(2017) LPELR-43756(CA)

Transcription

1 AKINWEHINMI v. AJAYI CITATION: In the Court of Appeal In the Akure Judicial Division Holden at Akure ON FRIDAY, 24TH MARCH, 2017 Suit No: CA/AK/5/14 Before Their Lordships: UZO IFEYINWA NDUKWE-ANYANWU MOHAMMED AMBI-USI DANJUMA RIDWAN MAIWADA ABDULLAHI Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal CHIEF BENJAMIN AKINWEHINMI (substituted by order of Court for himself and on behalf Orisadiyelomo family of Ore/Odigbo) MRS. EUNICE TITILAYO AJAYI RATIO DECIDENDI And - Respondent(s) - Appellant(s)

2 1. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proof in civil cases "In a civil matter, the onus of proof is on the Plaintiff/Claimant. See Section 136 of the Evidence Act, See also Sijuade V. Oyewole (2012) 11 NWLR (Pt. 1310); Bello V. Sunday 2012 (pt. 128) 225 Pg The Appellant's burden is fixed by law and the Defendant has no obligation or burden to prove anything before the Plaintiff establishes a prima facie case on the preponderance of evidence." Per DANJUMA, J.C.A. (P. 15, Paras. A-C) - read in context

3 2. EVIDENCE - ORAL/DOCUMENTARY EVIDENCE: Whether oral evidence can be allowed to discredit or contradict a documentary evidence "It is the law that in the interpretation of a document, oral or parol evidence will not be admissible among other things to contradict or alter it where the document is clear and umbiguous. See Bunge V. Governor of Rivers State (2006) 141 LRCN 2227; See also Section 128(1) of the Evidence Act, 2011."Per DANJUMA, J.C.A. (P. 17, Paras. A-B) - read in context

4 3. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: What is the extent of onus of proof where there is no counter-claim against the main claim in respect of title to land "A perusal of the record of Appeal and the entirety of the arguments proffered by the Appellant brings out the contention that the Appellant is pricked by the Judgment of the trial Court essentially because a burden appears to be cast on him - the Appellant, as Plaintiff to prove his claim as made at the trial Court. Of course, that is what the law expected him to do. It is settled in law that in a claim for a declaration of title to land, where the Defendant does not file a counter claim, the burden is heavier on the Claimant to prove his title in dispute. See Nruamah V. Ebuzoeme; Adekanmbi v. Jangbon (2007) All FWLR (pt. 383) 180; Elias V. Disu (1962) 1 SCNLR 361; (1961) All NLR (Pt. 1) 210."Per DANJUMA, J.C.A. (Pp , Paras. F-C) - read in context

5 4. LAND LAW - DECLARATION OF TITLE TO LAND: Circumstance where declaration of title to land would not be made in favour of the plaintiff "If by the ipsi dixit of the Plaintiff, he was instigated to file the suit, the subject of this appeal would it not be right for the trial Court to hold that the case had no basis and the action bound to be dismissed? In this respect, I call in aid the view of the Supreme Court Nwokidu V. Okanu (2010) I SCNJ 199 thus: "Where in a claim for declaration of title, the evidence is unsatisfactory, the judgment should be in favour of the Defendant on the Plaintiff who seeks relief but has failed to prove that he is entitled to what he claims. If the Defendant is able to adduce evidence oral or documentary which has the effect of discrediting the Plaintiff's case, such a declaration would be refused and Judgment must be for the Defendant. See Ekun & 3 Ors v. Baruwa & Ors (1996) 24 NLR 211; Ogundairo v. Okanlawon & Ors (1963) 1 ALL NLR 361."Per DANJUMA, J.C.A. (Pp , Paras. F-E) - read in context

6 5. LAND LAW - POSSESSION OF LAND: Whether a party seeking to dispossess the other must prove a better title "The Plaintiff had not proved a better title than the Defendant in the land in dispute to enable him oust the Defendant/Respondent who was in possession. The law is stated above. See Ekpa V. Utong (1991) 6 NWLR (Pt. 197) 258."Per DANJUMA, J.C.A. (P. 17, Paras. E-F) - read in context

