TARPAV IORTSOM & ORS v. IOREMBER KPENKAAN (2019)

TARPAV IORTSOM & ORS v. IOREMBER KPENKAAN

(2019)LCN/12998(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/MK/177/2012

JUSTICES

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

1. TARPAV IORTSOM
2. TERNA IORTSOM
3. TERZUNGWE IORGBIDE
4. TERHEMBA DUGER Appellant(s)

AND

IOREMBER KPENKAAN Respondent(s)

RATIO

DEFINITION OF THE TERMS “DECISION”, “DETERMINATION” AND “TERMINATION”

I draw inspiration from the provisions of Section 294(2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered which came into effect on 29th May, 1999 to wit:-
?294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.?
A ?decision? is defined under Section 318(1) of the Constitution:-
?318(1) In this constitution, unless it is otherwise expressly provided or the con otherwise requires:-
“Decision” means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.”
?Any determination of a Court? under the 1999 Federal Constitution is a ?decision? or an ?opinion?. A ?determination? has been judicially defined by Alexander, C.J.N. in Deduwa & Ors. vs. Okorodudu & Ors. (1976) 1 NMLR 226 at pages 243-244 to wit:-
?More light is thrown on the meaning of the words ?decision? and determination? in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: ?We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means ?a bringing or coming to an end? or (the mental action of coming to a decision,? or ?the resolving of a question?).
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word determine? as meaning ?make an end of the matter.? In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of the matter.”
In Baba vs. Civil Aviation (1991) SCNJ (Pt.1) 1, Nnaemeka-Agu, JSC held at page 25 when construing Section 33(1) of the 1979 Constitution that:
?The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini Panel.?
In Words and Phrases Legally Defined Vol. 2 (D-N) by John B. Saunders appears the following opinions of various jurists of renown on the legal effect of what constitutes a ?determination? or to ?determine? a dispute or a controversy at pages 63 to 65:A determinable interest comes to an end automatically upon the occurrence of the terminating event, as for example upon the remarriage of a woman to whom an estate has been granted during her widowhood. This is inevitable, for according to the limitation itself, i.e. according to the words fixing the space of time for which the widow?s right of enjoyment is to continue, her interest ceases with her remarriage and nothing remains to be done to defeat her right. There can, indeed, be no question of defeating what has already come to an end. (Cheshire?s Modern Real Property (10th Edition) 281).
?It is said that ?termination? and ?determination? do not mean the same thing; that ?termination? means the thing coming to its natural end; ?determination? means coming to what I may call a violent end, that is, an end which was not contemplated as the longest duration, such as coming to an end by an unexpected death. I do not think that this is either the popular or the legal distinction between the two terms. Supposing a term were created of fifty years, determinable at the death of ?A?,would it be legally inappropriate to say, that such term is determinable either by effluxion of time or by the death of ?A And as to the grammatical or popular use of the term it is rather remarkable that, in Todd?s edition of Johnson?s Dictionary, the fourth sense given of the word ?determination? is ?expiration,? ? ?end?. And the lexicographer adds, ?Used only by lawyers; as, from and after the determination of the said lease.? The word ?determination? may properly, and according to legal as well as to ordinary use, signify the coming to an end in any way whatever. That appears to me to be the honest mode of construing the word.? St. Aubyn vs. St. Aubyn (1861), 1 Drew & Sm. 611, per Kindersley, V.-C., at pp. 618, 619. PER TUR, J.C.A.

WHETHER ORNOT IT IS EVERY ERROR IN A JUDGEMENT THAT WILL LEAD TO A MISCARRIAGE OF JUSTICE

It is well settled law that it is not every error or mistake in a judgment that will lead to a judgment being reversed or set aside. An appellate Court will do so only where the error or mistake has led to a miscarriage of justice, and without the error a different decision would have been arrived at by the trial Court. See Bankole vs. Pelu (1991) 8 NWLR (Pt.211) 523; Mora vs. Nwalusi (1962) SCNLR 73, and Alli vs. Alesinloye (2000) FWLR (Pt.15) 2610, (2000) 6 NWLR (Pt.660) page 177.?
See Alli vs. Alesinloye (2000) FWLR (Pt.15) 2610 and Bankole vs. Pelu (1991) 8 NWLR (Pt. 211) 523. PER TUR, J.C.A.

JOSEPH TINE TUR, J.C.A.(Delivering the Leading Judgment): By the provisions of Section 294(2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered I have the right to title the determination of this appeal as a ?decision?; an ?opinion? or a ?determination?. I draw inspiration from the provisions of Section 294(2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered which came into effect on 29th May, 1999 to wit:-
?294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.?
A ?decision? is defined under Section 318(1) of the Constitution:-
?318(1) In this constitution, unless it is otherwise expressly

provided or the con otherwise requires:-
“Decision” means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.”
?Any determination of a Court? under the 1999 Federal Constitution is a ?decision? or an ?opinion?. A ?determination? has been judicially defined by Alexander, C.J.N. in Deduwa & Ors. vs. Okorodudu & Ors. (1976) 1 NMLR 226 at pages 243-244 to wit:-
?More light is thrown on the meaning of the words ?decision? and determination? in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: ?We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means ?a bringing or coming to an end? or (the mental action of coming to a decision,? or ?the resolving of a question?).
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word

?determine? as meaning ?make an end of the matter.? In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of the matter.”
In Baba vs. Civil Aviation (1991) SCNJ (Pt.1) 1, Nnaemeka-Agu, JSC held at page 25 when construing Section 33(1) of the 1979 Constitution that:
?The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini Panel.?
In Words and Phrases Legally Defined Vol. 2 (D-N) by John B. Saunders appears the following opinions of various jurists of renown on the legal effect of what constitutes a ?determination? or to ?determine? a dispute or a controversy at pages 63 to 65:

?A determinable interest comes to an end automatically upon the occurrence of the terminating event, as for example upon the remarriage of a woman to whom an estate has been granted during her widowhood. This is inevitable, for according to the limitation itself, i.e. according to the words fixing the space of time for which the widow?s right of enjoyment is to continue, her interest ceases with her remarriage and nothing remains to be done to defeat her right. There can, indeed, be no question of defeating what has already come to an end. (Cheshire?s Modern Real Property (10th Edition) 281).
?It is said that ?termination? and ?determination? do not mean the same thing; that ?termination? means the thing coming to its natural end; ?determination? means coming to what I may call a violent end, that is, an end which was not contemplated as the longest duration, such as coming to an end by an unexpected death. I do not think that this is either the popular or the legal distinction between the two terms. Supposing a term were created of fifty years, determinable at the death of ?A?,

would it be legally inappropriate to say, that such term is determinable either by effluxion of time or by the death of ?A And as to the grammatical or popular use of the term it is rather remarkable that, in Todd?s edition of Johnson?s Dictionary, the fourth sense given of the word ?determination? is ?expiration,? ? ?end?. And the lexicographer adds, ?Used only by lawyers; as, from and after the determination of the said lease.? The word ?determination? may properly, and according to legal as well as to ordinary use, signify the coming to an end in any way whatever. That appears to me to be the honest mode of construing the word.? St. Aubyn vs. St. Aubyn (1861), 1 Drew & Sm. 611, per Kindersley, V.-C., at pp. 618, 619.
?The words of the condition (in a bond) are, ?if the determination of the said action shall be in favour of the plaintiff,? etc. We are of opinion that, as there was at the commencement of this action a judgment in favour of the plaintiff, and there was no stay of execution on the judgment, such a state of things

amounts to ?a determination? of the action in favour of the plaintiff within the meaning of the condition.
Where, as in this case, the plaintiff has obtained a judgment in his favour, and is in a condition to enforce it by execution, the action, as far as he is concerned, may be properly said to be determined in his favour.? Burnaby vs. Earle (1874) L.R. 9 Q.B. 490, per Lush, J., at p.493.
?There is a ?con in Chapter 3 of the Income Tax Act, 1952, which relates to ?Appeals and Relief for Mistake? and comprises Section 50 to Section 66. Thus, in Section 50(2) there is the phrase ?An appeal, once determined by the commissioners, shall be final, and neither the determination of the commissioners nor the assessment made thereon shall be altered, except It is plain that there the words ?determined? and ?determination? are equivalent to: decided and decision, and are quite incapable of being understood to mean an assessment or the amount stated in an assessment.? Muir vs. Inland Revenue Commissioners, (1966) 3 All E.R. 38, C.A. per Winn,

L.J. at p.48.
New Zealand ? ?Article 19 (of a partnership agreement)? says: ?Upon the determination of the partnership the assets of the firm shall be realized The word ?determination? appears to me to be used for ?termination?, and usage shows that they are now used interchangeably.? Rushbrook vs. Bridgeman (1910), 29 N.Z.L.R. 1184, per Stout, C.J., at p.1189; also reported 13 G.L.R. 178, at p.180.
DETERMINE:
?I doubt whether it is correct to say that, where, under a settlement, a person, who has a right to appoint an annual sum to one of a number of persons as he may think fit, and duly makes such an appointment, he thereby ?determines? any provision of the settlement. Be that as it may, it is, I think, clear that in the section under consideration; Section 38(1)(a) of the Finance Act, 1938 (repealed; see now Section 38(1)(a) of the Income Tax Act, 1952, as amended by Section 21 of the Finance Act, 1958) the word is used in relation to the determination of a provision in a settlement ?by virtue or in consequence? whereof a sum of money is

payable by the ?settlor or the wife or husband of the settlor?: and that the power to determine any other provision of a settlement does not bring it within the provisions of Section 38(1)(a) at all. Assuming, however, that the respondent has power to appoint to himself as an employee of a company of which he is or has been a director, and assuming that by making that appointment he would determine all the provisions of the settlement in favour of the other possible beneficiaries, the result is that any sum payable by the respondent by virtue of, or in consequence of, the provisions of settlement so determined would be treated as his income. It seems, I think, clear that the words ?otherwise determine? mean the determination of a provision in the settlement whereby a sum of money becomes payable by the settlor, and nothing else.? Inland Revenue Commissioners vs. Dan Fitte (1942) 2 All E.R. 500, per Maccnaghten, J., at p.503.
?It was argued with ingenuity that an interest cannot determine until it has begun, and that an interest cannot begin until it takes effect in possession, and from these premises the conclusion was

