MAIZAKI V KABIRU

MAIZAKI V KABIRU


IN THE COURT OF APPEAL
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
ON FRIDAY, 12TH JUNE, 2015


APPEAL NO: CA/K/280/2009

CITATION: CA (2015) 6 LLER 1

Before Their Lordships

UWANI MUSA ABBA AJI, J.C.A.

ABDU ABOKI, J.C.A.

AMINA AUDI WAMBAI, J.C.A.


BETWEEN

ABU MAIZAKI

(APPELLANTS)

AND

ZINE KABIRU

RESPONDENTS


PRONOUNCEMENTS

A. APPEAL
1. Failure to file Respondent’s Brief of Argument–Effect; Whether same entitles the appellant to judgement

Let me on the outset state that the failure of the Respondent to file any brief of argument though is tantamount to an admission by the Respondent of everything stated in the Appellants brief of argument, which is borne out of the record, the Appellant still has the duty to show that the judgment of the lower Court which has favoured the Respondent, is wrong. See Unity Bank Plc vs. Bouari (2008) 7 NWLR (Pt 1086) 372. This point was made clear by the Supreme Court that the failure of the Respondent to file Respondents brief of argument is immaterial. An Appellant must succeed or fail on his own brief. Although failure to file Respondents’ brief may amount to the Respondents being deemed to have admitted the truth of everything stated in the Appellants’ brief which is borne out of the record, the absence of the Respondents’ brief will not place the Appellants at an undue advantage. This is because the Respondent has already a judgment of the Court below in his favour, and findings of a lower Court are presumed to be correct until they are set aside, John Ogbu & Anor vs. The State (2007) LPELR 2289 (SC). PER WAMBAI, J.C.A. (paras. 16-17) READ IN CONTEXT.

B. EVIDENCE
2. Conflicting and Contradictory Evidence–Position of the law on two contradictory and conflicting evidence of the same party

It is now settled law that where the evidence of a witness called by a party conflicts with the evidence of another witness called by the same party on an existence of a fact especially on a material fact, the evidence of both witnesses are inconsistent and unreliable. EBOADE & ANOR. V. AFOME & ANOR. (1997) 5 NWLR (Pt.506) 490. Such evidence is unreliable as the Court cannot choose and pick between the conflicting testimonies which to believe and which to discard. BOY MUAG V. THE STATE (1976) 9-10 SC. PER WAMBAI, J.C.A. (paras. 42-43) READ IN CONTEXT.

3. Evaluation of Evidence–On the primacy of the trial court in evaluation of evidence

It is now well established that the evaluation of evidence placed before a trial Court and ascription of probative value to such evidence are primarily within the domain of the trial Court which saw, heard and assessed the witnesses while they testified. ADEBAYO V. ADUSEI (2004) 4 NWLR (Pt. 862) 4. Where the trial Court unquestionally discharges its duty and duly evaluates the evidence and appraises the facts, it is not the business of the Appellate Court to substitute its own views for the views of the trial Court unless the conclusion or findings reached are perverse. IKUMONIHIAN V. STATE (2014) 2 NWLR (Pt.1392) 564. PER WAMBAI, J.C.A. (paras. 47-48) READ IN CONTEXT.

4. Evaluation of Evidence–On when an appellate court will interfere with the evaluation of evidence by the trial court

However, an Appellate Court has the duty to interfere with the evaluation of evidence by trial Court where the finding or conclusion arising from the evaluation, is perverse, in the sense that it is not borne out from the evidence before him or where the decision arrived at is perverse. IWUOHA V. NIPOST LTD. (2003) 8 NWLR (Pt.822) 308. A decision is said to be perverse when:-

(a) It is speculative and not based on any evidence,

(b) The Court took into account matters which it ought not to have taken into account, or

(c) The Court shuts its eyes to the obvious or

(d) When such a decision has occasioned a miscarriage of justice.

ATOLAGBE V. SHORUN (1985) 1 NWLR (Pt.2) 360, OSUJI V. EKEO (2002) 52 WRN 1 at 33, MOMOH V. UMORU (2011) 15 NWLR (Pt. 1270) 217. PER WAMBAI, J.C.A. (para. 49) READ IN CONTEXT.

