3PLR – KUPOLUYI V. PHILLIPS

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

KUPOLUYI

V.

PHILLIPS

COURT OF APPEAL

[IBADAN DIVISION]

CA.46/95

3PLR/2001/195  (CA)

OTHER CITATIONS

13 NWLR (Pt. 731) 736

 

 

BEFORE THEIR LORDSHIPS:

SUNDAY AKINOLA AKINTAN, JCA (Presided)

MORONKEJI OMOTAYO ONALAJA, JCA (Delivered the leading judgment)

OLUFUNLOLA OYELOLA ADEKEYE, JCA

BETWEEN

1. BENJAMIN OLADAPO KUPOLUYI
2. OLATUNJI AREAGO

(On behalf of themselves and other members of BAATISIN of Ilesa Chieftaincy Family)

AND

1. CHIEF E.O. PHILLIPS
2. DR. AKANNI OMOLE

REPRESENTATION

Chief A.O. Fadugba for appellants/cross respondents

O.J. Ernabor for respondents/cross appellants for H.A. Adesina.

 

MAIN ISSUES

PRACTICE AND PROCEDURE – COURT – Court of Appeal – judicial discretion and attitude of the Court of Appeal thereto.

COURT – Award of costs to a successful party – attitude of appellate courts thereto.

EVIDENCE – Evaluation of evidence by trial court – applicable principles – circumstances when an appellate court would not interfere with the evaluation of evidence by trial court.

LAND LAW – Claim for declaration of title to land – what claimant must prove – exception thereof.

LAND LAW – Statutory right of occupancy – grant of – applicable principles.

LAND LAW – “Issue estoppel” – meaning of.

 

MAIN JUDGMENT

MORONKEJI O. ONALAJA, JCA. (Delivering the leading judgment): The plaintiffs filed the action that led to this appeal in a representative capacity for and on behalf of themselves and members of Baatisin of Ilesa Chieftaincy Family which capacity was pleaded in plaintiffs’ amended statement of claim. The action was commenced and filed against the defendants jointly and severally at the High Court of Justice Osun State holden at Ilesa in Ilesa Judicial Division with the issuance of the writ of summons against defendants. After service of the writ of summons on the defendants pleadings were filed, delivered, exchanged and amended.

Applying the principle of law regarded now as elementary in our jurisprudence that the claims pleaded in the statement of claim supersedes the particulars of claims in the writ of summons as decided by the Supreme Court in J.O. Lahan v. Lajoyetan (1972) 6 SC 190; Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) pg. 314 and by the Court of Appeal in A.G. Edo State v. Jessica Trading Co. Ltd. (1999) 5 NWLR (Pt. 504) pg, 500 CA, Ogun v. Akinyelu (1999) 10 NWLR (Pt. 624) pg. 671 CA, UBA Ltd v. Ademuyiwa (1999) 11 NWLR (Pt. 628) pg. 570 thereby the plaintiffs’ claims against the defendants were as pleaded and averred in paragraph 21 of the plaintiffs’ 2nd amended statement of claim as follows:

“21 (1) Declaration that it is the Baatisin Chieftaincy Family that is entitle (sic) to a grant of a statutory right of occupancy to the pieces of land situate lying and being at Oke-Opo near the Government Reservation Area Ilesa, which is bounded as follows:-

(a)     First side by Lusade landed property

(b)     Second side by Loosi landed property

(c)     Third side by Lorogbas landed property

(d)     Fourth side by Salotun’s landed property.

And which is more particularly shown and delineated on survey plan No. PYF 1026 of 13th May, 1991 prepared by P.F.O. Ogunleye licensed surveyor;

21 (2) Declaration that a piece of land measuring 60.65 acres or thereabout situate, lying and being at Oke Opo near the Government Reservation Area Ilesa and more particularly shown in a survey plan No. 26 page 26 in volume 1093 in the Lands Registry at Ibadan and particularly shown in the composite survey plan attached to the statement of claim marked exhibit “A” sold and conveyed by the first defendant as Ogboni Chieftaincy property to the second defendant without the consent and authority of the plaintiff’s Chieftaincy Family was unlawful, null and void and of no effect.

 

21 (3) Perpetual injunction restraining the defendants jointly and severally, their agents, servants and any other person that may be deriving title from them from further entering, alienating or dealing with the said land in any manner whatsoever inconsistent with or prejudicial to the right of Baatisin Chieftaincy Family.”

 

To establish their cases plaintiffs called seven witnesses whist the defendants called five witnesses exclusive of the 1st defendant who testified as a witness for himself. After which learned counsel to the parties addressed the court extensively after which the learned trial Judge delivered his considered judgment on 14th day of October 1993 covered at pages 64 to 94 of the record of appeal.

 

The learned trial Judge reviewed, summarised, evaluated and ascribed weight to the evidence by the parties and stated at page 81 of the record of appeal that the issues of facts which arose for determination in the action were:

 

“(i)     How did the Baatisin Chieftaincy Family originate and who was the first Baatisin.

 

(ii)     How did Baatisin Chieftaincy Family get its land.

 

(iii)    Whether or not the 1st defendant herein admitted in suit HIL/51/85 between Ilesanmi Pere and himself and Musa Oloriki that the whole land including the land in dispute belonged to Baatisin Chieftaincy Family.

 

(iv)    Whether or not the 1st defendant herein confessed in suit No. HIL/51/85 as contained in paragraph 17 of the 2nd amended statement of claim that he sold part of Baatisin Chieftaincy land to the 2nd defendant pending ratification by whoever is installed Baatisin.

 

(v)     Whether or not the learned trial Judge found as a fact in suit No. HIL/51/85 that the land at Oke-Opo of which the land in dispute forms part belongs to the Baatisin Chieftaincy Family.”

 

In resolving issue (i) posed by the learned trial Judge at pages 82 to 84 of the record of appeal learned trial Judge considered issues (i) and (ii) posed by the learned trial Judge and stated as follows:

 

“The plaintiffs and the 1st defendant gave different versions of how the Baatisin Chieftaincy originated. The 1st defendant who was 2nd defendant in suit No. HIL/51/85 had been consistent in the history which he gave of how the Baatisin Chieftaincy originated. The history which he gave in this case is the same as he gave in suit No. HIL/51/85. In the previous suit i.e. suit No. HIL/51/85 as well as in this, the 1st plaintiff, Mr. B.O. Kupoluyi, the 2nd plaintiff Olatunji Areago and 6th PW in this case Emily Apara gave evidence of how the Baatisin Chieftaincy originated. In the previous case (proceedings and judgment of which is exhibit F in this case) all three of them were unsure or did not know of how the Baatisin Chieftaincy originated. In the present suit they now claim to know how it originated. Under cross-examination in suit No. HIL/51/85 Emily Apara who gave evidence as 3rd PW in that case and as 6th PW in this said:

 

“I do not know the historical background of Baatisin Chieftaincy. Ogboni and Baatisin are two Chieftaincy titles belonging to my family.”

