Chief Frank Ebba V. Chief Warri Ogodo & Anor. (1984)
LawGlobal-Hub Lead Judgment Report
In the High Court of Justice, before Ogbobine, J. Chief Warri Ogodo and Washi Ogodo took out a summons on behalf of themselves and the Ogodo family of Sapele claiming –
“(1) a declaration of title to all that piece or parcel of land known as Ugbeyiyi and the surrounding land up to the land boundary between Chief Asagba of Amukpe and Chief Ogodo of Sapele lying and situate in Ogobobare, Sapele,
(2) an order for the payment over to plaintiffs of whatever amount was received as compensation by the 2nd and 3rd defendants from the then Western Regional Government of Nigeria by falsely representing themselves as owners of Ugbeyiyi and the surrounding land in Ogobobare, Sapele; and
(3) an order for the payment over to the plaintiffs the amount of N1,200.00 (one thousand two hundred naira) received as ten years rent by the 2nd and 3rd defendants from Koloko Bone Crushing Company Ltd. Sapele by falsely representing themselves as owners of Ugbeyiyi and the surrounding land in Ogobobare, Sapele.”
There was also, as against only the 2nd and 3rd defendants –
(4) “a declaration that they have forfeited their rights of use conferred under native law and custom on them by the plaintiffs in that the 2nd and 3rd defendants set up title adverse to the plaintiffs’ title in respect of Ugbeyiyi and the surrounding land in Ogobobare, Sapele.”
but again, as against all the defendants –
(5) “a perpetual injunction restraining them, their agents and servants from entering the said plaintiffs land known as Ugbeyiyi and the surrounding land in Ogobobare Sapele.”
Pleadings were ordered and delivered. Evidence was led by both sides, and in a painstaking judgment, which involved the sifting of the various evidence given by diverse witnesses, the learned trial judge accepted the evidence that Ogodo Village was founded by the late Chief Ogodo. He rejected the evidence that Chief Ogodo founded the Ugbeyiyi Village, wherein is Ugbeyiyi land, that is, the land in dispute. The learned trial judge also found that the system of land ownership in Sapele was primarily on family basis, in the sense that each family owned the portions of land which were founded by their ancestors. It was about the year 1943, that the land owning families in Sapele decided to convert their family ownership of certain portions of their land into a communal tenure, that is the Okpe Communal Lands Trusts. Thereafter, but in respect of such lands that are made subject to the Trusts, the title of the families who owned them originally became extinguished. However, the families’ titles to those lands, which have not been made subject of the Trusts, remain indefeasible.
Another aspect of land ownership in Sapele is that there is a principal family in each of the four quarters of the town and each quarter also has some minor families who are also land owners with right to sell or deal with their leases without asking for or obtaining the consent of the principal family.
The learned judge found that Ogodo family is a principal family whereas Ebba family is a minor family in the quarter to which both Ogodo and Ebba families belong. It is to be appreciated that the Ebba family is the second defendant/appellant and the judge found that this family, though a minor family in the quarter, were the owners of the land in their possession.
Another important finding of the learned judge is that the entire land which is being claimed by the 2nd defendant/appellant, Chief Ebba, as specified in his survey plan, which was accepted in evidence as exhibit “M”, is almost fully built up, and it has been so built up by those to whom the family gave the land. The judge rejected what he termed the excuse put up by the plaintiffs that the land in dispute between them and the defendants prevented the plaintiffs from proceeding against the 2nd defendant. This finding is very important having regard to paragraphs 14, 15 and 16 of the statement of defence which read –
“14 In the 1950s when the timber trade improved the economic life of Sapele, the Okpe Community in Sapele obtained second defendant’s permission for DARRNHOWER COMPANY (NIGERIA) LIMITED and Nigeria Hardwood Limited to establish business at separate portions of the land.
The grant to the two companies was made by Okpe Community in Sapele with the consent of the second defendant’s family. The two companies paid the second defendant compensation for his crops in the portion granted them. Second defendant will rely on the receipts for compensation paid by the NIGERIA HARDWOOD COMPANY LIMITED in 1954 and DARRNHOWER COMPANY (NIGERIA) LlMITED in 1956.
