3PLR – AGHADIUNO  V. OFOEDU

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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AGHADIUNO V. OFOEDU

 

AGHADIUNO

V.

OFOEDU

 

COURT OF APPEAL

[ENUGU DIVISION]

3PLR/2003/18  (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS:

MAHMUD MOHAMMED, JCA (Presided)

SULE AREMU OLAGUNJU, JCA (Delivered the leading judgment)

JOHN AFOLABI FABIYI, JCA

 

BETWEEN

1. FRANCIS AGHADIUNO
2. LAWRENCE OKWUEZE
3. CHARLES ADUBA
4. FRANK OKAGBUE OFIAH
5. MONIER CONSTRUCTION CO. NIG. LTD
6. ERIC CHUDE ADUBA
7. AKUNNE MICHAEL ADUBA
8. REGINALD NWACHUKWU ADUBA
9. OGOEGBUNAM ADUBA
10. ROWLAND ONUORA ADUBA

(For themselves and on behalf of ‘Ogbolu subfamily of Zoli’ except the 5th appellant)

11. AKUNNE OBIOZOR

(For himself and representing ‘Iyasele Chimukwa Village Onitsha’)

 

AND

JAMES OFOEDU

 

REPRESENTATION

I. N. Ikwueto, ESQ., – For appellants

Chief F. M. Obianyo   – For respondent

 

EDITORS

[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]

 

MAIN ISSUES

(For himself and on behalf of ‘Zoli Family of Iyiawu Onitsha town except the Ogbolu sub-family’)

 

APPEAL – Findings of trial court – when not challenged on appeal – duty of appellate court not to disturb same – rationale for.

 

APPEAL – Ground of appeal – omnibus ground of appeal – whether specific issue can be canvassed thereunder.

 

APPEAL – Ground of appeal – when same does not relate to any of the issues distilled – status of.

 

APPEAL – Issue for determination – need for same to relate to grounds of appeal.

 

APPEAL – Issues for determination – when not properly arisen from grounds of appeal – whether appellate court will deliberate on same.

 

APPEAL – Notice of appeal – when not filed – consequence of.

 

COURT – Decision of trial court – essential focus of an appellate court – when considering whether same is correct.

 

COURT – Findings of trial court – when not challenged on appeal – duty of appellate court not to disturb same – rationale for.

 

EVIDENCE – Evidence of parties – necessary procedure required of a trial court in assessing same.

 

EVIDENCE – Testimonies of witnesses – need for same to be candid and consistent.

 

JUDGMENT AND ORDER – Judgment of trial court – nature of error that will vitiate same.

 

JUDICIAL PRECEDENTS –KOJO II Vs. BONSIE ; (1957) 1 WLR 1223 – principle of law stated therein – scope and tenor of.

 

JUDICIAL PRECEDENTS – Rule in KOJO II Vs. BONSIE (1957) 1 WLR 1223 – limitation on application of – when same will apply – whether applicable to the instant case.

 

PRACTICE AND PROCEDURE – Decision of trial court – essential focus of an appellate court when considering whether same is correct.

 

PRACTICE AND PROCEDURE – Evidence of parties – necessary procedure required of a trial court in assessing same.

 

PRACTICE AND PROCEDURE – Findings of trial court – when not challenged on appeal – duty of appellate court not to disturb same – rationale for.

 

PRACTICE AND PROCEDURE – Ground of appeal – omnibus ground of appeal – whether specific issue can be canvassed thereunder.

 

PRACTICE AND PROCEDURE – Issue for determination – need for same to relate to grounds of appeal.

 

PRACTICE AND PROCEDURE – KOJO II Vs. BONSIE (1957) 1 WLR 1223 – principle of law stated therein – scope and tenor of.

 

PRACTICE AND PROCEDURE – Pleadings – poor pleadings – effect of.

 

MAIN JUDGEMENT

SULE AREMU OLAGUNJU, JCA (Delivering the leading judgment):

The appeal is from the decision of Okoli, J., of the Onitsha Judicial Division of Anambra State High Court. Because of the high turnover of parties in a trial which spanned over two decades leading to the staggering of the constitution of the action with the successive change of parties it will ease a grasp of the background facts to give as a primary matter a run-down on the parties and the interests they represented with a view also to shedding light on the unhandy criss-cross of pleadings which combined to render abstruse the proceedings of the court below that became wellnigh unintelligible as far as the parties and pleadings are concerned.

 

The respondent before this court was the second of the 5 plaintiffs who by themselves and on behalf of ‘Zoli family of Onisha’ sued the first 5 appellants herein and 6 others, the original 1st and 10th defendants and the 5th appellant herein in their personal capacity while the first 4 appellants and 4 other original defendants were sued both ‘in their personal capacities and also as representatives of Ogbolu sub-family of Zoli’. In their further amended statement of claim on which issues were joined with the defendants the plaintiffs asked for the following reliefs jointly against all the 11 defendants:

 

“1.     A declaration that the plaintiffs are persons entitled to the grant of statutory certificate of occupancy in respect of a piece or parcel of land known as and called Eke-Obankpa Land.

 

2. N200,000 damages for trespass committed by the defendants on the said land.

 

3. Perpetual injunction retraining the defendants their servants agents and privies from entering into or making use of the said Eke-Obankpa Land or asserting any legal rights or tittle to the said land inconsistent with those of the plaintiffs.”

 

After exchange of pleadings followed by a chequred history of inconclusive trial by two Judges of the court below the final trial of the action began on 20/4/94 before Okoli, J. But almost half way to the plaintiffs’ case 5 defendants, i.e. the 6th to 10th appellants herein, were on 14/10/94 granted leave to be joined as defendants to defend jointly with the existing defendants the action on behalf of Ogbolu sub-family of Zoli (see page 205 of the record). About the same time, the present 11th appellant, Akunne Obiozor, applied to be joined and was joined as a defendant to defend the interest of ‘Iyasele Chimukwa family of Isiokwe village Onitsha’ in circumstances where it is not clear from the record when the order for joinder was made. In this regard, compare pages 203 – 205 with page 206 of the record for a glaring lacuna in the record as regards any ruling on order for joinder adjourned on 14/10/94 for ruling on 14/11/94. As regards the consequence of such a hiatus in the record of appeal the decision of this court in First Bank of Nigeria Plc v. May Medical Clinics AND Diagnostic Centre Ltd. (2000) 7 NWLR (Pt. 663) 53, 60 – 61, is an eye-opener.

 

In any case, during the pendency of the action 4 of the plaintiffs died on undisclosed dates leaving the respondent as the sole representative of the plaintiff, the Zoli family. Conversely, on 23/10/96, while the plaintiff’s case was winding to conclusion the plaintiff withdrew his action against the original 1st, 4th, 6th and 10th defendants whom he told the court had died on dates which he did not disclose and action against the 6 defendants was struck out. Thus the action was brought to conclusion by the lone surviving plaintiff, the respondent herein, on the one hand, and the 11 appellants herein as the 5th, 7th – 9th and 11th original defendants and the 6 additional defendants, on the other hand. All except the 5th and 11th appellants defended the action for themselves and on behalf of Ogbolu sub-family of Zoli filing between themselves 3 separate statements of defence calling for clarifications about the makers of each statement and the difference between those three statements and the two other separate statements of defence filed by the 1st original defendant and the 5th appellant herein which have different bearings on this appeal.

 

The 2nd further amended statement of defence, the first in the series, was by the 2nd and 7th original defendants the former of whom died before the conclusion of the trial and the latter of whom is the second appellant herein. The second in the series, the further amended statement of defence was by the original 3rd and 4th defendants who died during the pendency of the action filed jointly with the original 5th, 8th and 9th defendants who are now the 1st, 3rd and 4th appellants herein. The third statement of defence was by the 5 defendants who were joined at their own instance on 14/10/94 and who adopted the statement of defence filed by original 2nd and 7th defendants. Wherever the context allows the 3 statements of defence will be referred to as the first, second and third sets, respectively.

 

There is no clear indication of the side of the pleadings to which the original 6th and 10th defendants aligned themselves there being no separate statement of defence filed by them. The association in the respondent’s brief of argument of the original 6th defendant with the second set of statement of defence is not borne out by further amended statement of defence of those five defendants (filed on 5/4/89) on which issues were finally joined with the plaintiff but which contains no name of that defendant who died at an unascertainable date. In any case, since the 6th defendant was defending the action in a representative capacity along with 7 other original defendants his stand on the contentious issue could not have been different from the stand taken by the 4 surviving original defendants.

 

The statement of defence filed by the 1st original defendant is peculiar. It will be enough at this stage to say that since that defendant was sued in a personal capacity in which he was defending the action before his death the withdrawal by the plaintiff of action against him following his death has rendered his statement of defence irrelevant to any deliberation over the representative action against other defendants which is a separate cause of action from the personal action being tried together. The same consideration applies to the original 10th defendant if he ever filed a statement of defence. He was sued in his personal capacity. Following his death the plaintiff withdrew action against him and his name was struck out.

 

The plaintiff having failed to avail himself of the provisions of rules 1 and 2 of order 13 of the Anambra State High Court Rules, 1988, for substitution of another defendant that is the end of the matter as far as the right of the plaintiff against the original 10th defendant is concerned. In consequence, his statement of defence, if any, is also irrelevant to any deliberation in this appeal.

 

The statement of defence by the 5th appellant as a lessee that was put in possession of part of the land in dispute is bound up with the validity of the title of the defendant who put her in possession. In any case, examination in this appeal of any issue touching on that defendant as the 11th original defendant as well as the 11th appellant herein does not arise because they are not shown by the notice of originating these appellate proceedings (see page 299 of the record) to be part of this appeal notwithstanding the fact that their names are erroneously listed on the title of the appeal as the 5th and 11th appellants.