 

See. P.6 of exhibit F. In this case the same witness when asked if her family had two chieftaincies, became evasive and answered that it was the Baatisin Chieftaincy that her family had control of. She even denied telling the court in suit No. HIL/51/85 that Ogboni and Baatisin were two chieftaincies belonging to her family. The 1st plaintiff in this case B.O. Kupoluyi gave evidence as 6th PW in suit No. HIL/51/85 and as 4th PW in this case. In the previous suit he told the court under cross-examination that he did not know the origin of Baatisin. See page 8 of exhibit F. In this case, he gave a comprehensive history of the origin of the Baatisin Chieftaincy. Under cross-examination, he too became evasive and refused to answer directly any questions that tended to show that the Ogboni and the Baatisin were related. When asked if he agreed that Bajimo was the husband of Ogboni’s eldest daughter he answered that he did not come for that story and added without being asked that he did not agree that Yeye Duki was originally granted land known as Igbo Wayero at Oke Opo by Chief Ogboni. It is clear to me during the trial that some of the plaintiffs’ witnesses who were cross examined on the historical background of the Baatisin Chieftaincy tried desperately to avoid giving any evidence that would tend to show any relationship between the Ogboni and the Baatisin. On the other hand the history of the Baatisin Chieftaincy given by the 1st defendant herein in the earlier case suit No. HIL/51/85 and in this case had been consistent. Whereas the 3rd and 6th PWs in the earlier case had told the court they did not know the origin of the chieftaincy by the time they came to give evidence in this case, they seemed to have known the history of the chieftaincy. This is a possibility. One may not know something in 1985 and know it in 1993. The snag however is that it is clear from the evidence of the same people who gave evidence as 4th PW and 6th PW respectively in this case that their family is related to the Ogboni Chieftaincy. It is my belief that it is because the 6th PW Emily Apara was not willing to admit the relationship that she lied to the court that she did not tell the court in suit No. HIL/51/85 that Ogboni and Baatisin were two chieftaincies belonging to her family. It is also because the 1st plaintiff did not want to admit the relationship between Ogboni and Baatisin that he said that he did not come for the story when asked if he agreed, that Bajimo was the husband of Ogboni’s eldest daughter. I ask myself why these people were untruthful and/or evasive in answering questions about the relationship between Ogboni and Baatisin and the answer I got is that they did not because the relationship is as told to the court by the 1st plaintiff and 6th PW did not want to admit.

 

Having accepted the traditional evidence of the relationship between Ogboni and Baatisin, I cannot but prefer the evidence of the 1st defendant as to how the Baatisin Chieftaincy Family got its land at Igbo Wayero. I accept the 1st defendant’s account because it has been consistent from the time of the previous litigation till now whereas those on the plaintiffs’ side had shifted ground between the time of the previous litigation and now.

 

It is on account of this that I resolve the first two issues of facts against them and find as facts that the Baatisin Chieftaincy originated in the way told to this court by the 1st defendant, that Ogungbemi was the first Baatisin and that the Baatisin Chieftaincy Family land was originally given to Yeye Duki which devolved on her children who became Baatisin and that that land became Baatisin Chieftaincy land. The next issue is whether or not 1st defendant herein admitted in suit No. HIL/51/85 that the whole land belongs to Baatisin. The defendants in suit No. HIL/51/85 pleaded in paragraph 29 of their statement of defence that

“The 2nd defendant as the incumbent Ogboni granted land in 1968 to one Mr. Lawrence Omole at Oke Opo near the portion known as Igbo Wayero which was the area originally granted by Ogboni to Yeye Duki……………Around 1968 I happened to grant a portion of the chieftaincy land at Oke Opo to him.”

 

He said no more than that on this point………….. There is nothing in the context in which it was said that he was talking of granting Baatisin Chieftaincy Land to Mr. Lawrence Omole. From all that I have said, it is clear that I hold the view that the 1st defendant made no admission in his evidence in suit No. HIL/51/85 or otherwise about selling part of Baatisin Chieftaincy land to Dr. Lawrence Omole. That disposes of issues (3) and (4). I now go to issue (5) ……………………………………………………. . I cannot find anything in the judgment to suggest that the learned trial Judge regarded the land sold to Omole as part of the land in dispute in that case.

 

From the findings which I have made above it is clear that I accept the traditional evidence of which the 1st defendant in this case gave about the origin of the lands at Oke Opo and Igbo Wayero. The evidence which he gave and which I accept is that Ogboni originally owned a large farm land at Oke Opo and that he granted a portion of it called Igbo Wayero to Yeye Duki, his beloved daughter. There is also evidence which I accept that Ogboni granted land to some lesser chiefs including the Salotun who gave evidence in this case as 1st DW. It is clear from the evidence before me that after these grants, Ogboni still had land left at Oke Opo which he could use, dispose of or alienate as he pleases. The sum total of my judgment therefore is:

 

(1)     That I grant a declaration that it is the Baatisin Chieftaincy Family that is entitled to a grant of statutory right of occupancy to the piece of land situate, lying and being at Oke Opo the Government Reservation Area which is more particularly shown and delineated on survey plan No. PYF 1026 of 13th May 1991 prepared by P.F.O. Ogunleye licensed surveyor but less the area verged Blue on the plan.

 

(2)     That I refuse the declaration sought in the second leg of the claim and

 

(3)     That I refuse to grant any injunction in respect of the land which forms the subject of the 2nd leg of the plaintiff’s claim.”

 

The plaintiffs and the defendants were dissatisfied with the judgment of the learned trial Judge and each party lodged appeal timeously to this court through the notice of appeal of the plaintiffs hereinafter referred to in this judgment as appellants, which notice of appeal of the appellants was amended wherein at pages 109 to 116 of the record of appeal covered the appellants’ amended notice of appeal. In the said amended notice of appeal appellants raised and formulated eight grounds of appeal, and in accordance with the rules and practice of this court the appellants furnished the particulars. Later appellants sought and was granted leave to file four additional grounds of appeal which made the grounds of appeal filed by appellants to be twelve, like the previous grounds of appeal appellants furnished and supplied the particulars. The defendants were also dissatisfied with the judgment of the learned trial Judge at pages 102 to 105 of the record of appeal, they filed notice of cross appeal as a result defendants are from henceforth in this judgment referred to as respondents/cross appellants whilst appellants are now referred to as appellants/cross respondents. In the notice of cross appeal respondents/cross appellants formulated 6 grounds of appeal and furnished the particulars.