- Later, when the area began to open up, various persons and bodies bought various parcels of land in the area edged PINK in the second defendant’s survey plan from the second defendant’s family who made these grants in the exercise of their rights as owners in possession of the land. Among such grantees are Messrs AMATESIRO, ESIRI, AGHEDO, ADEGO, NEBURAGHO MADUKU, MRS, OMATSEYE and MRS. OMENAI, ST. ANDREWS LODGE and KOLOKO GROUP OF COMPANIES. Many of the grantees have since developed their lands without any let or hindrance by anyone including the plaintiffs. Second defendant will rely on all deeds of grants, leases and all documents evidencing payments made by grantees for the lands granted them by second defendant and his family.
- In 1961, the government of the then Western Region of Nigeria published the Statutory Notice of defendant’s land. Second defendant filed his interest and after some prolonged negotiation, second defendant was paid compensation for his land without any challenge by the plaintiffs or any other person. Second defendant may rely on all the necessary correspondence on the acquisition and all the official documents including the Gazette Notices.”
The learned trial judge also found that the traditional evidence, which was presented by the plaintiffs, was unsatisfactory and that they, the plaintiffs, had not shown any better title to the land especially in a case where there were competing titles. He further held that the Ebba family, that is, the defendant family, were the owners of the entire area of land which is verged red in their aforesaid survey plan Ex. “AA”. Finally, the learned trial judge found no merit in the plaintiffs’ claims which he dismissed with costs.
The plaintiffs appealed to the Court of Appeal. The Court, in a judgment as per Omo-Eboh, J.C.A. to which Agbaje and Okagbue JJ.C.A. concurred, after a consideration of the submissions of learned counsel, held that the kernel of the evidence of p.w.6, Thomas Opia Ebreme, is that Sapele land is owned by four families, including the plaintiff family, but excluding the defendant family – the Ebba family. The learned Justice of Appeal could not see in the record where the 6th p.w. prevaricated as claimed by the learned trial judge. He described the evidence of traditional history tendered by the 1st plaintiff as “clear, succint and obviously impressive.”
He then went into what he referred to as the “ordinary grammatical meaning” of the words “entire evidence” used by the learned trial judge in relation to the evidence of the 6th p.w. and, as if in the interpretation of a statute or document, he held that the judge’s conclusion on that evidence “amounted” to an unduly restricted interpretation of the relevant wording of that portion of the judgment and that such interpretation ”would do” violence to the ordinary grammatical meaning of the words “entire evidence”. He concluded in this part of his judgment by saying –
”the learned trial judge, having accepted the evidence of p.w.6, misdirected himself by holding that the traditional evidence adduced by the plaintiffs was unsatisfactory and thereby came to the erroneous conclusion that plaintiffs could not expect to get judgment.”
It is clear that in so far as the Court of Appeal was concerned, the evidence of p.w.6 as accepted and interpreted by that court, but certainly not as accepted by the trial judge, ought to have tilted the scale in favour of the plaintiffs/respondents.
Further, Omo-Eboh, J.C.A. held that as the issue of major and minor families was not pleaded, all evidence given in regard thereof went to no issue. He also frowned at the learned trial judge’s disbelief of the evidence of the 1st plaintiff, p.w.3, p.w.5, p.w.10, p.w.11, p.w.12 and even the evidence of the 3rd defendant.
The learned Justice of the Court of Appeal then went on and said –
“So in my view, the claim made by the 2nd defendant whereby he asserts his ownership of Ugbeyiyi village and Ogobobare land which he now describes (sic) ‘land of Ebba Family’ as in his exhibit AA is not only spurious and false but bogus and incredible. It ought not to be believed on the totality of the evidence tendered in this case since 2nd defendant showed no root of title whatsoever to the land he was claiming and this could not be otherwise because his father Ebba …..could not in his lifetime claim title to any part of Ogodo Family land”.
After the learned Justice of the Court of Appeal had made such exhaustive inroad into the issue of fact, as I have already set out, (supra), he directed himself, and I must say, correctly, on the law, for he referred to a long line of authorities starting with the now well known case of Kodilinye v. Mbanefo Odu 2 W.A.C.A 335 and then went through authorities like Akinloye v. Bello Eyijola 1968 N.M.L.R. 92 Chief Fabunmi & Anor. v. Obaje & Anor. (1968) N.M.L.R. 242 and stated the trite principle of law that a court of appeal should be loathe to interfere with or reverse findings of fact made by a court of trial unless such findings are perverse.