7 MOHAMMED AMBI-USI DANJUMA, J.C.A.(Delivering the Leading Judgment): This is an appeal by the Plaintiff/Appellant against the judgment of Honourable Justice O. O. Akeredolu of the Ondo State High Court, Ore Judicial Division delivered on the 7th day of August, 2013 dismissing the reliefs claimed by the appellant. Dissatisfied, the Appellant filed a notice of appeal on the 10th October, 2013 STATEMENT OF FACTS The appellant is the head of family called Orisadiyelomo. The family had land located at a place called Ore Araba, Odigbo Local government. On part of the family land one Mr. Timothy Adeoye occupied it as a tenant. The land occupied by Mr. Timothy Adeoye was sold to defendant as claimed by the appellant. The position of the appellant was that as head of family he never consented or participated in the sale of the land in dispute to the defendant. The appellant agreed that he and other principal members of the family were sued by Timothy Adeoye in 2013 when he noticed that some family members sold the land in dispute and were about putting the defendant in possession. On being served Court

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9 processes in 2003, the appellant entered into terms of settlement without making any move to have it set aside until The defendant on the other hand maintained that the sale of the disputed land was with the consent and active participation of the Appellant. The event and circumstances showing the participation of the Appellant as head of family and principal members was lucidly stated. The Appellant on his part formulated a lone issue to wit: "Whether from the state of pleadings and evidence before the trial Court, the Appellant has proved on the balance of probabilities that he did not participate in the sale of the land to the Defendant. On his part, the Respondent formulated a sole issue to wit: Whether the trial Court rightly dismissed the reliefs claimed by the Appellant. From the Appellant's grounds of appeal and the records of appeal, it is obvious that the issue formulated by the Respondent more aptly covers the grounds of Appeal and addresses the real grievance of the Appellant herein. The Appellant by the Appellant s Brief of Argument filed on 21/10/16 which he adopted at the hearing, it was contended

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11 that the trial Court was wrong to have arrived at the conclusion it did that the Appellant had not proved that he did not take part in the sale to the Defendant/Respondent. The Appellant, as Plaintiff had contended that he was the head of the family and whatever sale that was purportedly done to Defendant/Respondent was ineffectual and void as according to him, he was the head of the family and did not partake nor consent to the sale; nor did other principal members of the family consent. Learned Counsel had argued that a sale of family land by member(s) of the family without the consent of the Head of the family or the principal members is void ab initio Onisese v. Oyeleye (2008) ALL FWLR at 446 at 1826, 1829 relied upon. The Learned Counsel had argued that it was common ground between the parties that the Appellant was the head of the family and the land was family property; Refers to the pleadings in paragraph 1, 4, 5 of the Statement of Claim contained on page 3 and paragraphs 2 and 3 of the statement of Defence contained on page 18 of the Record of Appeal. The Learned Counsel referred us to the cases of Udenga V. BCC Plc (2005) All FWLR Pr. 276 at 270 and this 3

12 Court's decision in Onisere V. Oyeleye (2008) All FWLR at to argue that facts admitted need not be proved. Counsel reiterated that the crux of the Appellants evidence is that some members of the family sold the land in dispute to the Defendant without the consent and approval of himself and the two principal members of the family. The Defendant's/Respondent s case was that she bought the land from the family members with the consent of the Plaintiff/Appellant. The Appellant's Learned Counsel had argued that there are two hurdles placed on the Plaintiff to prove his claim or reliefs before the Court, thus: 1. The general burden of proof by virtue of S. 136 (1) of the Evidence Act, 2011 and (2) The burden of proof on the pleadings. Referring to Olateju V. Sanni (2011) All at FWLR (Pt. 590) 1257 at wherein Nweze, JSC stated: "Unlike the general burden---- the burden of proof on the pleadings rest on any (Whether the Plaintiff or the Defendant) who substantially asset affirmative of the issue. This category of burden is fixed at the beginning of the trial by the state of the pleadings: It is settled as a 4