adduced that the interests which were to determine? must be only and exclusively interests in possession. In my judgment, no such inference can be drawn from the use of the word ?determine.? There is one very good reason. By definition from the terms of the clause itself the interests which are to determine are all the interests of the son or daughter and his or her issue. They all determine uno flatu and at once. Obviously of those interests only one could be an interest in possession in any event; all the others must ex necessitate be interests in remainder or reversion. Therefore, if the use of the word ?determine? introduces any ambiguity of the kind suggested, the testatrix had made herself her own dictionary and showed that in her view, at all events, an interest in expectancy can ?determine?. If corroboration of that view be needed, some slight support is to be found in the provisions of the Finance Act, 1894, which contains an exemption from death duties with respect to certain expectant interests. Section 5(3) of that Act provides: ?In the case of settled property, where the interest of any

person under the settlement fails or determines by reason of his death before it becomes an interest in possession, and subsection limitations under the settlement continue to subsist, the property shall not be deemed to pass on his death.? There is thus, at all events, statutory authority, if authority be needed, for the view that an interest can be accurately described as ?determining? if it fails while it is yet reversionary in character.? Re Wilson?s Will Trusts, Tyron vs. Bromley-Wilson, (1950) 2 All E.R. 955, C.A., per Jenkins, L.J. at p.961.?
I have titled this determination a ?decision? to conform with the provisions of the Constitution that I have alluded to. I am of the candid opinion that where a Court established under this Constitution has not ?determined? the dispute or controversy, that is ?put an end? or ?end the dispute or controversy? under Section 36(1) of the Constitution, a party aggrieved may not invoke the provisions of Section 294(2) of the Constitution. The remedy will lie in Sections 13-14 and 24 of the Court of Appeal Act, 2004 (as amended)

to wit:-
?13. This Part of this Act shall apply to the exercise of the jurisdiction of the Court of Appeal to hear appeals in civil causes or matters.
14(1) Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lies to the Court of Appeal; but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.
(2) Nothing in Subsection (1) of this section, shall be construed so as to authorize an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court of a State or the Federal High Court.?
I shall now consider the merit of this appeal.

The appeal has emanated from the decision or determination of the High Court of Justice, Benue State by Ikpambese, J., dated 3rd May, 2011.

The parties contested this suit on pleadings. The statement of claim is at pages 3-6 of the printed record:-
?1. The plaintiff is a farmer residing at Mbaagwa ? Ikyurav-ya in Kwande Local Government Area of Benue State.
2. The 2nd, 3rd and 4th defendants are farmers residing at Mbaagwa ? Ikyurav-ya in Kwande Local Government Area while the 5th defendant is a School Teacher and farmer residing at Mbaagwa as the other defendants.
3. The 6th and 7th defendants are statutory offices established by law with legal personality vested in them. The 6th defendant whose office is in Makurdi, Benue State has the responsibility of managing lands vested in the Military Governor of Benue State while the 7th defendant is the Chief Legal Officer of Benue State.
4. Sometimes in August, 1980, the plaintiff applied to the Kwande Local Government for the grant of a piece of land for agricultural purposes at Ikyogen Mbaagwa in Kwande Local Government Area.
5. Sequel to this application, the Kwande Local Government set up a panel of enquiry to determine whether the land was indeed vacant and fit such a grant.
6. The panel which consisted of the then Clan Head of the Area and all the kindred Heads

carried out the inquiry and indeed discovered that the land was vacant and in actual fact belonged to the plaintiff and they recommended that the grant be made to him. The plaintiffs hereby plead a photocopy of the said document and shall at the hearing subpoene officials of the Kwande Local Government to produce the original.
7. That as a result of the recommendation aforesaid, the Kwande Local Government granted to the plaintiff a piece of land vide Certificate of Occupancy dated 28th January, 1981 and registered on page 1 Volume 4 of the land Register at Adikpo. The grant which was made under the Land Tenure Law, 1962 Regulations 8(2)(b), 11 was to last for a term of 20 years commencing from the 28th day of August, 1981. The said Certificate of Occupancy is hereby pleaded. The plaintiff also pleads the entire file in respect of the Kwande Local Government, Adikpo and shall rely on all the documents contained therein.
8. After this grant, the plaintiff applies to the office of the 6th defendant for a conversion of the Local Government grant into a state grant and the said application was approved leading to a grant of a Right of Occupancy with Ref.

No.433/22 dated 9th July, 1984 in the hand of the Military Governor on the 1st March, 1987. The plaintiff was also granted a Certificate of Occupancy No.BNA 433 over the said land for use for agricultural purposes. The said Certificate took effect from the 21st April, 1987 and was to last for a term of 40 years. It is hereby pleaded.
The plaintiff also pleads the site plan in respect of BNA 433 on Obudu Sheet No.291 dated 20th March, 1987. At the hearing of this suit, the plaintiff shall rely on the entire file relating to plot No.433/50 kept by the 6th defendant and it is hereby pleaded.
9. After the grant of the land, which was made without protest from any one, the plaintiff had put same into use as an agricultural land in accordance with the letters of the grant.
10. Sometimes in April, 1998, the 6th defendant wrote a letter purportedly addressed to the Mbaagwa Community and copied to the plaintiff stating that a protest had been received from the Community and requested that the Community should provide logistics to enable officials of the bureau to visit the land granted to the plaintiff and investigate the complaint. The

letter is hereby pleaded. Hitherto to this letter, the plaintiff had also received a copy of the said complaint signed by among others, the 5th defendant. The said letter is hereby pleaded.
11. Upon receipt of the letter from the 6th defendant, the plaintiff consulted his solicitor who replied the said letter on his behalf. The letter with Ref. No.NET/LEG-COR/15/98 is hereby pleaded.
12. In consequence of the foregoing officials of the 6th defendant?s office visited the land on the 23rd April, 1998 and the plaintiff who was present discovered that it was the 1st, 2nd, 3rd, 4th and 5th defendants who were fermenting trouble over this land and hiding under the cloak of the Mbaagwa Community of Ikyurav-ya (Ikyogen).
13. At the venue of the meeting the defendants aforesaid protested that the land ought not to have been granted to the plaintiff and demanded for a share thereof. The plaintiff refused. The meeting broke up without any resolution.
14. Since the holding of the meeting as aforesaid the 1st, 2nd, 3rd, 4th and 5th defendants have actively disrupted the plaintiff from using the said land and have threatened the plaintiff

and/or his agents with violence should they attempt to continue work on the land.
15. Sometimes in July, 1998, the plaintiff received a letter from the 6th defendant ordering to stop work on the land granted to him by the Governor of Benue State since 1987. The said letter is hereby pleaded.
16. Upon receipt of the aforesaid letter, plaintiff?s Counsel wrote to the 6th defendant challenging his right to take said a decision over a piece of land the plaintiff had enjoyed for over 17 years without protest. The said letter is hereby pleaded. No reply was received in respect of the said letter.
17. Sometimes in August, 1998, the plaintiff received a letter from the 6th defendant informing him of a decision taken by the Bureau requiring him to surrender his title over the said land so that portions of same can be excised for the 1st ? 5th defendants. The said letter is hereby pleaded.
18. On or about the 18th August, 1998, plaintiff?s Counsel wrote to the 6th defendant expressing the plaintiff?s disapproved of the purported decision taken to carve out portions of his land to other people. The letter is hereby pleaded.<br< p=””

</br<

19. The plaintiff shall contend at the trial that the decision take above is illegal, unconstitutional, null and void and shall call on the Court to declare it as such.
20. The plaintiff shall further contend that the 6th defendant in connivance with the 1st ? 5th defendants are fermenting trouble over this land for their selfish ends and that no Mbaagwa Community is complaining over this land.
21. WHEREFORE the plaintiffs? claim against the defendants as follows:-
(a) A declaration that the plaintiff valid title over the said land and that the 6th defendant is not competent to carve out portions of the land for others during the life of the plaintiff?s grant.
(b) A perpetual injunction restraining the defendants by themselves, their agents, servants or privies from interfering with the plaintiff?s land howsoever.?

A Joint Statement of Defence of the 1st ? 5th defendants is at pages 8-11 of the printed record as follows:-
?1. The 1st to 5th defendants admit paragraphs 1, 2 and 3 of the statement.
2. The 1st to 5th defendants admit paragraphs 4 and 5 of the statement only to the

extent that the plaintiff informed Mbaagwa Community that he was seeking for an agricultural loan and therefore wanted them to give him their blessing and some of their lands to show to the agricultural officials to enable them certify him fit for the loan.
3. The 1st to 5th defendants further aver in answer to paragraphs 4 and 5 of the statement that they shall put the plaintiff to the strict proof.
4. The 1st to 5th defendants are not in a position to deny or admit paragraph 6 of the plaintiffs? statement and shall put him to the strict proof thereof.
5. The 1st to 5th defendants in further answer to paragraph 6 of the statement aver that between 1980 and 1981 there own lands were not vacant as they had different farms and economic trees on the lands.
6. The 1st to 5th defendants are not in a position to admit the paragraph 7 of the statement and shall put plaintiff to the strict proof thereof.
7. The 1st to 5th defendants are not in a position to admit the averments in paragraph 8 of the statement but further aver that before the said conversion the defendants who are also members of the Mbaagwa Community wrote a protest