C. LAND LAW
5. Declaration of Title–On the principle that claimant must prove clearly the boundaries of the land; exceptions thereto

The law is trite that before a declaration of title to land can be granted, the land to which the claim relates must be identified with certainty, its boundaries and features must be clearly stated.ADEOSUN V. JIBESHI (2001) 11 NWLR (Pt 724) 290, ODOFIN v. ONI (2001) 3 NWLR (Pt 701) 488 SC, ODUNZE & ORS. V. NWOSU & 4 ORS. (2007) 13 NWLR (Pt. 1056) 1 at 34-35 A-A. However, where the identity of the land is not in issue, the boundaries of the land need not be proved ALACHENU V. OSOKE (2002) 9 NWLR (Pt 773) 521 and no duty is imposed on the Plaintiff or counter-claimant to prove the identity of the land which is well known to all parties. NADI V. OSENI (2003) 4 WRN 12, ADEDEJI V. OLOSO (2007) LPELR 86. PER WAMBAI, J.C.A. (paras. 26-27) READ IN CONTEXT.

6. PROOF OF TITLE–Duty on claimant where he claims his root of title from another person

On the proof that the land belonged to her late husband and now to her, the law is settled that for a party who roots his title through another person to succeed in his claim, he must not only prove his own title to the land, but also the title of his predecessor and how he acquired same. PER WAMBAI, J.C.A. (para. 32) READ IN CONTEXT.

7. PROOF OF TITLE–On whom lies the burden of proof

The law is trite that the burden of proof in a claim of title to land as in all civil cases, lies on the party, usually the Plaintiff except where there is a counter-claim, on the counter-claimant as well, to prove entitlement to the claim. The claimant must succeed on the strength of his case and not on the weakness of the defence. This principle that the claimant must succeed on the strength of his case and not on the weakness of the defence’s case is only an extension of the principal rule of evidence law that the burden of proof generally lies on the plaintiff by virtue of Section 131 of the evidence Act. It is therefore settled law that the success of the plaintiffs claim depends on the strength of his evidence placed before the Court and not on the weakness of the case presented by the defence. Bankole vs. Pelu (1997) 8 NWLR (Pt.1211) 525; Melifonwu & Ors vs. Egbuji & Ors (1982) 9 SC (reprint) 73, Odunze vs. Nwosu (2007) All FWLR (Pt.379) 1295, Kpopek Const Ltd vs. Ekisola (2010) All FWLR (Pt 519) 1035, See also ECHI V. NNAMANI (2000) 8NWLR (Pt.667) 1 @ 2. PER WAMBAI, J.C.A. (paras. 19-21) READ IN CONTEXT.

8. PROOF OF TITLE–Ways of proving title to land

A claimant of title to land may succeed in proving his title by any of the 5 ways enunciated by the Supreme Court in IDUNDUN V. OKUMAGBA (1976) 1 NMLR 200 and re-stated in several cases, see SALAMI & ANOR V. ALH. ADETORO LAWAL (2008) 14 NWLR (Pt.1108) 546, 574. These are:-

(a) By traditional evidence;

(b) By production of documents of title duly authenticated and executed;

(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership;

(d) By acts of long possession and enjoyment;

(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. PER WAMBAI, J.C.A. (para. 23) READ IN CONTEXT.

LEAD JUDGEMENT DELIVERED BY WAMBAI, J.C.A.


 