 

Against this background, at the trial, the plaintiff called 6 witnesses and tendered 8 documents. In support of the first and second sets of pleadings the original four defendants who lumped together their defence, called four witnesses and tendered 24 documents. The five additional defendants (the 6th to 10th appellants herein) did not testify or lead evidence as their counsel submitted (see page 264 of the record) that the 5 defendants would ‘rely on the case put forward by the plaintiffs by virtue of the provisions of order 24 rules 17(5) and (6) of High Court Rules 1988.’

 

In a considered judgment the learned trial Judge examined the pleadings and evidence of the parties, the addresses of the learned counsel along the joint settlement of issues filed by the counsel which identified the major issues as “whether ‘Eke-Obankpa’ land in dispute is a communal property of all members of Zoli family or the exclusive property of Ogbolu sub-family of Zoli.” The learned trial Judge found that by their pleading each party based their root of title on traditional history. He also found the evidence of traditional history given by the plaintiff’s star witness to be ‘clear, direct and unequivocal’ as it follows the plaintiff’s pleading in paragraph 7 of his further amended statement of claim. This is in contrast with the story of the defendants as he found that ‘both in their pleadings and evidence at the trial, the defendants (Ogbolu family) have presented a confused story about their title to the land in dispute by traditional history.’

 

But the learned trial Judge, nonetheless, found that there was conflict in the histories presented by both parties which called for a resolution by having a recourse “to events in recent years’ as a test of which of the two competing histories is more probable in keeping with the principle enunciated by the Privy Council in Kojo II v. Bonsie (1957) 1 WLR 1223, that has been applied in this country in Omoregie v. Enogie of Enbuoha etc (1976) 12 S.C 11, 27; and Chukwueke v. Nwankwo (1985) 16 NSCC (Pt. 2) 856; (1985) 2 NWLR (Pt. 6) 195, 201. To this end, the learned trial Judge launched into examination of the evidence by both parties of acts of ownership over the land in dispute claimed to have been exercised by them at the end of which he held that the plaintiff had established by traditional evidence, one of the five ways of proving title to land as propounded in Idundun v. Okumagba (2002) 20 WRN 127; (1976) 9 – 10 S.C 277; (1976) 1 NMLR 200, 210 – 211, and entered judgment for the plaintiff to the following effect: he declared that the plaintiff is entitled to the grant of statutory right of occupancy over the land in dispute; he dismissed the claim of the 11th defendant that Ogwugwu shrine lies well deep into the land of his family, ‘Iyasele Chimukwa family of Isiokwe village Onitsha.’ He awarded N50,000 damages against the 1st to 10th defendants and restrained all the 10 defendants ‘from entering into or making use of the said Eke-Obankpa land or asserting any legal rights or title to the said land inconsistent with those of the plaintiffs’.

 

This appeal is against that judgment by 9 of the 11 defendants at the trial court. I must at this juncture clarify further the position of the 5th and 11th appellants to which I alluded earlier. The joint notice of appeal, at page 299 of the record, dated 15/5/2000 expressly itemized the particulars of the defendants who gave the notice as ‘the 1st – 4th, 6th – 10th defendants/appellants.’ That number does not include two of the appellants shown in the title of the notice as Nos. 5 and 11 who were the 5th and 11th defendants, respectively, at the trial court. There is nothing elsewhere in the record that either of the two defendants filed a separate notice of appeal. Indeed, item 75 of the ‘settlement of record’ on page 312 of the record confirms that the only notice of appeal extant is the one dated 15/5/2000 and filed on 26/5/2000 and a scrutiny of the record of this court does not reveal that any of the 2 defendants obtained leave of this court to file notice of appeal out of time. The inescapable conclusion which is open on the face of the record is that none of the two defendants filed a notice of appeal.

 

That will be enough to dispose of the interest of the two defendants in this appeal as the craving by a pair of busy-body who set out on a frolic at this forum without satisfying the conditions for an appellate outing laid down by section 25 of the Court of Appeal Act and rule 2 of order 3 of the Court of Appeal Rules, 1981. In consequence, if the 5th and 11th defendants at the trial court filed no notice of appeal to challenge the decision of the trial court the inclusion of their names in the title of this appeal is a serious blunder and if deliberate a gross abuse of court process. In the result, I will disregard the names of the two phoney appellants.

 

In the light of those explanations, the 9 appellants filed 8 grounds of appeal from which they formulated in their brief of argument the following two issues for determination:

 

“(i)     Whether the learned trial court correctly applied the principle in Kojo II v. Bonsie (1957) 1 WLR 1223 in the resolution of the issues in this case.

 

(ii)     Whether the learned trial court accurately resolved the issues arising from the pleadings and evidence led by the parties.”

 

Learned counsel for the respondent also formulated two issues which run parallel to the two issues formulated by the appellants. They will be examined along as replies to the appellants’ arguments wherever appropriate. The learned counsel also raised in paragraph 4.02 of the respondent’s brief of argument a preliminary objection to the 1st ground of appeal which he argued ‘constitutes no error or misdirection in law as to constitute a ground of appeal’ and, therefore, cannot sustain the issue distilled from it. Learned counsel for the appellants did not react to that point in his reply brief filed on 13/3/2003 as he is expected to do by virtue of rule 5 of order 6 of the Court of Appeal Rules, 2002. Ordinarily, failure to meet the point raised by the preliminary objection implies that the appellants have no answer to the point raised and, therefore, conceded or admitted the point: see Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501, 534; and Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1, 32. But what particular point of law is deemed to have been admitted by such a nonfeasance is a sticky question.

 

The preliminary objection raised in paragraph 4.02 of the respondent’s brief of argument is vague and parsimonious of the details of the error or misdirection alleged. Equally, the argument canvassed in its support is a patchwork made up of a synthesis of dicta from the decisions of the Supreme Court uncoordinated by coherent argument but fashioned out to impugn the purportedly offending ground of appeal. This is not in character with the normal articulate method of attacking a quarry so as to show, in this particular instance, why the ground of appeal is considered to be incompetent within the framework of the principles of law governing formulation of ground of appeal alleging ‘error in law’ or ‘misdirection.’ This cannot be done obliquely or in a roundabout way.

 

Preliminary objection as a complement of rules of practice is not designed as a trap for an opponent who is entitled to have the benefit of the legal argument predicated on the rule and authorities to which he is invited to react before failure to react can be visited with a sanction. That being the case, it will be precipitate and unfair to strike out the ground of appeal in limine as I am urged to do. Therefore, I will treat the synopsis of dicta proferred in support of the preliminary objection as part of the reply by the learned counsel to issue two part of which is distilled from the 1st ground of appeal and the summary of which, in the context of those dicta, is that there is no royal or sacrosanct way of writing a judgment.

 

Let me note as a preliminary matter that from the notes on the issues formulated by the appellants on pages 6 and 21 of the appellants’ briefs of argument no issue is formulated from the 6th ground of appeal. That ground of appeal is, in law, deemed abandoned and I strike it out. See

Tukur v. Government of Taraba State (1997) 6 NWLR (Pt. 510) 549, 569; Newswatch Comm. Ltd. v. Atta (2000) 2 NWLR (Pt. 646) 592, 601; and Bendel Feed and Flour Mill Ltd. v. Nigeria Intercontinental Merchant Bank Ltd. (2000) 5 NWLR (Pt. 655) 29, 38.

 

Be that as it may, arguing issue one the focus of attack by learned counsel for the appellants is the application by the learned trial Judge of the principle in Kojo II v. Bonsie supra, which he contended was based on an incorrect evaluation of the various pieces of evidence of acts of ownership adduced by the parties to supplement the inconclusive evidence of traditional history proffered by each family as the root of their title to the land in dispute. In particular, he argued at length about the wrong construction placed by the learned trial Judge upon 6 documents tendered by the parties, viz, (a) exhibit ‘P1’, a purchase receipt issued by the respondent to the person to whom part of the land in dispute was sold, (b) exhibit ‘P7’, a document headed ‘terms of re-union of member of Zoli family of Iyiawu village Onitsha,’ (c) exhibit ‘P8’, a circular letter written by one J. N. Aduba to all children of Zoli family the number of whom include some members of Ogbolu sub-family of Zoli, (d) exhibit ‘D19’, copy of a lease agreement of part of the land in dispute and (e) exhibits ‘D20’ and ‘D21’, copies of judgments of native courts in 1924 and 1926 in actions over the land in dispute. The first 3 documents were tendered at the trial by the respondent while the last 3 were tendered by the appellants.

 

The learned counsel contended that if the learned trial Judge had properly evaluated evidence of recent acts of ownership exercised over the land in dispute by the parties as attested by those documents and other numerous acts he would, applying the principle in Kojo II v. Bonsie supra have concluded that ‘the appellants’ traditional history supported by numerous and positive events/acts of recent past exercised by them…. over the land in dispute without any objection by the respondent is….preferable’ to the respondent’s ‘bogus narration.’ He submitted that it is trite law that where the question before an appellate court is the proper deduction to be made or inference to be drawn from undisputed facts the court is in as good a position as the trial court to evaluate the evidence and form its opinion; that an appellate court can also do so where, ‘as in this case, the parties’ claim to recent acts of possession over the land are seemingly contestable’ citing in support of that proposition of the law the precedent of the Supreme Court in Lawal v. Dawodu (1972) 1 All NLR (Pt. 2) 270; Nnajifor v. Ukonu (No. 1) (1985) 2 NWLR (Pt. 9) 686; (1985) All NLR 334, 358 – 359; and Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301. He urged this court to draw the correct inference from ‘the appellants’ established facts (sic, ‘acts’) of recent possession over the land in dispute’ so as to do what justice of the case requires craving in aid the Supreme Court’s decision in Chukwueke v. Nwankwo (1985) 16 NSCC (Pt. 2) 856; (1985) 2 NWLR (Pt. 6) 195.

