBESOLA (2015) 15 NWLR (PART 1482) 205 at 255 B ? D where NWEZE JSC .
In the result, Issue 4 is also resolved against the appellants.

In the end, the Appellant appeal is unmeritorious and ought to be dismissed in toto. Consequently,?the Appellant appeal is hereby dismissed in its entirety.

The judgment of the Abia State High Court delivered by Honourable Justice S.N. Imo (then C.J of Abia State) on 22nd November, 2010 is hereby affirmed.

The Appellants shall pay costs of N30,000.00 (Thirty Thousand Naira) to the Respondent.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance, the lead judgment of my learned brother Peter O. Ige, JCA, I agree with his reasoning and conclusions that the Appeal lacks merit and it is also dismissed in its entirety by me.

From my own analysis, the judgment of the Abia State High Court delivered by Honourable Justice S. N. Imo (then C. J. of Abia State) on 22nd November, 2010 is hereby affirmed.

?I abide by the order as to Costs.

ITA GEORGE MBABA, J.C.A.: I had the advantage of reading the

draft of the lead judgment in this appeal, just delivered by my learned brother, Peter Olabisi Ige JCA. I agree with his reasoning and conclusion, ably reached, completely. I too dismiss the appeal and abide by the consequential orders in the lead judgment.

Appearances

Anaga Kalu Anaga, Esq.For Appellant

AND

P. O. Ehiogu, Esq.For Respondent