Now, the principles upon which a court of appeal would act have been well stated in the English case of Watt or Thomas v. Thomas (1947) A.C. 484 and approved several times by this court. Indeed, it is the duty of the trial court to assess witnesses, form impressions about them and evaluate their evidence in the light of the impression which the court forms of them. That is one good reason why the trial court is named a ”trial court” it is the trial court (and hence a court of appeal should attach the greatest weight to the opinion of the trial judge) that has the duty to see and indeed, in this case, has seen the witnesses and also heard their evidence.
The Court of Appeal should not disturb a finding of fact unless that court is satisfied that such finding is unsound; it is in the process of deciding whether the finding is sound or not, that the Court of Appeal (because it does not see the witnesses) is left only to examine the grounds that led to the conclusion reached by and the inferences that have been drawn from such conclusions of the trial court.
In this country, trial is usually, unlike in England, without a jury and the trial judge has the singular experience and duty of taking a lone decision on the evidence for the purpose of determining the facts, from his advantage of seeing and hearing simultaneously the witnesses. Unless the trial court has failed to make use of this singular advantage, and for that reason thereof the Court of Appeal finds that the decision is perverse, the Court of Appeal, whose opportunity is confined to printed record, is obliged to, and must accord to the finding of due respect. That indeed is the division of labour, and a sensible one at that, between the trial court and the appellate courts.
But this division ends or, rather does not exist, where the question does not affect the issue of credibility of witnesses; in other words, the court of appeal itself will obviously be in as good a position as the trial court, for in such a case, the trial court has no advantage really over the court of appeal. For the court of appeal will be in a proper position to evaluate, as the trial court, the evidence which has been given in the case, for in such cases the matter in dispute has been completely narrowed down to inference that could be drawn from proved facts, without going through the rigour of credibility of witnesses. When we have this type of cases, the court of appeal should not shrink from the task of such evaluation or be inhibited therefrom, just because it is a court of appeal. See Benmax v Austin Motor Co. Ltd. 1955 A.C. 370. See also Lion Buildings Ltd. v. M. M. Shadipe 1976 40 12 S.C. 135 as per Sir Udo Udoma J.S.C. at p. 153.
I have said that the learned Justice of the Court of Appeal in the instant case properly directed himself on the law. The question that would arise next is whether he applied this proper direction of the law to the case before him. In pursuance of that exercise, he said –
“In the case in hand, not only was there sufficient evidence from 1st plaintiff and his witnesses that Ugbeyiyi (the land in dispute) was founded by Chief Ogodo who permitted one Ebba (father of 2nd defendant) to live there, there was actually no other contrary evidence apart from the word of the 2nd defendant that it was his father by name Ebba who founded the village.”
He concluded that the judgment of the trial court was against the weight of evidence and held that the dismissal of plaintiff’s claim was unreasonable. He allowed the appeal of the plaintiffs against the 2nd and 3rd defendants and granted the plaintiffs declaration of title against them. He also granted perpetual injunction against them as follows:(1) representing himself as the owner of or having title to or any right or interest in any part of Ugbeyiyi Village or any part of Ogobobare land as shown verged green and/or particularly delineated in Survey Plan No. T.J.M. 1783 dated 21/12/74 and tendered in this case and marked as exhibit A, other than the land on which his house stands and the area immediately surrounding it in the said Ugbeyiyi Village; and
(2) Selling, leasing, or otherwise disposing of any land within the parcels of land mentioned in (1) above other than the land on which his house stands and the area immediately surrounding it in the said Ugbeyiyi Village.”
‘That the 2nd defendant in this case by name Chief Frank Ebba is hereby perpetually restrained from, either by himself or through any of his brothers, servants, or agents,
The second defendant, Chief Frank Ebba, has appealed against the judgment of the Court of Appeal to this Court. It is to be observed that in the Court of Appeal the only complaint was the issue of facts and the question which that court 20 answered was whether the judgment of the trial court could be defended having regard to the evidence before it. In this court, Mr. Kehinde Sofola SAN., learned counsel representing the appellant put the question thus (in his brief) –
“Was the trial judge right to have dismissed the plaintiff’s claims on the evidence Put in another way, did the plaintiff tender evidence of such quality and quantity to entitle him to the land as sought”
Learned counsel in both his brief and oral submission before us went through the evidence given before the trial court, the finding of the learned trial judge thereon and the decision of the Court of Appeal. He dealt with the appeal with reference to:
(1) the evidence of traditional history; and
(2) the equitable defence of estoppel, long possession, acquiescence and laches
and submitted that the learned trial judge was right in dismissing the claims of the plaintiffs both on the traditional evidence and equitable grounds.