 

In his reply, learned counsel for the respondent, on page 19 of the respondent’s brief calls into question the application by the trial court of the principle in Kojo II v. Bonsie supra, which he submitted was unnecessary because of the acceptance by the learned trial Judge of the traditional history by the respondent’s family (at page 287 of the record). He elaborated that the issue of ownership based on evidence of traditional history having been determined when the learned trial Judge accepted the respondent’s evidence of traditional history, found it to be conclusive and rejected the traditional history proffered by the appellants as the root of their title the evidence of acts of ownership and long possession became superfluous; the various acts on which evidence were led are acts of trespass by the appellants which he argued do not advance the appellants’ case any further. The learned counsel argued at length, raising in support an array of judicial authorities, the scope of the principle enunciated by Kojo II v. Bonsie supra the essence of which he said was captured by the Supreme Court’s decision in Obawole v. Williams (1996) 10 NWLR (Pt. 477) 146, 169, where the court expounded that:

 

“If the defendants fail to establish or prove his ownership based on traditional history as pleaded, they cannot rely on acts of ownership…”

 

Arguing ex abundanti cautela matching argument of learned counsel for the appellants stride for stride he gave detailed answers to the criticism of evaluation by the learned trial Judge of the six documents proffered as evidence of acts of ownership and long possession as well as other acts from where inference of ownership can be drawn which he contended are irrelevant. He submitted that the arguments on acts of ownership and long possession flew off at a tangent since on the state of authorities on the point in issue the principle in Kojo II v. Bonsie supra, is inapplicable the respondent as the plaintiff having established his root of title by traditional evidence which the learned trial Judge accepted and as a corollary rejected evidence of the appellants’ traditional history.

 

To underscore the fact that the principle in Kojo II v. Bonsie supra, is inapplicable on the facts of this case the learned counsel urged the court to take note of the legal position of the plaintiff who was entitled to judgment as a matter of right once he established the root of title he pleaded. He submitted that it is trite law that where the root of title is based on the first settlement and the traditional evidence of such first settlement is proved and accepted as did the learned trial Judge, title can be declared on such traditional evidence alone. He relied on Stool of Abinabina v. Enyimadu (1953) 12 WACA 171, 174 (P.C); Odofin v. Ayoola (1984) 11 S.C 72, 111, and Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301, 322. Underpinning the submission about the limitations on the application of the principle in Kojo II v. Bonsie supra, the learned counsel cited variously dicta from the following decisions on the point: Odofin v. Ayoola supra, at page 116; Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393, 431; Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263, 271, and The Registered Trustees of Diocese of Aba v. Nkume (2002) 8 WRN 73; (2002) 1 NWLR (Pt. 749) 726, 738. On that note, he urged this court to discountenance the argument that the appellants are prejudiced by application of the principle in Kojo II v. Bonsie supra, which he argued was invoked in excess of caution but for which there was in law no need.

 

Whether as contended by learned counsel for the appellants the principle in Kojo II v. Bonsie supra, was wrongly applied by the learned trial Judge or whether as rejoined by learned counsel for the respondent the application of the principle was unnecessary but done in excess of caution calls, primarily, for an understanding of what was enunciated by the decision which can be rendered as follows:

 

Where in an action for declaration of title to land both parties based their roots of title on traditional histories as one of the five ways of establishing ownership of land and evidence of the histories relied upon by both parties is conflicting such that neither version of the histories is conclusive to establish ownership of the land in dispute it is open to the trial court to have a recourse to evidence of acts of ownership exercised by the parties in recent times over the land in dispute so as to determine the version of the competing histories that is more probable.

 

That abridgment of the principle accords with its description, application and scope in a number of decisions, viz, Adenle v. Oyegbade (1967) NMLR 136, 138 – 139; Ikpang v. Edoho (1978) 6 – 7 S.C 221, 247 – 249; Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527, 548; Korobotei v. Odubo (1999) 9 NWLR (Pt. 620) 655, 685 – 686; Ajagungbade III v. Laniyi (1999) 13 NWLR (Pt. 633) 92, 115; and Ogunleye v. Oyewole (2000) 4 NWLR (Pt. 687) 290, 301 and 307. Summing up the limitations on the application of the principle Obaseki JSC in Mogaji v. Cadbury (Nig.) Ltd. supra, said, at page 431, that:

“It is my opinion that where the root of title is known and pleaded and not lost in antiquity and historical oblivion, the circumstances for any inference of title created by act of ownership does not arise.”

 

Elaborating on that proposition of the law the same principle was echoed in Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 310, where Oputa, JSC said, at page 323, that ‘there is no onus on a plaintiff who claims title by traditional evidence and who successfully establishes his claim by such evidence to prove further acts of ownership.’ A similar view was expressed later by the same jurist in Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263, 271, in which he restated that ‘where a party’s root of title is pleaded as, say, a grant or a sale or conquest, …that root ought to be established first.’ Highlighting the limitations on the scope of the application of the principle in Kojo II v. Bonsie supra, the apex court in Alhaji Sikiru Sanusi AND Sons v. Adebiyi (1997) 11 NWLR (Pt. 530) 565, 574 – 575, explicated, per Ogundare, JSC, that where the root of title relied upon by a party is contradictory there is no room for the application of the rule in Kojo II v. Bonsie supra. He recalled in elucidation the earlier decision of the court in Iriri v. Erhurhobara (1991) 2 NWLR (Pt. 173) 252, 267, that ‘a trial Judge is entitled to reject evidence of traditional history which is incredible.’

 

Further clarification of the limitations of the scope of the rule in Kojo II v. Bonsie supra, was brought out pointedly by this court in Esiaba v. Ojiegbe (1999) 10 NWLR (Pt. 623) 463, where it was explained, at pages 476 – 477, that the principle in Kojo II v. Bonsie is only applicable where two credible but conflicting stories of tradition exist side by side before evaluation of such conflicting evidence by events of recent times. But that “it is not applicable to resolve contradictions that exist within one side of the traditional histories presented before the court.’ This court found as a fact that the conflicting story of tradition existed on the respondent’s side only and concluded that the trial court was wrong to have applied the rule in Kojo II v. Bonsie supra, to resolve such a conflict. Leaning on the empirical pedestal of the question of proof in Nwabuoku v. Onwordi (2002) 3 NWLR (Pt. 755) 558, this court in exposition of the requisites for establishing title to land by traditional evidence expounded, at page 580, that ‘when a plaintiff proved his title directly by traditional evidence, there will be no need again for inference to establish that which had already been directly proved’ citing in support of the proposition Balogun v. Akanji supra, at page 314, Onyido v. Ajemba (1991) 4 NWLR (Pt. 184) 203, 223, and Adeleke v. Akanji (1994) 4 NWLR (Pt. 341) 715, 727.

 

From the state of the law as reviewed above the learned trial Judge having found on the evidence before him that the respondent as the plaintiff at the court below had established his title to the land in dispute by traditional history as pleaded by him there was in fact no need for him to dabble into the rule in Kojo II v. Bonsie supra, which as shown in the above analysis comes into play only where evidence of traditional history led by both parties are inconclusive to determine the ownership between the competing claimants. Therefore, I agree with learned counsel for the respondent that the application of the rule in Kojo II v. Bonsie supra did not arise on the finding of the learned trial Judge that the respondent had established his title to the land in dispute by evidence of traditional history. Consequently, the question of whether the learned trial Judge correctly applied the principle in Kojo II v. Bonsie in resolution of the dispute before him canvassed in issue one is beside the point where application of the rule is unnecessary. If application of that rule is uncalled for in the face of the finding of conclusive proof by the plaintiff of the traditional history on which he founded his title the extensive arguments about the recent acts of ownership on which the application of that rule is predicated becomes superfluous. Indeed, it is diversionary as moving away from the more straight question of whether the respondent established his title to the land in dispute by traditional history as held by the learned trial Judge if such a question is open on any other point canvassed in this appeal by the appellants. Therefore, issue one is a gross misconception of the law and I resolve it against the appellants.

 

Because of the discursive style of presenting the argument issue two requires a careful scrutiny in order to identify the precise scope of the matters being agitated in that issue which are massed together in a miscellany of themes with one topic overlapping another making it difficult to match some of the matters argued in the brief with the related complaints in the grounds of appeal from which the issue is drawn out. The issue formulated is one straight question of ‘whether the learned trial court (sic) accurately resolved the issues arising from the pleadings and evidence led by the parties.’ The issue is distilled from 3 grounds of appeal. The 1st ground complains that the trial court first considered the appellants’ traditional history before it examined the traditional history of the respondent; the 4th ground alleged that the court came to a wrong conclusion that all the parties agreed that ‘Ogwugwu shrine’ was set up by Awo and his son, Zoli, at the boundary of the land in dispute while the 8th ground is an omnibus ground agitating that ‘the judgment is against the weight of evidence.’ But in arguing the issue learned counsel for the appellants crammed the issue with a number of matters which do not flow from the complaints in the 3 grounds of appeal from which the issue is distilled and within which the argument of the issue must, in law, be confined.