    1. This appeal is from the decision of Katsina State High Court in suit No. KTH/DM/13/2008 delivered on the 20th July, 2009 by Hon. Justice A. A. Abukur, wherein Judgment was entered in favour of the Plaintiff (now Respondent) declaring her the owner of the land in dispute against the defendant (now the Appellant).
    2. The claims of the Respondent’s, as Plaintiff, before the Lower Court were for:-(a) “Declaration of this Honourable Court that the Plaintiff is the lawful owner of the farm in dispute.(b) The farmland originally belongs to Danlami Plaintiff’s husband.(c) An Order of perpetual injunction restraining the Defendant his agents, privies and servant from entry or claim ownership”.
    3. The Appellant as defendant, filed a statement of claim to deny the Respondent’s claim.
    4. In proof of her case, the Respondent as Plaintiff called 3 witnesses whose case was that the farmland in dispute situate in Turare Area, of Karo village belonged to Danlami, the late husband of the Respondent who died about 12 years prior to the year when the witnesses testified for the Respondent. It was their evidence that Danlami bought the farmland and farmed on it before he died. He was farming on the land and never sold it to anyone until he died.
    5. The case for the Appellant as defendant through his 3 witnesses, himself inclusive as DW3, was that the land in dispute belonged to Ibrahim Danyaya who was the father of Dantami, the late husband of the Respondent from whom he bought the land at N7500.00 and was issued with a purchase receipt, exhibit 1A. This was witnessed by Amadu Ango, DW2, who also, about 17 years before the year 2009, when he testified, was asked by the two sons of Ibrahim Danyaya, Danlami (late Respondent’s) husband and Ali to be shown the boundaries of the land. He obliged them. It was also the evidence of DW2 that Ibrahim Danyaya (father of late Respondent’s husband) was allocated the land in dispute by one Abu Nagambo after paying a levy of N800.00.
    6. At the close of evidence and submission of both Counsel, the learned trial Judge held inter alia:”The Plaintiff has successfully satisfied the crucial requirement by establishing the origin of the ownership of farmland to her deceased husband, Danlami… the Court hereby grants to the Plaintiff the reliefs sought”.
    7. Aggrieved by the said decision, the Appellant through his Counsel Mas’ud M. Alabelewa Esq. filed a notice of appeal dated 28th September, 2009 containing 3 grounds of appeal to commence this appeal.
    8. In the prosecution of the appeal and in compliance with the Rules of this Court, the Appellant’s brief of argument settled by Mas’ud M. Alabelewa Esq. was filed on the 01/11/2010 wherein the Appellant distilled a sole issue for determination thus:-“Whether the Respondent (as Plaintiff at the trial has proved her root of title by cogent, credible and upon preponderance of evidence to be entitled to a declaration of title”.
    9. The Respondent’s Counsel however failed to file Respondent’s brief of argument and pursuant to a motion on notice filed by the Appellant which was granted on 02/12/2014 pursuant to Order 18 Rule 10 of the Rules of this Court, the appeal was argued only on the Appellant’s brief of argument.
    10. Learned Appellant’s Counsel submitted that in a case of declaration of title to land, the burden of proof is on Plaintiff to prove his case who will succeed only on the strength of his case or else fail, citing the case of Echi v Nnamani (2000) 8 NWLR (Pt 667) 1 at 12 and the case of Bello Salami & Anor v. Alh Adetora Lawal (2008) 14 NWLR (Pt.1108) P, 574, Paras A-E, Counsel also submitted that as a starting point, the prove of areas claimed by the party must be done with certainty, as well as its boundaries, citing the case of Michael Odunze and 5 Ors v. Nwosu and 4 Ors, (2007) 13 NWLR (Pt.1050) p, 7 at 35 Para AB-A and that in the instant case, the Respondents witnesses did not know the boundaries of the land in dispute as stated by PW1 and 2.
    11. It was his contention that the Respondent relied on her late husband’s root of title and she again stated in her pleading that her husband died and left the farmland in dispute in the hands of his father but that she did not lead evidence to prove same and therefore the pleading is deemed abandoned, citing the case of Dr. Olusegun
      Agagu v. Rahman Olusegun Mimiko & 17 Ors. (2009) 7 NWLR (Pt.1140) p.342 @ p.433 Para F-G.
    12. It was also submitted that where a party traces his root of title to another person, he has a duty to show how his predecessors acquired title to the land, citing the case of Julius Oba Fatayinbo & 2 Ors. v. Michael Dada Osadeyi & Anr. (2009) 16 NWLR (Pt 1168) p.605 @ 625-626, Para H-H, Counsel argued that in the instant case, the evidence led by the Respondent’s witnesses in regard to proof of her ownership of the land were contradictory as PW2 testified that Danlami bought the land in dispute from Forest Reserve Personnel about 20 years ago, the evidence of PW3 is that Danlami bought the land from one Alh. Amadu Inusa and farmed on it for 4 years before he died 12 years ago (before 2009 when the witness testified) and that when witnesses contradict themselves on material issues, such contradictions render the pieces of evidence invalid, citing the case of Alh Musa Adu & 3 Ors v. Saka Gbadamosi & 3 Ors. (2009) 6 NWLR (Pt 1136) p.110 at 125 Para A-C.
    1. Counsel also submitted that the Appellant led evidence in his defence through DW1, DW2 and DW3 who testified that the Appellant bought the farmland from Ibrahim Danyaya at the sum of N7500 and described it’s neighbors and boundaries.
    2. Finally Counsel submitted that the Respondent has not proved her root of title by cogent and credible evidence and upon the preponderance of the totality of evidence placed before the Court to be entitled to a declaration of title.
    3. This Court was then urged to resolve the issue in favour of the Appellant and against the Respondent. Learned Counsel prayed that the appeal be allowed and the decision of the lower Court be set aside.
    4. Let me on the outset state that the failure of the Respondent to file any brief of argument though is tantamount to an admission by the Respondent of everything stated in the Appellants brief of argument, which is borne out of the record, the Appellant still has the duty to show that the judgment of the lower Court which has favoured the Respondent, is wrong. See Unity Bank Plc vs. Bouari (2008) 7 NWLR (Pt 1086) 372.
    1. This point was made clear by the Supreme Court that the failure of the Respondent to file Respondents brief of argument is immaterial. An Appellant must succeed or fail on his own brief. Although failure to file Respondents’ brief may amount to the Respondents being deemed to have admitted the truth of everything stated in the Appellants’ brief which is borne out of the record, the absence of the Respondents’ brief will not place the Appellants at an undue advantage. This is because the Respondent has already a judgment of the Court below in his favour, and findings of a lower Court are presumed to be correct until they are set aside, John Ogbu & Anor vs. The State (2007) LPELR 2289 (SC).