 

In accordance with the rules of brief writing in this court appellants/cross respondents filed appellants’ brief of argument on 30/10/96 titled “Appellants’ brief incorporating respondents’ brief for the cross appeal”. The learned counsel for appellants realised his mistake of describing the brief as incorporating respondents’ brief for the cross appeal and filed a motion on notice to delete or treat the appellants’ brief as incorporating respondents’ brief for the cross appeal and to treat it simply as appellants’ brief. As the application which was on notice was not opposed the application was granted with consequential treatment of the brief as appellants/cross respondents’ brief of argument. At page five in paragraphs 5.01 to 5.06 appellants/cross respondents raised the issues for determination in this court as follows:

 

“5.01           Whether or not the lower court was right to excise the area of land marked Blue in exhibit “A” which formed part of the farmland in dispute and dismissed the 2nd leg of the reliefs claimed in view of overwhelming evidence in favour of the appellants’ title to it.

 

5.02   Whether or not the lower court was right to reject the appellants’ traditional evidence and prefer and accept those of the respondents in the absence of evidence of root of title.

 

5.03   Did the area of land marked “Blue” in exhibit “A” form part of litigation in suit No. HIL/51/85 between Ilesanmi Pere and Chief E.O. Phillip tendered and marked exhibits D and F. If it is so was it right for the lower court to excise it from the area of the land claimed in exhibit “A” and dismissed the second leg of the relief claimed.

 

5.04   Whether or not the learned trial Judge was right to apply the doctrines of laches and acquiescence to defeat the appellants’ claims when there was no evidence to support the doctrine.

 

5.05   Whether or not the lower court was right to dismiss the third reliefs claimed by the appellants when the appellants were successful in the first leg of the reliefs claimed.

 

5.06   Who was entitled to the costs of the proceedings between the appellants and respondents having regard to the claim and judgment before the court.”

 

The above issues were distilled from the twelve grounds of appeal formulated by appellants/cross respondents. I have not reflected them because they are verbose, repetitive, prolix and need it to drum it home to legal practitioners that appeals are determined not by counting or litany of grounds of appeal but on convincing, substantial, comprehensive and competent grounds of appeal, so I have decided as stated above not to reproduce them in this judgment.

 

As stated above and in the naming of the parties in this appeal respondents filed a notice of cross appeal. The filing of or setting up a cross appeal is permissible under the Court of Appeal Rules. A cross appeal is an appeal by the respondent to a main appeal. A cross appeal has all the tapestry of an appeal Chief FRA Williams v. Daily Times of Nigeria Ltd (1990) 1 NWLR (Pt. 124) pg. 1 at 28 SC adopted and followed Lewis Opara v. Dowell Schlumberger (Nig) Ltd. & Anor. (1995) 4 NWLR (Pt. 390) at 440 at 465 CA. Respondents/cross appellants filed with leave of this court cross appellants’ brief incorporating respondents’ brief for the main appeal on 9th January, 1998 and at page 6 stated respondents’ brief for the main appeal.

 

Respondents/cross appellants adopted paragraphs 5.01 to 5.06 of appellants’ brief as issues for determination in the main appeal. This methodology of adoption of appellants’ issues for determination is frowned upon and depreciated by this court and treat such respondent’s brief as inelegant and bad brief with the draftsman of such brief as adopting intellectual laziness as pronounced by Uche Omo JSC in Sunday Akpan v. The State (1992) 6 NWLR (Pt.248) page 439 SC, Otunba S.A. Fasanya & 3 Ors. (For themselves and Kotolori family) v. James Adekoya (Head of Iwata family of Japara Ijebu Igbo) (2000) 15 NWLR (Pt. 689) page 22 CA, unreported judgment of Court of Appeal in CA/I/41/95 between Hamza Lawal & Anor. v. Kafaru Oke & 4 Ors delivered on 18th day of January 2001.

 

In cross appellants’ brief, appellants from the notice of cross appeal raised the under mentioned as the issues for determination at page 1 paragraph 2 as follows:

 

“2. ISSUES FOR DETERMINATION

 

The following issues are for determination in the cross appeal namely:

 

(i)      Whether it was proper for the learned trial Judge to make an order granting the appellants the first leg of their claim having totally rejected their traditional evidence as their root of title to the land in dispute.

 

(ii)     Whether the learned trial Judge was not wrong in failing to strike out paragraphs 8, 9, 10 and 11 of the appellants’ 2nd amended statement of claim considering the fact that the issues raised therein had been settled in suit No. HIL/51/85.

 

(iii)    Whether the learned trial Judge was not wrong in failing to hold that the appellants were either estopped by conduct or are no longer competent to sue on behalf of the Baatisin Chieftaincy Family claiming the land described in their survey plan exhibit A, as family property the ownership of which they had earlier conceded to one Ilesanmi Pere in suit No. HIL/51/85.

 

(iv)    Whether the learned trial Judge properly directed himself as to the ownership of the portion of land marked black on exhibit J having regard to both the oral and documentary evidence tendered at the trial.

 

(v)     Whether the learned trial Judge properly directed himself as to the burden of proof having regard to the nature of the issues placed before him, in particular the proof of the eastern boundary of the land being claimed by the appellants.”

 

With the leave of this court appellants/cross respondents sought and were granted leave to file respondents’ reply to the cross appeal which was filed on 13th September, 2000. In the said respondents’ reply to the cross appeal no issues for determination were raised against the cross appeal unlike respondents/cross appellants who adopted the issues 5.01 to 5.06 as issues for determination in appellants/cross respondents appellants’ brief of argument. This court refers to case of Chief FRA Williams v. Daily Times (supra) and Lewis Opara v. Dowell Schulumberger (Nig) Ltd. (supra) the importance of brief writing in cross appeals and to draw attention to Manual of Brief Writing in the Court of Appeal and Supreme Court of Nigeria by Hon. Justice Nnaemeka-Agu, JSC, Nze v. Nwaeze (1999) 13 NWLR (Pt. 635) page 396 CA; Abisi v Ekwealor (1993) 6 NWLR (Pt. 302) page 643 SC; Ogidi v. Egba (1999) 10 NWLR (Pt. 621) page 42 SC; Gurara Sec & Finance Ltd v. Tic Ltd (1999) 2 NWLR (Pt. 589) page 29 CA. The parties having jumbled and mumbled the appeal and cross appeal together shall lead to the consideration of the appeal and cross appeal together by making references and cross references together to them in this judgment.

 

The crux, kernel and thrust of this appeal is as complained in the appeal and cross appeal was whether the learned trial Judge was right to have granted appellants/cross respondents statutory right of occupancy of Baatisin Chieftaincy Family to all that piece or parcel of land covered by survey plan of land dispute drawn by P.F.O. Ogunleye, licensed registered surveyor admitted as exhibit A less the area verged Blue in exhibit A aforesaid.

