SIMON IYUA v. IVEREN PAUL & ANOR
(2019)LCN/13096(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of April, 2019
CA/MK/65/2017
JUSTICES
JUMMAI HANNATU SANKEY 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
SIMON IYUA Appellant(s)
AND
1. IVEREN PAUL
2. BUREAU FOR LANDS AND SURVEY BENUE STATE Respondent(s)
RATIO
DUTY OF THE COURT WHEN FACED WITH DISPUTED SIGNATURE
The law is well settled that a Court of law faced with disputed signature has the power to compare the disputed signature with any signature agreed to be an undisputed or genuine signature;Tomtec Nigeria Ltd v. FHA (2009) LPELR-3256(SC); Gboko & Ors v State (2007) LPELR-8300(CA). Section 101 (1) of the Evidence Act, 2011 provides as follows:
In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose. PER OTISI, J.C.A.
BURDEN AND STANDARD OF PROOF IN CRIMINAL AND CIVIL PROCEEDINGS
The settled position of the law is that where allegation of crime is directly in issue in any civil or criminal proceedings, it must be proved beyond reasonable doubt and the onus of proof is on the person who asserts; Agi v PDP & Ors (2016) LPELR-42578(SC); Ilori & Ors v. Ishola & Anor (2018) LPELR-44063(SC). See also Section 135(1) and (2) of the Evidence Act, 2011. PER OTISI, J.C.A.
WHETHER OR NOT THE HOLDER OF A RIGHT OF OCCUPANCY CAN ASSIGN HIS TITLE TO LAND
It is now well settled that, where there has been such assignment, the responsibility of applying for and obtaining the Governor?s consent rests on the holder of the right of occupancy;Ugochukwu v. CCB (Nig) Ltd (2002) NLLC Vol. 1 365 at 384 Owoniboys Tech Services Ltd v UBN Ltd (2003) LPELR-2854(SC). Judicial pronouncements on the interpretation of the provisions of Section 22 of the Land Use Act, 2004 are legion. I shall rely on a few of these pronouncements. In Brossette Manufacturing (Nig.) Ltd v. M/S Ola Ilemobola Ltd & Ors (2007) LPELR-809(SC), the Supreme Court, per Katsina Alu, JSC (as he then was) said, page 16 of the E-Report:
“The law in this regard is now settled. Section 22(1) of the Land Use Act 1978 reads: –
“22(1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever, without the consent of the Governor first had and obtained.” PER OTISI, J.C.A.
WHETHER OR NOT A PURCHASER ACQUIRES EQUITABLE INTEREST IN LAND WHEN HE HAS PADI THE PURCHASE PRICE TO THE VENDOR
The well-worn position of the law is that where a purchaser of land has paid the purchase price for the land to the vendor, he acquires an equitable interest in the land and this is as good as a legal estate. The equitable interest so acquired can only be defeated by a purchaser for value who had no notice of the existing equity; Obijuru v Ozims (1985) LPELR-2173(SC); Gbadamosi v Akinloye (2013) LPELR-20937(SC); Goldmark (Nig) Ltd v Ibafon Co. Ltd (2012) LPELR-9349(SC). The 1st Respondent by virtue of Exhibit B had acquired an equitable interest in the land in dispute. The Appellant did not at all dislodge the equitable interest of the 1st Respondent by proving that he was a purchaser for value who had no notice of the existing equity. The equitable interest of the 1st Respondent in the land in dispute was therefore intact and unassailable. PER OTISI, J.C.A.
WHETHER OR NOT SPECIAL DAMAGES MUST BE SPECIFICALLY PLEADED AND STRICTLY PROVED
On the issue of special damages, I find I must agree with the Appellant that special damages were not proved. It is trite that special damages must be specifically pleaded and strictly proved because it is exceptional in its nature, such as the law will not infer from the nature of the act which gave rise to the claim;Ajigbotosho v. RCC (2018) LPELR-44774(SC); Eneh v Ozor (2016) LPELR-40830(SC). PER OTISI, J.C.A.
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The 1st Respondent as plaintiff instituted Suit No. MHC/309/2015 against the Appellant as 1st defendant, seeking declaration of title over a parcel of land on TPS 254 covered by Right of Occupancy Number BNA 10642 and bounded by beacon numbers MKC 6111, MKC 6112, MKC 6121 and MKC 6122, situate behind Pauline Marka Center beside NAFDAC Office, Inikpi Street, High ? Level, Makurdi, among other injunctive remedies and damages. Both the Appellant and the 1st Respondent claimed to have purchased the land in dispute from one Grace Mhoonum Avue, who was the older sister of the 1st Respondent.
?The 1st Respondent tendered an agreement, Exhibit B, evidencing the receipt of the purchase price from her by the vendor, which agreement was said to have been signed by the Appellant as a witness. The 1st Respondent averred that she purchased the disputed land in March, 1997, commenced a building thereon and completed the same before her later marriage to the Appellant. The Appellant moved in with her and they lived there together as a couple until 2011. On the other hand, the
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Appellant tendered no evidence of exchange of purchase price between him and Mrs. Grace Avue but he claimed ownership of the land in dispute and the building thereon, which he said he built. The Appellant further averred that there was no consent of the Governor of Benue State to the alienation of the land in dispute from the vendor to 1st Respondent. The transaction was also not registered in the Land Registry. All records in respect of the disputed land in the custody of the 2nd Respondent remained in the name and ownership of 1st Respondent’s vendor. The Appellant counterclaimed against the 1st Respondent.
The matter was heard by A. O. Onum J. of the Benue State High Court sitting at Makurdi. At the conclusion of hearing, the learned trial Judge on 17/1/2017 upheld the case of the 1st Respondent while the counter – claim of the Appellant was dismissed. Aggrieved by the decision of the lower Court, the Appellant lodged this appeal by Notice of Appeal filed on 31/1/2017 on eight grounds of appeal, pages 393 to 400 of the Record of Appeal.