 

It is in that context that I see as strange bedfellows three distinct points canvassed under the issue by the learned counsel none of which could have been distilled from any of the three grounds of appeal. The first is the attack of the finding by the trial court on Ogbolu’s ancestry as a third generation of Awo’s descendants and of the court’s failure to make a finding on ‘the point in time in the settlement of Onitsha people when Oze people were driven away,’ a premise upon which the conclusion on the family’s ancestral hierarchy is predicated. The second is the identity of the land in dispute calling into question whether ‘Eke-Obankpa’ is the same as ‘Ani Ozalla’ and the location of each piece of land in relation to the slaughter house along Ugwunobankpa road. The third is evaluation of sundry acts of ownership and possession exercised by the respondent over the land in dispute deposed to by the boundarymen, the 3PW, 4PW and 5PW, as well as interpretation of exhibit P7 as bordering on arbitration which were unfavourably weighted against the parallel acts of ownership and possession exercised by the appellants as depicted by exhibits D19, D20 and D21 to which evidence of the 3PW lent support. By no stretch of the imagination can any of the 3 points canvassed in the brief be said to be a complaint in the first two grounds of appeal. Nor can any of them be argued under the omnibus ground of appeal which is a complaint against the totality of evidence adduced before the court and not on a finding of fact on a specific issue or document which must be raised by a substantive ground of appeal: see B. P. (West African) Ltd. v. Akinola Allen (1962) WNLR 336; (1962) 1 All NLR 605, 650; Ajibona v. Kolawole (1996) 10 NWLR (Pt. 476) 22, 30 – 31; and Nwankwo v. Federal Republic of Nigeria (2003) 4 NWLR (Pt. 809) 1, 40 – 41.

 

The law does not allow an appellant to expand an issue beyond the complaints raised by the competent ground or grounds of appeal. Nor would the court allow itself to be decoyed into deliberating on an issue not properly arising from the grounds of appeal before it. The consequence follows, ineluctably, that since the three points canvassed on behalf of the appellants do not arise from any of the three grounds of appeal from which they are purported to have been distilled the three points are incompetent. I must disregard them and I do so: see Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563, 579 – 580; Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130, 157; Omagbemi v. Guiness (Nig.) Ltd. (1995) 2 NWLR (Pt. 377) 258, 266; and Okolo v. Union Bank of Nigeria Ltd. (1998) 2 NWLR (Pt. 539) 618, 640.

 

Having separated the wheats from the chaffs as far as the competent matters arising from issue two are concerned the issue is narrowed down to arguments on the correctness of the method adopted by the learned trial Judge in evaluating the evidence of the parties followed as an outgrowth by the arguments on the locations of Ogwugwu shrine on the land in dispute and the leaning between the parties of the weight of evidence that is bound up with the state of the parties’ pleadings on the threshold of the trial. I will examine in turn arguments on the three points.

 

On the dominant limb of issue two, it is the contention of learned counsel for the appellants that in considering which of the versions of the traditional history given by the parties about title to the land in dispute is to be believed the learned trial Judge began by discrediting the appellants’ version of the history which he described as ‘hazy and inchoate’ before he examined the version of the history narrated by the respondent which he accepted as ‘clear, direct and unequivocal’. He submitted that the approach is wrong for two related reasons. Firstly, because there was no primary onus on the appellants to establish their title to the land in dispute vis-à-vis the respondent who asked for declaration of title to the land in question and upon whom the onus of proof lies. He argued that discrediting first the appellants’ case before considering the case for the respondent facilitated the conclusion reached ultimately by the learned trial Judge who preferred the traditional history given by the respondent’s star-witness, the 6PW. He submitted that the approach is wrong as in violation of the principle laid down in Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24, 39, and Sanusi v. Ameyogun supra at pages 548 and 553, on the impropriety of reaching a conclusion on the evidence of the defendant before considering the evidence of the plaintiff. Secondly, that basing assessment of evidence on traditional history adduced by the parties on demeanour or credibility of the witnesses is not in conformity whether legal requirement that where evidence of traditional history given by the parties is in conflict ‘the court ought to be guided by established acts of possession within living memory’ as laid down in Kojo II v. Bonsie, supra. Obviously, this particular error relates to evaluation of the acts of ownership and possession necessary to resolve conflict in the evidence of traditional history given by both parties. On this point, the learned counsel submitted that by considering first the version of the appellants’ traditional history the approach by the learned trial Judge ‘is not only contrary to the principle laid down in Kojo II v. Bonsie (supra) but has created the obvious disadvantage of evaluating the case of the appellant …..before the respondent’, especially as there was no primary onus on the appellants as the defendants at the court below to establish their title to the land in dispute before the plaintiff/respondent proves his title.

 

The second limb of issue 2 is, in the main, a spill-over from evaluation of evidence by the learned trial Judge of ‘facts in recent years’ in which the learned counsel drew on a number of complaints outside the grounds of appeal from which issue 2 is distilled. On the material part that is relevant to the issue the learned counsel criticized the court’s finding on Ogwugwu shrine which he argued does not accord with the evidence of the respondent’s witnesses on the establishment of the shrine by the respondent’s ancestor ‘as an act of possession over the land in dispute.’

 

Having resolved in issue one that the rule in Kojo II v. Bonsie, supra, is not applicable to this case following the acceptance by the learned trial Judge of the respondent’s traditional history I do not consider to be relevant to the deliberations on this appeal any argument on this limb of issue two and on the concluding part of limb 1 of the same issue on what the learned counsel described as ‘reference to acts within living memory’ as the test of resolving conflict in evidence of traditional history posited by Kojo II v. Bonsie supra.

 

In any case, in his reply to the dominant limb of issue two learned counsel for the respondent (at page 6 of the respondent’s brief of argument) debunked the argument that the learned trial Judge considered the case of the appellants before examining the case for the respondent. He drew attention to part of the judgment of the court below on pages 282 to 284 of the record where the learned trial Judge started with a review of the respondent’s case before reviewing the case for the appellants. He contended that the consideration and evaluation of evidence of the parties, findings and conclusion that are contained on those pages belie the submission of learned counsel for the appellants. That being the case, he contended, the factual basis of the complaint in the 1st ground of appeal from where the issue articulating the complaint is formulated is non-existent. He submitted on that premise that ‘the whole complaint was a calculated falsehood’ that vitiates the allegations based thereon and rendered the 1st ground of appeal and the issue formulated from it to be incompetent and should be struck out founding for support on Alakija v. Abdulai (1998) 6 NWLR (Pt. 552) 1.

 

As I offered to do in the early part of this judgment, assimilating into the mainstream of argument the contention of the learned counsel on his preliminary objection to the 1st ground of appeal and part of the issue formulated from it the thread of the submission is that judgment writing cannot be put in a straight jacket as it is an art which varies from one Judge to another. To buttress his argument the learned counsel drew upon dicta from a number of leading authorities on the point which include Woluchem v. Gudi (1981) 5 S.C 291; Amokomowo v. Andu (1985) 1 NWLR (Pt. 3) 530, 538; Balogun v. Amubikahun (1985) 3 NWLR (Pt. II) 27, 37; Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182; Anero v. Eze (1995) 1 NWLR (Pt. 370) 129; and Adekunle v. Adeleye (1998) 12 NWLR (Pt. 579) 613, 621. The long and the short of the argument of the learned counsel is that the contention that the learned trial Judge reached a decision on the evidence of the appellants before he considered the evidence of the respondent is not borne out by the judgment of the trial court as it is shown by the record.

 

Against this background, the answer to the pros and cons of the argument about wrong evaluation of evidence turns on the judgment under review from which it will be verified how the learned trial Judge arrived at his decision. Reading through the first eight pages of the judgment (i.e. pages 282 to 290 of the record with no page 288 extant) a resume of the contents can, in outline of the coverage of the matters examined in sequence, be rendered as follows: introduction of the contest covering what is in dispute, viz, the parties and the claim laid by each of the land in dispute known as ‘Eke-Obankpa,’ was followed by a summary of the plaintiff’s claim and the facts pleaded juxtaposed with the defendants’ reply to the claim as pleaded with each party narrating how their ancestor acquired the land. The major issue for determination as settled by the parties identified by the court which began a review (on page 284) of the plaintiff’s case with the evidence of his key witness that was followed immediately by a review of the defendants’ case and evidence of their key-witness. Next is a recapitulation of the issues canvassed by the parties at the trial which preceded evaluation of the evidence of the parties that led to the findings of fact (on page 287 of the record) that the evidence led by the defendants was ‘hazy and inchoate:’ this was followed simultaneously by the finding that the testimony of the plaintiff’s key-witness was ‘clear, direct and unequivocal” and proved the plaintiff’s averment of traditional history in paragraph 7 of his statement of claim. The concluding part of page 287 down to page 290 was taken up with the scrutiny of the defendants’ pleadings which the court found to be shoddy and mutually discordant to sustain the traditional history pleaded by the defendants as the root of their title to the land in dispute.

 

As shown by the above synopsis of the various steps taken in the deliberations over the material points canvassed at the trial as depicted by the judgment it is clear that contrary to the argument of learned counsel for the appellants the sequence of review of evidence of both parties and matching the evidence up with pleadings ran pari passu up to the point when the learned trial Judge made findings of fact on the evidence of traditional history adduced by the parties. With the steps taken in analyzing the case of the parties made distinctly clear on the face of the judgment of the trial court I cannot see any justification for the allegation that in evaluating evidence of the parties on traditional history pleaded the learned trial Judge had reviewed evidence of the appellants as the defendants in that court and came to a finding before he considered the evidence of the respondent as the plaintiff. The porous and mindless hoax which is the center-piece of the appellants’ attack is belied by the judgment of that court which shows that evidence of the parties were reviewed side by side at the end of which the learned trial Judge found, as he was entitled to do, evidence of the defendants on traditional history to be hazy and inchoate and almost in the same breath evidence of the plaintiff was found to be clear, direct and unequivocal sufficient to sustain his claim.