letter to the 6th defendant in 1987 to investigate the extent of the grant but no reply or action was taken. The 1st to 5th defendants shall at the hearing subpoene the Bureau of Land and Survey, Makurdi to produce the said letter and it is hereby pleaded.
8. The 1st to 5th defendants deny vehemently paragraph 9 of the statement.
9. That in further answer to paragraph 9 of the statement the 1st to 5th defendants aver that since 1980 they have been continuously farming this there lands until in 1990 when the plaintiff started trouble by asking the 1st to 5th defendants amongst other to vacate the land. The letter of plaintiff to 3rd and 5th defendants amongst others is hereby pleaded.
10. That in further answer to paragraph 9 of the statement the 1st to 5th defendants aver that they promptly replied the plaintiff vide a letter dated 2nd January, 1991 and the said duplicate copy of the letter is hereby pleaded and shall be relied upon at the trial.
11. The 1st to 5th defendants further aver in answer to paragraph 9 of the statement that they have continuously been protesting against the attempt by plaintiff to take their lands which they did

not agree should be covered by plaintiff Certificate of Occupancy by a letter dated 3rd February, 1995 to Chairman, Kwande Local Government, Adikpo. The said duplicate copy of the letter is hereby pleaded and shall be relied upon at the trial.
12. The 1st to 5th defendants further aver that pursuant to paragraph 11 above a meeting was directed to be convened at the instance of the Chairman Care Taker Committee, Kwande Local Government to investigate the complaint against the plaintiff?s Certificate of Occupancy. The letter dated 10th July, 1995 is hereby pleaded and shall be relied upon at the trial.
13. The 1st to 5th defendants also aver that pursuant to the letter of 10th July, 1995 quoted above, the Kwande Local Government Council delegated the late Tyoor Undo Gunduor, Distric Head of Lieu to investigate the complaint.
14. The 1st to 5th defendants further aver that the late Tyoor Gunduor actually conducted the inquiry in which plaintiff was also present but the District Head died before his findings could be made public.
15. Consequently the families of the 1st to 5th defendants engaged the firm of P.I. Ashar & Co. a firm of

Legal Practitioners based in Adikpo who wrote to the Chairman, Kwande Local Government Council to find a solution to the problem. The said duplicate copy of the letter written by P.I. Ashar, Esq. for the firm dated 5th August, 1996 is hereby pleaded and shall be relied upon at the trial.
16. The 1st to 5th defendants admit paragraph 10 of the statement.
17. The 1st to 5th defendants deny paragraph 11 of the statement as they have no knowledge of such a letter as they were not copied.
18. The 1st to 5th defendants admit paragraph 13 of the statement only to the extent that the 6th defendant?s officials visited the land on that date but deny that it was only defendants that were present but he entire Mbaagwa Community led by their Kindred Head Chief Ayohol Gbunka.
19. The 1st to 5th defendants deny paragraph 13 of the statement and in the alternative state that the officials of 6th defendant were satisfied that they had a case against the plaintiff?s Certificate of Occupancy consequently a letter dated 30th July, 1998 was written to both plaintiff and defendants and indeed the Mbaagwa Community.

The said letter from 6th defendant dated 30th July, 1998 is hereby pleaded.
20. The 1st to 5th defendants further aver in answer to paragraph 13 of the statement that the meeting was held under a peaceful atmosphere with the plaintiff participating and he also agreed to all the deliberations.

21. The 1st to 5th defendants deny paragraph 14 of the statement as completely false.
22. The 1st to 5th defendants admit paragraph 15 of the statement and state that they too were stopped by that letter from working where they were previously working.
23. The 1st to 5th defendants are not in position to deny or admit paragraph 16 of the statement.
24. The 1st to 5th defendant admit paragraph 17 of the statement and further state that the contents of that letter were agreed to by both parties at the meeting of 23rd April, 1998.
25. The 1st to 5th defendants are not in a position to admit or deny paragraph 18 of the statement as they were not copied.
26. The 1st to 5th defendants deny the averments in paragraphs 19, 20, and 21 of the statement.
27. The 1st to 5th defendants in further answer to paragraphs 19 of the statement aver that the decision of the 6th

defendant is in order based on the evidence discovered from the inquiry of 23rd April, 1998.
28. The 1st to 5th defendants in answer to paragraph 20 further aver that they have never connived with 6th defendant or anybody whatsoever and that it is indeed the Mbaagwa Community where they also belong that sort redress and it was granted.
29. The 1st to 5th defendants further aver that their lands which have their desolates, Economic trees and farms of assorted types which were erroneously included in land of plaintiff can validly be excised by 6th defendant who has powers so to do.
30. WHEREOF the 1st to 5th defendants denies in its entirety the plaintiffs? claim and will at the trial urge the Court to declare the alleged Certificate of Occupancy null and void and the claim frivolous and devoid of merit.?

A Joint Statement of Defence of the 6th-7th defendants? statement of defence are at pages 16-17 of the printed record as follows:-
?1. The defendants admit paragraphs 1, 2 and 3 of the claim.
2. The defendants are not in a position to deny or admit paragraphs 4, 5 and 6 of the claim as facts contained

therein are strictly within the knowledge of the plaintiff. The defendants shall require strict proof of same.
3. The defendants deny paragraphs 7 and 8 of the claim and in further answer avers that the plaintiff was granted a Customary Right of Occupancy over a piece of land at Ikyogen in Kwande Local Government for which the plaintiff applied for conversion to statutory right to the 6th defendant. Unknown to the 6th defendant plaintiff included a portion of land not covered by the customary grant.
4. The 6th defendant denies paragraph 9 of the claim and states that the plaintiff has failed to utilize the granted for the purpose for which it was made.
5. The 6th defendant admits paragraph 10 only to the extent that Mbaagwa Community, Ikyurav-ya in Kwande Local Government wrote a protest letter to the 6th defendant titled ?Protest over conversion of plot No. 4 Allocated to Iorember Kpenkaan by Kwande Local Government to BNA433 by Bureau of lands and Survey?. Alleging that there was a dispute over the said plot which was never investigated by Lands and Survey before the conversion of Customary grant to statutory grant. In their letter

they appeal to the 6th defendant?s office to investigate the dispute in order to avoid breach of peace. The said letter dated 29th December, 1997 is hereby pleaded.
6. In reply to the above letter, a letter was written and signed by one Iorember Utih for the 6th defendant and copied to the plaintiff requesting the Mbaagwa Community to come and get some officers of the Bureau of Lands and Survey to their area on Wednesday the 1st of April, 1998 for investigation. The said reply letter dated 27th March, 1998 is hereby pleaded.
7. The defendants admits paragraph 12 of the claim only to the extent that officials of the office of the 6th defendant visited the disputed land on the 23rd April, 1998. The 6th defendant states further that a meeting was held between Mbaagwa Community and Iorember Kpenkaa. 54 members of their Community were in attendance including C.U. Kpenkaan who represented the plaintiff and also three officers of land and survey. The minutes of the said meeting dated 23rd April, 1998 are hereby pleaded.
8. The defendants are not in position to deny or admit paragraph 14 of the claim as facts contained therein are strictly within

the knowledge of the plaintiff.
9. 6th and 7th defendants vehemently deny paragraphs 15, 16, 17, 18, 19, 20, 21 and put plaintiff to strictest proof.
10. 6th and 7th defendants states that when it was discovered aftetr the state grant that the grantee misled the Bureau of Lands into incorporating a portion of land that does not belong to him into his title the 6th defendant then wrote to the 7th defendant for advice and on the advice of the 7th defendant, 6th defendant wrote to the state Governor recommending excision of the portion included and revocation of the statutory grant for public interest. The 6th defendant shall rely on page 73 of file No.BNA433 Ikyogen Ikyurav-ya, Iorember Kpenkaan which file is marked Revoked. The entire file is hereby pleaded.
11. The 6th and 7th defendants aver that the State Governor revoked the certificate of occupancy No.BNA433 for over riding public interest. At the trial, they shall rely on the revocation order made and signed by the State Governor of Benue State dated the 24th day of September, 1999 which copy of it is contained in file No.BNA433.
12. WHEREOF the 6th and 7th defendants denies

liability to the entire claim of the plaintiff and will at the trial of the case. Urge the Court to dismiss the claim as it lacks merit.?

The dispute proceeded to trial wherein the parties called oral and documentary evidence. Thereafter Counsel submitted written addresses which the Court considered. Ikpambese, J., held from page 171 lines 1 to page 172 lines 1-25 of the printed record as follows:-
?It is pertinent to observe that the plaintiff initiated the move to be issued the Kwande Local Government Certificate of Occupancy in respect of the disputed land sometimes in August, 1980 and got it in 1981 as evidenced in Exhibits ?1? and ?10?. Exhibit ?1? as the application made by the plaintiff and the resolution of elders of Mbaagwa confirming that the land belong to the plaintiff. Exhibit ?10? is the entire file in which all the documents processed in respect of the disputed land by the plaintiff are filed. The plaintiff continued to use and enjoy the land by farming and harvesting the economic trees on it until about seven years thereafter that the 1st ? 5th defendants started

disputing the land. It means for about seven (7) years plaintiff?s title to the land was not disturbed.
The DW2 stated in paragraph 5 of the sworn statement that he and elders of Mbaagwa gave land to the plaintiff but in paragraph 13 stated:-
?13. I also do not consent again to the giving the plaintiff my piece of land because of the plaintiff attitude in taking over our lands.?
Thus the DW2 ended up blowing cold and hot at the same time. The attitude of the 1st ? 5th defendants is an after thought and borne out of malice.
This is because I note in Exhibit ?1?, particularly, the minutes of the panel set up by Kwande Local Government that the District Head, Kindred heads and elders of Mbaagwa were present when the land was confirmed to belong to the plaintiff.
In Exhibit ?B? the designation of the six (6) persons who wrote and signed or thumb printed as representatives of Mbaagwa Community is not disclosed. Out of the six (6) persons only Agbam Sugh testified as the DW2. I doubt if the six (6) persons represented the whole Mbaagwa people. Even Exhibit ?B? was not copied to the

plaintiff to enable him know the people complaining against him. Before the Court no witness has testified on the side of the 1st ? 5th defendants as representing Mbaagwa Community. All the 1st ? 5th defendants and witnesses are people directly interested in the disputed land.
The plaintiff raised the issue of lis pendens by contending that this suit was pending when the 6th ? 8th defendant revoked his right of Occupancy No.BNA433 Ikyogen.
The revocation of the Certificate of Occupancy No. BNA433 is signed on 24th September, 1999 as contained in Exhibits ?4? and ?E?. This suit was initiated on the 5th November, 1998.
It is therefore clear that the 6th ? 8th defendants were in contempt when they proceeded to conduct investigation on 23rd April, 1998 and revoke the Certificate of Occupancy of the plaintiff during the pendency of this suit.
It is not in doubt that the object of this suit is to recover title to a specific property, BNA433, it is a real property and at the time of revocation and transfer of it to the defendant this suit was pending. Therefore, the doctrine of lis pendens applies