?The parties filed Briefs of Argument, pursuant to the Rules of this Court. At the hearing of the appeal on
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25/3/2019, Chief Dr. (Mrs.) C. Mbafan Ekpendu with Bemva Akortsaha, Esq. adopted the Appellant?s Brief which was filed on 30/3/2017 but abandoned ground eight thereof. The 1st Respondent?s Brief, which was filed on 27/4/2017, was adopted by Tyosar Agatse, Esq., who appeared with M.T. Or, Esq. and T. Usue, Esq. The Appellant?s Reply Brief, filed on 26/10/2017, was also adopted by his Counsel. The 2nd Appellant filed no Brief of Argument. Chief Dr. (Mrs.) C. M. Ekpendu urged the Court to allow the appeal, while Mr. Agatse urged the Court to dismiss the appeal. S.T. Sokpo, Esq., PSC, Ministry of Justice, Benue State, who appeared for the 2nd Respondent, notified the Court that they did not intend to contest the appeal.
I note that the 1st Respondent had argued a Preliminary Objection in the 1st Respondent?s Brief, which he did not formally seek leave of Court to move. It is well settled that a respondent who desires to raise a preliminary objection must seek leave of Court to move the notice of objection, otherwise, he will be deemed to have abandoned same; Agbareh & Anor v. Mimra & Ors (2008) LPELR-43211(SC);
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Carew v. Oguntokun & Ors (2011) LPELR-9355(SC). The Noble Lord, Ogbuagu, JSC in Attorney General of Rivers State v. Gregory Obi Ude & Ors (2006) LPELR-626(SC) succinctly put the position of the law this way, page 29 of the E-Report:
?..the effect or consequence of a respondent to an appeal who has raised in his respondent?s brief, a preliminary objection but who failed/neglected/refused to seek the leave of the Court to move the objection before the hearing of the substantive appeal. The effect or consequence, is that the said preliminary objection, is deemed to have been abandoned and the Court will ignore or discountenance it.?
At the hearing of this appeal, Mr. Agatse, learned Counsel for the 1st Respondent, simply adopted the 1st Respondent?s brief, without mentioning the preliminary objection at all, either to seek leave of Court to move same or to formally abandon it. A preliminary objection cannot be raised and argued in lackadaisical or surreptitious manner. The said preliminary objection as argued by the 1st Respondent in paragraphs 3.1.1. ? 3.1.4. of the Respondent?s Brief is deemed abandoned and is hereby struck out.
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The Appellant framed two issues from seven grounds of appeal as follows:
1. Whether the 1st Respondent proved her title to the land in dispute before the lower Court as required by law to be entitled to a favourable verdict. (Distilled from Grounds 1, 3, 4, 5, 6 and 7 of the Grounds of Appeal).
2. Whether the refusal, failure and or neglect of the learned trial judge to consider the merit vel non of the Appellant’s Counter – Claim occasioned a miscarriage of justice to the Appellant. (Distilled from Ground 2)
For the 1st Respondent, the following issues were formulated for determination of this appeal:
1. Whether or not the 1st Respondent proved her claim before the trial High Court on the preponderance of oral and documentary evidence to entitle her to the judgment of the Court (distilled from grounds 1, 3, 4, 5, 6, 7 and 8).
2. Whether or not the Counter-claim of the Appellant was competent before the trial Court to invoke the jurisdiction of the Court to consider and determine same on the merit (Distilled from ground 2).
?In the Reply Brief, the Appellant challenged the competence of Issue 2 as formulated by the
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1st Respondent on the grounds that it did not flow from the grounds of appeal. The 1st Respondent had argued therein that the Counter-claim of the Appellant before the trial Court was incompetent, having not been served on the 3rd defendant to the Counter-claim, to confer jurisdiction on the trial Court.
It is trite that for an issue distilled for determination to be valid, it must derive from the grounds of appeal which in turn must relate to the decision of the Court against which the appeal is lodged: see: Biocon Agrochemicals (Nig.) Ltd. & 3 Ors v. Kudu Holdings Ltd. & Anor (2000) LPELR-784(SC), (2000) 15 NWLR (Pt.691) 493. A ground of appeal and or issue framed for determination which does not derive from the judgment appealed against is incompetent; Kano ile Printers Ltd v. Gloede and Hoff (Nig) Ltd (2005) LPELR-1660(SC), Mato v. Hember & Ors (2017) LPELR-42765(SC) ; Society Bic S.A. & Ors v. Charzin Industries Ltd (2014) LPELR-22256(SC).
Further, a respondent who has neither filed a respondent?s notice nor a cross appeal must raise issues for determination that flow from the Appellant?s grounds of
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appeal. He does not have an unbridled freedom to formulate issues for determination which have no bearing or relevance to the grounds of appeal filed by the Appellant; Chami v UBA Plc (2010) LPELR-841 (SC); Gwede v. INEC & Ors (2014) LPELR-23763(SC); Eke v. Ogbonda (2006) LPELR-1075(SC).
Issue 2 as formulated by the 1st Respondent failed to meet established principles. There was no decision given by the trial Court in the decision on appeal on the issue of non-service of the counter-claim on the 3rd defendant therein. Secondly, the issue of service or non-service of the said Counter-claim was not a ground of appeal at all. The said Issue 2 as formulated by the 1st Respondent was therefore completely incompetent and deserves to be discountenanced by this Court. The said Issue 2 is, for this reason, hereby struck out.
I shall be guided by the issues for determination of this appeal as formulated by the Appellant.
Issue 1
Out of the methods of proving title to land as established in Idundun v. Okumagba (1976) 9 – 10 SC 227, the 1st Respondent relied on documents of title as her root of title.