13 question of law remaining unchanged throughout the trial exactly where the pleadings place it." In the case of Oraekwe v. Chukwuka (2012) All FWLR Pt. 612 at 1677 at 1721 par. C - E it was held that the provisions of Section 135 and S. 136, Evidence Act he that asserts must prove. That the burden lies on who will fail if no evidence were led by the other side. That the burden in a civil case swings like the pendulum from one party to the other, depending on the nature of the case and the evidence adduced by the parties. The Appellant's Counsel had argued that the Defendant/Respondent, having testified that sale to her was in the presence of witnesses ought to have called her vendors and others she claimed witnessed the participation of the Appellant therein. That since the Defendant did not call them, the presumption was that if they had been called, their evidence would have been against the Defendant/Respondent. That S. 167 (1) (d) ought have been invoked and that the trial Judge was wrong not to have invoked it but rather held that Plaintiff had not proved that he did not participate in the sale of the land to the Defendant. 5

14 Learned Counsel argued that the settlement entered into with the Defendant was in consonance with peaceful settlement out of Court as enjoined by Order 25 (1)(c) of the High Court Civil Procedure Rules of Ondo State, Civil Procedure, 2012 which allows for adoption of alternative dispute resolution. It was also argued that the Appellant was sued not because the family property had been validly sold to the Defendant/Respondent, but for the acts of some of the principal members, which was not authorised. The Learned Counsel contended that the Evidence of PW2 at the trial prove nothing against him; and so also Exhibit P1 (the settlement) terms entered between the Plaintiff's family and the Defendant/Appellant. It was, therefore submitted that the decision entered at the trial Court was perverse and had occasioned a miscarriage of justice in that (i) the trial took into account matters contrary to the evidence and overlooked what it ought have taken note of George v. Federal Republic of Nigeria (2011) All FWLR (Pt. 587) 664 at 740, par D - F., We have been ultimately urged to resolve this issue in favour of the Appellant, by holding that the 6

15 Defendant/Respondent had not proved his Defence, rather, that Plaintiff/Appellant had proved its case at the trial. That the Judgment be set aside and Plaintiff's claim and relief as contained in paragraph 17 of the statement of claim on pages 4-5 of the record be granted and Appeal allowed. The Reliefs as sought by the Plaintiffs/Appellant being a civil claim clearly puts the burden of proof on the Plaintiff. Her wins or losses on the strength of his case. The Defendant's case may only strengthen but cannot make up the Plaintiff case. It is this reason that the sole issue as framed by the respondent is most apt, as the answer thereto will show whether the Plaintiff/Appellant had proved his case to warrant the judgment for the reliefs that he sought. Addressing this, position of law, the Respondent in her Brief of Argument filed on 27th October, 2016 submitted had that since the plaintiff/appellant had sought declaratory Judgment or reliefs, such were at the discretion of the trial Court; and that had to be exercised liberally, judicially and judiciously. Sosanya v Onadeko (2000) 11 NWLR (Pt. 677) 34 at 55, par. F-H; Dada v. Dosunmu (2006) 18 7

16 NWLR (Pt. 1010) 134 at 160 par. B-C. The Learned Counsel argued that the burden on a Defendant who never counter claimed was merely to defend the action. See Sosanya V. Onadeko (2000) 11 NWLR (Pt. 6777) 34, at 55 par C-D. That the parties had agreed on the fact that the land in dispute belonged to the family of the Appellant. That the only area of disagreement was whether the Appellant s family sold the land in dispute to the Respondent with the head of family participating. That all the Plaintiff/Appellant had to prove at the trial was that he never participated or affirmed with other principal members the sale of the land to the Respondent. Referring to Exhibit P1, it was submitted that Timothy Adeoye had sued the Appellant and his family for destruction of his crops and they settled with him. That he did not find out whom the family had sold the land to but accepted the settlement because his family had so sold. That Exhibit P1 was in That the acceptance of the sale and fact of destruction done all amounted to occurrence. The Learned Counsel for the Respondent while conceding that sale of family property without the consent 8