(See Enekwe vs. IMBN (2006) SCNJ 1 at 15). The doctrine of lis pendens is a sagacious in the sense that it has the objectives of ensuring that parties to litigation are not prejudiced or over reached. Secondly, it ensures that the eventual decision or order of a Court is not frustrated or given in vain. Accordingly, a transfer of real property pendente lis is liable to be set aside (See Agusiobo vs. Okagbue (2001) FWLR (Pt.78) 1162 at 1185; Nigerian Land Law, Principles, Practice and Procedure page, 83-84 by Hon. Justice M.A. Ikpambese, and Ogidi vs. Egba (1999) 6 SCNJ 107).
Having gone through and resolved the banage of substantive and allied issues raised in this suit, it is only reasonable to conclude, that the plaintiff merits his claim before this Court. I accordingly enter judgment in favour of the plaintiff against the defendants jointly and severally as per paragraph 24 of the amended statement of claim.?

M.A. Jov, Esq., of learned Counsel filed a brief on behalf of four appellants on 24th November, 2014 wherein the following issues were distilled for determination at page 3 paragraph 3 of the brief:-

?(a) Whether the plaintiffs/respondents proved title to the land in dispute.
(b) Whether the 7th defendant was right in revoking the certificate of occupancy of the respondent.?

Appeals are to be argued in the Court of Appeal on briefs of argument. The appellants? issues for determination are to arise from the original, amended or additional grounds of appeal under Order 19 Rule 3(1)-(5) and 5 of the Court of Appeal Rules, 2016 to wit:-
?3(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.
(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.

(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.
(4) All briefs shall be concluded with a numbered summary of the points to raise and the reasons upon which the argument is founded.
(5) Except to such extent as may be necessary to the development of the argument, briefs need not set out or summarize judgments of the lower Court, nor set out statutory provisions, nor contain an account of the proceedings below nor of the facts of the case.
xxxx
5(1) The appellant may also, if necessary, within fourteen days of the service on him of the respondent?s brief, file and serve or cause to be served on the respondent a reply brief which shall deal with all new points arising from the respondent?s brief.
(2) Except where the Court directs otherwise, every Reply brief to be filed in Court shall not exceed 15 (fifteen) pages, and shall conform with Rule 3(2), (4), (5), (6)(b) and (c) of this Order.?

The duty of the respondent is provided in Order 19 Rule 4(1)-(2) of the Court of Appeal Rules, 2016 to wit:-
?4(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis; also conform to Rule 3 (1), (2), (3), (4) and (5) of this Order.?

My humble opinion is that it is the appellants who appeal that formulate issues for determination. Nevertheless the respondent filed a brief on 9th April, 2018 and distilled the following issues at page 3 paragraph 1.13 of the brief as follows:-
?(a) Whether the plaintiffs/respondents proved title to the land.
(b) Whether the 7th defendant (sic) (8th defendant) was right in revoking the Certificate of Occupancy of the respondent.?

?I shall consider this appeal on the issues distilled by the appellants

for determination bearing in mind that where the issues overlap, I have the discretion to condense them. See Anie vs. Chief Uzorka (1993) 8 NWLR (Pt. 309) 1 at 16. Order 19 Rule 3(1) of the Court of Appeal Rules, 2016 provides that the issues must have arisen from the appeal. The grounds for challenging the decision must be clearly set out as demanded in Order 7 Rule 2(3) of the Court of Appeal Rules, 2016 to wit:-?2(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.?Issues are usually joined in the pleadings. See Atanda & Ors. vs. Akanji & Ors. (1989) 2 NSCC 511 at 526 and Idahosa vs. Oransaye (1959) 4 FSC 166. This appeal is to be determined under the provisions of Order 4 Rules 9(1)-(2) of the Court of Appeal Rules, 2016 which provides as follows:- ?9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such Order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.

(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.?
Firstly, the verdict or findings made by the learned trial Judge are not to be set aside on grounds of appeal that complains that there is a misdirection, etc.
Secondly, the onus is on the appellants to show that there is a substantial wrong or a miscarriage of justice has been thereby occasioned by the learned trial Judge to warrant an interference with the findings of the lower Court or the verdict by the Court of Appeal. Even then, this Court is to apply the ?Blue Pencil Rule?, excise the part of the decision that is substantially wrong or that has occasioned a miscarriage of justice and give ?final judgment? to the remainder of the parties after considering the admissible evidence and exhibits that have accompanied the briefs of argument and the record of appeal under Order 4 Rule 9(3) of the Court of Appeal Rules, 2016 as follows:-

?(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in Sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.?
The Supreme Court has applied the Blue Pencil Rule or Test in a plethora of decisions. I shall refer to Ezekpelechi Ukaegbu vs. Ugoji (1991) 7 SCNJ (Pt.2) 244 at 258; Ugo vs. Obiekwe (1989) 2 SCNJ 95 at 103-104; Onifade vs. Olayiwola (1990) 11 SCNJ 10 at 22; Onajobi vs. Olanikpekun (1985) 4 SC (Pt.2) 156 at 163.
The appellants filed a Joint Notice of Appeal against the respondent on 16th June, 2011 praying for the following reliefs:-
?(a) An order of the Court of Appeal setting aside the decision and judgment of Honourable Justice M.A. Ikpambese dated 3rd May, 2011 in suit No.KHC/11/2009.
(b) An order of Court dismissing the Respondent?s claim.?

The grounds of appeal are couched as follows:-
?3. GROUNDS OF APPEAL
(1) The trial Judge erred in law when he held that ?The gamut of paragraphs 1-8 of the joint statement of defence of the 1st ? 5th defendants amounts to admission of the facts pleaded in paragraphs 1-9 of the plaintiffs? statement of claim and thereby occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(a) Paragraphs 1 to 8 of the joint statement of defence of the appellants did not amount to admission.
(b) Paragraphs 2, 5 and 8 of the appellant statement of defence were denials of the averments in paragraphs 1-9 of the respondent?s statement of claim.
2. The trial Court erred in law when it held that the traditional title of the plaintiff in respect of the land was settled in Exhibit ?1? particularly the minutes of the panel set up by Kwande Local Government and thereby occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(a) Exhibit ?1? does not absolve the respondent of the duty to prove how he got the land.

(b) Exhibit ?1? did not show the extent of the land.
(c) The appellants grudge is that the respondent trespassed onto the land belonging to them.
(d) The plaintiff did not trace his root of title.
3. The trial Court erred in law when it held that parties are not mistaken as to the identity of the land, they are ad idem as to the location and boundaries of the land in dispute and that the defendant did not join issues with the respondent as to the identity of the land thereby occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(a) The respondent did not give the boundaries, identity and extent of his land.
(b) The respondent in Exhibit ?3? in his Certificate of Occupancy showed the extent of 6.12 hectares as the land granted but the minutes in Exhibit ?10? page 10 shows a 6.289 hectares.
(c) The parties differ on the extent of the land.
(d) The Court did not visit the land to arrive at a conclusion as to whether the parties are ad idem over the identity of the land.
?4. The trial Court erred in law when it awarded to the respondent a piece of land not described with definite certainty and thereby occasioned a miscarriage of justice.

PARTICULARS OF ERROR
(a) It is the duty of the respondent to describe the land he is claiming with definite certainty and clarity.
(b) The extent of the land in the site plan differs from the land granted in Exhibit ?1?.
(c) The respondent did not explain the contradiction.
(d) It is not the duty of the trial Court to pick and choose which of the contradictory evidence to believe or which not to believe.
5. The trial Court erred in law when it shifted the burden of proving the land in dispute to the appellants and thereby occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(a) The respondent relied on traditional evidence to prove his case.
(b) The respondent failed to plead and lead traditional evidence and how the land devolved to him.
(c) The respondent is duty bound to lead credible evidence as to how his fore fathers founded the land and intervening owners up to the respondent.
(d) The respondent cannot rely on the weakness of the appellants defence to prove his title by traditional evidence.

6. The trial Court erred in law when it shifted the burden of describing the land from the respondent to the appellants and thereby occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(a) The respondent has the burden of proving the land he claims with definite certainty.
(b) The burden of proving the identity of the land does not shift.
(c) The respondent gave contradiction evidenced as to the extent of his land.
7. The trial Court erred in law when it held that by Exhibit ?B? no member of Mbaagwa community testified for the appellant and thereby discountenancing the complaint therein this occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(a) The appellants were protesting the respondent trespass onto their lands.
(b) The appellants are not representative of the Mbaagwa community.
(c) The appellants? interest was directly at stake by the conduct of the respondent.
8. The trial Court erred in law when it held that Exhibits ?4? and ?E? were caught up by the doctrine of lis pendens and thereby occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(a) The appellants? complaint to the 6th and 7th

defendants commenced in 1998.
(b) Investigations into the complaint commenced in 1998.
(c) Exhibits ?4? and ?E? are products of the appellants? complaint.?
Grounds 1-8 in the Notice of Appeal complains that ?The Trial Court erred in law etc. Order 7 Rule 2(1)-(4) and 3 of the Court of Appeal Rules, 2016 provides as follows:-
?2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called ?the notice of appeal?) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.
(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.