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    1. Thus, the Appellant has to succeed on the strength of his brief as can be borne out from the record of appeal.
    2. The law is trite that the burden of proof in a claim of title to land as in all civil cases, lies on the party, usually the Plaintiff except where there is a counter-claim, on the counter-claimant as well, to prove entitlement to the claim.
    3. The claimant must succeed on the strength of his case and not on the weakness of the defence.
    4. This principle that the claimant must succeed on the strength of his case and not on the weakness of the defence’s case is only an extension of the principal rule of evidence law that the burden of proof generally lies on the plaintiff by virtue of Section 131 of the evidence Act. It is therefore settled law that the success of the plaintiffs claim depends on the strength of his evidence placed before the Court and not on the weakness of the case presented by the defence. Bankole vs. Pelu (1997) 8 NWLR (Pt.1211) 525; Melifonwu & Ors vs. Egbuji & Ors (1982) 9 SC (reprint) 73, Odunze vs. Nwosu (2007) All FWLR (Pt.379) 1295, Kpopek Const Ltd vs. Ekisola (2010) All FWLR (Pt 519) 1035, See also ECHI V. NNAMANI (2000) 8NWLR (Pt.667) 1 @ 2.

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    1. This is because the burden stands unequivocally firm on the shoulders of the plaintiff and does not for a second shift to the defendant until the plaintiff proves what he claims, then the burden would shift to the defendant to lead contrary evidence to dislodge the plaintiff’s evidence. This is why the onus on the plaintiff has been described as constant as the rising of the sun from the East and its setting from the West everyday. See Nwabuoku vs. Onwordi (2006) 5 S.C (Pt 111) 103.
    2. A claimant of title to land may succeed in proving his title by any of the 5 ways enunciated by the Supreme Court in IDUNDUN V. OKUMAGBA (1976) 1 NMLR 200 and re-stated in several cases, see SALAMI & ANOR V. ALH. ADETORO LAWAL (2008) 14 NWLR (Pt.1108) 546, 574. These are:-(a) By traditional evidence;(b) By production of documents of title duly authenticated and executed;(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership;(d) By acts of long possession and enjoyment;

      (e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.(back to top?)