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She had pleaded that she purchased the land in dispute covered by a statutory Right of Occupancy from her sister, Mrs. Grace Mhoonum Avue. It was submitted that the 1st Respondent failed to prove her title to the land in dispute as required by law. Having relied on a document of title, Exhibit B, as her root of title, she was duty bound to show that such document was capable of conferring valid title on her. On relevant questions to be addressed to enable the Court determine whether a document relied on is capable of establishing proof of title, the case of Romaine v. Romaine(1992) 4 NWLR (pt 238) 650 was cited and relied on. Learned Counsel for the Appellant also relied on Ayorinde v. Kuforiji (2007) All FWLR (Pt 362) 1966 at 1981 ? 1982; West African Cotton Ltd v. Yankara (2008) 4 NWLR (Pt 1077) 323. It was argued that the Exhibit B being relied upon by the 1st Respondent failed to meet the requirements of the law. In the first place, there was no evidence before the lower Court to the effect that the consent of the Governor to the conveyance was sought and obtained as mandatorily required by Section 22 of the Land Use Act. The entire transaction between
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the 1st Respondent and Grace Mhoonum Avue, PW2, was for this reason, null and void, citing Section 26 of the Land Use Act. Reliance was also placed onSavannah Bank v. Ajilo (1989) 1 NWLR (pt 97) 305 SC; Amadi v. Nsirim (2004) 17 NWLR (Pt 901) 11. Learned Counsel for the Appellant conceded that a land transaction was not void simply because the Governor’s consent was not sought and obtained prior to the conveyance, but submitted that the consent of the Governor must be sought and obtained afterwards, failure of which the transaction shall remain null and void. It was further argued that Exhibit B which disclosed that the land in dispute was alienated on 4th or 5th of March, 1997, would reveal a period of 18 years and 8 months to 11/12/2015, when the writ of summons in this present action was filed. There was no evidence that any attempt was made by either the 1st Respondent or PW2, the vendor, to seek and obtain the consent of the Governor within this period. Neither was any attempt made to effect a valid legal transfer of the land in dispute in the Lands Registry. It was argued that by virtue of the provisions of Sections 22, 26 and 34 (7) of the Land Use
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Act, the conveyance in Exhibit B was void ab initio. Having failed to seek and obtain the consent of the Governor to the transaction, the conveyance was null and void. Reliance was placed on the cases of Federal Mortgage Bank v. Akinola (1998) 4 NWLR (Pt 545) 325 at 327; Int. iles (Nig) Ltd v. Aderemi (1999) 8 NWLR [Pt 614] 268 at 277 SC.
It was further submitted that by Section 2 of the Land Registration Law Cap 88 Laws of Benue State Revised Edition 2004, Exhibit B fell within the definition of an “instrument” which by Section 7 thereof was required to be registered. By Section 15 of the Law an unregistered instrument has no evidential value, it can neither be pleaded nor given in evidence as affecting land, citing Akinduro v. Alaya [2007] All FWLR (Pt 381) 1653 at 1666 – 1667 SC, Buraimoh v. Karimu [1999] 9 NWLR (Pt 618) 310. It was also submitted that Exhibit B was not executed in the presence of witnesses as required by law and in conveyancing practice. It was alleged to have been executed on different dates, 4/3/97 and 5/3/97 respectively. PW2 and PW3 confirmed these anomalies under cross ? examination. It was posited that these facts
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collectively put the authenticity of Exhibit B in doubt and lend credence to the fact that Exhibit B was a procured document. The Appellant also denied that he signed Exhibit B as a witness. It was submitted that the dismissal of this line of defence by the learned trial Judge led to a miscarriage of justice. The trial Court failed to consider the issue of fraud raised by the Appellant in his statement of defence. The Court was urged to hold that the signature on Exhibit B when compared with that on Exhibit G, the Appellant’s statements on oath and on Exhibit H, letters signed by the Appellant, was irregular and forged.
It was further contended that the learned trial Judge erred in law by awarding special damages of N620, 000.00 and general damages of N100, 000.00 against the Appellant when there was no legal basis to make such an award in favour of the 1st Respondent, relying onAhmed v. CBN [2013] 2 NWLR (Pt 1339) 524 at 530. The evidence before the trial Court did not support the grant of special damages. The Court was urged to set aside the award of damages by the lower Court.
?For the 1st Respondent, it was submitted that based on the
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documentary and oral evidence adduced before the trial Court, the 1st Respondent proved a better title than the Appellant and was entitled to the reliefs claimed. The 1st Respondent?s sister, Mrs. Grace Aue was allocated the land in issue by the 2nd Respondent. The 1st Respondent later purchased the land in issue from her said sister and the sale agreement, Exhibit B, was tendered in evidence by the 1st Respondent This fact was neither denied nor challenged by the Appellant or 2nd Respondent. On the issue of the lack of the Governor’s consent for the transfer of title from Mrs. Grace Avue to the 1st Respondent, the trial Court had relied on decided cases including: Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414 at 445; Brossette Manufacturing Ltd v. Ola Ilemobola (2007) 14 NWLR (Pt. 1053) 109 to found against the Appellant. That the contention that not having obtained the Governor’s consent for more than 18 years after the agreement, the agreement and the sale were null and void, did not represent the true position of the law, relying on Simm Computer Resources Ltd & Anor v. First Inland Bank (2016) LPELR-40493 (CA). The Appellant raised the issue of forgery and
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fraud pertaining to Exhibit B, alleging that his signature thereon was forged. The learned trial Judge compared the signatures on materials provided by the Appellant and came to the conclusion that the Appellant signed Exhibit B as a witness. It was submitted that the trial Judge did not speculate on the evidence of signature of the Appellant by his clear findings based on comparison of the signatures. It was further argued that, contrary to the contention of the Appellant, the issues of fraud and forgery raised by the Appellant were responded to by the 1st Respondent and duly considered the trial Court. It was further submitted, assuming without conceding that they were not considered, this Court is empowered to evaluate the evidence where the trial Court failed to do so and if that exercise was carried out, this Court would also arrive at the same conclusion that the Appellant failed to prove forgery and fraud, which he was duty bound to prove beyond reasonable doubt.
?Both the Appellant and the 1st Respondent were laying claims to the same piece of land. They both claim to have purchased from the same vendor but on different dates. It was submitted that
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the 1st Respondent, who as evidenced by Exhibit B bought the property in March 1997, was earlier in time than the Appellant who claimed he purchased from the vendor in April, 1997. It was submitted that where both contenders claim to purchase the land from the same source, the earlier in time prevails, citing the decisions in Isamotu A. Ashiru v. Adetoun Olukoya (2006) LPELR-580(SC), Ashiru v. Olukoya [2006] 11 NWLR (Pt.990) 1); Adamu v. Gulak (2013) LPELR-20844(CA). The 1st Respondent had tendered an agreement and also called the common vendor who testified in her favour. She also established that the Appellant signed for her as her witness. The Appellant on the other hand did not tender any receipt and did not cross- examine his purported vendor to elicit any beneficial evidence from her that she sold the property to him. The case of Okpala v. Ibeme (1989) LPELR-2512(SC), Kankia v. Maigemu (2003) 6 NWLR (Pt.817) 496 were cited and relied on to submit that the party who proves a better title is entitled to succeed.
?On the issue of damages, it was submitted that the 1st Respondent pleaded and proved special damages, which were not challenged by the Appellant.