(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(4) The notice of appeal shall be signed by the appellant or his legal representative.
3. Any ground which is vague or general in term or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.?
When does an ?error in law? occur? In N.N.S.C. vs. Establissment Sima of Vaduz (1990) 12 SCNJ 35 the Supreme Court held at page 38 as follows:-
?Now, the appellant right from the Federal High Court to the Court of Appeal and finally to this Court has tenaciously insisted his grounds of appeal from the High Court are grounds of law, merely by tagging them ?error in law?. Mere assertion that a ground of appeal is based on ?error in law?

does not make it one if the errors particularized are no more than matters of fact. (Metal Construction (W.A.) Ltd. vs. Migliore (1990) 1 NWLR (Pt. 126) 299). The grounds of appeal tagged by the appellant as those based on ?error in law? are no more than mere facts, the decision complained of are those of Court?s discretion based on facts deposed in affidavit evidence. (Ogbechie vs. Onochie (1986) 2 NWLR (Pt.23) 484; Ifediora vs. Ume (1988) 2 NWLR (Pt.74) 5; Obijuru vs. Ozims (1985) 2 NWLR (Pt.6) 167).
When a ground of appeal is based on facts alone, or on mixed law and fact it could not be filed in the Court of Appeal unless leave is sought and obtained. (See Section 221(1) and (2) of the Constitution, 1979; Oluwole vs. L.S.D.P.C. (1983) 5 SC 1; State vs. Omeh (1983) 5 SC 20; Nwadike vs. Ibekwe (1987) 4 NWLR (Pt.67) 718. Once a ground of appeal is based on facts or mixed law and facts the jurisdiction of both Court of Appeal and Supreme Court is ousted unless leave has been sought and obtained to file the ground (Ojemen vs. Momodu II (1983) 1 SCNLR 188, 205).
The appellant right from the Federal High Court to the Court of Appeal has

fought a futile battle to have a stay of proceedings pending appeal because its appeal is incompetent being appeal on grounds of facts for which leave was necessary and none was sought or obtained.
It was for the foregoing reasons that I, on 2nd day of October, 1990 dismissed this appeal with costs of N500.00 to the respondent.?
Where any ground of appeal alleges an ?error in law but the particulars? and the nature of the ?error? are not ?clearly stated? or the appellants have not drawn this Court?s attention to any section of the Constitution, law or a statute with particulars showing why and how the learned trial Judge ?erred in law? in interpretative jurisdiction or that the Court committed a substantial wrong or what has led to a miscarriage of justice, this Court will not interfere with the findings or verdict of the learned trial Judge. The learned trial Judge relied on the provisions of Section 28(1)-(7) of the Land Use Act, 1978 which came into effect on 3rd March, 1978 supported with oral and documentary exhibits to found his decision in favour of the respondent/claimant in the

Court below. The onus is on the appellants to show in grounds 1-8 in the Notice of Appeal how and why the learned trial Judge erred in law in applying the provisions of Section 28(1)-(7) or any other section of the Land Use Act, 1978 to determine the dispute or controversy in favour of the respondent/claimant of the land in dispute.
In Nwadike vs. Ibekwe (1987) 12 SC 14, the Supreme Court held at page 54 thus:-
?(ii) Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases, and inferences drawn therefrom are grounds of law; Ogbechie vs. Onochie (supra) at pp.491-192.?
Grounds 1-8 of the Notice of Appeal are vague and are general in terms contrary to the provisions of Order 7 Rule 3 of the Court of Appeal Rules, 2016. Grounds 1-8 of the Notice of Appeal also discloses no reasonable ground of appeal shall not be permitted and ?any ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.?

When an appeal discloses no reasonable grounds of appeal is not defined in Order 1 Rule 5 of the Court of Appeal Rules, 2016 nor Section 30 of the Court of Appeal Act, 2004 (as amended). However, inUwazuruonye vs. The Governor of Imo State & Ors. (2012) 11 MJSC 46, Onnoghen, JSC held at page 65 to 66 as follows:
?It is settled law that a cause of action is the fact or combination of facts which gives rise to a right to sue or institute an action in a Court of law or Tribunal. The term also includes all things which are necessary to give a right of action and every material fact which has to be proved to entitle the plaintiff to succeed/relief ? See Elabanjo vs. Dawodu (2006) 15 NWLR (Pt. 1001); P.N. Udoh Trading Co. Ltd. vs. Abere (2001) 11 NWLR (Pt.723) 114 at 129.
On the other hand, a reasonable cause of action is a cause of action which, when only the allegation in the statement of claim and, I may add, originating process, are considered having some chances of success. See Dantata vs. Mohammed (2000) 7 NWLR (Pt.664) 176 at 203.?
Where it is found that the statement of claim disclosed no reasonable cause of action, Onnoghen, JSC held at page 69 of the judgment as follows:

?In conclusion, I affirm the decision of the lower Court that appellant has not disclosed a reasonable cause of action neither has he established any locus standi to initiate the action. The above being the case, it is clear that the action so constituted in the said circumstances is grossly incompetent and liable to be struck out. It is therefore my view that suit No.HOW/92/95 be and is hereby struck out for want of jurisdiction, with costs which I assess and fix at N100,000.00 against the appellant and in favour of the respondents.
Appeal is dismissed.?
Grounds 1-8 in the Notice of Appeal are (i) vague (ii) general in terms and (iii) discloses no reasonable grounds of appeal hence by the provisions of Order 7 Rule 3 of the Rules they ?shall not be permitted? and the ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.?
There is no ground of appeal complains about the ?weight of evidence? to maintain the appeal.

The appeal cannot be heard on issues formulated by the appellants for determination for the issues must arise ?in the appeal as well as amended or additional grounds of appeal? ? See Order 19 Rule 3(1) of the Court of Appeal Rules, 2016. Order 7 Rules 4-5 of the Court of Appeal Rules, 2016 provides as follows:-
?4. The appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of fees prescribed for making such amendment and upon such terms as the Court may deem just.
5. Notwithstanding the forgoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant; Provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.?
In Austin Richter Coleman vs. Emma Kwaley Shang, Privy Council Decisions (1841-1973) by Olisa Chukura, SAN, 1980 edition, page 780 at page 790:-

?Their Lordships made reference earlier in this opinion to the challenge by the appellant to some of the facts which were stated as being ?not in dispute?. It was said that there was no proper proof of either of the marriages by native customary law, or that the deceased was an Osu man, or that the respondent was validly appointed to represent the family. When the Court from whose judgment an appeal is brought states that certain facts were admitted or were not in dispute it would, in the absence of agreement by Counsel on both sides, require very strong evidence or exceptional circumstances JUSTICES would be disposed to go behind such a statement in a judgment, or to judge of its accuracy merely from a perusal of the notes taken in the Courts of the country from which the appeal comes. There is nothing in the present case to justify their Lordships questioning the accuracy of this statement, subject only to the reservation referred to above as to the effect, if any, of such findings on the shares of those proved to be entitled to participate in the distribution.
For these reasons their Lordships will report to the President of Ghana as their

opinion that this appeal should be dismissed, and that the appellant should pay the costs thereof.?
In Kisiedu & Anor. vs. Dompreh & Ors. (1935) 2 WACA 281 at 285-286 as follows:-
?Here at all events is a solid fact upon which a trial Judge might well rely, in arriving at a decision in a case in which vague and uncertain evidence abounds. There were no doubt many other matters deposed to which gave indications pointing some in one direction, some in the other, and from which inferences could be drawn favourable to one view of the facts or the other. Their Lordships do not think it necessary to go through these other matters in detail. Suffice it to say that Deane, C.J., considered them, weighed them, and came to the conclusion that the title to the green land was in Tafo, when Tafo and the Odikro of Adjapoma sold it to Kisiedu, with the result that Dompreh had acquired no title to the green land and was a trespasser thereon.
Their Lordships find it impossible to say that the Court of appeal could, on the materials before them, properly be satisfied that this finding of fact by the trial Judge must be erroneous.

No doubt an appeal in a case tried by a Judge alone, is not governed by the same rules which apply to an appeal after a trial and verdict by a jury. It is a rehearing. Nevertheless before an appellate Court can properly reverse a finding of fact by a trial judge, who has seen and heard the witnesses, and can best judge not merely of their intention and desire to speak the truth, but of their accuracy in fact, it must come to an affirmative conclusion that the finding is wrong. There is a presumption in favour of its correctness which must be displaced. As Lord Esher, M.R. said in Colonial Securities Trust Co. vs. Massey ((1896) 1 Q.B. 38)). ?Where a case tried by a judge without a jury comes to the Court of Appeal, the presumption is that the decision of the Court below on facts was right, and that presumption must be displaced by the appellant.? Their Lordships must, they think, apply the same test, and ask themselves whether in their opinion the presumption in favour of the findings of the trial Judge has been displaced; and they feel bound to answer this question in the negative.

In the appellate Court the importance of Kwesi Kromo?s evidence, as bearing on the incident of 1904, appears to have been overlooked. The whole incident is disposed of by Kingdon, C.J., with the observation that ?the explanation given by the appellants that Adjapoma turned to Tafo for financial assistance because Tafo was the wealthy neighbour who was able to give it, is a possible one.? This appears to their Lordships to be an unsatisfactory treatment of a crucial piece of evidence. Webber, C.J., does not even refer to it, but devotes the greater part of his judgment to the question whether Kisiedu had proved that his parcels included the green land.
Their Lordships are unable to discern in these judgments any solid grounds for displacing the presumption which properly exists in favour of the correctness of the facts which have been found by the trial judge; and dealing with the matter as though it came before them directly on appeal from his decision, they find no reason either for displacing that presumption, or for disagreeing with the judgment which he pronounced.
Their Lordships are of opinion that the appeal should be allowed and the judgment of Deane, C.J., restored, and they will humbly advise

His Majesty accordingly. The respondents must pay the appellants? costs of the appeal to His Majesty in Council, and to the West African Court of Appeal.?