 

The appellants/cross respondents attacked the judgment of the learned trial Judge was in error to have excised the area verged Blue in exhibit A as raised in issues 5.01, 5.02 and 5.03 of appellants/cross respondents’ issues for determination in this appeal. On the contrary respondents/cross appellants complained and attacked the judgment of the learned trial Judge in issues 1, iii, iv and v in issues for determination in cross appellants’ brief of argument that the learned trial Judge was grossly in error in that having rejected the evidence of traditional history of the root of title in respect of the land in dispute, and preferred and accepted the evidence of respondent/cross appellant and proceeded to find as a fact that the area verged Blue in exhibit A was not included in the land in dispute, in HIL/51/85 ought to have dismissed claim 1 of appellants/cross respondents’ action. Respondents/cross appellants prayed the court to allow the cross appeal by dismissing the grant of statutory right of occupancy in leg 1 of the claims in its entirety.

 

From the arguments of the appellants and cross appellants on leg 1 of the claims putting the cases of the parties at the highest was whether the learned trial Judge was right in law and fact to have granted the declaration sought in leg 1 of the claim aforesaid notwithstanding that the learned trial Judge refused the grant of declaration in respect of the area verged Blue in exhibit A.

 

The 1st leg of appellants’ claim (supra) was a claim for grant of statutory right of occupancy. It is trite law that the legal principle to grant or refuse declaration of title to land before the coming into operation of the provisions of the Lands Use Act was the same. It is the law that a plaintiff who claims declaration of title to land or grant of statutory right of occupancy must succeed on the strength of his own case and not the weakness of the defendants’ case. Where the defendant has not set up a counterclaim, the burden on a defendant is just to defend no more no less. The learned trial Judge has judicial discretion to grant or refuse the declaration, in the exercise the court must exercise, the discretion judicially and judiciously as the discretion is very wide and only limited by the court itself Kodilinye v. Odu (1935) 2 WACA 336, Gankon v. Ugochukwu Chemical Industries (1993) 6 NWLR (Pt. 297) page 55 SC, Ayoola v. Odofin (1984) 11 SC 72, Bello v. Eweka (1981) 1 SC 101, Woluchem v. Gudi (1981) 5 SC 291, Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) page 137 SC, Dokubo v. Omoni (1999) 9 NWLR (Pt. 616) page 647 SC, Abey v. Alex (1999) 14 NWLR (Pt. 637) page 148 SC. The above rule as to the burden placed on a party emanated from decisions of the courts on the interpretation by the courts on sections 135, 136 and 137 Evidence Act.

 

The exception to the rule that plaintiff must succeed on the strength of his case and not on the weakness of the defence in a declaratory action, is where the facts in a defendant’s case supports the plaintiff’s case. The plaintiff can use and rely on those facts that supports his case to establish or prove his case Akinola v. Oluwo (1962) 1 SCNLR 352; Edokpolo v. Asemota (1994) 7 NWLR (Pt. 356) page 314 at 327, Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) page 704 at 745 CA. The rule does not apply in the instant appeal as the case of the parties is irreconcilably in conflict.

 

It is trite law that in Nigeria there are five ways of establishing grant to a declaration to statutory right of occupancy and establishment of one out of the five ways is sufficient to grant the declaration. One of such ways is through traditional history which is by proving the root of title to the radical title owner, a failure to establish and trace the root of title to the radical title owner shall result in a refusal of the grant of statutory right of occupancy Idundun v. Okumagba (1976) 1 NWLR page 200 at 210 SC, (1976) 9/10 SC 227, Adelaja v. Alade (1999) 6 NWLR (Pt. 608) page 544 SC, Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) page 250 SC, Nnubia v. A.G. Rivers State (1999) 3 NWLR (Pt. 593 page 82 CA, Ogun v. Akinyelu (1999) 10 NWLR (Pt 624) page 671 CA.

 

The appellants/cross respondents predicated their root of title through traditional history to the radical title owner Owa Atakumosa through Ogunlana the first Baatisin who was so installed. This was contrary to the testimony of appellants in HIL/51/85 wherein the learned trial Judge in this case observed and stated (supra) as follows:-

 

“It is clear to me during the trial that some of the plaintiffs’ witnesses who were cross examined on the historical background of the Baatisin Chieftaincy tried desperately to avoid giving any evidence that would tend to show any relationship between the Ogboni and the Baatisin. On the other hand the history of Baatisin Chieftaincy given by the 1st defendant herein in the earlier case suit No. HIL/51/85 and in this case had been consistent. Whereas the 3rd and the 6th PWs in the earlier case had told the court they did not know the origin of the chieftaincy, by the time they came to give evidence in this case, they seemed to have known the history of the chieftaincy. This is a possibility. One may not know something in 1985 and know it in 1993. The snag however is that it is clear from the evidence of the same people who gave evidence as 4th PW and 6th PW respectively in this case that their family is related to the Ogboni Chieftaincy.

 

I ask myself why these people were untruthful and or evasive in answering questions about the relationship between Ogboni and Baatisin and the answer I got is that they did not because the relationship is as told to the court by the 1st plaintiff and 6th PW did not want to admit.

 

Having accepted the traditional evidence of the relationship between Ogboni and Baatisin, I cannot but prefer the evidence of the 1st defendant as to how the Baatisin Chieftaincy Family got its land at Igbo Wayero. I accept the 1st defendant’s account because it has been consistent from the time of the previous litigation till now because whereas those on the plaintiffs side had shifted ground between the time of the previous litigation and now.

 

From the findings which I have made above it is clear that I accept the traditional evidence of which the 1st defendant in this case gave about the origin of the lands at Oke Opo and Igbo Wayero.

 

It is clear from the evidence before me that after those grants Ogboni still had land left at Oke Opo which he could use, dispose of or alienate as he pleases.”

(Italics supplied)

 

From the foregoing it is crystal clear that the learned trial Judge set up the imaginary scale, analysed the pieces of evidence, evaluated the evidence before ascribing weight to them based on the demeanour and credibility on the witness before the learned trial Judge made finding of facts wherein the learned trial Judge accepted the traditional evidence of respondents/cross appellants but exercising his judicial discretion granted leg 1 of appellants/cross respondents’ claim of statutory right of occupancy in respect of land covered in exhibit “A” exclusive of the area verged Blue.

 

The attitude of appellate court towards the exercise of judicial discretion is the rule in University of Lagos & Anor v. M.I. Aigoro (1985) 1 NWLR (Pt. 1) page 143 by the Supreme Court applied and adopted in Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) page 704 Court of Appeal and where it was held as follows:-

 

“24.   A declaratory judgment is discretionary. It is a form of judgment which should be granted only in circumstances in which the court is of the opinion that the party seeking it is, when all the facts are taken into account, fully entitled to the exercise of the court’s discretion in his favour Onuoha v. Okafor (1983) 2 SCNLR 244, Ekwunu v. Ifejika (1960) SCNLR 320, Egbunike v. Muonweokwu (1962) 1 SCNLR 97 referred to and followed.