For his part, Dr. Mudiaga Odje, SAN., learned counsel for the respondent, urged upon us in his brief and oral submissions that neither party to this case pleaded major and minor families and therefore evidence could not have been properly received in regard thereto as the learned trial judge did. He contended
(a) that to go into the realm of major and minor families was erroneous;
(b) that there is failure by the trial judge to give proper attention to the documentary evidence before him;
(c) that there is improper or imperfect use, by the trial judge, of the opportunities of seeing and hearing the witnesses, in particular p.w.6 and p.w.8.
(d) that the trial judge made wrong and mistaken inferences and arrived at wrong conclusion on the established facts.
(e) of inapplicability of equitable defences for the reason of lack of bona fides on the part of the appellant.
As in the Court of Appeal, the appeal here is mainly on facts. I have set out already the duty of an appeal court when dealing with the issue of findings of fact by a trial court. I would like to add that, in my respectful view, the normal error which a court of appeal falls into in this regard is in its application of the legal principles. The legal principles are now so well entrenched and courts of appeal refer to them with utmost ease and correctness. I think, with respect, that a practical stance should be adopted in the application of these principles, otherwise the principles may become a mere academic statement when in fact it is the practical stance that is essential. It is herein a court of appeal usually misses the road.
An appeal court, in applying these principles should, I venture to suggest –
(a) start with an attitude to the trial court, as the only court which has, principally, the duty to make findings of fact from the evidence “oral and or documentary” before it, also that the trial court is the court that has been specially suited, by its peculiar constitution, set-up and rules, so to do. [The trial judge sees the witnesses and has the exclusive advantage to observe their demeanour];
(b) then find out whether the conclusion which has been arrived at by the trial court is justifiable, when it is re- examined against the very premise and or the controversy vel non which formed the basis of the conclusion arrived at by the trial court;
(c) where the conclusion is arrived at without any real controversy, e.g. in the case of documentary evidence, or where it does involve a controversy the controversy is limited only to number, complexity or contradiction or interpretation of the document or further where there is oral evidence but it involves merely an admission by the adversary or there is an unchallenged piece of oral evidence, the court of appeal should consider itself to be in as good a position as the trial court, in so far as the evaluation of such evidence as aforesaid in this paragraph is concerned;
(d) where the decision is arrived at, after there has been an examination of a controversy (and this is the commonest aspect) as where the opposing parties produce witnesses in the case to contradict each other by oral evidence, then the court of appeal should appreciate that the following will be relevant:
(i) Credibility of Witnesses based on demeanour of the witnesses only:-
Here, the trial court is the sale judge as the observation of the demeanour of witnesses has to be peculiar and exclusive to the trial court which advantage is not and can never be available to the appellate court.
(ii) Credibility of Witnesses based on factors other than demeanour. The court of appeal should examine those factors which the trial court examined as a result of which it made the inference which led to its finding and determine whether that trial court has made use of its singular advantage of seeing and hearing the witnesses before making its finding especially having regard to the inference that could reasonably be made by a just and reasonable tribunal from the same factors.
We can now go back to the facts of this case, bearing the preceding points in mind. The learned trial judge before dismissing the claim of the plaintiffs had considered the evidence of the 2nd p.w., 3rd p.w., 6th p.w. and 8th p.w. The 2nd p.w. John Afejuku, and the 8th p.w. Johnson Otone had said that it was the late Chief Ogodo that gave land to their respective fathers at Ugbeyiyi after their fathers had paid the usual traditional drinks to the late Ogodo. Ugbeyiyi was the portion of the land where, according to the pleadings of the plaintiffs, the 2nd defendant (that is the appellant in this Court) was ordered by Ogodo to be removed for him to settle. In contradiction of this evidence, the appellant said it was his own father and not Ogoclo (plaintiff’s ancestor) who put John Afejuku (2nd p.w.) on the land. As regards the evidence of Johnson Otone (8th p.w.) the appellant was emphatic that Otone’s father was a mere itinerant hunter, who used to come to Ugbeyiyi purely on hunting expeditions, but after which he returned to Amukpe.