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The 1st Respondent listed and tendered documentary evidence to prove her claim for special damages. The trial Court rightly awarded the damages, there being no challenge to the veracity of her claims; relying on Nigerian Bottling Co. Plc v. Ubani (2009) ALL FWLR (Pt 497) 80 at 87. The Court was urged to hold that the 1st Respondent proved her case on the preponderance of oral and documentary evidence to warrant the decision given in her favour.
In the Reply Brief, the Appellant?s Counsel rehashed arguments in support of their position. On whether the equitable doctrine of priority would avail the 1st Respondent, reliance was placed on the cases of Olukoya v. Ashiru (2006) 30 WRN 115 and Awomuti v. Salami (1978) 3 SC 105 to submit that the onus of proof lies on a plaintiff to prove her title and she succeeds on the strength of her case. But, that the 1st Respondent had failed to discharge the onus of proof placed on her as plaintiff and was bound to fail. The equitable doctrine of priority did not avail her. He who comes to equity must come with clean hands. Equity cannot come to the aid of the 1st Respondent in the face of the forgery.
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The Court was urged to allow the appeal and grant the reliefs sought by the Appellant.
Resolution
The 1st Respondent as plaintiff before the lower Court pleaded in paragraphs 4, 5, 7 and 8 of the Statement of Claim as follows, pages 6 and 7 of the Record of Appeal:
4. Sometime in 1997, the plaintiff approached her sister, Mrs. Grace Mhoonum Avue to sell to her the plot number BN10642 with beacon numbers MKC 6111, MKC 6112, MKC 6121 and MKC 6122 lying, being and situate at behind Pauline Marka Center, beside NAFDAC Office Inikpi Street, High – Level Makurdi in the Makurdi Urban Area.
5. Her sister agreed to sell the said land to her and she paid fifteen thousand naira (15,000.00) only for the land that sometime in March 1997, they signed an agreement to evidence the sale of the land to which the 1st defendant and Mr. David Avue were witnesses. A copy of the sales agreement between the plaintiff and her sister dated 4th March, 1997 is hereby pleaded and shall be relied upon at the hearing of the suit as evidence of payment of purchase price.
7. The plaintiff avers that at the time she bought the land she was unmarried and had bought the land in
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her maiden name which was Miss Iveren Atim.
8. The plaintiff aver that when she bought the land in dispute from Mrs. Grace Mhoonum Avue, a Right of Occupancy Number BNA 10642 dated 14th June, 1996, had been granted and given by the 2nd defendant to her covering the land in dispute. The Right of Occupancy is pleaded.
The evidence of 1st Respondent as PW1 was in line with her pleadings. She tendered Exhibit B, a document acknowledging the payment of N15, 000.00 to Mrs. Grace Avue. PW2 was Mrs. Grace M. Avue. Exhibit C was her written deposition, which she adopted as her evidence. She testified in line with the evidence of the 1st Respondent and identified Exhibit B as the agreement they executed to evidence the sale of land and payment of the purchase price. She stated that Exhibit B was witnessed by her husband, Mr. David Avue and by the Appellant. She further testified that as at the time the 1st Respondent purchased the land from her, the 1st Respondent was unmarried and was bearing her maiden name, Iveren Atim. PW3 was David Avue. He identified Exhibit B, which he also said was witnessed by him and the Appellant. Thus, from the evidence for the 1st
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Respondent as plaintiff, the 1st Respondent purchased the land in dispute from PW2. Both PW3 and the Appellant acted as witnesses to the sale.
The Appellant added his twist to this account, pleading in the 1st Defendant?s Statement of Defence and Counter claim as follows, pages 101 ? 102 of the Record of Appeal:
3. The Defendant in specific answer to paragraph 4 of the claim aver that sometime in April 1997 when he went for the introduction to marry the Plaintiff, he was informed by Mr. David Avue that he had a piece of Land to sell (now in dispute) and wanted him to acquire same.
4. The Defendant further aver that after the introduction, he sent the Plaintiff with the sum of Thirty thousand Naira (N30, 000) only to Mr. David Avue for the purchase of the plot.
5. The Defendant aver that upon the return of the Plaintiff from Mr. David Avue, Plaintiff informed the Defendant that, Mr. David Avue requested that the said sum of N30,000 be handed over to his wife because he bought the plot in her name of which she did.
6. The Defendant shall contend further that the Plaintiff also brought an acknowledgement paper signed by
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Mrs. Grace Avue acknowledging collecting the sum of Thirty thousand (N30,000) only written in his name and asked the Plaintiff to keep same safe.
7. The Defendant aver that there was no formal agreement written between himself and the vendor neither was there an agreement written between the Plaintiff and Mrs. Grace Avue and Defendant as one of the witnesses. The defendant hereby pleads fraud and forgery on the part of the Plaintiff as follows:
PARTICULARS OF FRAUD
1. The sum of thirty thousand Naira (N30, 000) only was given to the plaintiff to purchase the plot in dispute.
2. There was no agreement between the parties except for an acknowledgement paper/receipt in the name of the 1st Defendant which the Defendant had asked the plaintiff to keep in a safe place but when he requested for the acknowledgement papers, the plaintiff said she had misplaced same.
3. The Defendant never signed any agreement as a witness to the plaintiff or anybody at all.
4. The signature on the Agreement is not the 1st Defendant?s and was only forged.
8. The Defendant deny paragraph 6 to the extent that the plaintiff prior to instructions to go to
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and handover the sum of N30, 000 which he had already discussed with Mr. David Avue during the introduction ceremony in April, 1997, the Plaintiff did not know the land belonged to Mrs. Grace Avue (Mr. David Avue? wife) for her to visit the Lands Registry Makurdi and make inquires as strict proof will be required.
9. The Defendant admit paragraph 7 only to the extent that at the time he gave Plaintiff money to go and pay for the land she was unmarried but shall contend that they were in serious courtship and had even done the introduction of marriage ceremony.
Both the 1st Respondent as PW1 and PW3, David Avue, denied the version of the Appellant, stating that no such event took place. PW3 was an in-law to the 1st Respondent. The Appellant as suitor, according to Tiv culture, would approach the family of the girl he desires to marry for introduction and not her in-law. PW3 further stated in paragraph 5 of his written deposition, Exhibit D:
?That even though the land at that location was worth more than N15, 000.00 at that time, my wife asked the plaintiff to pay only N15, 000.00 which the plaintiff paid and a formal
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agreement was made where I signed as a witness for my wife while the 1st defendant who was in a courtship with the plaintiff signed as witness for her.’