 

25. The law is that except on grounds of law an appellate court will not reverse a discretionary order of a trial court merely because it would have exercised the discretion differently. But if on other grounds the order will result in injustice being done or if the discretion was wrongly exercised in that due weight was not given to relevant consideration, the order may be reversed (Saffieddine v. COP (1965) 1 All NLR 54, Enekebe v. Enekebe (1964) 1 All NLR 102, Awani v. Erejuwa II (1976) 11 SC 307, Odusote v. Odusote (1971) 1 All NLR 219 SC referred to).

 

26. The guiding principle is that discretion being judicial must at all times be exercised not only judicially but also judiciously on sufficient materials (University of Lagos & Anr. v. M.I. Aigoro (1985) 1 NWLR (Pt.1) page 143 referred to).

 

27. It is well settled that if judicial discretion is exercised bona fide by a lower court uninfluenced by irrelevant consideration and not arbitrary or illegal, the general rule is that an appellate court will not or ordinarily interfere (University of Lagos & Anor. v. Aigoro (supra).

 

28. An appellate court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion such as where the tribunal acted under misconception of law or under mis-apprehension of fact that it either gave weight to irrelevant or unproved matter or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere. In the instant case there is no wrongful exercise of the judicial discretion by the trial Judge as he granted the declaratory orders by exercising his discretion judicially and judiciously (University of Lagos v. Aigoro (supra) referred to and followed)” the above was confirmed by the Supreme Court in Elendu v. Ekwoaba (1998) 12 NWLR (Pt 578) page 320 see further Chuke v. FHA (1999) 10 NWLR (Pt. 624) page 574 CA, Ogun v. Akinyelu (1999) 10 NWLR (Pt. 624) page 671, Guda v. Kitta (1998) 12 NWLR (Pt. 629 page 21 CA, Acme Builders Ltd v. KSWB (1999) 2 NWLR (Pt. 590) page 288 SC, Sofolahan v. Folakan (1999) 10 NWLR (Pt. 621) page 86 CA.”

 

Having stated above the attitude of appellate courts towards the exercise of judicial discretion by the lower court or trial court I am going to apply it to the instant appeal. It is common ground that parties relied on traditional history to trace their roots of titles to the radical owners in a well considered and sound reasoning based on the credibility of witnesses the learned trial Judge evaluated the pieces of evidence before ascription of weight to the evidence. It is trite law in our civil jurisprudence that the evaluation and ascription of probative value is the sole function of the trial Judge. Where the evaluation is based on credibility of witnesses the Court of Appeal is handicapped and generally the attitude of appeal court to finding of fact based on credibility of witnesses was clearly, lucidly and well articulated in the judgment of Eso JSC in Ebba v. Ogodo (2000) 17 WRN 39 (1984) 1 SCNLR 372 that:-

 

“(d)   Where the decision is arrived at after there has been an examination of a controversy (and this is the commonest aspect) as where the opposing parties produce witnesses in the case to contradict each other by oral evidence then the Court of Appeal should appreciate that the following will be relevant.

 

(i)      Credibility of witnesses based on demeanours of the witnesses only:- Here the trial court is the sole judge as the observation of the demeanour of witnesses has to be peculiar and exclusive to the trial court which advantage is not and can never be available to the appellate court.

 

(ii)     Credibility of witnesses based on factors other than demeanours:- The Court of Appeal should examine those factors which the trial court examined as a result of which it made the inference which led to its finding and determine whether that the trial court has made use of its singular advantage of seeing and hearing the witnesses before making its finding especially having regard to the inference that could reasonably be made by a just and reasonable tribunal from the same factors.

 

This court has times without number emphasised that it is no business of the Appeal Court to substitute its view of the evidence for that of the learned trial Judge and I will find it again necessary to point out that miscarriage of justice will definitely result from adopting such a course of action when it is unwarranted. The need to ensure that justice is not miscarried should always dominate the attitude and thinking of Appeal Courts when dealing with appeals raising questions of fact. See Victor Woluchem & Ors. v. Chief Simeon Gudi and Ors. (1981) 5 SC 219 at 326, Akinloye v. Eyiyola (1968) NMLR 92 at 95, see further Nwokoro v. Nwosu (1994) 4 NWLR (Pt. 337) page 187 at 188 CA.”

 

From the foregoing it is trite law that an appellate court lacks jurisdiction to interfere with the decision of a trial court based on credibility of witnesses, it is only where and when the trial court fails to evaluate evidence properly or at all that an appellate court can intervene and itself re-evaluate such evidence. Otherwise, where the trial court has satisfactorily performed its primary function of evaluating evidence correctly, ascribing probative value to it, an appellate court has no business interfering with its finding of such evidence. Looking at the pleadings and evidence adduced in support, the learned trial Judge acted properly, satisfactorily and convincingly in the ascription and evaluation of evidence. But having rejected the root of title of the appellants/cross respondents and proceeded to grant 1st leg of appellants/cross respondents applied a wrongful exercise of learned trial Judges’ discretion based on wrong principle of law, that where a party seeks declaration of statutory right of occupancy to piece of land fails to trace the root of title to the radical title owner as in the instant appeal such a failure leads to the dismissal of the declaratory order as considering all the circumstances of the case the party who fails to establish his claim of exclusive ownership to the land to the radical owner is not entitled to the exercise of judicial discretion of the grant of statutory right of occupancy in his favour.

 

In Moses Okoye Dike & Two Ors. (for themselves and on behalf of the Uruezikeokwe family Unuisiedo Nnewi, Agbaja, Akabo-Dorji, Uruagu Nnewi) v. Francis Okolofdo & 2 Ors. (1999) 10 NWLR (Pt. 623) page 389 the Supreme Court considered the onus of plaintiff to establish his root of title in an action for declaration of title and where plaintiff relies on traditional history what he must plead and prove in the action for declaration of title; it was held as follows;-

 

“(1)   A plaintiff who seeks declaration of title to land must prove his root of title to the land. If he traces his title to a particular person, it is not enough to stop there. He must go further to prove how that person got his own title or came to have the title vested in him including where necessary, the family that originally owned the land. In the instant case, it is very clear that the appellants failed to prove how they came to own the land in dispute. It is not enough for them to testify only that they own the land for a long time or time immemorial. They must go to show from whom the title started and how it finally devolved on them. This they failed fully to do (Ajibona v. Kolawole (1996) 10 NWLR (Pt. 476) page 22 referred to).

 

(2)     A plaintiff whose claim is founded on traditional history in proof of a claim for declaration of title to land must plead and establish such facts as:-

 

(a)     who founded the land,

 

(b)     how he founded the land and

 

(c)     the particulars of the intervening owners through whom he claims.