There is no doubt that there is a sharp contradiction between two sets of evidence. Now, the learned trial judge who saw the three witnesses that created this contradiction, accepted the evidence of the appellant. The question is, how did he resolve the contradiction Or in other words did he in resolving the contradiction make use of the advantage he had in seeing and hearing the three witnesses This is what the learned trial judge said –
“I believe this evidence (that is, the evidence of the appellant) as it was not shown anywhere in plaintiff’s case that during the various acquisitions and alienations affecting various parts of Ugbeyiyi land, any compensation was paid to Johnson Otone (8th p.w.) or any of the children of his late father for their property on the land such as rubber trees or other crops. Secondly, plaintiff’s plan, Ex. A did not show any property or the ruins of any building owned by late Otone family on the land.”
As regards the 2nd p.w. the learned judge resolved the contradiction between his evidence and that of the appellant as follows-
”The 2nd defendant on the other hand stated that John Afejuku’s father was put on the land by his father and that Johnson Otone’s (P.w.8) father was an itinerant hunter who used to come to Ugbeyiyi on hunting expeditions after which he returned to Amukpe. I believe this evidence as it was not shown anywhere in plaintiff’s case that during the various acquisitions and alienations affecting various parts of Ugbeyiyi land, any compensation was paid to Johnson Otone or any of the children of his late father for their property on the land, such as rubber trees or other crops. Secondly, plaintiffs’ plan, exhibit A did not show any property or the ruins of any building owned by late Otone family on the land.”
This is in regard to Otone’s evidence. But as regards Afejuku’s evidence the judge said –
“While the fact that John Afejuku’s father lived in Ugbeyiyi village with his family was not denied by the 2nd defendant, the contention of 2nd defendant that it was his father who gave late Afejuku authority to settle in the village could not be true. My belief is that Afejuku went to Chief Ogodo to obtain permission because Chief Ogodo was the head of a large family organisation known as Ogodo family who owns the entire area of land known as Ogodo family land.
This family organisation included the descendants of Emagun, Kekeke, Ebba and that of Ibono (grand-mother of Andrew Esio Eghrujakpor, 8th p.w.) and it was as a result of the acceptance of this family set up under the name of Ogodo quarter that it became possible for Chief Godwin Asakosomi Kekeke (5th p.w.) to represent Ogodo quarter, both in the body known as landlords representatives of Sapele Okpe Community, and in the Okpe Communal land Trust which was established by law. It was also the acceptance of 2nd defendant as a member of the said Ogodo family for land owing purposes that he was also a Trustee of the suggested to Chief Kekeke (5th p.w.) and 2nd defendant that their membership of the Sapele Okpe Communal Land Trust derived its strength from other sources.”
So while he believed the appellant as against atone, he accepted Afejuku’s evidence against that of the appellant.
The reason given by the learned trial judge in his judgment as reproduced above would appear to be reasonable. The decision in accepting the evidence of the appellant for and against these witnesses as stated by him is certainly not arbitrary. On the part of the Court of Appeal, Omo’97Eboh J.CA said that the conclusion reached by the trial judge was’E2’80’a6due to lack of understanding of the plaintiff’91s case. But how then did the learned Justice of the Court of Appeal understand that case His reasoning was that both the 3rd defendant Emagun and p.w.5, descendants of Ogodo’91s sister (as the appellant) did not claim any of Ogodo family land as their own personal property. With utmost respect, it appears to me that it is the reasoning of the learned Justice of Appeal that is illogical. The fact that some relations fail to claim Ogodo’91s land as their own does not seem to amount to a logical bar to the appellant, another relation, claiming the land if he believed, with very good reasons, that he was entitled to it.
But in fact, the witness that would appear to have had the deciding effect on the mind of the learned Justice of Appeal is Thomas Opia Ebreme, (6th p.w.). The learned Justice devoted a very considerable portion of his judgment to the evidence of this man. The learned trial judge had earlier set out the pertinent portions of this witness’ evidence. The witness classified the main families, of which Ogodo is one, into four and then spoke of the Ebba Family – appellant’s family as a minor family. This witness, called by the plaintiff (not the appellant!) to prove his title to the land was positive that the minor families have their own land in respect of which they do not have to account to the major families. “none of the major families” he said, “could pounce on the land of a minor family and take it.” This is most devastating to the case of the plaintiffs if the Ebba family was one of such minor families. Though the witness could not be positive that Ebba Family was such minor family, there is other abundant evidence that proved this relationship. On this, the learned trial judge thus concluded –
“I accept and believe the evidence that Ebba family is one of such minor families in Sapele; although Ogodo family is the principal family in the quarter to which both families belong.”