    3. Did the Respondent prove her case before the lower Court as held by the learned trial Judge?
    4. It was submitted by the learned Counsel for the Appellant that the first duty of a claimant of title to land is to prove the identity of the land in dispute and its boundaries which Counsel contended the Respondent failed to prove at the Lower Court.
    5. The law is trite that before a declaration of title to land can be granted, the land to which the claim relates must be identified with certainty, its boundaries and features must be clearly stated.ADEOSUN V. JIBESHI (2001) 11 NWLR (Pt 724) 290, ODOFIN v. ONI (2001) 3 NWLR (Pt 701) 488 SC, ODUNZE & ORS. V. NWOSU & 4 ORS. (2007) 13 NWLR (Pt. 1056) 1 at 34-35 A-A.
    6. However, where the identity of the land is not in issue, the boundaries of the land need not be proved ALACHENU V. OSOKE (2002) 9 NWLR (Pt 773) 521 and no duty is imposed on the Plaintiff or counter-claimant to prove the identity of the land which is well known to all parties. NADI V. OSENI (2003) 4 WRN 12, ADEDEJI V. OLOSO (2007) LPELR 86.(back to top?)
    7. In the instant appeal, the Appellant did not by his statement of defence put to question the identity of the land in dispute. What is more, the record shows that the dispute between the parties had been in litigation albeit, at the wrong Court, the Safana Sharia Court where title to the land was granted in favour of the Appellant against which Respondent appealed to the Upper Sharia Court and while still pending, the Appellant appealed to Sharia Court of Appeal before the matter was eventually instituted at the Lower Court.
    8. Thus, the identity of the land cannot be a subject of uncertainty in this case, as to require the Respondent as Plaintiff to prove. I therefore hold that the Respondent was not required to prove the boundaries of the land.
    1. The Respondent claims root of her title through her late husband whom she claims, was the owner of the land in dispute before he died. This imposes on her the duty not only of proving that she is the owner of the land but also that her late husband through whom she claims, was the rightful owner and passed the title to her. In the statement of claim, she pleaded that when her husband died, his father was cultivating the land as she, his wife, and children could not cultivate it.
    2. This aspect of the pleading that her late husband’s father was cultivating the land after his demise because she and the children could not do so, must be deemed abandoned, as rightly argued by the Appellant’s Counsel, same not having been supported with evidence. DR. OLUSEGUN AGAGU V. MIMIKO & 17 ORS. (Supra).
    3. On the proof that the land belonged to her late husband and now to her, the law is settled that for a party who roots his title through another person to succeed in his claim, he must not only prove his own title to the land, but also the title of his predecessor and how he acquired same.(back to top?)
    4. As stated earlier in this Judgment, it is now trite that the Plaintiff must succeed on the strength of his case and not on the weakness of the defence. The Plaintiff’s claim for declaration of title stands or falls on the strength or weakness of his case. He cannot scout for loopholes in the defendants case to build up his case except where the weakness in the defendant’s case supports his, H. H. ALH. MOMOH & ORS V. H.H. ALH. UMORU & ORS. (2011 LPELR 8130 (SC).
    5. It is the law that where as in this instant appeal the defendant at the lower Court did not file counter-claim, he has no duty to prove anything as he does not seek any declaration from the Court. The duty is that of the Plaintiff who seeks a declaration to prove his entitlement to it by cogent and credible evidence without relying on the weakness in the defence’s case. See BALOGUN V. AMUBIKANHAN (1985) 3 NWLR (Pt. 11) 27, DARMA V. BATAGARAWA (2002) 17 NWLR (Pt.796) 243, ADELEKE V. IYANDA (2001) 6 SC 18.
    6. The evidence in support of the Respondent’s case was offered by PW1, PW2 and PW3. PW2 stated inter alia:-“……the farmland in dispute belonged to Danlami who died about 12 years ago. To the best of my knowledge, Danlami never disposed of the farm either by sale or by any other way….I do not know the exact location of the farmland because I have never been to it but I knew Danlami owned it because he was my nephew and I knew when he was farming on it Danlami bought it personally from forest reserve personnel about 20 years ago……”
    7. PW3 testified inter alia:-“…….the late husband of the Plaintiff by name Danlami was the owner thereof. The said Danlami bought and used the farmland from one Amadu Inusa. But I do not know the price he bought it……….. Up till the time he died he was still tilting the farmland in dispute……. He could not have sold it without informing me….. “
    8. The relevant portion of the evidence of PW2 just reproduced, is that the land in dispute belonged to Danlami who bought the farmland from “forest reserve personnel about 20 years ago”. PW3 on his part who also testified that the land belonged to Danlami, however, stated that Danlami bought the land from one “Adamu Inusa” and that he bought and used the land for about 4 years before he died about 12 years ago”.
    9. While the evidence of PW2 is that Danlami bought the land from “Forest Reserve Personnel about 20 years ago”, the evidence of PW3 is that Danlami bought the from Amadu Inusa About 16 years ago. There is an obvious contradiction between the evidence of PW2 and that of PW3 with respect to how Danlami through whom the Respondent claimed her title, acquired his title. This contradiction was neither explained by the Respondent nor resolved by the Court. The contradiction without doubt raises a few questions.
    10. (1) Did Danlami buy the land from a Forest Reserve Personnel 20 years ago?(2) Did he buy it from one Amadu Inusa, about 16 years ago?