 

Indeed, the pronouncements by the learned trial Judge on evidence of traditional history adduced by the parties which are not attacked by this or any other issue in this appeal but rather directed at the sequence of the pronouncements were anchored to the appellants’ pleadings about which I will say something later. It will suffice for now to say that it is not enough to pick holes in a judgment for sheer idealistic fancy of what the rhyme of the contents of the judgment should be and to project the ‘imagination’ as a default in evaluation of evidence relying on authorities that do not match the facts of the case. It is as well to spare the pains to check whether the decision which is being attacked meets the attributes of a standard judgment enumerated by the Supreme Court in Okulate v. Awosanya (2000) 1 WRN 65; (2000) 2 NWLR (Pt. 646) 530, 546, where the court also explained that in considering whether a decision is correct ‘the essential focus should be on whether the learned trial Judge made proper findings and reached the correct judgment upon the facts before him. It is not the method or approach that necessarily determines those ends.’ A similar refrain was echoed lately by the same court in Agu v. Nnadi (2003) 8 WRN 77; (2002) 18 NWLR (Pt. 798) 103, 119. But particularly instructive is the decision of the apex court in Jekpe v. Alokwe (2001) 19 WRN 105; (2001) 8 NWLR (Pt. 715) 252. It encapsulates the essence of the shades of pronouncements on the correct approach to judgment writing with an underpinning of the judicial policy that puts a damper on disingenuous preying upon judgments by raw chicanery using as a cloak technicalities to achieve a result that is the very antithesis of justice. The court, per Ogundare, JSC at page 264, expounded, inter alia, as follows:

 

“It must be emphasized that there is no set style which must be followed by trial courts when writing judgments. Judges must no doubt differ in the procedure and style which they adopt in their consideration of the entire evidence. It is not very material whether the Judge starts with the consideration of the defendant’s case before that of the plaintiff and vice-versa. What is important is that he should first of all put the whole evidence led by the 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 by the quality or probative value of the testimony as against the quantity or number of the witnesses. After this, the Judge applies the law, if any, before he comes to his final conclusion based on the accepted evidence. See Mogaji v. Odofin (supra), Woluchem AND Ors. v. Gudi AND Ors. (1981) 5 S.C 291 at 294; Duru AND Ors. v. Nwosu (1989) 4 NWLR (Pt. 113) 24; and Uchendu AND Ors. v. Ogboni AND Ors. (1999) 5 NWLR (Pt. 603) 337 at 363.”

 

That says it all. The appraisal of whether a decision conforms to the set standard of adjudication takes more than the ritual role of reciting the formula of adjudicatory niceties that a decision must conform to as mechanical imperative. Rather, the end of decision-making will be satisfied if the crux of the dispute is probed in a manner consistent with the evidence proffered by the parties led on their pleadings which are the sinews of resolving matters in controversy. The requisite adjudicatory test was found by the learned trial Judge to have been amply satisfied for after weighing evidence of the parties on traditional history he rejected what he considered to be a wobbly story told by the defendants and accepted the consistent narration by the plaintiff.

 

That will be enough to dispose of the argument of learned counsel for the appellants on the main limb of issue 2 that with a view to discrediting the appellants’ case the trial court evaluated the evidence of the appellants and came to a decision before he considered the case for the respondent which as demonstrated by examination of the material parts of the judgment of that court is a farce occasioned by a sad misapprehension in coming to grips with critical analysis on a material point. However, as the point was also taken under the third limb of issue two that on the state of the pleadings the respondent was entitled to judgment I must examine that point albeit briefly because of its inconsequential effect on the decision already reached on the evidence led as must be the case in any action including relief for declaration.

 

Learned counsel for the respondent set the ball rolling in paragraph 5.05 of the respondent’s brief of argument in which he agitated that:

 

“The appellants defending the action in representative capacity on ‘behalf of Ogbolu family’ split their camp into three factions and filed four separate statements of defence with divers and competing, conflicting and confusing traditional histories as to their root of title of the land in dispute.”

 

In elaboration the learned counsel enumerated the 3 sets of statement of defence which I described in the early part of this judgment and the statement of defence filed by original 1st defendant, Walter Aduba, who died during the pendency of the action at the court below as the pleadings in which different roots of title were pleaded on behalf of Ogbolu family, the defendants. He dissected the 4 statements of defence to bring out the discrepancies and submitted that “it is trite law that where a party projects two conflicting histories of his ownership in support of his claim, he has failed to make out the case he set up to make’ citing in support of that proposition of the law Mogaji v. Cadbury (Nig.) Ltd. supra, at page 430; Bamgbose v. Oshoko (1988) 2 NWLR (Pt. 78) 509, 519; Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1; and Edokpolo AND Co. v. Asemota (1994) 7 NWLR (Pt. 358) 314, 328.

 

Taking issue with the respondent learned counsel for the appellants in the appellants’ reply brief raised an objection to using for comparison the statement of defence filed by the original 1st defendant contending that that defendant having died before the trial of the action started and his name struck out from the suit at the instance of the respondent his pleading cannot be used in the trial of the action citing in support Ugo v. Okafor (1996) 3 NWLR (Pt. 438) 542, 565. Learned counsel for the respondent had argued that the original 1st defendant’s pleading is still part of the defendant’s case on which the court was entitled to draw as appropriate. Using as analogy the aphorism of Maitland, and English writer, that the form of action that had been buried was still ruling the contemporary English society from the grave the learned counsel contended that neither the death of the original 1st defendant nor the striking out of his name from the suit is a occurrence that can wipe out his pleading filed in the action from the record on which the court is free to act proffering as authority W.A.P.I.N v. N.T.C (1987) 2 NWLR (Pt. 56) 299, 306; Abraham v. Olorunfunmi (1991) 1 NWLR (Pt. 165) 53, 77 – 78; Nwanosike v. Udosen (1993) 4 NWLR (Pt. 290) 684, 693; and Agbaisi v. Ebikorefe (1997) 4 NWLR (Pt. 502) 630, 648.

 

With due respect to learned counsel for the respondent his argument was premised on a wrong assumption that the original 1st defendant was defending the action as a representative of Ogbolu family along with 8 other original defendants in that group. The contrary is the case. The original 1st defendant was sued in his personal capacity and pleaded to defend the action as the bona fide owner of the land in dispute for which see paragraphs 7 and 8 of his statement of defence on page 2 of the supplementary record of appeal. His interest in the land in dispute was diametrically opposed to the interest of Ogbolu sub-family of Zoli or of Zoli family at large. That conclusion is further strengthened by paragraph 4 of the statement in which he averred that other defendants are neither representatives of Ogbolu sub-family nor of ‘the alleged Zoli family.’

 

Thus having regard to the composition of the action in which the interest of the original 1st defendant in the land in dispute is manifestly adverse to the interest of the Ogbolu sub-family of Zoli whether the statement of defence filed in the life time of that defendant whose name was later struck out of the action at the plaintiff’s request can be used by the plaintiff/respondent to impugn the defendants/appellants’ defence is beside the point. Therefore, learned counsel for the defendants/appellants is on a strong wicket in his contention that the statement of defence of the original 1st defendant cannot be used for comparison to spotlight any mutual conflict in the traditional history pleaded by the defendants with the divergent interests of the two sets of defendants in the land in dispute. But I must quickly note that resolution of that point still leaves unanswered the contention by learned counsel for the respondent about conflict in the appellants’ pleadings of their traditional history to which I must return.

 

Replying to the argument on conflict in the defendants’ pleadings learned counsel for the appellants argued that there was no conflict whatsoever and set out the statement of defnece of the second defendant which he juxtaposed with the statement of defence of the 6th – 10th defendants. The 6th – 10th defendants’ statement of defence, on pages 18 to 20 of the supplementary record of appeal, raises one curious issue. In paragraph 2 the defendants adopted the 2nd further amended statement of defence of the 2nd defendant dated 15/9/94 but added 3 paragraphs of their own. In the opening sentence of the 3rd additional paragraph the defendants averred that ‘the said Eke-Obankpa land originally belonged to Eze-Obior who was one of the first settlers in Onithsa.’ The last clause of that sentence, i.e. ‘who was one of the first settlers in Onithsa’, is an addition to the statement of defence adopted which does not contain those words. The question arises whether a pleading adopted can be modified by addition of averments which are not contained in the adopted text. If the answer is in the affirmative in deference to the choice of those defendants then there is a discrepancy between the pleading of the 2nd defendant and that of the 6th – 10th defendants on a material point as the statement of defence of the 2nd defendant adopted by the 6th – 10th defendants does not contain the source of title of Eze-Obior, the grantor of the land in dispute to Ogbolu, the founder of Ogbolu sub-family, which the 6ht – 10th defendants’ pleading has somehow supplied.

 

But more significantly in his analysis of the pleadings on page 3 of the appellants’ reply brief learned counsel for the appellants omitted any mention of the second set of statement of defence filed on 5/4/89 by the 1st, 3rd and 4th defendants as the surviving number of the five defendants who filed the statement contained on pages 115 – 118 of the record. The discrepancy between the statements of defence of the 2nd and 6th – 10th defendants and failure to mention the pleading of the 1st, 3rd and 4th defendants have seriously undermined the argument of learned counsel for the appellants that the pleadings of the defendants on traditional history as the root of the defendants title to the land in dispute are congruous and consistent. To unravel the tangle it is necessary to paraphrase the material part of the respondent’s statement of claim and the corresponding parts of the 3 sets of statement of defence making up the defendants’ pleadings.

 

In paragraph 7 of the further amended statement of claim the respondent pleaded his root of title as derived from the founder of the land called ‘Awo Owelle,’ a warrior who acquired the land by conquest and settled on the land with his son, Zoli, who after his father’s death succeeded to the land. From Zoli the land passed to his offspring who as pleaded in paragraph 1 are the progenitors of the respondent and the appellants. The 2nd defendant while agreeing in paragraph 2 of his 2nd further amended statement of defence with the common ancestry that both the respondent and the appellants are the descendants of Zoli, nonetheless, traced his root of title to Ogbolu, the son of Zoli, who got a grant of the land in dispute from Eze Obior as a reward for his service as a native doctor to the grantor. The 6th – 10th defendants adopted the root of title pleaded by the 2nd defendant but added in paragraph 3 of their statement of claim that Eze Obior was one of the first settlers in Onitsha. The 1st, 3rd and 4th defendants’ root of title is the sophomoric averment in paragraph 6 of their further amended statement of defence that the land in dispute ‘has been the land of Ogbolu family from time immemorial.’