17 or concurrence of the head of the family is void; to be valid, all that was required was concurrence not necessarily that he must sign the document of sale. See Timothy v. Fabusuyi (2013) NWLR (Pt. 1335) 379 at par. H - A. That the concurrence may be before the sale or after the sale by adoption or affirming of the sale that had been done in this case. That although the Appellant and PW2 had denied knowledge of the destruction of crops by he Defendant/Respondent, the trial Judge did not believe this. See page 100 lines of the record. That this finding is supported by evidence and needs not be disturbed. That if the Appellant were not aware of the sale of the land he would have protested when he claimed he knew of it; yet he went ahead to be part of the settlement deal. That the suit was only instituted 7 years thereafter, thus making the refusal to grant the declaratory relief to nullify the sale of the land, appropriate. That the evidence of PW2 as contained on page 54 lines 1-13 of the record of appeal clearly shows that the Appellant was part of the agreement to sell the land to the Respondent; had consented to the Exhibit 9

18 P1 (settlement with one Timothy Adeoye) PW2 and the 1st Defendant therein the suit No. HOR/21/2003 is the Appellant himself as conceded in paragraph 4; 13 of the Appellant's Brief at page 8 thereof. It was argued that PW2 had given evidence against the Plaintiff, now Appellant and yet the PW2 was not treated as a hostile witness. That the Appellant never explained why he and other principal members of the family were sued. The Appellant and his family members which included principal members were sued for selling the family land being cultivated by a tenant and to the Respondent herein. They admitted this fact and entered into a settlement to appease or compensate the aggrieved tenant. That the Appellant did not discharge the burden on him to prove that he did not participate in the sale; that the Defendant who never counter claimed and rightly so, only defended the suit. That the Defendant was not under any obligation to call witnesses to prove the sale to her, as Plaintiff had not proved its case, after all. The Learned Counsel maintained that a declaratory relief cannot be made when the land had been sold. Reference was made to Lakanmi V. 10

19 Yekini (2004) All FWLR Pt. 236, 349 at 352 ratio 3. It was therefore contended that a judicial discretion exercised bonafide, by a trial Court, un-influenced by irrelevant consideration and which is not arbitrary or illegal will not be interfered with by an Appellate Court; that interference will only be made where the discretion is shown to be wrongful. Sosanya V. Onadeko (supra) on the whole, the Learned Counsel urged that the exercise of discretion at the trial Court was judicially and judiciously exercised such that the refusal to grant the reliefs 17 (a) and (b) sought by the Appellant/Plaintiff was right. It was also contended that in law, possession resides on the person with better title and in this case, the Defendant/Respondent, now. That damages for trespass was rightly refused as possession resided with the person with a better title as shown to be in the Defendant/Respondent. Akinterinwa v. Oladunjoye (2000) FWLR Pt. (101) 690 at 1700 and Ibebu V. Okoro (2001) FWLR Pt at 1366 was relied upon. That trespass to land constitutes the slightest disturbance to the possession of the land by a person who cannot show a

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21 better right to possession Ogbeide v. Osifo (2007) 3 NWLR (Pt 1022) 423 at 44 par H. Having failed to establish better title or possession, the claim for damages for trespass was also rightly dismissed, and so also the injunctive order sought in prayer 17 (d) of the statement of claim. The findings of fact relating to why the agreement was not tendered and why the Appellant did not sign was not appealed against. On the whole, the Respondent urged that the sole issue be resolved in favour of the Respondent and against the Appellant on the ground thus: 1. The Appellant never discharged the onus of proof placed on him, thus justifying the dismissal of the reliefs claimed. 2. The burden of proving the sale of the land in dispute never shifted to the Defendant as there exists complete failure on the part of the Appellant to discharge the onus of proof placed on him. 3. The trial Court rightly refused to invoke the provisions of Section 167 (d) of the Evidence Act and the appeal be dismissed. In reply to the Respondent s Brief of Argument, the Appellant adopted his Amended Reply to the said Brief of Argument filed on 12