It was not in dispute that the land in dispute belonged to PW2. In fact, witness for the 2nd Respondent, DW4, in his written deposition, Exhibit J, stated in paragraphs 5 and 7 thereof:
5. ?That one Grace M. Avue applied and was granted the land in dispute under Certificate of Occupancy No. BNA 10642 dated 8th October, 1999?
6. That extract report indicated that the land in dispute is lying and situate on TPS Q54 behind Women Commission, High Level, Makurdi and was not developed at that time the grant was made to Mrs. Avue in 1996.
7. That after due process a Right of Occupancy was also granted to her on 14th June, 1996 which was also followed by the Certificate of Occupancy on the 8th October, 1999.?
DW4 further stated that their records show that Mrs. Grace Avue is still the owner of the land in dispute. That the 2nd Respondent was neither aware of any land transaction between the 1st Respondent and Mrs. Grace Avue, nor did
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they have any record of purchase of the said land in dispute by the Appellant from Mrs. Grace Avue.
Thus, the evidence of the Appellant, PW2 and PW3 were in line with the evidence of DW4. The land in dispute belonged to Mrs. Grace Avue, PW2, not to Mr. David Avue, PW3. Mrs. Grace Avue, PW2, testified that it was the 1st Respondent who paid her the sum of N15, 000.00 for the land in dispute and not the Appellant.
Although the Appellant denied the veracity of the evidence of the 1st Respondent, a calm evaluation of the Appellant?s version of the sale would reveal that it was at odds with the totality of his evidence and not very lucid. He came for marriage introduction in April 1997 but was informed about land for sale by David Avue. He sent the sum of N30, 000.00 said to be the purchase price of the said land to David Avue through the 1st Respondent, his fiance. But the money was given to Mrs. Grace Avue as was alleged to have been directed by her husband. Mrs. Grace Avue wrote an acknowledgment of the said sum. The Appellant asked the 1st Respondent to keep the acknowledgment safe but she misplaced it. As at 1997, the sum of N30, 000.00 was by
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no means an insignificant sum of money. Yet, the Appellant testified that he simply got an acknowledgment, which was misplaced and he did not promptly seek for documentation evidencing the sale of the land in dispute to him. He also gave no precise date on which the said payment was made. More interestingly, although the Appellant as PW1, and her witnesses, PW2 and PW3 in their respective written depositions denied the Appellant?s version entirely, none of them was pointedly cross examined by the Appellant on the alleged payment of N30, 000.00 for the land in dispute. PW2 was not cross examined on any alleged sale of the land in dispute to the Appellant. It is a well settled position of law that where the adversary fails to cross-examine a witness on a particular matter, he is deemed to accept the truth of that matter as led in evidence against him. The party would be deemed to have accepted the testimony of the said witness on that point; Oforlete v. State (2000) 12 NWLR (Pt. 681) 415, (2000) LPELR-2270(SC); Gaji & Ors v. Paye (2003) LPELR-1300(SC); Isah v State (2017) LPELR-43472(SC); Ola v State (2018) LPELR-44983(SC). The Appellant, who failed to
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cross examine PW1, PW2 and PW3 on the alleged role or roles played by them in the supposed land purchase, is deemed to have accepted their account of the event. Payment by the Appellant to PW2 through PW1 on the advice of PW3 of the sum of N30, 000.00, for purchase of the land in dispute, was therefore not proved.
The evidence of Mrs. Grace Avue, PW2, to the effect that it was the 1st Respondent who paid her the sum of N15, 000.00 for the said land in dispute and that she did not receive the sum of N30, 000.00 from the Appellant in respect of the same land, was thus, not dislodged or shown to be false. The sale of the said land in dispute to the 1st Respondent, as confirmed by PW2 and PW3, was therefore not contradicted.
?The Appellant alleged that Exhibit B had no evidential value. There were different dates on it and his signature as a witness was forged. Exhibit B indicated that the vendor and her witness, PW2 and PW3, signed the document on 4/3/1997, while the 1st Respondent and her witness, said to be the Appellant, signed on 5/3/1997. In explaining this anomaly, PW2 under cross examination said, page 244 of the Record of Appeal:<br< p=””
</br<
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?I signed the agreement on 4.3.97. I signed with my husband who was my witness. At that time the plaintiff?s witness had not come. The plaintiff was not present then as she was waiting for her witness.?
PW3 also said under cross examination, page 245 of the Record of Appeal:
?It was my wife who took the draft of Exh. B for typing and we signed it. The 1st defendant did not come to my house to sign Exh. B in my presence.?
In other words, Exhibit B, which carried different signature dates for the vendor and her witness (PW2 and PW3); and, for the purchaser and her witness (the 1st Respondent and the Appellant), was not signed by the Appellant in the presence of PW2 and PW3. I will return to this point anon.
It was in evidence that the title documents to the land in issue were still in the name of the vendor, PW2. The 2nd Respondent had not been notified of any change in ownership. A crucial question therefore, is this: what type of document was Exhibit B? Exhibit B stated as follows:
‘AGREEMENT
This is to certify that, I Mrs Grace Avue of Ekan Primary School Makurdi, has(sic) sold my plot on TPS 254
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to Miss Iveren Atim, at a consideration of N15, 000.00.
The plot is bounded by the following beacon numbers:- MKC 6111, MKC 6112, MKC 6121 and MKC 6122.
By this agreement, the plot which is covered with Right of Occupancy number BNA 10642, now belongs to Miss Iveren Atim and not Mrs. Grace Avue.?
By its very terms, Exhibit B was an acknowledgement of payment of the sum of N15, 000.00 by the 1st Respondent to PW2, being purchase price for the land in dispute and an agreement for the sale of the said land to the 1st Respondent. It was a purchase receipt that did not convey title or legal estate in the land in issue to the purchaser. It stands as proof of actual purchase between the vendor of land, PW2, and the purchaser, the 1st Respondent. A receipt for purchase money is evidence that there was an agreement for sale and that the consideration for such sale was paid by the purchaser; Aminu v. Ogunyebi & Anor (2003) LPELR-7195(CA). On the status of a receipt of purchase, this Court per Ndukwe-Anyanwu, JCA, in Moses v Onu & Anor (2013) LPELR-20348(CA) at pages 36-37 of the E-Report, held:
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?However, Exhibit D & D1 the two purchase receipts have shown that the Respondent did infact purchase the two plots, the subject matter of this appeal. These two receipt as held by the trial Judge have thrust on the Respondent an equitable interest in the two plots. See the case of Ogunbambi v. Abowab 13 WACA page 222 where the Court held:
“The purchase receipt, being an unregistered instrument, was not admissible to prove title, but was admissible as an acknowledgement of the payment of money and coupled with the plaintiff being in possession, raised a presumption, that he entered into possession under a contract of sale, and from this arose an equitable interest capable of being converted into a legal estate of specific performance.?