 

On a sober appraisal of the facts pleaded, if the 2nd defendant claimed that the land in dispute was a grant to Ogbolu by Eze Obior with no indication about how Eze Obior acquired the land; if the 1st, 3rd and 4th defendants declared, ex cathedra, that the land has been the land of Ogbolu family from time immemorial with nothing more. Indeed, if the 6th – 10th defendants’ answer to the plaintiff’s claim is to add as an afterthought the missing link to the statement of defence adopted there is, in my view, practically nothing to set against the plaintiff/respondent’s claim from the chorus of babbles that was projected as a defence by the defendants. With the fragmented state of pleadings by the defendants I agree with learned counsel for the respondent that the defendants as representatives of Ogbolu family split their camp in defending the action which crippled their capacity to muster up a concerted defence.

 

But whether the plaintiff could have got a judgment on the pleadings is a different matter. The reservation is not so much about the caution by learned counsel for the appellants that pleadings do not constitute evidence, a submission which overlooks the principle of law that ‘onus of proof does not exist in vacuo; it exists only where there are issues in dispute between the parties for which see Omobruchere v. Esegine (1986) 2 S.C 385, 397, 397; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; (1988) 6 SCNJ 18, 23 – 25; and Balogun v. Labiran (1988) 3 NWLR (Pt. 80) 66, 83. Rather, since the main relief being sought by the plaintiff/respondent is declaration of title to the land in dispute granting such a relief on admission implied by failure of the defendants/appellants’ languid and disorderly pleadings to meet frontally the plaintiff/respondent’s claims will run against the current of the principle that leans against granting a declaratory relief on admission or consent of the defendant or on default of pleading: see Bello v. Eweka (1981) 1 S.C 101, 121 – 122, Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90; (1988) 19 NSCC (Pt. III) 252, 262; Ogbonna v. A-G., Imo State (1992) 1 NWLR (Pt. 220) 647; (1992) 2 SCNJ (Pt. 1) 26, 75; and Mortune v. Balonwu (2000) 5 NWLR (Pt. 655) 50, 121 – 122.

 

However, the fact that the respondent could not have got judgment in the short run on the error which marred the appellants’ pleadings does not operate as a disadvantage against the respondent. In the long run it can be rewarding given a diligent move at the opportune time. The error may come in handy for the respondent who after discharging the primary burden of proof as laid down in Kodilinye v. Odu (2003) 36 WRN 175; (1935) 2 WACA 336, 337, may reach out to strengthen his case by the defendants/appellants’ error that can be drawn upon as permitted by the complementary principle in Akinola v. Oluwo (1962) 1 SCNLR 352; (1962) 1 All NLR 224, 227.

 

Let me pause here to note one point that is germane to this issue. In reviewing evidence on the conflict in the defendants’ pleadings the learned trial Judge appropriated the statement of defence of the original 1st defendant as part of the court processes in the action which he held was open to him to draw upon in resolving the conflict. That resort is wrong as I have shown in this judgment. But erroneous as it was in principle to do so making use of that document could not have affected adversely the conclusion reached by the learned trial Judge having regard to the opinion of this court on the conflict in the pleadings reached after excluding the pleading of the original 1st defendant, i.e. the document wrongly considered.

 

It is not every error in a judgment that will vitiate the judgment. To be adverse the error must be substantial as likely to occasion a miscarriage of justice which, more often than not, arises where the error goes into the root of the case: see Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267; (1991) 5 SCNJ 110, 123; Onwuka v. Omogui (1992) 3 NWLR (Pt. 230) 393; (1992) 3 SCNJ 98, 117; and Ajuwon v. Akanni (1993) 9 NWLR (Pt. 316) 182; (1993) 12 SCNJ 32, 52 and 54. In the present state of the law it seems to me that where on a review of a decision in which the trial court made use of a wrong document or a piece of evidence and after excluding the document or the piece of evidence the appellate court came to the same conclusion as the trial court the wrong use of the document or evidence can be excused as innocuous with no adverse effect on the decision of the trial court. On that score, the wrong use of the original 1st defendant’s statement of defence by the trial court is not prejudicial to the appellants in the face of other evidence that supported the conclusion reached by the learned trial Judge. Therefore, the error is harmless and excusable.

 

In the final analysis, the agitation in all the ramifications of issue two cannot be sustained. It fails on the facile argument of wrong evaluation of evidence as the keystone of that issue. The contention about evidence of acts of ownership in recent times with particular reference to ‘Ogwugwu shrine’ is misplaced while agitation about pleadings mirrors the genesis of the derailment of the appellants’ case. The collapse of the argument of the learned counsel on all the facets of issue two leads, inexorably, to the conclusion that the issue must be resolved against the appellants and it is so resolved.

 

That should be the end of the deliberations over this appeal but for a particular feature of it that calls for observation on a material point of law that may become the bane of appellate practice if it is left unchecked. This appeal has been moderately brief going by the issues identified for determination. But it has been made particularly tortuous and irksome because of a host of issues that got lumbered with the identified issues portraying lack of appreciation about correlation between issues and grounds of appeal as their fountain-head. I have disposed of a few of such irrelevant matters at the outset of examination of issue two. But I find particularly intriguing one special issue that stands out in bold relief because of the amount of learning dissipated on the issue that is way off the mark.

 

On page 10 of the respondent’s brief of argument learned counsel for the respondent raised the question of burden of proof where a section of the family claims exclusive ownership of family land which he argued at length and to which learned counsel for the appellant matched stride for stride from page 4 of the appellants’ reply brief. Juicy and refreshing as the points of law canvassed by the learned counsel are and instructive as an exercise that open up new vistas through which to peep at the dimension of burden of proof in communal ownership of land on a new peripheral gradient, regrettably, the point canvassed so eloquently by the learned counsel overshot the limits of the matters in dispute raised in this appeal as that point did not arise from the issues formulated or from the complaints in any of the 7 viable grounds of appeal from which those issues are formulated.

 

To assure myself that the issue of burden of proof canvassed with gusto in the parties’ briefs of argument does not arise from the complaints in any of the grounds of appeal I run a sketchy outline of the 8 grounds of appeal without their particulars as follows: ground 1, that the traditional history of the appellants was first considered by the court. Ground 2, that the trial court came to a wrong conclusion about the defendants who filed 3 separate statements of defence giving conflicting traditional history of the land in dispute. Ground 3, that wrong conclusion was reached that exhibit ‘P7’, a document headed ‘terms of re-union of members of Zoli family of Iyiawu village Onitsha,’ is not a statement within the contemplation of sub-section 91(3) of the Evidence Act. Ground 4, that wrong conclusion was drawn about who set up Ogwugwu shrine and its location relative to the land in dispute. Ground 5, that wrong conclusion was drawn about exhibits ‘D20’ and ‘D21’, copies of judgments of Native Courts in 1924 and 1926, that they are not evidence of acts of ownership exercised by the defendants. Ground 7, that the trial court came to a wrong conclusion when it held that a receipt, exhibit ‘P1’, exhibit ‘P7’, supra, and evidence of 3PW, 4PW and 5PW ‘constitute evidence of recent events in support of the plaintiff/respondent’s traditional history over the land in dispute.’ Ground 8, an Omnibus ground. Ground 6 from which no issue was formulated and which was deemed abandoned and struck out challenged the finding of the trial court rejecting as evidence of act of ownership by the defendants the granting of tenancy to one ‘Moemena.’

 

I am unable to find an appropriate slot for any contention about burden of proof in any of the complaints in the first 7 valid grounds of appeal nor can the point be accommodated by the incompetent ground 6 from which no issue was formulated. As I noted on page 14 of this judgment a complaint about specific issue or finding cannot be canvassed under omnibus ground of appeal which scope is confined to complaint against the totality of evidence adduced before the court. Burden of proof in a dispute over communal ownership of family land where a section of the family or a member is claiming exclusive ownership of the land is a specific issue which must be raised by a substantive ground of appeal as illustrated by the decisions in which such issue was canvassed for which see Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141, 158; Nwololo v. Ukegbu (1997) 4 NWLR (Pt. 500) 436, 448; and Omin v. Etim (2003) 6 NWLR (Pt. 817) 587, and Ogunlade v. Adeleye (1992) 8 NWLR (Pt. 260) 409.

 

Learned counsel for the respondent having taken up the issue of burden of proof out of the blue with no link with any complaint from any of the grounds of appeal from which issue must be formulated he has projected the issue from the air and seized the liberty to argue it ad libitum but with no legal impact. This is a shortcoming which underscores the relationship between grounds of appeal and issues as inseparable, a reminder of which was echoed by the apex court in Fabiyi v. Adeniyi (2000) 6 NWLR (Pt. 662) 532, where the court, per Kalgo JSC at page 546, recapitulated the principle thus:

 

“It is now well settled that all issues for determination formulated in any appeal must be related to the grounds of appeal and the judgment or decision appealed against. See Western Steel Works v. Iron AND Steel Workers Union (1987) 1 NWLR (Pt. 49) 284 at 304; Onyesoh v. Nnebedum (1992) 3 NWLR (Pt. 229) 315; Olowosogo v. Adebanjo (1988) 4 NWLR (Pt. 88) 275. The issues should not be wider than the grounds encompass: see Egbe v. Alhaji AND Ors. (1990) 1 NWLR (Pt. 128) 546.”

