Ezekiel Ezinwa & Anor V. Emmanuel Agu & Anor (2003)

LawGlobal-Hub Lead Judgment Report

JOHN AFOLABI FABIYI, J.C.A.

This is an appeal against the judgment of Okadigbo, J., delivered at the High Court of Justice Enugu, then in the old Anambra State of Nigeria on 29th March, 1988. The learned trial Judge dismissed the plaintiffs’ claim. They felt dissatisfied and have, ex debito justitiae, appealed against the judgment to this court.

The plaintiffs’ claim before the trial court can be seen in paragraph 23 of their statement of claim which reads as follows:

“23. Wherefore, the plaintiffs claim against the defendants jointly and severally as follows:

(a) Declaration of a customary right of occupancy to the piece or parcel of land known as and called ‘Aniokpa Ajaezi Umuokpalla’ situate at Agballenyi Nachi and more particularly delineated in survey plan No. EP/AN/2132 LD and verged blue filed with this statement of claim.

(b) N28,000.00 damages being:

(i) N8,000.00 special damages for the destroyed building.

(ii) N20,000.00 general damages.

(c) Perpetual injunction restraining the defendants, their servants, agents and/or privies from further acts of trespass on the land.”

Pleadings were duly ordered, filed and exchanged at the trial court. The averments contained in the plaintiffs’ statement of claim and the evidence adduced in support of same tend to point to the direction that the claim was based partly on traditional evidence and partly on acts of ownership and/or possession. The plaintiffs also banked upon an ‘attempted settlement of the dispute by council of elders of Nachi’. Averments on this point and evidence thereon, if one may observe here, appear rather lean. The averments in the defendants’ amended statement of defence point to traditional evidence and acts of ownership as well. The 2nd defendant maintained that the land in dispute belongs to his Umuabia family in Nachi. Part of the land was leased to the 1st defendant by the whole people of Umuabia family.

Upon completion of evidence as adduced by the parties and witnesses where available, counsel on both sides advanced plausible arguments to assist the learned trial Judge to arrive at his judgment. The learned Judge reviewed at considerable length all the evidence adduced by both parties in his considered judgment. After applying the law to the facts garnered by him to the utmost of his ability on each issue that was canvassed, he found against the plaintiffs/appellants herein. The learned trial Judge ended his judgment on page 91 of the transcript record of appeal as follows:

“In conclusion, I am satisfied that the plaintiffs have failed to prove any of the claims set out in paragraph 23 of their pleadings. The claims are hereby dismissed with cost to each defendant assessed at N100.”

The plaintiffs felt unhappy with the stance posed by the learned trial Judge in the judgment. This has resulted in the appeal now under consideration in this judgment.

The plaintiffs, who will now be referred to as appellants formulated two issues for determination as can be seen on page 3 of their brief of argument. They read as follows:

“(1) Whether the abandonment of the amended statement of defence of the defendants/respondents at the hearing and determination of the suit amounted to admission of the averments in the statement of claim and evidence of plaintiffs/appellants before the lower court?.

(2) Whether the trial court properly and legally evaluated the evidence before him and found the evidence adduced on balance in favour of the defendants/respondents.”

For a due determination of this appeal, two issues were also couched by the respondents with a remarkable degree of brevity and accuracy. They read as follows:

“1. Whether the plaintiffs/respondents prove their case and were entitled to the reliefs claimed.

2. Whether the court properly evaluated the evidence of the parties.”

Arguing appellants’ first issue, the senior counsel observed that the amended statement of defence dated 7th March, 1985 took effect from the date of the original statement of defence filed on 13th July, 1983. He referred to the cases of M.A. Enigbokan v. American International Insurance (Nig.) Ltd. (1994) 6 NWLR (Pt.348) 1, (1994) 6 SCNJ 168 at 184; Rotimi v. MacGregor (1974) 11 SC 133; Warner v. Sampson & Anor. (1959) 1 Q.B. 297 at 321; Obulor v. Oboro (2001) 8 NWLR (Pt.714) 25.