See also: Enadeghe v. Eweka (2014) LPELR-24479(CA); Ladunni v. Adesoye (2015) LPELR-25579(CA).
?The vendor, PW2, who received the purchase sum, has not disavowed Exhibit B. Therefore, notwithstanding the two dates on it, for which unchallenged explanation has been given by PW2 and PW3, the important point is that the vendor, PW2, stood by the authenticity of Exhibit B. It may not be a document that transferred ownership or
27
title to the disputed land, but it was evidence that there was an agreement for sale of the disputed land made between PW2 and the 1st Respondent, and that the consideration for such sale was paid by the purchaser, the 1st Respondent.
The Appellant alleged that the signature as witness for the 1st Respondent on Exhibit B was not his own. Before delving into the belly of that allegation, it is important to note two indisputable points. First, the denial of the Appellant of his signature thereon does not detract from the authenticity of Exhibit B as a purchase receipt issued to the 1st Respondent, duly acknowledged by the vendor, PW2, for the purchase of the land in dispute. Secondly, an allegation of forgery is a crime. The settled position of the law is that where allegation of crime is directly in issue in any civil or criminal proceedings, it must be proved beyond reasonable doubt and the onus of proof is on the person who asserts; Agi v PDP & Ors (2016) LPELR-42578(SC); Ilori & Ors v. Ishola & Anor (2018) LPELR-44063(SC). See also Section 135(1) and (2) of the Evidence Act, 2011.
?In proof of his allegation that the signature on Exhibit
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B was not his own, the Appellant had pleaded and testified in line as follows:
7. The Defendant aver that there was no formal agreement written
between himself and the vendor neither was there an agreement written between the Plaintiff and Mrs. Grace Avue and Defendant as one of the witnesses. The defendant hereby pleads fraud and forgery on the part of the Plaintiff as follows:
PARTICULARS OF FRAUD
1. ?..
2. ?..
3. The Defendant never signed any agreement as a witness to the plaintiff or anybody at all.
4. The signature on the Agreement is not the 1st Defendant?s and was only forged.
He also tendered letters he wrote to the Director General (DG) of NAFDAC and signed and relied on his written depositions, Exhibit G, in urging the trial Court to compare his signature thereon with his signature on Exhibit B. The learned trial Judge acted on the invitation to make the following findings, page 289 of the Record of Appeal:
?On the point of the genuineness of the signature of the 1st defendant as a witness to the agreement reduced to writing in Exhibit B, I have looked at other
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pieces of evidence led in the trial, particularly from the side of the defence, and critically compared the admitted signatures of the 1st defendant thereon to the signature ascribed to him on the face of Exhibit B. The striking similarity between the signatures of the 1st defendant on the faces of his written deposition, Exhibit G, and his letters to the D.G. of NAFDAC in Exhibit H leads me to the inescapable conclusion that he was indeed the same person who signed Exhibit B as a witness.?
The complaint of the Appellant was that this conclusion led to a miscarriage of justice. That the signature on Exhibit B, when compared with that on Appellant’s statement on oath and with Exhibit H, was obviously irregular and forged. For the 1st Respondent, the trial Court compared the several signatures and rightly came to the conclusion that the Appellant signed the document.
The law is well settled that a Court of law faced with disputed signature has the power to compare the disputed signature with any signature agreed to be an undisputed or genuine signature;Tomtec Nigeria Ltd v. FHA (2009) LPELR-3256(SC); Gboko & Ors v State (2007) LPELR-8300(CA).
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Section 101 (1) of the Evidence Act, 2011 provides as follows:
In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.
In this case, the learned trial Judge compared the statements of oath signed by the Appellant, Exhibit G; the letter he wrote to DG, NAFDAC against the signature on Exhibit B and found them all to be strikingly similar. I have also now made the same comparison and without any doubt, I see absolutely no reason to disturb this finding of the learned trial Judge. The signatures were the same. In any event, as earlier noted, PW2 who was paid N15, 000.00 by the 1st Respondent as purchase price for the land in dispute has not denied that she received the money. Therefore any dispute as to the authenticity or otherwise of the signature
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of a witness to the transaction, which allegation was not proved is non sequitur.
Therefore, the Appellant?s allegations of fraud in that Mrs. Grace Avue, PW2, received N30, 000.00 from the 1st Respondent on his behalf, for purchase of the land in dispute; as well as the allegation of forgery of his signature on Exhibit B, were not proved. These allegations amounted to mere hot air.
On the issue that there was no Governor?s consent obtained for the transfer of title from PW2 to the 1st Respondent, I agree with the findings and conclusion of the learned trial Judge to the effect that the failure to obtain the consent of the Governor beforehand does not invalidate an agreement reached between parties for the sale of land. By virtue of Section 22 of the Land Use Act, the holder of a right of occupancy may assign his interest in land in an area designated as urban area only with the consent of the Governor of the State. It is now well settled that, where there has been such assignment, the responsibility of applying for and obtaining the Governor?s consent rests on the holder of the right of occupancy;Ugochukwu v. CCB (Nig) Ltd (2002)
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NLLC Vol. 1 365 at 384 Owoniboys Tech Services Ltd v UBN Ltd (2003) LPELR-2854(SC). Judicial pronouncements on the interpretation of the provisions of Section 22 of the Land Use Act, 2004 are legion. I shall rely on a few of these pronouncements. In Brossette Manufacturing (Nig.) Ltd v. M/S Ola Ilemobola Ltd & Ors (2007) LPELR-809(SC), the Supreme Court, per Katsina Alu, JSC (as he then was) said, page 16 of the E-Report:
“The law in this regard is now settled. Section 22(1) of the Land Use Act 1978 reads: –
“22(1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever, without the consent of the Governor first had and obtained.”