 

Where, therefore the line of succession is not satisfactorily traced and that time of succession has gaps and mysterious linkage or nexus, which are not established then such line of succession would be rejected. In the instant case, the appellants’ pleadings are plainly defective. They are lacking in all material particulars. They failed completely to state who first acquired the land and how he acquired it. They are also silent on the intervening owners. The result is that the appellants pleaded no facts of traditional history and also led no evidence. The trial court ought to have dismissed the appellants’ claim (Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) page 393 referred to). It is pertinent to state that the learned trial Judge found as a fact as reflected above in this judgment that appellants/respondents were evasive on issues of evidence of traditional history as to how Baatisin Chieftaincy Family derived title to the land in dispute. Being finding of fact based on credibility of witnesses applying Ebba v. Ogodo it was not established that the learned trial Judge failed to take advantage of seeing and hearing of the witnesses. As the rejection of the traditional history was based on finding of fact, after careful consideration of probative value the finding of fact was not perverse as they are borne out from the evidence, as an appellate court there is no legal basis in law and in fact to disturb the said finding of fact.

 

For the reasons given above I reject as unmeritorious the complaints of appellants/respondents that the learned trial Judge should have granted fully the statutory grant of occupancy without excising the area verged blue in exhibit A. Issues 5.01, 5.02, 5.03 of appellants/cross respondents lacks substance and unmeritorious leading to resolving the said issues against appellants/cross respondents thereby the appeals are dismissed on those complaints.

 

In view of the failure of appellants/cross respondents to trace based upon the findings of the learned trial Judge which findings I found in my judgment not to be perverse, the root of their title to the radical title owner failed to discharge the burden placed upon them that consideration of all the circumstances of this case they were entitled to grant of this statutory right of occupancy in respect of the entire land covered by exhibit A inclusive of the area verged blue therein, that the grant by the learned trial Judge was a wrongful exercise of the judicial discretion of the learned trial Judge as the grant is hereby set aside. Issues i, iv and v in respondents/cross appellants’ brief are substantial and meritorious thereby allowing the cross appeal for the reasons advanced in this judgment. The grant of leg 1 in appellants/cross respondents’ appeal is hereby set aside for the reasons adumbrated in this judgment for failure as found by the learned trial Judge that appellants/cross respondents did not trace their title to the radical title owner thereby failed to discharge the onus placed on them under sections 135, 136 and 137 Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990, judicially interpreted that a plaintiff seeking declaration of statutory right of occupancy, must succeed on the strength of his case notwithstanding the weakness in respondents’ case who did not set up a counterclaim but just to defend no more no less. After due consideration of the arguments proffered on issues 5.04 and 5.05 in appellants/cross respondents’ brief of argument I come to the irresistible conclusion that they lack substance and merit as they dovetailed into issues 5.01 to 5.03 already dismissed above the two issues 5.04 and 5.05 are also equally dismissed. I move to consideration of issue III in respondents/cross appellants’ issues for determination in cross appellants’ brief that as 1st appellant/cross respondent testified in support of Ilesanmi Pere’s claim of ownership in suit No. HIL/51/85 to the same piece of land now in dispute as averred and testified to by the appellants.

 

The appellants testified as relations and privies to Ilesanmi Pere who later testified for the appellants in this case, Ilesanmi Pere’s case in suit HIL/51/85 was dismissed. The present appellants who gave evidence on similar facts are estopped by issue estoppel to relitigate the same issue again Iyowuawi v. Iyowuawi (1987) 4 NWLR (Pt. 63) page 61 at 70.

 

Respondents/cross appellants’ case was that the land litigated upon covered Igbo Wayero was the area of land originally granted by Ogboni to Yeye Duki and not Ogbonis Chieftaincy land at Oke Opo which land was granted to Dr. Lawrence Omole, the father of 2nd respondent in 1968. The learned trial Judge in HIL/51/85 did not regard the land sold to Omole as part of the land in dispute in the said case.

 

Appellants/cross respondents did not appeal against the said finding of fact they are estopped by their conduct and by issue estoppel from relitigating the issue again the learned trial Judge was wrong not to have dismissed appellants’ claim on issue estoppel.

 

Appellants/cross respondents in answer to issue III in the cross appeal submitted that the argument advanced in paragraph 4.03 of cross appellants’ brief did not support issue III in cross appellants’ brief as the issue raised dealt with estoppel by conduct and had nothing to do with Salotun’s land or dealt with judgment given on what was not raised before the court in that the lower court only reviewed 4th PW’s evidence and no reference was made to Salotun’s land. The issue be treated as abandoned and urged the court to dismiss the same as devoid of merit and consideration.

 

The learned trial Judge observed at page 90 of the record of appeal and found as follows:-

 

“Whenever it is remembered that there was no plan filed in HIL/51/85 the mere description of the land in this case to accord with the description in HIL/51/85 will not in my view even show that the land litigated upon in that case is the same as the one being litigated upon in this case.”

 

Having so found one of the essential ingredients for the doctrine of res judicatam was missing. To operate is that the land in dispute previously between the parties must be the same land litigated upon in this case. It is pertinent to state that in customary land law of Ijesha Land as decided by the Supreme Court in John Apoesho & Anor. v. Chief Awodiya (Odole of Ijesha) (1964) 1 All NLR 48.

 

“(1)   The parties themselves have created a distinction between “Stool Land” and “Chieftaincy Family land” and as borne out by the evidence of the witnesses in the court below the distinction exists;

 

(2)     The distinction, it would seem between “Stool Land” “Chieftaincy Family land” is that whilst the chief has complete use of “Stool Land” as he pleases in the case of “Chieftaincy Family land” members of the family can farm on portions of the land with the chiefs’ consent, and where family land is given out to tenants, members of the family are entitled to some of the rent collected.

 

(3)     Native law and custom is a question of fact and has to be proved by evidence.”

 

In the instant appeal the declaration sought was for Baatisin Chieftaincy Family which the learned trial Judge concluded was not the same land litigated upon therein as in the present case. As the land litigated upon in the two cases was the fact that appellants’ testimonies in support of Ilesanmi & Pere who claimed ownership of the land constituted estoppel in law. In Dr. Olawale Alakija & 2 Ors. (Executors and Executrix of the estate of Olajide Alakija deceased) v. Alhaji Abdulai (1998) 6 NWLR (Pt. 552) page 1 the Supreme Court held that:-

 

“(5)   On how to plead estoppel that it is not necessary to plead estoppel in any particular form so long as the matters constituting estoppel are stated in such a manner to show that the party pleading relies upon it as a defence or answer Ezewani v. Onwordi (1986) 4 NWLR (Pt. 33) page 27 referred to.

 

The 7th PW and last witness for appellants concluded his evidence at page 32 of the record of appeal under cross-examination as follows:-

 

“It is in respect of the same land my father instituted the 1985 action that we are now in court. My father lost the action in suit HIL/51/85. He did not appeal against the judgment.”