Learned senior counsel felt that the respondents failed to adduce evidence in support of their averments in the amended statement of defence. He opined that mere averments in the amended statement of defence do not amount to proof of facts therein. He cited the case of Idesoh v. Ordia (1977) 2 SC 175 at 183. Senior counsel felt that the respondents did not discharge the burden on them after the close of the appellants’ case to rebut the appellants ownership and/or possession of the land. It was submitted that even though the defendants filed copious defence, they led no credible evidence and were unable to contradict the plaintiffs. He cited American Cyanamid Company v. Vitality pharmaceutical Limited (1992) 2 NWLR (Pt.171) 15, (1991) 2 SCNJ 42: Nwabuoku v. Ottih (1961) 1 All NLR (Pt.3) 487 at 490.

Learned senior counsel felt that the appellants gave evidence of traditional history and evidence of acts of possession in recent years without let or hindrance. He maintained that the respondents abandoned traditional history pleaded by them and failed to give any evidence of acts of possession in recent years. Senior counsel contended that if the trial Judge had taken into consideration the case of Kojo II v. Bonsie (1957) 1 WLR 1223, the court would have resolved the inconclusive traditional histories in favour of the appellants. He felt that the trial Judge referred to discrepancies in the evidence of witnesses for appellants as contradictions and that such led to perverse judgment. He cited the cases of Ogoala v. State (1991) 2 NWLR (Pt.l75) 509: Odiba v. Azege (1991) 7 NWLR (Pt.206) 724 at 730.

Senior counsel, on the issue, finally observed that the trial Judge failed to take into consideration the abandonment of the amended statement of defence by the respondents and such resulted in perverse judgment.

On issue 2, learned senior counsel observed at the out-set that it is the duty of the trial court to consider the whole evidence before it and to assess the credibility of witnesses. He referred to the case of Sodipo v. Lemninkainen or & Anor. (1986) 1 NWLR (Pt.15) 220. Senior counsel opined that if the trial Judge had properly evaluated the evidence of the parties without ‘a priori’ assumption, he would have come to the conclusion that evidence of possession of the land was not challenged in cross-examination nor rebutted by any evidence of the respondents. The respondents who claim that the land in dispute belonged to the people of Umuabia failed to call any member of Umuabia to support their case. He felt that the respondents have the onus to prove that the people of Umuabia owned the land and they failed to discharge the said onus. He contended that evidence established that the appellants were in possession of the land and by virtue of section 145 of Evidence Act, the respondents had the onus to show that the appellants were not true owners. Senior counsel referred to the case of Oke v. Atoloye (1986) 1 NWLR (Pt.15) 241. He felt that the respondents failed to call any person from Umuabia community who was aware of the case but accepted the decision of Ameke elders council.

Senior counsel submitted that on the balance of probabilities, the appellants were in possession without let or hindrance from Umuabia community. He urged this court to interfere with the findings of the trial court since the conclusions of the court below on the facts, according to senior counsel, are perverse. He referred again to the case of Odiba v. Agege (supra) at 723-733. He maintained that the defendants did not disprove the evidence of P.W.4 as to decision of elders. Senior counsel asserted with force ‘that the decision therefore stands unchallenged and deemed to stand.’ He referred to the case of Ikuomola v. Oniwaya (1990) 4 NWLR (Pt.146) 617 at 733. He finally urged that the appeal should succeed on the issue as evidence adduced was not properly evaluated.

On behalf of the respondents, learned senior counsel pointed it out that out of the five ways of proving ownership of land as laid down in Idundun v. Okumagba (1976) 9 – 10 SC 227, the appellants pleaded three of them. These are acts of ownership, traditional history and acts of possession. Senior counsel submitted that the appellants failed to prove any of the methods they have adopted.

He maintained that in a claim for declaration of title, the plaintiffs must succeed on the strength of their own case and not on the weakness of the defence. He further noted that since there is no counter-claim in the case for a declaration of title, the entire burden of proof is on the appellants and never shifts. He referred to Kodilinye v. Odu (1935) 2 WACA 336; Piaro v. Tenalo (1976) 12 SC 31.

Senior counsel for the respondent further submitted that the burden is always on the plaintiffs who claim a declaration of title to lead evidence that is sufficiently cogent and credible in proof of their root of title. He contended that as the plaintiffs/appellants failed to prove their root of title, any secondary acts of possession or ownership upon which they sought to rely could not avail them. He referred to the cases of Fasoro & Anor. v. Beyioku & Ors. (1988) 2 NWLR (Pt.76) 263, 271-272; Eronini v. Iheuko (1989) 2 NWLR (Pt.101) 46 at 66. Senior counsel urged us to hold that the appellants failed to prove their title to the disputed land.