22 21/10/16 and urged that Grounds of Appeal need only to relate to the decision of the Court and in the circumstance, that particulars 'E' of Ground 1 in the Notice of Appeal shows a complaint against the findings of the Court against the non-tender of the sale agreement with the Respondent. That constituted a challenge to the findings of fact. Bayero v. Mainasara & Sons Ltd (2007) All FWLR 1285 at 1308 par G-H. Learned Counsel urged that there was no hard and fast Rule as to how a ground appeal should be couched; as what was required is for the form and terms to be clear and unambiguous as the principal object of a Ground of Appeal is to give reasonable and adequate notice of what such complaint is to the Respondent so as to enable him to know what to prepare for and to be met at the appeal. That this aspect of the objection should be ignored, and on the authority of the case of Abah v. Owei (2015) ALL FWLR (Pt. 780) 1343 at I have perused the record of appeal and the Briefs of Argument as filed and argued in this appeal and think that the Respondent's lone issue captures the essence of the appeal better and encapsulates, the fears 13

23 of the Appellants appropriately. The Respondent had raised, what apparently is, an objection to the argument covering the finding of the trial Court that the sale agreement was not tendered. That no appeal was raised against same. I think, this seeming objection was wrongly raised as no notice thereof had been given to the Appellant nor was it raised separately before the address thereon. Nonetheless, this seemingly incompetently raised objection has not prejudiced the Appellant as the said Appellant was able to respond to same in his Reply Brief. In any case, I agree with the Appellant that Ground 1 (one) particular E had covered the finding been alluded to. What is more, the Appellant was, in no way, prejudiced by that finding of fact nor was any miscarriage of Justice occasioned thereby. This appeal on the sole issue oscillates within a narrow compass. That is to say: whether the Plaintiff/Appellant had proved his case at the trial Court to warrant the grant of the reliefs sought at the trial Court. The claim of the Appellant as Plaintiff at the trial Court, in essence was that there was a sale of family land to the 14

24 Defendant/Respondent without the consent of the Appellant/Plaintiff as the head of family and that of other principal members of the family of Orisadiye. Ore/Idigbo. In a civil matter, the onus of proof is on the Plaintiff/Claimant. See Section 136 of the Evidence Act, See also Sijuade V. Oyewole (2012) 11 NWLR (Pt. 1310); Bello V. Sunday 2012 (pt. 128) 225 Pg The Appellant's burden is fixed by law and the Defendant has no obligation or burden to prove anything before the Plaintiff establishes a prima facie case on the preponderance of evidence. Throughout the gamut of the evidence led, I find nothing in the evidence of the Plaintiff, now Appellant showing any title in him that had been interfered with by the present Respondent. On the contrary, the Appellant as Plaintiff had testified of a disposal subject matter of the litigation by a sale by members of his family in He tendered Exhibit P1 evidencing the settlement out of Court occasioned by the said sale and as the consequential act following the suit against the family by their aggrieved tenant. Having shown a sale, as alleged, needed the Respondent tendered any 15

25 further evidence of sale as sought by the Appellant? I think not. The trial Court was right in so holding that in the circumstance there was no such burden. It remained for the Appellant to so prove otherwise by making an inconsistent claim. The parties are ad idem by their pleadings that the Defendant/Respondent herein was in possession of the land in dispute at the time of the suit. See paragraph 8 of the statement of Defence and paragraphs 8 and 9 of the statement of claim. That the Plaintiff/Appellant along with some members of the Orisadiyelomo family had sold the land in dispute to the Defendant/Respondent and this is clear from the paragraph 12 of the Statement of Claim as contained on page 4 of the Record of Appeal. The paragraph 12 avers that a general meeting of the family members was called as a result of the suit of Timothy Adeoye and it was resolved that the Vendors should refund the purchase price they received from the defendant. This document of sale wherein the Plaintiff/Appellant's privies are expressed as Vendors of common family property in dispute is testified to by the Appellant herein as submitted by his Learned 16