Section 22(1) quoted above is clear and unambiguous. The section clearly prohibits the holder of a statutory right of occupancy from alienating his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise without the consent of the Governor first had and obtained. But the holder of a
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statutory right of occupancy is certainly not prohibited, by Section 22(1) of the Land Use Act, 1978 from entering into some form of negotiation which may end with a written agreement for presentation to the Governor for his necessary consent. I think this is good sense because the Governor when giving his consent may require the holder of the statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage sublease in order that his consent under Subsection (1) may be signified by endorsement thereto: See Awojugbagbe Light Ind Ltd. v. Chinukwe (1995) 4 NWLR (Pt.390) 379 where Section 22(1) of the Land Use Act was exhaustively dealt with.”
(Emphasis mine)
Contributing to the decision in Awojugbagbe Light Industries Ltd v P.N. Chinukwe & Anor. (1995) LPELR-650(SC), (1995) 5 NWLR (PT 390) 409, Iguh, JSC, said, pages 93 ? 94 of the E-Report:
?I think it ought to be stressed that the holder of a statutory right of occupancy is certainly not prohibited by Section 22(1) of the Act from entering into some form of negotiations which may end with a written agreement for presentation to the
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Governor for his necessary consent or approval. This is because the Land Use Act does not prohibit a written agreement to transfer or alienate land. So long as such a written agreement is understood and entered into subject to the consent of the Governor, there will be no contravention of Section 22(1) of the Land Use Act by the mere fact that such a written agreement is executed before it is forwarded to the Governor for his consent.?
His Lordship further said, pages 100 ? 101 of the E-Report:
?A close study of Section 22(2) of the Land Use Act clearly confirms that it does recognise cases where some form of written agreement or instrument executed in evidence of the relevant transaction is submitted to the Governor in order that the necessary consent under Section 22(1) may be signified by endorsement thereon. This being so, I do not conceive it can be argued with any degree of seriousness that there was anything unlawful in the entering into or execution of Exhibit E before the Governor?s consent was obtained as this procedure is expressly covered by Section 22(2) of the Land Use Act. The legal consequence that arises in
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such a situation is that no interest in land passes under the agreement until the necessary consent is obtained. Such an agreement so executed becomes inchoate until the consent of the Governor is obtained after which it can be said to be complete and fully effective. I am therefore of the firm view that Section 22(1) of the Land Use Act prohibits the alienation of a right of occupancy without the consent of the governor first had and obtained but docs(sic) not prohibit agreement to alienate or in respect of terms and conditions for the purpose of effecting such alienation if and when the Governor gives his consent to the transaction in issue.?
Again, in Iragunima v Rivers State House and Property Development Authority (2003) LPELR-1533(SC), (2003) 5 SC 179, the Supreme Court, per Ogundare, JSC succinctly said, page 11 of the E-Report:
?I think it is a misconception to argue that as the prior consent of the Governor was not sought, nor obtained, before the Deed of Assignment was executed, the assignment was null and void. That cannot be correct ? see Awojugbagbe Light Industries Ltd v P.N. Chinukwe & Anor. (1995) 4 NWLR (Pt.390) 379.”
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See alsoOwoniboys Tech Services Ltd v UBN Ltd (supra); Calabar Central Co-Operative Thrift & Credit Society Ltd v Ekpo (2008) LPELR-825(SC).; Mbanefo v Agbu (2014) LPELR-22147(SC); Nekpenekpen v. Egbemhonkhaye (2014) LPELR-22335(CA).
These pronouncements clearly establish that the consent of the Governor to the transaction, as required by Section 22(1) completes and validates the alienation of interest in the right of occupancy. However, Section 22(2) does not invalidate but endorses a written agreement that is first put in place between the parties, which will be submitted for the Governor?s consent. An agreement that has been executed before the consent of the Governor is actually obtained is therefore not ipso facto invalid. Rather, the document is invalid as a document upon which any rights are enforceable until the consent of the Governor is obtained. Thereafter, it becomes a document with enforceable terms to all.
?The well-worn position of the law is that where a purchaser of land has paid the purchase price for the land to the vendor, he acquires an equitable interest in the land and this is as good as a legal
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estate. The equitable interest so acquired can only be defeated by a purchaser for value who had no notice of the existing equity; Obijuru v Ozims (1985) LPELR-2173(SC); Gbadamosi v Akinloye (2013) LPELR-20937(SC); Goldmark (Nig) Ltd v Ibafon Co. Ltd (2012) LPELR-9349(SC). The 1st Respondent by virtue of Exhibit B had acquired an equitable interest in the land in dispute. The Appellant did not at all dislodge the equitable interest of the 1st Respondent by proving that he was a purchaser for value who had no notice of the existing equity. The equitable interest of the 1st Respondent in the land in dispute was therefore intact and unassailable.
On the issue of special damages, I find I must agree with the Appellant that special damages were not proved. It is trite that special damages must be specifically pleaded and strictly proved because it is exceptional in its nature, such as the law will not infer from the nature of the act which gave rise to the claim;Ajigbotosho v. RCC (2018) LPELR-44774(SC); Eneh v Ozor (2016) LPELR-40830(SC). The 1st Respondent had pleaded that after her marriage to the Appellant broke up in 2011 and the Appellant refused to
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vacate the property in issue but claimed ownership of same, she then secured accommodation in 2012 from one Mr. Terkuma Akighir, her landlord. She claimed as special damages the sum of N620, 000.00 being rent paid for the said accommodation. See paragraphs 14 and 19 of the Statement of Claim, pages 6 ? 11 of the Record of Appeal. The Appellant denied this claim, averring that he bought a plot of land situate behind Civil Service Commission, Makurdi, and built a boys quarters thereon, where the 1st Respondent now resides. See paragraphs 19 and 24 of the Statement of Defence and Counterclaim at pages 101 ? 109 of the Record of Appeal. The 1st Respondent had testified in line with her pleadings. However, her witness, PW2, who was also her sister, testified under cross examination as follows, page 244 of the Record of Appeal:
?It is not correct to say that where the plaintiff lives now was built by the 1st defendant. The plaintiff built the house piecemeal until she finished building it. It will surprise me to hear that the house is a rented apartment the plaintiff built it.?