As regard acts of ownership and possession, senior counsel for the respondents maintained that the trial Judge meticulously considered and evaluated the evidence before him. He then made findings and gave his reasons for the conclusions reached by him. Senior counsel urged this court to approach the findings of fact by the trial court with extreme caution. He submitted that if a trial court that had the opportunity of hearing and watching the demeanour of witnesses has unquestionably evaluated the evidence tendered before it, it is not generally for the appellate court to revaluate the same evidence and then come to its own conclusion. He cited Enang v. Adu (1981) 11 – 12 SC 25, 40. Senior counsel however conceded that where the trial court has failed to advert its mind to the evidence on record and make unreasonable and perverse findings, this court is in a good position as the trial court to examine the evidence and make its own assessment, provided such exercise does not involve the making of decision based on the demeanour and credibility of witnesses. Learned senior counsel was quick to point out that such is not the situation here as the trial Judge had very ably evaluated the evidence after seeing and hearing the witnesses. He did not find the evidence of the appellants and their witnesses credible. They also contradicted themselves and no reason or explanation was given why he should accredit one witness and discredit the other.

Senior counsel observed that the burden of proving that a person is entitled to declaration of title rests on that person. He maintained that it is not an excuse that the defendants filed no defence or abandoned a defence. Unless there is a counter-claim, the weakness of the defence cannot strengthen the appellants’ case. The burden of proof is on them and never shifts.

Senior counsel further observed that P.W.3 and P.W.4, under cross-examination, said that the appellants are not exclusive owners of the land in dispute. He felt that even if the defence did not give evidence or abandoned their pleadings, no court will grant the appellant a declaration of title in respect of the land in dispute having regard to the evidence of P.W.3 and P.W.4. He submitted that once the appellants failed to prove their case, a dismissal is the proper order. The appellants failed to prove their case and the trial Judge was perfectly entitled to dismiss same.

Senior counsel for the respondents pointed it out that the appellants in their pleadings, introduced the issue of customary arbitration. He submitted that no valid binding customary arbitration was pleaded and/or proved in the instant case. It was observed that in every case that a customary arbitration is pleaded, the test of validity and proof must also follow. He cited the case of Agu v. Ikwewibe (1991) 3 NWLR (Pt.180) 385; Ohiaeri v. Akabeze (1992) 2 NWLR (Pt.221) 1.

Senior counsel asserted that once pleadings are filed and exchanged, the parties and the court are bound by same. Evidence must be led in accordance with the pleadings. Facts not pleaded went to no issue. He cited Anyanwu v. Iwuchukwu (2000) 15NWLR (Pt.692) 721 at 727; Eze v. Atasie & Ors. (2000) 10 NWLR (Pt.676) 470. He strongly felt that a person relying on customary arbitration must go further to show that it was between the same parties or their privies and affected the land in dispute. He maintained that P.W.4 did not give evidence from which one could get an impression of a customary arbitration. He urged this court to reject the plea of customary arbitration as an afterthought. He finally urged us to dismiss the appeal.

In the appellants’ reply brief, they maintained that the secondary acts of possession and ownership which they relied upon avail them. They asserted that the respondents did not rebut the evidence of possession by them. They agree that in an action for declaration of title to land, the onus is on the plaintiff to prove his case. He must rely on the strength of his own case and not on the weakness of the defence except where the weakness of the defendant’s case tends to strengthen plaintiff’s case or where the defendant’s case supports his case. They cited the case of Jules v. Asani (1980) 5 – 7 SC 96 Nwagbogu v. Ibeziako (1972) Vol.2 (Pt.1) ECSLR 335; Akinola v. Oluwo (1962) 1 All NLR 224, (1962) (Pt.1) ANLR 225. They strongly feel that they are entitled to judgment.