The principles are that it is not every error or mistake that a learned trial Judge commits that should be a ground for setting aside the verdict on appeal. In Amayo vs. Erinmwingbovo (2006) All FWLR (Pt. 318) 612, the Supreme Court held at page 628 paragraphs ?C?-?D? as follows:-
?It is patently clear from the above that apart from Exhibits ?OE1? and ?OE4? there were other cogent and credible evidence which the learned trial Judge relied upon in finding for the plaintiff/respondent. So although Section 34 of the Evidence Act, Cap.112, Laws of the Federation of Nigeria, 1990 and the conditions prescribed therein have not been met, no miscarriage of justice had been occasioned. It is well settled law that it is not every error or mistake in a judgment that will lead to a judgment being reversed or set aside. An appellate Court will do so only where the error or mistake has led to a miscarriage of justice, and without the error a

different decision would have been arrived at by the trial Court. See Bankole vs. Pelu (1991) 8 NWLR (Pt.211) 523; Mora vs. Nwalusi (1962) SCNLR 73, and Alli vs. Alesinloye (2000) FWLR (Pt.15) 2610, (2000) 6 NWLR (Pt.660) page 177.?
See Alli vs. Alesinloye (2000) FWLR (Pt.15) 2610 and Bankole vs. Pelu (1991) 8 NWLR (Pt. 211) 523.

In cases of this nature, the trial Court is to have regard to the actual user of the land in dispute. In Lawal vs. Dawodu (1972) 8-9 SC 83, Coker, JSC held at pages 121-122 as follows:-
?In a case of declaration of title to land, the onus is on the plaintiff to prove by traditional evidence or actual acts of possession or both that he is the owner of the land in dispute. If the evidence of tradition fails and indeed if it is proposed to test the probability of such traditional evidence, recourse must be had to the evidence of actual user and possession of the land in dispute.?
Before the respondent could be granted a customary right of occupancy by the Kwande Local Government Area where the land in dispute is situate, consultation was made with Mbaagwa Community in Ikyura-ya to ensure that the land

was not encumbered hence possession is title. See Adesanya vs. Otuewu (1993) 1 SCNJ 77 at 114 and Aromire vs. Awoyemi (1972) 2 SC 1 at 10.
Evaluation of oral and documentary evidence is within the province of the learned trial Judge. See Mogaji vs. Odofin (1978) 4 SC 91 at 93-94 per Fatayi-Williams, JSC (as he then was) to wit:-
?When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before the judge. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then

decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it; if that supports it bearing in mind the cause of action, he will then find for the plaintiff. If not, the plaintiff?s claim will be dismissed. In certain circumstances, however, the claim is either struck out or the plaintiff is non-suited. Incidentally, in deciding which evidence has more weight than the other, a trial judge sometimes seeks the aid of admissions made by one party to add more to the weight of the evidence adduced by the other party. This is precisely why the totality of the evidence must be considered and why a trial Judge must weigh the conflicting evidence adduced by both parties and then draw his own conclusions. Of course, the procedure set out above will be unnecessary if the plaintiff?s case is so patently bad that no reasonable Tribunal could possibly act upon it. In such a case, the trial Judge will dismiss the plaintiff?s claim without calling upon the defence.
In short, before a judge before whom evidence is adduced by the parties before him in a civil case comes

to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the judge will naturally have regard to the following: (a) whether the evidence is admissible; (b) whether it is relevant; (c) whether it is credible; (d) whether it is conclusive; and (e) whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted?
It would appear from the above that what the defendants are now complaining about is

precisely what this Court has criticized in the above case. In short, the trial Judge in that case condemned the defendant without considering the totality of the case before him and weighing the respective cases of the parties on the imaginary scale of justice!
It is manifest that the trial Judge in the case in hand has also not put the defendants? case on that imaginary scale and found it wanting in weight. We therefore think that his approach to the case is grossly unfair to the defendants. With respect, it appears to us that the trial judge, at the time he found for the plaintiffs, had not considered the defendants? case at all. We think, again with respect, that it is an under-statement to complain that the judgment is against the weight of evidence. What happened is worse than that. No imaginary scale was used in this particular case and the question of weight does not therefore arise.?
See Olubode vs. Salami (1985) 2 NWLR (Pt.7) 282 at 294-298.
This appeal calls for a re-evaluation of the pleadings together with the oral and documentary evidence adduced before the learned trial Judge. In Kponuglo vs. Kodadja, Lord

Alness, sitting in the Privy Council held at page 256 in Privy Council Judgments (1841-1973) by Olisa Chukura, SAN at page 256 to wit:-
?In their Lordships? opinion, the first question logically and chronologically, to consider in the appeal is the traditional evidence regarding the acquisition of a title to the disputed territory. Behind that question lies another, viz.: What weight is to be attached to that evidence? On the first question, the learned Chief Justice, who had the advantage of seeing and hearing the witnesses, held, as their Lordships have already pointed out, not only that the respondent?s case of gift failed, but that the appellants? case of conquest succeeded. The learned Chief Justice, after a careful analysis of the evidence on this topic tendered by the respondent, refused to accept it. On the other hand, he held that the evidence tendered by the appellants was reasonable and consonant with the facts as he found them. The Court of Appeal, while minimizing the weight to be attached to such evidence, did not suggest that the learned Chief Justice was wrong in the conclusion which he reached on the evidence, and

their Lordships see no reason for thinking that the decision of the learned Chief Justice on the evidence adduced was other than sound. On the question of the weight to be attached to evidence of tradition, their Lordships do not differ from the carefully expressed view of the learned Chief Justice at page 62, lines 29, of the record regarding the function of traditional evidence in such an inquiry as this. Such evidence, in their Lordships? opinion, falls to be considered and weighed, quantum valeat, along with the other evidence in the case.?
His Lordship concluded at page 258-259 as follows:-
?Now while even on questions of fact and credibility, a Court of Appeal must not abdicate its functions, it is nevertheless trite law that, not possessing the advantages of the Judge of first instance, a Court of Appeal should be chary of overruling his opinion on a pure question of credibility. In their Lordships? opinion, no reason for altering the conclusion of the learned Chief Justice on this matter was adduced by the respondent in argument. Their Lordships cannot in these circumstances regard the Mahoon incident as established.

The evidence regarding possession would seem to be, in point of fact, neutral. Both parties can lay claim to certain acts of possession within the disputed territory; many of which were, as the learned Chief Justice says, fleeting in their character. But what seems quite clear ? and it is decisive, in their Lordships? view, of this part of the case ? is that the respondent has failed to prove exclusive possession by him such as is necessary to instruct a title to claim the remedy which he seeks. Nor must it be forgotten that, in regard to possession, as in regard to tradition, the attitude of the learned Chief Justice to much of the respondent?s evidence is one of incredulity, and that, commenting on the demeanour of the witnesses, he regards the respondent?s case on this topic as honeycombed with false and even manufactured evidence.
In the circumstances stated, their Lordships are of opinion that the respondent has failed to discharge the onus of establishing beyond reasonable doubt that the title to the disputed area i.e. Bunya land, is his, either by gift or by exclusive possession. They are also

of opinion that the respondent has failed to prove that the Delame award is binding on the appellants. That being so, the respondent?s action for damages, and for an injunction, which postulates a title in him to the land, fails in fact and in law. Their Lordships will therefore humbly advise His Majesty that the appeal should be allowed, that the judgment of the West African Court of Appeal should be set aside, and that the judgment of the Chief Justice should be restored, the appellants to have the costs of this appeal, and their costs in the Court of Appeal.?
The learned trial Judge took into consideration the credibility of the testimony of the witnesses in the witness box, a privilege which this Court does not have. See Ajadi vs. Olarewaju (1969) 1 All NLR 382; Agbonifo vs. Aiwereoba (1988) 2 SCNJ 146 at 156; Fatoyinbo vs. Williams (1956) 1 FSC 87 and Adeyemo vs. Popoola (1987) 4 NWLR (Pt.66) 578; Ebba vs. Ogodo (1984) 4 SC 84; Woluchem vs. Gudi (1981) 5 SC 319.
The learned trial Judge did not fail to evaluate the pleadings, oral and documentary exhibits for this Court to order a retrial.

See Adeyemo vs. Arokopo (1988) 6 SCNJ 1; Oke vs. Eke (1982) 12 SC 218; Egri vs. Ukperi (1974) 1 NMLR 22 and Duru vs. Nwosu (1989) 7 SCNJ 154.
In Lion Buildings Ltd. vs. Shadipe (1976) 2 FNLR 282, Udo Udoma, JSC held at page 289 in the Supreme Court that:-
?The question then is: What order ought the learned trial Judge to have made in the light of the evidence before him at the trial? According to the learned Counsel for the defendant, the claims of the plaintiffs ought to have been dismissed, but according to the learned Counsel for the plaintiffs, Chief Rotimi Williams, judgment ought to have been entered for the plaintiffs. That brings us to a consideration of the last ground of appeal argued by both Counsel, namely, that judgment is against the weight of evidence.
We think on this question of weight of evidence, we should predicate our examination of the evidence, which was before the learned trial Judge with a quotation from an old judgment of the Full Court of Nigeria as to the principle to which a Court of Appeal should act when a judgment is appealed against as being against the weight of evidence, It is a principle which we believe has been rendered sacrosanct by

age and from which we venture to suggest not Court should depart. The principle was enunciated in Macaulay Vs Tukuru (1881 ? 1911) I N.L.R. 35, in these words:
?When a judgment is appealed from as being against the weight of evidence, the Appeal Court must make up its own mind on the evidence, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over-ruling it, if, on full consideration, it comes to the conclusion that the judgment is wrong.
If, however, the appeal Court is in doubt, the appeal must be dismissed since the burden of proof is on the appellant.?
Where no valid ground of appeal is mentioned in the Notice of Appeal I do not see the necessity of granting the appellants leave to amend the eight grounds of appeal since there is no basis for interfering with the verdict of the learned trial Judge in favour of the appellants. I shall apply the provisions of Order 4 Rule 9(3) of the Court of Appeal Rules, 2016and give final judgment? to the respondent on the basis that the learned trial Judge utilized the pleadings, oral and using the

documentary exhibits evaluated the totality of the facts and made findings of fact in favour of the respondent.
What is the meaning of a ?final judgment
A ?final judgment? is not defined in Section 318(1) of the Constitution but in Black?s Law Dictionary, 9th edition, page 919 the phrase is defined as:-
A Court?s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney?s fees) and enforcement of the judgment. ? Also termed final appealable judgment; final decision; final decree; definitive judgment; determinative judgment; final appealable order. SEE FINAL JUDGMENT RULE
InObasi Bros. Co. Ltd. vs. Merchant Bank of West Africa Securities Ltd. (2005) 2 SCNJ 272, Pats-Acholonu, JSC held at pages 278-279 as follows:
?A final judgment is one which decides the rights of parties. In other words, it is a decision on the merits of the case where the matter is assiduously canvassed and the rendition of a judgment is based on what is canvassed and agitated before the