This piece of evidence is completely at variance
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with the pleadings and evidence of the 1st Respondent as PW1. A piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts, and not when there are some minor discrepancies in, perhaps, details between them;Eke v State (2011) LPELR-1133(SC); Sambo & Ors v. The Nigeria Army Council & Ors (2015) LPELR-40636(CA). The evidence of PW2 that the 1st Respondent, PW1, was not living in a rented accommodation but in a house the 1st Respondent built was completely on the opposite angle from the assertion of the 1st Respondent that she was a rent paying tenant to one Mr. Terkuma Akighir. I note that the learned trial Judge made no comments on this contradiction but simply accepted the account of the 1st Respondent and awarded her special damages as claimed for rent. In my considered opinion however, the 1st Respondent failed to prove that she was entitled to special damages. The award of special damages cannot stand in this light. Issue 1 is accordingly resolved in part, in favour of the Appellant.
Issue 2
The Counter claim was dismissed by the trial Court. The Appellant?s complaint is that
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the Counter claim was not independently considered on its merit and pronounced upon by the trial Court, occasioning a miscarriage of justice. For the 1st Respondent, it was submitted that the trial Court sufficiently pronounced on the counter-claim, the pleadings and the evidence on both the main and counter-claim having been interwoven. It was further submitted that the counter claim was liable to be dismissed when placed on an imaginary scale with the case of the 1st Respondent, who proved a better title than the Appellant.
A counter-claim is an independent action with its own set of pleadings that must be established by credible evidence at the trial, unless they are admitted; Ogbonna v. The Attorney General of Imo State & Ors (1992) LPELR-2287(SC); R-Benkay Nigeria Limited v. Cadbury Nigeria Limited (2012) LPELR-7820(SC). Although a counter claim is a separate or cross action from the main action, the two are usually heard together for convenience, with a defendant including a counter claim in his statement of defence, as permitted by Rules of Court, instead of filing an independent action against the same plaintiff. The parties in the counter
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claim would change sides; the plaintiff in the main suit becomes the defendant in the counter claim while the defendant in the main suit becomes the plaintiff in the counter claim.
A counter claim may arise from the same transaction as in the main action and can for convenience, be determined together from the same set of facts and circumstances. In which event, main claim and the counter claim are heard together, with each respective party in the reversed role leading evidence in proof or in defence of the claim, the parties having joined issues in their pleadings; Oroja & Ors v. Adeniyi & Ors (2017) LPELR-41985(SC). The whole purpose is to ensure speedy trial and to minimize the cost of litigation in order to enable the Court to pronounce a final judgment in the same proceedings; Nwaenang v. Ndarake & Ors (2013) LPELR-20720(CA).
In the instant case on appeal, the main claim and the counter claim arose out of a dispute over ownership of the same piece of land which the Appellant and the 1st Respondent both claimed they purchased from the same vendor. The learned trial Judge rightly noted, page 286 of the Record of Appeal:
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?The 1st defendant has also put up a counter-claim against the plaintiff for reliefs that are similar to those being sought by the plaintiff against him.?
The Appellant as counterclaimant, sought in reliefs i ? iv, a declaration of title to the land in issue, a perpetual restraining order against the 1st Respondent herein, an order directing the 3rd defendant to the counterclaim, PW2 herein, to hand over all title documents in respect of the land in issue to him and an order perpetually restraining the 2nd Respondent herein from processing documents in respect of the land in dispute in favour of the 1st Respondent herein. In reliefs v ? vii, the Appellant sought special damages, general damages and costs of the action. The 1st Respondent as plaintiff sought similar reliefs. The evidence adduced by the parties in proof of their respective claims, were thus, completely entwined. In the judgment on appeal, the learned trial Judge noted that at the Pre-trial conference, Counsel for the 1st Respondent, plaintiff therein, had formulated two issues as follows:
1. Who, as between the plaintiff and the 1st defendant, has proved a better title to the land in issue?
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2. Whether or not the plaintiff should be entitled to the damages claimed.
Counsel for the Appellant, who was the 1st defendant therein, adopted Issue 1 as being relevant to both the main suit and the counter-claim, page 286 of the Record of Appeal. The trial Court thereupon considered the issues and determined the main claim and the counter claim together as common questions arose for determination in both of them. A trial Court in this circumstance is not expected to consider the same question(s) arising for determination in the main claim and counter claim separately; Ago v. Federal Mortgage Finance Limited (2013) LPELR-22820(CA); Digital Security Technology Ltd & Anor v. Andi (2017) LPELR-43446(CA). The trial Court is however expected to make separate pronouncements in respect of the main claim and the counter claim.
Upon a consideration of the issues arising for determination before it, the trial Court allowed the main claim and expressly pronounced upon the counterclaim, dismissing it in its entirety. The Appellant did not prove his counterclaim. No miscarriage of justice was occasioned to the Appellant in this
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circumstance. Issue 2 is therefore resolved against the Appellant.
This appeal therefore succeeds in part. The Orders made by the learned trial Judge in this Suit No, MHC/309/2015 on 17/1/2017 are hereby affirmed in part. It is further ordered that the award of the sum of N620,000.00 as special damages to the 1st Respondent against the Appellant is set aside.
The 1st Respondent is entitled to costs which are assessed at N100, 000.00 against the Appellant.
JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in advance the Judgment just delivered by my learned brother, Otisi, JCA, wherein the issues raised in the Appeal were comprehensively dealt with.
The reasoning and conclusions are in consonance with my views on the issues raised in the Appeal, which therefore leads me to adopt them as my own
Thus, for those reasons given in the lead Judgment, I also allow the Appeal in part. I endorse the consequential Orders made therein, inclusive of the order as to costs.
JOSEPH EYO EKANEM, J.C.A.: I read before now the judgment which has just been delivered by my learned brother, Otisi,
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JCA. I agree entirely with the reasoning and conclusion therein which I adopt as mine in holding that the appeal succeeds only in part. I abide by the consequential orders made in the lead judgment including the order as to costs.
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Appearances:
Chief Dr. (Mrs.) C. Mbafan Ekpendu with her, Bemva Akortsaha, Esq.For Appellant(s)
Tyosar Agatse, Esq. with him, M.T. Or, Esq. and T. Usue, Esq. for the 1st Respondent.
S.T. Sokpo, Esq. (PSC, Ministry of Justice, Benue State) for the 2nd RespondentFor Respondent(s)
Appearances
Chief Dr. (Mrs.) C. Mbafan Ekpendu with her, Bemva Akortsaha, Esq.For Appellant
AND
Tyosar Agatse, Esq. with him, M.T. Or, Esq. and T. Usue, Esq. for the 1st Respondent.
S.T. Sokpo, Esq. (PSC, Ministry of Justice, Benue State) for the 2nd RespondentFor Respondent