Whenever title to land is in dispute, the Supreme Court has restated time without number the five ways of proving same. Refer to Idundun v. Okumagba & Ors. (1976) 10NSCC 445 at 453, (1976) 9 – 10 SC 227; closely followed by the decision in Piam v. Tenalo (1976) 10 NSCC 700, (1976) 12 SC 31; Mogaji & Ors. v. Cadbury (Nigeria) Ltd. (1985) 2 NWLR (Pt. 7) 393; Omoregie v. Idugiemwanye & Ors. (1985) 2 NWLR (Pt.5) 41; Ezeoke & Ors. v. Nwagbo & Anor. (1988) 1 NWLR (Pt.72) 616; Fasoro & Anor. v. Beyioku & Ors. (1988) 2 NWLR (Pt.76) 263; Okpuruwu & Ors. v. Chief Okpokam & Ors. (1988) 4 NWLR (Pt.90) 554 and Oladipupo & Anor. v. Olaniyan & Ors. (2000) 1 NWLR (Pt.642) 556 at 564; Alade v. Awo (1975) 4 SC 215 at 228.

The five ways may be re-stated thus

(1) Proof by traditional evidence.

(2) Production of document of title duly authenticated.

(3) Acts of ownership by a person such as selling or leasing or renting out all or part of the land.

(4) Acts of long possession and enjoyment of the land.

(5) Proof of possession of connected or adjacent land.

It must be noted here very carefully that the general burden of proof in a suit lies on that party who would fail if no evidence at all were given on either side. See Are v. Adisa & Ors. (1967) NMLR 304. The burden of proof of any issue before evidence is adduced rests on the party asserting the affirmative of the issue. See Okechukwu & Ors. v. Ndah (1967) NMLR 368.

General, it is on the plaintiff seeking a decree of declaration of title that the onus of proof usually rests. See Onobruchere v. Esegine (1986) 1 NWLR (PU9) 799; Kuma v. Kuma (1934) 2 WACA 336; Nwokafor v. Udegbe (1963) 1 All NLR 107. Where a plaintiff fails to prove his title to the land in dispute, he is not entitled to judgment. See Oyeyiola v. Adeoti (1973) NNLR 10. Where evidence of title is not satisfactory and conclusive, a party will not succeed at trial. See Onibudo v. Akibu (1982) 7 SC 60; Aikhionbare v. Omoregie (1976) 12 SC 11.

Whenever a plaintiff relies on traditional history to buttress his claim for a declaration of title to a piece of land, he must adequately and sufficiently plead his root of title and adduce cogent evidence to support same. Indeed, it has been stated that such a plaintiff must plead and prove:

(1) the founder of the land.

(2) the mode of founding or discovery of the land and

(3) the history of the devolution of the said land from the founder to the present claimants.

The above can be deciphered from the decisions in Piaro v. Tenalo (supra); Ohiaeri v. Akabeze (1992) 2 NWLR (Pt.221) 1; Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386; Mogaji v. Cadbury (1985) 2 NWLR (Pt.7) 393.

Where there is no counter-claim by a defendant in an action for declaration of title to land, generally, the entire burden of proof never shifts. As a plaintiff, he should succeed on the strength of his case. Refer to Kodilinye v. Odu (supra); Piaro v. Tenalo (supra).

The Court of Appeal has to approach the findings of fact by a trial court with extreme caution. This is because it is the trial court that had the opportunity of hearing and watching the demeanour of witnesses. The Court of Appeal acts on solid, cold transcript record of appeal. It is not generally for the appellate court to evaluate the same evidence and then come to its own conclusion. Refer to Enang v. Edu (supra) at page 40.

It must however be noted that where a trial court has failed to advert its mind to the evidence on record and makes unreasonable and perverse findings not in tune with the current or flow of evidence, the appellate court is in a good position as the trial court to examine the evidence and make its own assessment provided such exercise does not involve the making of decision based on the demeanour and credibility of witnesses. See Onuchukwu v. State (1998) 5 NWLR (Pt.547) 576 at 588; Ebba v. Ogodo (1984) 1 SCNLR 372 at 379, 381; Okoya v. Santilli (1990) 2 NWLR (Pt.131) 172 at 207.

With the state of the law enunciated above as hind-sight, I shall now consider in detail the claim of the appellants as plaintiffs at the trial court; based on the pivots given by them. I wish to start with the point relating to traditional history as pleaded and testimony in relation to same. To my mind, this is the launching pad in a bid to sustain their claim for a declaration of title to the land in dispute. In paragraph 10 of their statement of claim, they pleaded as follow:

“10. The land in dispute has been from time immemorial, the plaintiffs and their fore-fathers’ property.”

In support of the above pleading by the appellants, P.W.1 at page 47 lines 29-30 testified, as if he employed the words fashioned out in the reproduced pleadings above, in these words:

“The land in dispute has been the property of the people from time immemorial.”