Courts by the legal combatants. The question to resolve here is whether such is the position in the earlier Suit No.LD/3356/1992 hitherto filed in the High Court by the respondent. Therefore for the doctrine of estoppel per rem judicatam to operate as estoppel, in all its ramifications, it is important that the case between the parties presently in Court had been adjudicated between them before on its merit and the Court had reached and delivered a final judgment. The doctrine does not operate in an inchoate matter, id est, it rests on a priori conception that the rights agitated and assiduously canvassed by the parties on the issue in controversy had earlier been determined. It is erroneous to construe a mere striking out of a case on the basis that because the proponent of the action had become lethargic or nonchalant to prosecute a case and the Court relying on its inherent powers to strike out the case, it amount to dismissal on the merit. See Rakin Udo & Ors vs. Mbiam Obot and Ors. (1989) 1 NWLR (Pt.95) at p.59 at 72.
The learned Counsel for the appellant has tended to make a heavy weather in the case of Eronini vs. Iheuko (1989) 2 NWLR (Pt.101)

46. An analytical and forensic comparison with that case shows distinctive characteristics easily distinguishable. In the present case, the respondent in this matter in its Suit No.LD/3359/1992 did nothing whatsoever to proceed with the action it initiated. In such a situation the Court using its inherent powers struck out the case after the initiator of the action seriously manifested or evinced an intention not to continue or follow up, pursue or persevere with the case. The respondent would be presumed to have developed cold feet. The Court seised with such proceedings would not ordinarily allow the case for which no further interest appeared to have been shown by the initiator of the action to stay in the Court list. It therefore used its untrammeled judicial powers which inhere in it to strike out the case. In the case of Leonard Eronini & Ors. vs. Francis Iheuko (supra), the plaintiff who later was the respondent had initiated an action against the appellant. When he started to give evidence, his testimony markedly contradicted the facts averred in his pleading. There was such a confusion in the presentation of the case that the plaintiff?s

Counsel decided to discontinue with the case and asked that the case be struck out. The defence Counsel in that case wanted outright dismissal. Of course in the Supreme Court, this Court held that the right decision the Court below should have made was to dismiss the case. It was obvious that the case of the plaintiffs (respondent) in that matter was in tatters as it had no remedying factor. In other words he fired his last salvo. His case was found to be completely bereft of any substance being completely empty of any remedying feature. In the present case, nothing had been done at all. When a party who filed an action in the Court commences giving evidence which is in conflict with the facts pleaded and raises such confusion that it becomes difficult to determine whether the plaintiff knows the facts of his case, and at a stage he asks the Court to strike out the case, the Court should dismiss it because there is nothing more to urge on the Court as the case sought to be put forward is visionless and worthless. This is not the case here where the original plaintiff abandoned its case. It is not even in all cases where a matter is dismissed that it completely

terminates the case. Indeed where a case is said to have been dismissed in the High Court but the circumstances show that such dismissal could not possibly connote or denote the determination ? as to put a finality to the case the Court views such dismissal as a mere striking out. See, for example, Order 30 Rules 3 and 4 of the Lagos 2004 High Court Rules. It is my view that the determination of the suit hitherto instituted by the respondent was definitely not on merit.?
In Barau vs. Board of Custom & Excise (1982) 1 NCR 1 Fatayi-Williams, C.J.N. held at pages 21-23 as follows:-
?In view of the above, I am not surprised that the learned Chief Judge disbelieved the belated testimony of the respondent that he had no knowledge of the prohibition order or that he had no fraudulent intent to evade the prohibition order or be concerned in the said evasion. Having made his finding, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to assess the credibility of the respondent from his demeanour in the witness-box and otherwise, it is not open to the

Federal Court of Appeal to substitute its own assessment of the respondent?s testimony for that of the learned Chief Judge. The Federal Court of Appeal is certainly in error in so doing.
In Akinloye vs. Eyiyola (2) this Court held (1968) NMLR at 95) that:-
?Where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.?
Again, in Fabumiyi vs. Obaji (14) this Court dealt with the evaluation of evidence by an appeal Court in more detail as follows (1968 NMLR at 247):
?A Court of Appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performances. It is settled law, however, that such findings of facts or the inferences from them may be questioned in certain circumstances. See Benmax vs. Austin Motor Co. Ltd. [(1955) A.C. 370]; Akinola vs. Fatoyinbo Oluwo & Ors. [(1962) All NLR 224]; Lawal Braimob Fatoyinbo & Ors. vs. Selistu Abike Williams (1 FSC 67). The result of the authorities is

simply this, that where the facts found by the Court of trial are wrongly applied to the circumstance of the case or where the inferences drawn from those facts are erroneous or indeed where the findings of fact are not reasonably justified, or supported by the credible evidence given in the case, a Court of Appeal, is in as much a good position to deal with the facts and findings as the Court of trial.? [These words do not appear in the report of the case at (1967) 1 All NLR 241). It only remains for me to add that, having regard to my own observation on the evidence made earlier, none of the reasons which could justify re-evaluation of the evidence by an appeal Court are present in the case in hand.
In 1974, this Court again considered the limitations placed on a Court of Appeal in re-evaluating evidence accepted by a trial Court in Balogun vs. Agboola (6). We observed in our judgment in that case as follows ([1974] 1 All NLR at 73; (1974) 10 SC at 118-119):
?The ascription of probative values to evidence is a matter primarily for the Court of trial and it is not the business of a Court of Appeal to substitute its own views of

undisputed facts for the views of the trial Court. Interference by a Court of Appeal with respect to issues of fact is by law confined within very narrow and limited dimensions and we are clearly of the view in this case that the Western State Court of Appeal took a mistaken view of the law when it embarked, as it did, on a fresh appraisal of the evidence of witnesses to whom the learned trial Judge had himself listened and whom he had seen face to face when they (the Court of Appeal) were dealing only with the cold sullen print of the records before them.
That, if I may say so, is precisely what has happened in the present case. The learned Chief Judge who saw and heard the respondent, watched his demeanour in the witness-box, assessed the honesty or otherwise of his ?performance? on the day he brought the carpets into the country, and made certain findings of fact having regard to all these circumstances. The Justices of the Federal Court of Appeal, without the benefit of this trial atmosphere, when ?dealing only with the cold sullen print of the records before them? decided to set aside the Chief Judge?s

findings of fact. Like this Court in Balogun vs. Agboola (ibid.), I – have no hesitation in restoring the findings of fact of the learned trial Judge.?
Having thus restored the findings of the learned Chief Judge, it follows that the question of assessing the evidence adduced by the respondent on a balance of probabilities would not, and did not arise. This is because there would be nothing to balance against the evidence adduced by the prosecution, which the Chief Judge accepted. It must be remembered that the defence of the respondent was, for good and sufficient reasons, if I may say so, totally rejected by the learned Chief Judge.
In case the significance is overlooked, all the grounds of appeal filed and argued before the Federal Court of Appeal were grounds of law. Even the misdirections complained of in some of the grounds of appeal related either to the standard of proof required for the two offences, or to the ingredients to be proved, or to the mens rea required for the commission of the offences. Therefore, to contend, as my brother Bello, JSC has done in his judgment, which he has been kind enough to allow me to see

in draft, that the Federal Court of Appeal could and did make findings of fact (which this Court ought to have accepted as binding) is, with respect, to demonstrate a misconception of one of the points canvassed before this Court, which is that it is not the business of the Court of Appeal, particularly in the case in hand, to substitute its own findings of fact for those of the trial Chief Judge who saw and heard the witnesses.?
There is no merit in this appeal which I hereby dismiss with N200,000.00 cost to the respondent.

ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading before now the draft copy of the Judgment just delivered by my learned Brother, Joseph Tine Tur, JCA, dismissing the appeal. I agree with the conclusion that the Appellants failed to establish their case. I will only make few comments in support.

The main issue in this appeal is whether the Respondent as plaintiff proved title to the land in issue, which encompasses the portion of land claimed by the Appellants. The fundamental legal prerequisites to prove title to land have been well articulated by the Courts, with a

foremost authority found in the case of Idundun v. Okumagba (1976) 9-10 SC 227, wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence
2. By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title documents
4. By acts of lawful enjoyment and possession of the land;
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land.
See also: Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (PT. 7) 393, (1985) LPELR-1889(SC); Irolo v. Uka (2002) 14 NWLR (PT. 786) 195. A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways; Biariko v Edeh-Ogwuile (2001) 12 NWLR (PT. 726) 235; Olubodun v. Lawal (2008) 6-7 S.C. (PT. 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (PT. 1) 126; Balogun v Akanji (1988) 2 S.C. 199. Proof of one single root of title is sufficient to sustain the claimant?s claim for

declaration of title to land;Onwugbufor v. Okoye (1996) 1 NWLR (PT. 424) 252; Olagunju v. Adesoye (2009) 9 NWLR (PT. 1146) 225. In proving title, he must rely on the strength of his case and not on the weakness of the defence; Oje v Babalola (1991) 4 NWLR (PT. 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S.C. 22; Echi v Nnamani (2000) 5 S.C. 62; Eze v Atasie (2000) 6 S.C. (PT 1) 214. The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims; Buraimoh v. Bamgbose (1989 LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S.C. (REPRINT) 173, (1972) LPELR-2233(SC). The party that is able to prove title to land in issue is deserving of judgment.