 

On an overview of this appeal taking particular note of identification of issue in which learned counsel for the respondent is a step ahead the besetting sin of that counsel appears to be the zest to over kill for having dealt mortal blows to the appellants’ case in the vulnerable parts of the appeal within the confine of the area of the judgment being challenged there is practically no need for him to carry the battle to the safe flanks of the judgment where the reach of ‘the riotous grounds of appeal’ cannot be extended. The saying that discretion is the better part of valour applies with stronger force to forensic appellate strategy as it is complementary to the legal principle that if the finding or decision of the trial court is not challenged on appeal such a finding or decision, rightly or wrongly, must not be disturbed by the appellate court: see Oshodi v. Eyifunmi (2000) 11 WRN 86; (2000) 13 NWLR (Pt. 684) 298, 352; Assam v. Okposin (2000) 10 NWLR (Pt. 676) 675; and UBN Plc v. Ayodare AND Sons (Nig.) Ltd. (2000) 9 WRN 101; (2000) 11 NWLR (Pt. 679) 644, 656.

 

The rationale for that principle was captured by the witticism of Eso, JSC that an appellate court ‘is not a knight errant looking for skirmishes all about the place:’ see Ebba v. Ogbodo (2003) 41 WRN 70; (1984) 15 NSCC 255, 265; and Iyaji v. Eyigebe (1987) 3 NWLR (Pt. 61) 523. That will be enough to caution against unduly widening the area of conflict by counsel beyond the parameters of what is defined by the grounds of appeal with an oblique warning against proliferation of grounds of appeal, a practice that has been decried in a number of decisions for which see Engineering Enterprises of Niger Contractor Co. of Nigeria v. A-G., Kaduna State (1987) 2 NWLR (Pt. 57) 381, 413 – 414; Onuoha v. State (1988) 3 NWLR (Pt. 83) 460, 470; Ekpenyong v. Etim (1990) 3 NWLR (Pt. 140) 594, 601; Universal Vulcanizing Nigeria Ltd. v. Ijesha United Trading AND Transport Co. Ltd. (1992) 9 NWLR (Pt. 266) 388, 397, Anie v. Uzorka (1993) 8 NWLR (Pt. 309) 1, 16; and Guda v. Kitta (1999) 12 NWLR (Pt. 629) 21, 39 and 58. Besides, the tendency may be counter-productive where, as in this case, prolix grounds of appeal are designed as a ploy calculated to reach out to many issues but in the contrivance of which an escape route was opened, albeit unwittingly, for some sensitive parts of the judgment to escape appellate scrutiny, a situation where no one will be any the wiser.

 

Be that as it may, let me recapitulate by way of summary that with the whittling down of the fripperies of doctrinaire nature that provided a façade to disguise the real issues in controversy wind was taken out of the sails of the argument of learned counsel for the appellants which crumbled disastrously and with it the two issues that tumbled one after the other to herald the collapse of the appeal. The principle in Kojo II v. Bonsie supra, which dominated the appellants’ network of argument is a misconception that left the appeal in tatters once it was found that the rule is inapplicable on the facts of the case under review. The excessive reliance on that rule by learned counsel for the appellants is a sorry strategy of putting all the appellants’ eggs in one basket that left the learned counsel with no room to manouvre when the crash came.

 

At the trial court the collapse of the appellants’ case was caused by poor pleadings which became the jinx and a catalyst that activated other agents and which combined to destroy the case that was not well knitted on primary facts. The splitting of pleadings threw the appellants into confusion such that they could not speak with one voice. The appellants claimed to be representing the same interest yet their stand in relation to the history of the land in dispute is discordant and incoherent. Claiming that the land in dispute was a grant to Ogbolu, the founder of Ogbolu sub-family of Zoli, by a named land-owner is different from asserting that the same piece of land was the property of Ogbolu sub-family ‘from time immemorial’ given the meaning of that phrase in Okonkwo v. Okolo (1988) 2 NWLR (Pt. 79) 632, 657. The posture is one of double-talk in which the appellants hedged in their best by not coming down on one side of the fence or the other thus avoiding taking a decisive stand on an issue which is the fulcrum of their defence. Indeed, splitting of pleadings left a crack in the appellants’ defence that could not be corrected to accommodate the principle in Kojo II v. Bonsie supra, by which the appellants set great store once the learned trial Judge found the respondent’s traditional history proved, a finding which was not challenged by any of the complaints in the assemblage of grounds of appeal as the limits of the source of the issues that were open to the appellants to canvass in this appeal.

 

Backed into a corner the appellants were left to attack evaluation of evidence by the learned trial Judge an effort that ended up in a total fiasco for the appellants. The fall-out of agitation on evaluation of evidence is the application of the rule in Kojo II v. Bonsie supra, when it was not necessary for the learned trial Judge to do so. In a way, the lapse may diminish the aesthetics of the judgment which has to do with its beauty but it does not detract from the substance of the judgment in as much as the error does not affect the merit of the case that had been gotten over and done with when the trial court accepted the respondent’s traditional history as proved. The appellants’ grouse that the rule was not properly applied becomes a non-issue with the conclusion by this court that the rule is inapplicable to the case.

 

Against this background, I am satisfied that the appellants could not have been prejudiced and are infact not prejudiced by the inappropriate application in excess of caution of a rule that is not applicable to their case. I am further satisfied that the learned trial Judge arrived at a just decision on the evidence before him. On this point, I find particularly apposite the golden rule regulating an appellate review that what an appellate court has to decide is whether the decision of the trial court was right and not whether its reasons were as long as no miscarriage of justice is occasioned by the error which, as I noted earlier, is the satisfaction by this court that any error in the decision did not get to the root of the case: see Ukejianya v. Uchendu (1950) 13 WACA 45, 46; Ayeni v. Sowemimo (1982) 5 S.C 60, 73; Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339; (1998) 6 SCNJ 102, 113; and Ejezie v. Anuwu (2002) 25 WRN 168, 197.

 

The appellants would not seem to be alive to their responsibility as the representatives of their family in defence of their right calling for utmost candour and consistency in keeping with their position as dominus litis who should speak with one voice and act together along the defined role of the mission of such representatives as portrayed in Thanni v. Adegboyega (1971) NMLR 369; (1971) 7 NSCC 42, 49; and Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587; (1987) 18 NSCC (Pt. II) 677, 692. The scenario depicted by the decision of this court in Ejezie v. Anuwu supra, epitomizes an aberration from that duty and provides a parallel with the present appeal. The appellants’ abject failure to come up from the outset with a consistent account of how Ogbolu sub-family as a section of the wider Zoli family acquired the land in dispute is the genesis of their failure to meet the claim of their kindred, the respondent, that the land in dispute is the joint property of Zoli family of Iyiawu village Onitsha of which the Ogbolu sub-family is an integral part. The error is irreversible once the trial court believed the evidence of the respondent. The festoon of adornment put on the legal argument and the twist of the applicable law to reshape the focus of the contest cannot cure on appeal the appellants’ error which strikes at the root of the dispute nor can the post-trial tinkering with methodology of established principles be prayed in aid to reverse a case that had been lost on primary facts at the trial court.

 

In the last analysis, I am satisfied that notwithstanding the lapse by the learned trial Judge for applying the rule in Kojo II v. Bonsie supra, which is inapplicable on the strength of his finding on the parties’ traditional history he came to the correct decision as on the abysmal failure of the appellants to give a coherent account of how the ancestor of Ogbolu sub-family acquired the land in dispute as a reply to the respondent’s account of the title of Zoli family to the land which he believed the respondent is entitled to judgment as the learned trial Judge held. Therefore, the appeal fails as lacking in merit. I affirm the decision of Okoli, J., of the Anambra State High Court delivered on 18/2/2000 and I dismiss the appeal. I award N5,000 costs against the appellants jointly an severally.

 

Appeal dismissed.

 

MAHMUD MOHAMMED, JCA: The judgment of my learned brother Olagunju JCA which he has just delivered was read by me before now. I am in complete agreement with his reasoning and conclusion in dismissing this appeal which is devoid of any merit. I also abide by the order on costs made in the leading judgment.

 

JOHN AFOLABI FABIYI, JCA: I had the advantage of reading before now the judgment just delivered by my learned brother, Olagunju, JCA. I completely agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.

 

The central issue which the learned trial Judge had to determine was whether the land in dispute is communal property of Zoli family or private and exclusive property of Ogbolu sub-family branch of Zoli family of Iyiawu. It is not a moot point that communal ownership of land is an incident of customary land tenure in most communities in Nigeria. Parties’ community herein, in this respect, stands out clearly in the crowd. The pronouncement made in Amodu Tijani v. Secretary Southern Provinces (1921) 2 A.C 399 at 404 continues to rule the waves.

 

The appellants who claim that their Ogbolu sub-family exclusively own the communal land of Zoli family had the onus and an up-hill task to start and prove same. Refer to Udeaku Eze v. Samuel Igiliege AND 5 ors. (1952) 14 WACA 61 at page 63, Samuel Adenle v. Michael Oyegbade (1967) NMLR 136 at page 138. Same was pronounced with force by Ibekwe, JSC in Atuanya v. Onyejekwe AND Anor. (1975) 3 S.C 161 at 167 – 168.

 

The learned trial Judge carefully appraised the evidence adduced before him. He found the traditional history given by the descendants/appellants concerning their exclusive ownership of Eke-Obamkpa land as hazy and inchoate and that they appear to know very little about Omor and how they came to Onitsha as well as how they obtained land where they lived. He rejected same. The learned trial Judge accepted the traditional history given by the respondents as being clear, direct and unequivocal. Since the respondents’ traditional history was accepted, they succeeded in establishing one of the five ways of proving title to land as set out in Idundun v. Okumagba (2002) 20 WRN 127; (1976) 9 – 10 S.C 277; closely followed by Piaro v. Tenalo (1976) 12 S.C 31.