P.W.3 at page 52, lines 16-17 of the transcript record of appeal testified thus:

“It was our grand fathers who owned the land in dispute from time immemorial.”

After a meticulous appraisal or evaluation of the above evidence, the learned trial Judge at page 84 lines 6-17 of the record of appeal concluded as follows:

“I find in the plaintiffs’ pleadings and evidence in support thereof a total absence of facts about (a), the founding of the land in dispute; (b), the person or persons who founded the land in dispute and exercised original acts of ownership and (c), the persons who have held or on whom title had devolved in respect of the land since the founding before the plaintiffs acquired control of the land in dispute. All these facts which are necessary for the proper determination of the issue raised are not provided by the swooping assertion that the land in dispute has been from time immemorial the property of the plaintiffs and their fore-fathers. The total absence of these relevant facts leaves the plaintiffs’ traditional evidence in the air and this is fatal to the plaintiffs’ claim.

Refer to the observations of Obaseki. J.S.C. in Sunday Piaro v. Chief Tenalo & Ors. (1976) 12 SC 31 at 4142.”

I need to say it here, that the above thought provoking conclusion provides a beautiful rendition which is worthy of note. One can hardly improve on same. However, I wish to stress the point here that the appellants who relied on traditional history to buttress their claim for a declaration of title to the land in dispute failed to plead adequately and sufficiently their root of title. This inaction on the part of the appellants precipitated the dearth of cogent evidence regarding the traditional history touching their root of title. There is a vacuum in respect of (1), the founder of the land; (2), the mode of founding or discovery of the land and (3), the history of the devolution of the land from the founder to the present claimants – appellants herein. The appellants who desire a declaration of title had the onus to prove the above. Since land is a special commodity of recent, the appellants must prove their case. They cannot have their desire actualised just for the asking or on a platter of gold. The foundation of their claim got destroyed. It is necessary to say it forcefully that their launching pad, as it were, fizzled into oblivion due to their lethargy. The learned trial Judge rightly cited the case of Piaro v. Tenalo (supra). See also Ohiari v. Akabeze (supra); Anyawu v. Mbara (supra) Mogaji v. Cadbury (supra); Alade v. Awo (1975) 4 SC 215 at 228.

I need to further stress the point that since the appellants as plaintiffs at the lower court failed to plead and give evidence of their root of title, their case based on same ought to fail and must be dismissed. Refer to the case of Ogbechie v. Gabriel Onochie (1988) 1 NWLR (Pt.70) 370 at 392, In Odofin v. Isaac Ayoola (1984) 11 SC 72 at page 106, the Supreme Court per Karibi-Whyte, J.S.C. pronounced as follows:

“It follows therefore that where traditional evidence of that alleged from which title is derived, is lacking or rejected, as was in this case, such evidence is not only merely inconclusive but also cannot be relied upon, whether any other acts positive or numerous can support evidence of ownership. The basic foundation, that is traditional evidence, having been rejected, there is nothing on which to found acts of ownership.”

In the present appeal, the appellants completely failed to adduce traditional evidence in respect of their root of title. They left it hanging in the air. It occurs to me that the secondary acts of possession and ownership upon which they desire to rely cannot avail them. They have no foundation. See Fasoro & Anor. v. Beyioku & Ors. (supra) at pages 271-272; Eronini v. Iheuko (supra) at page 66.

Let me say it right away here, that the burden of proof that the appellants are entitled to declaration of title to the disputed land rests on them. With due respect to the senior counsel for the appellants, it is not an excuse that the respondents, as defendants at the trial court, abandoned their defence. Since there was no counterclaim, the respondents had no onus to discharge. Since the appellants claim declaration of title to the land in dispute, not even an admission by the respondents as defendants can preclude the appellants from discharging the onus of proof which lies on them heavily like lead. See Onobruchere v. Esegine (1986) 1 NWLR (Pt.l9) 799 at 806807.