 

It is my considered opinion and understanding that from the above evidence of 7th PW the judgment by this court in Popoola Bamgbegbin & 24 Ors. v. Jimoh Atanda Oriare & 4 Ors. (2001) 5 NWLR (Pt. 707) page 628 at 649, 650 and 651 CA defined exhaustively and extensively issue estoppel for its proper comprehension, understanding and emphasis they covered what were held in 2, 3, 4 and 5 as follows:-

 

2. Estoppel means the principle which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination. It also means to bar or preclude or to stop or impede. It has its origin in the fresh word ‘ estoppe’

 

3. Where within one cause of action, several issues have arisen and each has been distinctly decided between the parties, neither party can be allowed to relitigate that issue all over again. The same issue cannot be raised by either of the parties again in same or subsequent proceedings except where special circumstances exist. Akujobi v. Ekenan (1999) 1 NWLR (Pt. 585) 96 referred to. (Pg. 649-650, paras. F-B)

 

4. On incidence and basis of doctrine of Issue estoppel –

 

Issue estoppel arises where an issue had earlier on been adjudicated upon by a court of competent jurisdiction and same issue comes incidentally in question in a subsequent proceedings between the same parties or their privies. This is based on the legal principle that a party is precluded from contending the contrary or opposite of any specific point which having once been distinctly put in issue, has solemnly and with certainty been determined against him. Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. (Oyerogba v. Olaopa (1998) 13 NWLR (Pt. 583) 509 referred to (p. 650-651, paras H-B).

 

5. On conditions for application of doctrine of issue estoppel –

 

There are three elements that must be established for a plea of issue estoppel to apply. These are;

 

(a)     The same question must have been decided in both suits;

 

(b)     The judicial decision relied upon to create the estoppel must be final; and

 

(c)     The parties to the judicial decision or their privies must be the same in both proceedings.

 

Oyerogba v. Olaopa (1998) 13 NWLR (Pt. 583) 509; Fadiora v. Gbadebo (1978) 3 SC 219 referred to. (P. 651, paras C-D).

 

Be that as it may on the topic Parties to Civil Action in my book Commentaries from the bench part II by Onalaja JCA at page 145 it was stated as follows:-

 

“The dictum of Lord Denning in the Privy Council case of Nana Ofori Atta II Akin Abuakwa & Anor. v. Nana Abusonsra II of Adan Se Hene for the Stool of Adeanse (1957) 3 All ER 559 at 562 was as follows:

 

“It seems to be a recognised thing in this part of West Africa for all persons with the same interest in land dispute to range themselves on one side or the other. Sometimes they apply to be joined as parties. On other occasions they regard the named party as their champion and support him by giving evidence. If he wins they reap the victory. If he fails they fail with him and must take the consequences. It is now 25years that Chief Justice Deane (CJN) drew attention to this way of looking at litigation. See Yode Kawa O. v. Kwasi Coker (1931) WACA 162-167. It has led the Court of Appeal in West Africa to look for a principle stated by Lord Penzance………In Wytcherley v. Andrews (1871) LR 2 P & D 327 at 328 was as the Court of Appeal said clearly that Akim Abuakwa was estopped from raising the question of the title to the lands in the present proceedings by having taken no part in the previous proceedings where the matter to be determined was the same.”

 

From the above a party can be affected by a previous judgment under the doctrine of standing by if he stood by to allow another person to his knowledge to litigate on his behalf.”

 

In the instant appeal appellants/cross respondents who testified in HIL/51/85 for the plaintiff the 7th PW in this case on appeal and under consideration laid claims of ownership of the land now being claimed by appellants/cross respondents are estopped by their conduct when they stood by and allowed Pere who lost the claims and did not appeal. Appellants could not relitigate the issue as they are also caught under the doctrine of issue estoppel as defined and stated above in Popoola Bamgbegbin & 24 Ors. v. Jimoh Atanda Oriare & 4 Ors. (2001) 5 NWLR (Pt. 707) page 649 to 651 CA.

 

Applying above to the instant appeal issue III for issues for determination in the cross appeal is resolved in favour of the cross appellant as meritorious on issue estoppel resolved in HIL/51/85, the argument of appellants/cross respondents to the contrary is rejected as lacking in substance.

 

Finally in issue 5.06 of appellants/cross respondents’ issues for determination in appellants’ brief attacked the judgment of the learned trial Judge that having granted claim 1 notwithstanding that the area verged blue in exhibit A was excised from the grant, the substratum of the action was the claim for grant of statutory right of occupancy the other reliefs were consequential and incidental to leg 1 of the claim. The learned trial Judge ought to have awarded cost in favour of appellants and not in favour of respondents this is without prejudice that the learned trial Judge entered judgment for respondents on claims 2 and 3. The Court of Appeal should set aside the costs and proceed to award in this court costs for appellants and in the trial court.

 

Respondents/cross appellants urged the court to reject the complaint of appellants of the award of costs in favour of respondents as devoid of any merit which appeal should be dismissed as of the substance.

 

In Wurno v. U.A.C. (1956) SCNLR 99 followed in Jimmy Oduba v. Houthman Gracht (1997) 6 NWLR (Pt. 508) page 185 SC, Atoyebi v. Bello (1997) 11 NWLR (Pt. 528) Pg. 268 CA; Okpara v. Umeh (1997) 7 NWLR (Pt. 511) page 95. In O.N. Rewane v. Pestus Sam Okotie -Ebo (1960) 2 SCNLR 461 held that:-

 

“(1)   Since it is generally accepted that courts follow the event, it is usual for a successful party to a litigation to be awarded costs;

 

(6)     Costs as between parties are given by the law as an indemnity to the person entitled to them, they are not imposed as a punishment on the party who pays them nor given as a bonus to the party who receives them. If the extent of the damnification can be found out the extent to which costs ought to be allowed is ascertained.

 

(8)     The Federal Supreme Court will not lightly interfere with the discretion of the trial Judge as to the amount of costs, but in this appeal the order made as to costs by the learned trial Judge cannot be allowed to stand the learned trial Judge proceeded on a wholly erroneous estimate and the Federal Supreme Court will therefore interfere to award costs on the ordinary principle of genuine and reasonable out of pocket expenses and normal counsel’s costs.”

 

The above reaffirmed and re-echoed the stand of the Supreme Court on the attitude of the appeal court on award of costs by lower courts stated in Wurno v. UAC Ltd (1956) SCNLR 99 that-

 

“(2)   The Federal Supreme Court will only interfere with costs in the discretion of the trial Judge where the trial Judge did not exercise his discretion or did not do so judicially.”

 

My understanding of the above authorities is that costs are awarded to compensate the successful party and not to punish the unsuccessful party by the learned trial Judge which award is judicial discretion of the trial Judge. The judicial discretion of the learned trial Judge is very wide and only limited by the court itself, in the exercise the learned trial Judge must act judicially and judiciously. When there is attack against the judgment of the trial Judge the guide in resolving the issue is the approach of the attitude of appellate court to the exercise of judicial discretion by lower court which is trite law as enunciated and expounded in the rule in University of Lagos & Anor. v. M.I. Aigoro (1985) 1 NWLR (Pt. 1) page 143 applied in Elendu v. Ekwoaba (supra). I adopt the principle that after due consideration of the award of costs in favour of the respondents in the lower court that there was wrongful exercise of the judicial discretion by the lower court in that the learned trial Judge in awarding costs did not take into consideration that leg 1 of the claim succeeded in favour of appellants partially so I set aside the sum of N3,000.00 awarded in favour of respondents in the lower court and award respondents N2,500.00 as costs in the lower court.