He went on, and with respect this is a logical conclusion even from the case of the plaintiffs that there is a reasonable inference from the evidence of the plaintiffs’ witness Ebreme –
“To this extent, I am convinced that members of Ebba family are the owners of the land in their possession.”
Surely, as I have said this is inferred from the plaintiffs’ case. The 6th p.w. was their witness. The witness was never discredited nor shown to be hostile. The witness showed positively the relationships between what he termed major families (e.g. the plaintiffs’ family) and minor families (e.g. the appellants’ family). The learned Court of Appeal made effort to discredit this piece of evidence by saying that the witness’ evidence is not exhaustive of the points raised in the case. How else could it be exhaustive Surely, p.w.6’s evidence has not been challenged and cannot be, except the witness is discredited. The learned trial judge who saw him, heard him, watched his demeanour, believed him apart from some prevarications.
It seems to me that what the learned Court of Appeal did in regard to this witness was to embark on some unfortunate illogical voyage of discovery by stating how the trial court should have summarised p.w.6’s evidence and stating which portion of the evidence the judge believed or disbelieved.
I think the judge set out in an admirable form what he regarded as the pertinent portions of this witness’s evidence. He did not hesitate to make reference to some prevarications but yet subject to all that he believed as he was eminently entitled to do, his evidence. It is obvious to me that what the trial judge believed were those parts of the evidence of the witness which he set out and which he regarded as relevant to the case. For the Court of Appeal to start on their own by setting out some other portions for purpose of consideration when the court is short of an advantage which is referrable only to a trial court, that is, of seeing the witness, is with respect an attempt to beg the question.
I am of the firm view that the Court of Appeal was in serious error in holding the trial court to have failed to utilise the advantage of seeing and hearing witnesses. If anything, it is the Court of Appeal which, with respect, failed to appreciate the situation.
But that is not all there is to this case. The appellant, as second defendant raised in his defence the equitable defence of acquiescence. As well considered by the learned trial judge, the appellant relied on diverse acts by him on the land including
(1) a grant to a Mr. Omotsaye, (who gave evidence as the 5th D.w.) in 1958 whereon the said Omatsaye built a nursery school,
(2) the sale of a parcel of land to the 3rd d.w. Bishop Eyitene,
(3) the sale by the Ebba family to a Mr. Edward Amotoritsero. He also gave evidence as 2nd d.w.
(4) the grant to the Trustees of St. Andrew’s Lodge – a Freemason Organisation which built a hall on the land.
All these activities on the land were open and with no objection from the plaintiffs. The learned trial judge put a pertinent question to himself. He asked –
“Even if I had accepted plaintiffs’ case against 2nd defendant (that is the appellant) would the plaintiffs have any valid claim against 2nd defendant’s family who have continued to be in adverse possession of their land”
This of course raises the issue of the equitable doctrine of acquiescence which the learned judge examined most thoroughly and after which examination he concluded –
“From the evidence before me, the entire land claimed by 2nd defendant in his survey plan Ex. AA is almost built up by those to whom he gave the land.”
He dismissed, as untenable, the reasons given by the plaintiffs for not proceeding against the 2nd defendant.
The Court of Appeal, though there is no appeal before it in regard to this issue of acquiescence, made a most curious remark. The learned Justice of Appeal said –
“In my view, it can reasonably be inferred from the available evidence that 2nd defendant and his brothers secretly disposed of the said landed properties with a view to fraudulently enriching themselves at the expense of the members of Ogodo family. In the circumstance I am of the view that all the host of things said about the equitable defence of acquiescence (which will defeat the claims of the plaintiffs) will neither arise nor apply to this case having regard to its peculiar facts as the law requires those who will seek equity to approach it with nothing other than clean hands and good conscience.”
Having said so much the learned Justice concluded on the point
“I say no more on this point as there is no appeal against this portion of the judgment.”
With utmost respect, it should be plain to a court of appeal that when an issue is not placed before it, it has no business whatsoever to deal with it. A Court of Appeal is not a knight errant looking for skirmishes all about the place.
It is my respectful view that, looked at from any angle, the appellant must succeed. The appeal is allowed. The judgment and order of the Court of Appeal are hereby set aside. The judgment of the High Court is restored in so far as it affects the appellant.
The appellant shall have costs of the appeal in the Court of Appeal assessed at N300.00 and in this Court assessed at N300.00.