The settled position of the law is that where a party relies on evidence of tradition in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
1. who founded the land;
2. how he founded the land; and
3. the particulars of the intervening owners through whom he claims.

See: Nruamah v Ebuzoeme (2013) LPELR-19771(SC); Onwugbufor v Okoye (1996) LPELR-2716(SC); Dike v Okoloedo (1999) 7 S.C. (PT 111) 35; Ngene v Igbo (2000) LPELR-1987(SC); Ezeokonkwo v Okeke (2002) 5 S.C. (PT 1) 44. Contrary to the assertions of the Appellants, the Respondent relied on documents of title and not traditional evidence. He had pleaded that the land in issue originally belonged to his forefathers. He applied to the Kwande Local Government for a grant of a Certificate of Occupancy over the land in dispute, upon which the Local Government set up a Panel of Enquiry to determine whether the land was indeed vacant and belonged to the respondent. The Panel was made up of the Clan Head and all the kindred Heads. Exhibit A, or Exhibit 1, was report of the panel. On their positive recommendation, the Kwande Local Government granted a Right of Occupancy to the Respondent in 1981, Exhibit B, or Exhibit 2. Upon his further application to the Benue State Government, it was subsequently converted to a Statutory Certificate of Occupancy and re-designated BNA 433 in 1987, Exhibit C, or Exhibit 3. In other words, his traditional root of title had now

been converted into a Statutory Certificate of Occupancy on which he relied. He therefore did not need to plead traditional history.

In 1998, the Respondent was notified by the Bureau for Lands and Survey, Makurdi that the Appellants claimed that their portion of land was incorporated into the parcel of land covered by BNA 433. He was asked to surrender the Certificate of Occupancy for portions of same to be excised for the Appellants. The Respondent then instituted action in the lower Court. While the matter was pending, the State Government revoked the grant of the Statutory Certificate of Occupancy citing overriding public interest.
There is absolutely no doubt that by the provisions of Section 28 of the Land Use Act, the Governor of a State may revoke the grant of a Right of Occupancy for overriding public interest; CSS Bookshop Ltd v The Registered Trustees of Muslim Community Rivers State (2006) LPELR-824(SC); Kyari v Alkali (2001) LPELR-1728(SC). Section 28 (2) defines overriding public interest thus:
(2) Overriding public interest in the case of a statutory right of occupancy means-
(a) the alienation by the occupier by assignment,

mortgage, transfer of possession, sub-lease, or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulations made thereunder;
(b) the requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation;
(c) the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith.
Sections 28(6) and (7) further provide:
(6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder.
(7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under Subsection (6) of this section or on such later date as may be stated in the notice.
In CSS Bookshop Ltd v The Registered Trustees of Muslim Community Rivers State (2006) the Supreme Court, per Mahmud Mohammed,

J.S.C. (as he then was) said, page 31 of the E-Report
?It is not at all in doubt that the provisions of Sections 28 of the Act contains comprehensive provisions to guide the governor of a State in the exercise of his vast powers of control of land within the territorial areas of his State particularly the power of revocation of a right of occupancy. One of the preconditions for the exercise of this power of revocation is that it must be shown clearly to be for overriding public interest. In order not to leave the Governor in any doubt as to the conditions for the exercise of his powers, the law went further to provide adequate guidance by defining in clear terms what overriding public interest means in the case of a statutory right of occupancy under the Act in Subsection (2) of Section 28. What this means of cause is obvious. Any revocation of a right of occupancy by the Governor in exercise of powers under the Act must be within the confine of the provisions of Section 28 of the Act. Consequently, any exercise of this power of revocation for purpose outside those outlined or enumerated by Section 28 of the Act or not carried out in

compliance with provisions of the Section can be regarded as being against the policy and intention of the Land Use Act resulting in the exercise of the power being declared invalid, null and void by a competent Court in exercise of its jurisdiction on a complaint by an aggrieved party. See Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt.184) 157; Olohunde v. Adeyoju (2000) 10 NWLR (Pt.676) 562; Dantsoho v. Mohammed (2003) 6 NWLR (Pt.817) 457 at 483 and Ibrahim v. Mohammed (2003) 6 NWLR (Pt.817) 615 at 644 where in the judgment of this Court, Kalgo JSC in the lead judgment had this to say on the exercise of powers of revocation of right of occupancy under Section 28 of the Act –
“Furthermore, the Act itself provides some checks and balances which must be observed before making any grant, the conditions under which such grants, can be revoked and what follows after such revocation. It provides under S. 28 that the Governor can only revoke a right of occupancy for overriding public interest which has been defined both in respect of statutory and customary rights of occupancy. If such powers of revocation are to be exercised, the holder of

the right of occupancy must be notified in advance. Revocation of a right of occupancy for public purpose or in the public interest does not include the revocation of the right of a grantee for the purpose of vesting it in another. Therefore, since revocation of the grant involves the deprivation of the proprietary rights and obligations of a grantee, all the terms and conditions laid down by the Act must be strictly adhered to and complied with. And so for a revocation of a right of occupancy to be valid in Nigeria, it must be made strictly in compliance with S. 28 of the Land Use Act.?
(Emphasis mine)
Thus clearly, the revocation of a right of occupancy for public purpose or in the public interest does not include the revocation of the right of a grantee for the purpose of vesting it in another; Orianzi v. The Attorney General of Rivers State & Ors (2017) LPELR-41737(SC); Osho & Anor v. Foreign Finance Corporation & Anor (1991) LPELR-2801(SC). More so, as in the instant case, where the adverse party has not been shown to have a better title to the land in issue.

Notice of revocation by the provisions of Section 28 of the Land Use Act is to be served on a holder of the right of occupancy. Emphasizing the implication of failure to give notice of revocation pursuant to Section 28 of the Land Use Act, the Supreme Court in the recent case of Olomoda v. Mustapha & Ors (2019) LPELR-46438(SC), per Aka?ahs, JSC said, pages 20 ? 21 of the E-Report:
?The interpretation to be given to Section 28(5) Land Use Act on the power of the Governor to revoke the Right of Occupancy of the person in breach of a condition or covenant is not a mandatory one but rather permissible. In exercising the Governor’s power of revocation, there must be due compliance with the provisions of the Act, particularly with regard to giving of adequate notice of revocation to the holder whose name and address are well known to the public officer acting on behalf of the Governor. See: Nigerian Telecommunications Ltd v. Chief Ogunbiyi (1992) 7 NWLR (Pt. 255) 543. The purpose of giving notice of revocation of a right of occupancy is to duly inform the holder thereof of the steps being taken to extinguish his right of occupancy.

In the absence of notice of revocation of the right of occupancy, it follows that the purported revocation of the right of occupancy by the officer duly authorized by the Governor is ineffectual. See: A-G Bendel State v. Aideyan (1989) 4 NWLR. (Pt 118) 645; Nigeria Engineering Works Ltd v. Denap Limited (1997) 10 NWLR (Pt.525) 481.?
(Emphasis mine)
See also: The Admin. & Exec. of the Estate of Abacha v. Eke-Spiff & Ors (2009) LPELR-3152(SC); Ononuju & Anor v. A.G Anambra State & Ors (2009) LPELR-2692(SC). As found by the learned trial Judge, no revocation notice was served on the Respondent in breach of these provisions. The purported revocation of the Statutory Certificate of Occupancy of the Respondent was therefore a nullity and of no effect. See the provisions of Section 26 of the Land Use Act.

I also find this appeal to be without merit. It fails and is hereby dismissed. The judgment of the lower Court is hereby affirmed. I abide by the orders made in the lead Judgment, including the order as to costs.

JOSEPH EYO EKANEM, J.C.A.: I read before now the judgment of my learned brother, Tur, JCA.

It is common ground that the 1st respondent applied for and obtained a certificate of occupancy from the Kwande Local Government over the land in dispute. He applied for a conversion of the grant to a state grant and the same was approved, resulting in a grant of a right of occupancy over the same land. He was issued a certificate of occupancy No. BNA 433 over the said land, with plan number Obudu Shed 291.
The appellants protested against the issuance of the certificate of occupancy to the 1st respondent on the ground that the 1st respondent had included their land in the certificate of occupancy.
The parties know the land in dispute and issues were not joined as to its identity by the parties. It is therefore erroneous to argue as appellants? counsel did, that the identity of the land was not proved.
Having been issued with a certificate of occupancy over the land, a presumption is raised in favour of the appellant. In Madu V Madu (2008) LPELR ? 1806 (SC) 35, Onu, JSC, opined that,
?A certificate of occupancy issued by a competent authority ? raises the presumption that the holder is the owner of the land in respect thereof. A certificate also,

be it noted, raises the presumption that at the time it was issued, there is not in existence a customary owner whose title has not been revoked. The presumption is only rebuttable if it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy. See also Ezeanah V Atta (2004) 2 SCNJ 200 and Dabo V Abdullahi (2005) LPELR ? 903 (SC).
As the appellants did not plead their root of title, any evidence in that regard went to no issue. The trial Court was therefore right in holding at page 165 of the record of appeal that:
It is clear that the evidence of the plaintiff stand tall and unchallenged as far as title to the disputed land is concerned.”
The revocation of the certificate of occupancy issued to the 1st respondent during the pendency of the action at the trial Court was caught by the doctrine of lispendens and so can not stand. Again, the revocation can not be said to be for ?overriding public interest? as set out in Section 28 (1) ? (4) of the Land Use Act or for the reasons set out in Section 28 (5) thereof. Furthermore, no

revocation notice was shown to have been served on the 1st respondent. The revocation therefore was invalid. See Orianzi V Attorney ? General of Rivers State (2017) 6 NWLR (Pt. 1561) 224, 278 ? 279.

It is on account of the above that I agree with the conclusion of my learned brother, Tur, JCA that the appeal has no merit. I therefore dismiss the same.

Appearances:

I.A. Uzor, Esq.For Appellant(s)

For Respondent(s)

Appearances

I.A. Uzor, Esq.For Appellant

AND

For Respondent