 

In conclusion as I resolved all the issues against the appellants/cross respondents on the grounds advanced in this appeal I dismiss appellants/cross respondents’ appeal except that I allowed partly the issue of cost awarded in the lower court which I reduced from N3,000.00 to N2,5000.00. In this court I resolve all the issues raised by respondents/cross appellants except issue for striking out paragraphs of the statement of claim which is issue II in respondents/cross appellants’ cross appeal. I allow the cross appeal whilst I dismiss the appeal for striking out some paragraphs of the statement of claim. As the cross appeal is allowed in part whilst I dismiss the appeal also in part acting judicially and judiciously I hold that respondents/cross appellants are entitled to cumulative costs after considering the overall outcome of the appeal and cross appeal. I therefore after due consideration of the appeal and cross appeal fix cumulative costs in this court in the sum of N5,000.00 in favour of respondents/cross appellants against appellants/cross respondents.

 

SUNDAY AKINOLA AKINTAN, JCA.: I agree.

 

OLUFUNLOLA OYELOLA ADEKEYE, JCA.: I was privileged to read in draft the judgment just delivered by my learned brother M.O. Onalaja, JCA. I agree with the reasoning and conclusion and abide by the order on costs.

 

Cases referred to in the judgment

A.G. Edo State v. Jessica Trading Co. Ltd. (1999) 5 NWLR (Pt. 504) 500

Abey v. Alex (1999) 14 NWLR (Pt. 637) 148.

Abisi v Ekwealor (1993) 6 NWLR (Pt. 302) 643.

Acme Builders Ltd v. KSWB (1999) 2 NWLR (Pt. 590) 288.

Adelaja v. Alade (1999) 6 NWLR (Pt. 608) 544.

Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137.

Ajibona v. Kolawole (1996) 10 NWLR (Pt. 476) 22.

Akinloye v. Eyiyola (1968) NMLR 92.

Akinola v. Oluwo (1962) 1 NMLR 352.

Akpan v. The State (1992) 6 NWLR (Pt. 248) 439.

Akujobi v. Ekenan (1999) 1 NWLR (Pt. 585) 96.

Alakija v. Alhaji Abdulai (1998) 6 NWLR (Pt. 552) 1

Apoesho v. Awodiya (Odole of Ijesha) (1964) 1 All NLR 48.

Atoyebi v. Bello (1997) 11 NWLR (Pt. 528) 268.

Atta II Akin Abuakwa. v. Abusonsra II (1957) 3 All ER 559.

Awani v. Erejuwa II (1976) 11 SC 307.

Ayoola v. Odofin (1984) 2 SC 120.

Bamgbegbin. v. Oriare (2001) 5 NWLR (Pt. 707) 649.

Bello v. Eweka (1981) 1 SC 101.

Chuke v. FHA (1999) 10 NWLR (Pt. 624) 574.

Dike v. Okolofdo (1999) 10 NWLR (Pt. 623) 389.

Dokubo v. Omoni (1999) 9 NWLR (Pt. 616) 647.

Ebba v. Ogodo (2000) 17 WRN 39; (1984) 1 SCNLR 372.

Edokpolo v. Asemota (1994) 7 NWLR (Pt. 356) 314.

Egbunike v. Muonweokwu (1962) 1 SCNLR 97.

Ekwunu v. Ifejika (1960) SCNLR 320.

Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) 704.

Elendu v. Ekwoaba (1998) 12 NWLR (Pt 578) 320.

Enekebe v. Enekebe (1964) 1 All NLR 102.

Ezewani v. Onwordi (1986) 4 NWLR (Pt. 33) 27.

Fadiora v. Gbadebo (1978) 3 SC 219.

Fasanya v. Adekoya (2000) 15 NWLR (Pt. 689) 22.

Gankon v. Ugochukwu Chemical Industries (1993) 6 NWLR (Pt. 297) 55.

Guda v. Kitta (1998) 12 NWLR (Pt. 629) 21.

Gurara Sec & Finance Ltd v. Tic Ltd (1999) 2 NWLR (Pt. 589) 29.

Idundun v. Okumagba (1976) 1 NMLR p. 200, (1976) 9/10 SC 227.

Iyowuawi v. Iyowuawi (1987) 4 NWLR (Pt. 63) 61.

Kawa v. Coker (1931) WACA 162-167.

Kodinliye v. Odu (1935) 2 WACA 336.

Lawal v. Oke (unreported delivered 18/1/2001)

Lahan v. Lajoyetan (1972) 6 SC 190.

Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) 393.

Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314.

Nnubia v. A.G. Rivers State (1999) 3 NWLR (Pt. 593) 82.

Nwokoro v. Nwosu (1994) 4 NWLR (Pt. 337) 172.

Nze v. Nwaeze 1999 13 NWLR (Pt. 635) 396.

Oduba v. Houthman Gracht (1997) 6 NWLR (Pt. 508) 185.

Odusote v. Odusote (1971) 1 All NLR 219.

Ogidi v. Egba (1999) 10 NWLR (Pt. 621) 42.

Ogun v. Akinyelu (1999) 10 NWLR (Pt 624) 671.

Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) 250.

Okpara v. Umeh (1997) 7 NWLR (Pt. 511) 95.

Onuoha v. Okafor (1983) 2 SCNLR 244.

Opara v. Dowell Schlumberger (Nig) Ltd. (1995) 4 NWLR (Pt. 390) 440.

Oyerogba v. Olaopa (1998) 13 NWLR (Pt. 583) 509.

Rewane v. Ebo (1960) 2 SCNLR 461.

Saffieddine v. Cop. (1965) 1 All NLR 54.

Sofolahan v. Folakan (1999) 10 NWLR (Pt. 621) 86.

UBA Ltd v. Ademuyiwa (1999) 11 NWLR (Pt. 628) 570.

University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143.

Williams v. Daily Times of Nigeria Ltd (1990) 1 NWLR (Pt. 124) 1.

Woluchem v. Gudi (1981) 5 SC 219.

Wurno v. UAC Ltd (1956) SCNLR 99.

Wytcherley v. Andrews (1871) LR 2 P & D 327.

Statute referred to in the judgment

Evidence Act Cap. 112 LFN 1990; sections 135, 136 and 137.

Books referred to in the judgment

Manual of Brief writing in Court of Appeal and Supreme Court of Nigeria by: Hon. Justice Nnaemeka Agu JSC.

Commentaries from the Bench Part II “Parties to Civil Action” by Onalaja JCA p. 145.