26 Counsel. It is the law that in the interpretation of a document, oral or parol evidence will not be admissible among other things to contradict or alter it where the document is clear and umbiguous. See Bunge V. Governor of Rivers State (2006) 141 LRCN 2227; See also Section 128(1) of the Evidence Act, What is more, the learned trial Judge had made a Solemn finding of fact that the land claimed to have been inherited by Timothy Adeoye, who was said to have inherited from Gabriel Adeoye (his father) an Ishakole paying tenant) were district lands. There has been no appeal against this finding of fact as made on page 99 of the record of Appeal. Indeed the inferences drawn by the trial Judge that the same piece of land that was litigated upon had been sold to the Defendant/Appellant and cannot be disputed is unassailable. The Plaintiff had not proved a better title than the Defendant in the land in dispute to enable him oust the Defendant/Respondent who was in possession. The law is stated above. See Ekpa V. Utong (1991) 6 NWLR (Pt. 197) 258. A perusal of the record of Appeal and the entirety of the arguments proffered by the

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28 Appellant brings out the contention that the Appellant is pricked by the Judgment of the trial Court essentially because a burden appears to be cast on him - the Appellant, as Plaintiff to prove his claim as made at the trial Court. Of course, that is what the law expected him to do. It is settled in law that in a claim for a declaration of title to land, where the Defendant does not file a counter claim, the burden is heavier on the Claimant to prove his title in dispute. See Nruamah V. Ebuzoeme; Adekanmbi v. Jangbon (2007) All FWLR (pt. 383) 180; Elias V. Disu (1962) 1 SCNLR 361; (1961) All NLR (Pt. 1) 210. The trial Court was right, in the face of the inconsistencies and uncertainty in the evidence of the Plaintiff, to have dismissed his claim as not having been proved. For instance at page 50, the Appellant blows hot and cold on not knowing that the land was sold to the Respondent. Yet at page 51 of the record, he stated thus: "Some of those who sold the land are my biological children. I have discovered them. It is not true that I accepted the sale in 2003, but I was instigated to file this suit in 2010." If by the 18

29 ipsi dixit of the Plaintiff, he was instigated to file the suit, the subject of this appeal would it not be right for the trial Court to hold that the case had no basis and the action bound to be dismissed? In this respect, I call in aid the view of the Supreme Court Nwokidu V. Okanu (2010) I SCNJ 199 thus: "Where in a claim for declaration of title, the evidence is unsatisfactory, the judgment should be in favour of the Defendant on the Plaintiff who seeks relief but has failed to prove that he is entitled to what he claims. If the Defendant is able to adduce evidence oral or documentary which has the effect of discrediting the Plaintiff's case, such a declaration would be refused and Judgment must be for the Defendant. See Ekun & 3 Ors v. Baruwa & Ors (1996) 24 NLR 211; Ogundairo v. Okanlawon & Ors (1963) 1 ALL NLR 361." The Record of Appeal in its proceedings of the trial Court clearly brings out the difficulty the Plaintiff/Appellant had in his attempt to prove his case. At page 8 of the Record of Appeal, Oyinbo, for the Plaintiff said thus: I am seeking to close the case of the Plaintiff. On 21/03/2012, the case was 19