The appellants contended that they pleaded acts of ownership and possession of the land in dispute and led evidence in support of same but the trial court rejected their evidence without any valid reason. To my mind, this assertion is not correct. The learned trial Judge painstakingly and meticulously evaluated the evidence garnered by him. He found that alleged tenants of the appellants like Alphonsus Ijagwu and Madam Omeme Eze and her children who are all still living were not called to testify that the appellants put them on the land in dispute. The learned trial Judge found that P.W.4 and P.W.5 did not know how the appellants got to be on the land in dispute. They merely saw them on the land and concluded that they must have been the owners. The learned trial Judge concluded that- ‘this to say the least, is a most unsatisfactory way of establishing ownership of land.’

From the evidence of P.W.3 and P.W.4 , it is clear that the appellants are not the exclusive owners of the land in dispute. P.W.3 stated it clearly that ‘the land in dispute is jointly owned by the plaintiffs’ sub-family and my-sub family of Umunyaba’. P.W.4 also testified to that effect.

The findings of fact by the trial court should be approached with extreme caution. After all, the trial Judge had the opportunity to hear and watch the demeanour of witnesses who testified before him. The findings and conclusions reached by him sound plausible. Refer to Enang v. Edu (supra) at page 38-40. The findings of fact by the trial court are not unreasonable or perverse. I cannot see the propriety of tampering with same. The appellants failed to invite their ‘tenants’ to testify in their support. It has been shown that the appellants are not the exclusive owners of the land in dispute. And yet they claim a declaration of title to same. Such is unthinkable. No reasonable court will grant such a declaration of title in favour of the appellants to the disadvantage of people who are not parties to the action.

The last point which is worthy of consideration relates to customary arbitration which the appellants in their pleadings and evidence at the trial court as well as in their brief of argument before this court obliquely touched upon.

I need to state it here that for customary arbitration to operate as estoppel, the following ingredients must be available:

(a) That there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons.

(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitrators would be accepted as final and binding.

(c) That the said arbitration was in accordance with custom of the parties or of their trade or business.

(d) That the arbitrators reached a decision and published their award.

(e) That the decision was accepted by the parties expressly or by implication at the time of the award.

The above ingredients of customary arbitration were such as prescribed in Agu v. Ikewibe (1991) 3 NWLR (Pt 80) 385; Igwego v. Ezeugo (1992) 2 NSCC (vol.23) 454; Larbi v. Kwesi 13 WACA 81 at 82; Ohiaeri v. Akabeze (1992) 2 NWLR (Pt.221) 1.

On page 2 of appellants’ brief of argument, there is a mention of attempted settlement of the dispute by council of elders of Nachi.

May be I should state it clearly that an ‘attempted settlement’ is no real settlement. I am unable to trace the real evidence of customary arbitration which could prop or aid the appellants’ case. The real decision of the arbitrators is unknown. P.W.5 said the only advice they gave the appellants was to go and sue the 2nd respondent in court. It appears to me that the plea of customary arbitration by the appellants stands on a sinking sand.

In conclusion, I agree with the senior counsel for the respondents that the appellants failed to plead and give evidence of their root of title. The learned trial Judge meticulously evaluated the evidence and made accurate findings based on the evidence before him. There were loopholes in acts of possession and ownership claimed by the appellants. They have no secondary source of validity. Appellants’ own witnesses testified that the appellants are not exclusive owners of the land. Appellants talked of attempted settlement by elders whose award cannot be pin-pointed.

With all the above, the appellants felt that they are still entitled to a declaration of title to the land in dispute in their favour. They failed to appreciate that declaratory orders by a court are based on discretion.

It has been said that discretion must be exercised judicially and judiciously as well. And discretion herein is the art of being circumspect, wary and discrete in a bid to arrive at a reasonable and plausible judgment. Refer to Eronini v. Iheuko (1989) 2 NWLR (Pt.101) 46, (1989) 3 SC (Pt.1) 30; University of Lagos v. Aigoro (1985) 1 All NLR (Pt.1) 58; (1985) 1 NWLR (Pt.1) 143 at 148.

It was not proper to chastise the learned trial Judge. He performed his job well to the best of his ability. He exercised his discretion properly. I cannot see why an accusing finger should be pointed at him. On my part, I am unable to fault him. Appellant’s case had no merit from their own poor showing. And their claim was rightly dismissed by the learned trial Judge.

I come to the conclusion that the appeal lacks merit on all points canvassed. The appeal is accordingly dismissed as the judgment of the learned trial Judge is hereby affirmed. It is inviolate. The appellants shall pay N5,000 costs to the respondents.

Other Citations: (2003)LCN/1332(CA)