 

The learned trial Judge carefully considered the evidence adduced before him. It is the probative value of evidence that matters. He properly weighed the evidence on both sides on the imaginary scale before finding in favour of the respondents. I am unable to fault him. Refer to Mogaji v. Odofin (1978) 4 S.C 91 at 94. The scathing remarks by the appellants as to the style adopted by the learned trial Judge in his appraisal of evidence did not attract my fancy. Each Judge should be left with his own style. See Balogun v. Amubikahun (1985) 3 NWLR (Pt. 11) 27 at page 37. All that matters is that evidence must be properly appraised and due ascription of probative value given to same.

 

Since the learned trial Judge found that the respondents directly proved their ownership of the land in dispute via accepted traditional history, to my mind, the application of the rule in Kojo II v.Bonsi was unnecessary. I take it that such was done by the learned trial Judge to make assurance doubly sure or out of abundant caution.

 

I have nothing more to add. All the issues canvassed in this appeal have been ably considered in the lead judgment. The appeal is devoid of merit. It is accordingly dismissed. I abide by all consequential orders including that relating to costs in the lead judgment.

 

Cases referred to in the judgment

Abinabina v. Enyimadu (1953) 12 WACA 171.

Abraham v. Olorunfunmi (1991) 1 NWLR (Pt. 165) 53.

Adekunle v. Adeleye (1998) 12 NWLR (Pt. 579) 613.

Adeleke v. Akanji (1994) 4 NWLR (Pt. 341) 715.

Adenle v. Oyegbade (1967) NMLR 136.

Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; (1988) 6 SCNJ 18.

Agbaisi v. Ebikorefe (1997) 4 NWLR (Pt. 502) 630.

Agu v. Nnadi (2003) 8 WRN 77; (2002) 18 NWLR (Pt. 798) 103.

Ajagungbade III v. Laniyi (1999) 13 NWLR (Pt. 633) 92.

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

Ajuwon v. Akanni (1993) 9 NWLR (Pt. 316) 182; (1993) 12 SCNJ 32.

Akinola v. Oluwo (1962) 1 SCNLR 352; (1962) 1 All NLR 224.

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

Amokomowo v. Andu (1985) 1 NWLR (Pt. 3) 530.

Anero v. Eze (1995) 1 NWLR (Pt. 370) 129.

Anie v. Uzorka (1993) 8 NWLR (Pt. 309) 1.

Assam v. Okposin (2000) 10 NWLR (Pt. 676) 679.

Atuanya v. Onyejekwe (1975) 3 S.C 161.

Ayeni v. Sowemimo (1982) 5 S.C 60.

605. P. (West African) Ltd. v. Allen (1962) WNLR 336; (1962) 1 All NLR 605.

Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301.

Balogun v. Amubikahun (1985) 3 NWLR (Pt. 11) 27.

Balogun v. Labiran (1988) 3 NWLR (Pt. 80) 66.

Bamgbose v. Oshoko (1988) 2 NWLR (Pt. 78) 509.

Bello v. Eweka (1981) 1 S.C 101.

Bendel Feed AND Flour Mill Ltd. v. Nig. Intercontinental Merchant Bank Ltd. (2000) 5 NWLR (Pt. 655) 29.

Chukwueke v. Nwankwo (1985) 16 NSCC (Pt. 2) 856; (1985) 2 NWLR (Pt. 6) 195.

Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24.

Ebba v. Ogodo (2003) 41 WRN 70; (1984) 15 NSCC 255.

Edokpolo AND Co. v. Asemota (1994) 7 NWLR (Pt. 358) 314.

Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546.

Ejezie v. Anuwu (2002) 25 WRN 168.

Ekpenyong v. Etim (1990) 3 NWLR (Pt. 140) 594.

Engineering Enterprises v. A-G., Kaduna State (1987) 2 NWLR (Pt. 57) 381.

Esiaba v. Ojiegbe (1999) 10 NWLR (Pt. 623) 463.

Eze v. Igiliegbe (1952) 14 WACA 61.

Fabiyi v. Adeniyi (2000) 6 NWLR (Pt. 662) 532.

Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263.

F.B.N Plc. v. May Medical Clinics AND Diagnostic Centre Ltd. (2000) 7 NWLR (Pt. 663) 53.

Guda v. Kitta (1999) 12 NWLR (Pt. 629) 21.

Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563.

Idundun v. Okumagba (2002) 20 WRN 127; (1976) 9 – 10 S.C 227; (1976) 1 NMLR 200.

Ikpang v. Edoho (1978) 6 – 7 S.C 221.

Iriri v. Erhurhobara (1991) 2 NWLR (Pt. 173) 252.

Iyaji v. Eyigebe (1987) 3 NWLR (Pt. 61) 523.

Jekpe v. Alokwe (2001) 19 WRN 105; (2001) 8 NWLR (Pt. 715) 252.

Kodilinye v. Odu (2003) 36 WRN 175; (1935) 2 WACA 336.

Kojo II v. Bonsie (2003) 34 WRN 162; (1957) 1 WLR 1223.

Korobotei v. Odubo (1999) 9 NWLR (Pt. 620) 655.

Lawal v. Dawodu (1972) 1 All NLR (Pt. 2) 270.

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

Mogaji v. Odofin (1978) 4 S.C 91.

Mortune v. Balonwu (2000) 5 NWLR (Pt. 655) 50.

Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90; (1988) 19 NSCC (Pt. III) 252.

Newswatch Comm. Ltd. v. Atta (2000) 2 NWLR (Pt. 646) 592.

Nnajifor v. Ukonu (No. 1) (1985) 2 NWLR (Pt. 9) 686; (1985) All NLR 334.

Nwabuoku v. Onwordi (2002) 3 NWLR (Pt. 755) 558.

Nwankwo v. Federal Republic of Nigeria (2003) 4 NWLR (Pt. 809) 1.

Nwanosike v. Udosen (1993) 4 NWLR (Pt. 290) 684.

Nwololo v. Ukegbu (1997) 4 NWLR (Pt. 500) 436.

Obawole v. Williams (1996) 10 NWLR (Pt. 477) 146.

Odofin v. Ayoola (1984) 11 S.C 72.

Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339; (1998) 6 SCNJ 102.

Ogbonna v. A-G., Imo State (1992) 1 NWLR (Pt. 220) 647; (1992) 2 SCNJ (Pt. 1) 26.

Ogunlade v. Adeleye (1992) 8 NWLR (Pt. 260) 409.

Ogunleye v. Oyewole (2000) 14 NWLR (Pt. 687) 290.

Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1.

Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267; (1991) 5 SCNJ 110.

Okolo v. U.B.N Ltd. (1998) 2 NWLR (Pt. 539) 618.

Okonkwo v. Okolo (1988) 2 NWLR (Pt. 79) 632.

Okoye v. Nig. Construction AND Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501.

Okulate v. Awosanya (2000) 1 WRN 65; (2000) 2 NWLR (Pt. 646) 530.

Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275.

Omagbemi v. Guinness (Nig.) Ltd. (1995) 2 NWLR (Pt. 377) 258.

Omin v. Etim (2003) 6 NWLR (Pt. 817) 587.

Omobruchere v. Esegine (1986) 2 S.C 385.

Omoregie v. Enogie of Enbuoha (1976) 12 S.C 11.

Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130.

Onuoha v. State (1988) 3 NWLR (Pt. 83) 460.

Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182.

Onwuka v. Omogui (1992) 3 NWLR (Pt. 230) 393; (1992) 3 SCNJ 98.

Onyesoh v. Nnebedum (1992) 3 NWLR (Pt. 229) 315.

Onyido v. Ajemba (1991) 4 NWLR (Pt. 184) 203.

Oshodi v. Eyifunmi (2000) 11 WRN 86; (2000) 13 NWLR (Pt. 684) 298.

Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587; (1987) 18 NSCC (Pt. II) 677.

Piaro v. Tenalo (1976) 12 S.C 31.

Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1.

Registered Trustees of Diocese of Aba v. Nkume (2002) 8 WRN 73; (2002) 1 NWLR (Pt. 749) 726.

Sanusi v. Adebiyi (1997) 11 NWLR (Pt. 530) 565.

Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527.

Thanni v. Adegboyega (1971) NMLR 369; (1971) 7 NSCC 42.

Tijani v. Secretary Southern Provinces (1921) 2 A.C 399.

Tukur v. Govt., Taraba State (1997) 6 NWLR (Pt. 510) 549.

UBN Plc v. Ayodare AND Sons (Nig.) Ltd. (2000) 9 WRN 101; (2000) 11 NWLR (Pt. 679) 644.

Uchendu v. Ogboni (1999) 5 NWLR (Pt. 603) 337.

Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141.

Ugo v. Okafor (1996) 3 NWLR (Pt. 438) 542.

Ukejianya v. Uchendu (1950) 13 WACA 45.

Universal Vulcanizing Nigeria Ltd. v. Ijesha United Trading AND Transport Co. Ltd. (1992) 9 NWLR (Pt. 266) 388.

W.A.P.I.N v. Nigerian Tobacco Co. (1987) 2 NWLR (Pt. 56) 299.

Western Steel Works v. Iron AND Steel Workers Union (No. 2) (1987) 1 NWLR (Pt. 49) 284.

Woluchem v. Gudi (1981) 5 S.C 291.

Statutes referred to in the judgment

Court of Appeal Act s. 25.

Evidence Act Cap. 112 Laws of Federation of Nigeria 1990 s. 91(3).

Rules of court referred to in the judgment

Anambra State High Court (Civil Procedure) Rules 1988 Or. 13 rr. 1 AND 2, Or. 24 r. 17(5) AND (6).

Court of Appeal Rules 1981 Or. 3 r. 2, AND Or. 6 r. 5.