30 adjourned for further hearing. On 14/5/12 by agreement of Counsel and after I resume for the Defendant had applied for a date for Defence. See page 52 of the Record of Appeal. The Plaintiffs case was, however effectively reopened by a motion to call a second witness, in the person of Timothy Adeoye. The said PW2 gave no evidence against the Defendant/Respondent herein, in furtherance of any of the claims made against the Defendant/Respondent. From the Plaintiff s evidence as laid, the Defendant had no obligation of testifying, if no claim had been established, Prima facie. The Defendant/Respondent nonetheless testified as DW1. He was not cross-examined. See Page 58 of the record. Therein, is recorded thus: "Cross Examination: Nill At page 60 of the record, Onipe, Esq. who appeared for the Appellant is recorded to have said he had "one more witness and would do my best to grant load (sic) the evident (sic) of the witness." There is a Ruling to this application thus:- "Court - Case adjourned to 16/5/2013 for further hearing. The Defence shall frontload the statement on oath of the last witness on or before 10th May

31 and shall serve the statement on oath on the Plaintiff s Counsel on or before 13th May I find the interposition of the recorded evidence of DW1 on pages appearing as suspicious. The Court had recorded that there WAS NO Cross-examination as earlier on indicated. Nonetheless, the said suspect evidence, in seeming cross-examination, strengthens the Respondents case and does not aid the Appellant in any way. This, I say even if the Appellant knew of this irregular procedure and acquiesced to it. No miscarriage of Justice will, in my view, be occasioned to the Appellant by my disregard of this recorded evidence of DW1. Possession, being 4/5 of the law, had the Plaintiff/Appellant in this matter dislodged, the Respondent to merit the grant of his Claims? As the Defendant/Respondent's Counsel had submitted at the trial Court, there was ample evidence of the concurrence or consent of the Head of the family, i.e. the Respondent/Plaintiff to the sale. He must not sign the Agreement to confer validity to it. In this matter, the circumstances of the signing of the agreement had been testified to, and uncontadicted. That, he 21

32 and other members of the family, including some principal members were sued by their tenant who felt aggrieved by their action of sale and alleged loss of his tree crops thereon confirms that they sold to the Defendant. Why did they wait for 7 years before suing? Why did the said tenant simply move away without being annoyed as testified to by the Appellant. The answer cannot be other than this - That he knew and realised that the Appellant s family had sold the land in dispute to a third party; and being an Ishakole tenant only, he did not want any trouble with the purchaser but only to claim the reliefs of compensation from the land owing family. The hotchpot or mixture/concoction of denial of the knowledge of sale and to whom in 2003 and the admission of a suit against the Appellants' family in 2003 and settlement by them in the same plate, leaves a sour taste in the bud of truth. The Respondent's Counsel's address at the trial Court was most apt in attacking such gangrene. The Learned Counsel had also submitted at the trial Court that for the Appellant who sued in a representative capacity to have testified that members of that 22

33 family sold the land and retained the purchase price thereof without authorisation, to turn round against the sale is to seek to reprobate and approbate into a gold digging and unholy claim by such a family for which he sued. It appears to be so. The sole Issue is resolved in favour of the Respondent. The trial Court was right in dismissing the suit, as unproved and for being speculative. I agree that the appeal against same should be dismissed and on all the grounds of Appeal. Appeal is dismissed. I accordingly affirm the decision in the Suit No. HOR/20/2010 delivered on 07/08/2013, the subject of this appeal. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Ambi-Usi Danjuma, JCA. I am in total agreement with his reasoning and final conclusion in the sole issue articulated by both parties. I have nothing more to add. This appeal is unmeritorious and therefore dismissed. I abide by all the consequential orders contained in the lead judgment. RIDWAN MAIWADA ABDULLAHI, J.C.A.: My learned brother,

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35 MOHAMMED A. DANJUMA JCA caused to be served on me the lead judgment in draft which I read and became satisfied with the holistic consideration and determination of the sole issue by my noble lord. I am in total agreement with the reasoning and conclusion reached in this appeal and need not to re-echo well considered views of my lordship. Rather, I will simply adopt the resolution of the sole issue against the Appellant and in favour of the Respondent. I too found the appeal as lacking in merit and dismissed it; while affirming the decision of the lower Court in Suit No: HOR/20/2010 delivered on the 7th of August,

36 Appearances: A. O. Oyinbo, Esq. For Appellant(s) Segun Isumede, Esq. For Respondent(s)