      (3) Did he buy the land from the two persons? Or

      (4) Is the Forest Reserve Personnel one and same person with Amadu Inusa?

    11. These bugging posers remained unresolved by the trial Court in its evaluation of the evidence and in the conclusion arrived at. It is also relevant to state here that PW2 admitted that he did not know the location of the farmland as he had never been there.
    12. It was argued for the Appellant on the authority of ADU V. GBADANWSI (2009) 6 NWLR (Pt 1136) 110, 125 that these renders the entire evidence unreliable.

 

    1. It is now settled law that where the evidence of a witness called by a party conflicts with the evidence of another witness called by the same party on an existence of a fact especially on a material fact, the evidence of both witnesses are inconsistent and unreliable. EBOADE & ANOR. V. AFOME & ANOR. (1997) 5 NWLR (Pt.506) 490.
    1. Such evidence is unreliable as the Court cannot choose and pick between the conflicting testimonies which to believe and which to discard. BOY MUAG V. THE STATE (1976) 9-10 SC.

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    1. A claim for declaration of title which can only succeed on the strength of the claimant’s case on cogent and credible evidence, cannot succeed on conflicting and contradictory evidence of the claimant’s witnesses on material fact as to the establishment of the root of title. See MINI LODGE V. NGEI (2009) 18 NWLR (Pt.1173) 254.
    2. In the instant appeal, the trial Judge, failed to resolve or even advert his mind to these material contradictions in the Respondents case before arriving at the conclusion that the Respondent proved her case.
    1. The learned trial Judge rather dealt extensively with the weakness in the case of the Appellant who by law has no burden placed on him to prove anything except to repel the Respondent’s claim.

 

    1. It is now well established that the evaluation of evidence placed before a trial Court and ascription of probative value to such evidence are primarily within the domain of the trial Court which saw, heard and assessed the witnesses while they testified. ADEBAYO V. ADUSEI (2004) 4 NWLR (Pt. 862) 4.
    2. Where the trial Court unquestionally discharges its duty and duly evaluates the evidence and appraises the facts, it is not the business of the Appellate Court to substitute its own views for the views of the trial Court unless the conclusion or findings reached are perverse. IKUMONIHIAN V. STATE (2014) 2 NWLR (Pt.1392) 564.

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    1. However, an Appellate Court has the duty to interfere with the evaluation of evidence by trial Court where the finding or conclusion arising from the evaluation, is perverse, in the sense that it is not borne out from the evidence before him or where the decision arrived at is perverse. IWUOHA V. NIPOST LTD. (2003) 8 NWLR (Pt.822) 308. A decision is said to be perverse when:-(a) It is speculative and not based on any evidence,(b) The Court took into account matters which it ought not to have taken into account, or(c) The Court shuts its eyes to the obvious or(d) When such a decision has occasioned a miscarriage of justice.

      ATOLAGBE V. SHORUN (1985) 1 NWLR (Pt.2) 360, OSUJI V. EKEO (2002) 52 WRN 1 at 33, MOMOH V. UMORU (2011) 15 NWLR (Pt. 1270) 217.(back to top?)

    2. In the instant appeal, the learned trial Judge shut his eyes to the obvious contradictions in the evidence adduced for the Respondent while appraising the evidence before the Court thereby arriving at a wrong conclusion in finding for the Respondent inspite of the material contradictions.
    3. This in my view, is an appropriate situation when this Court can interfere with the findings and conclusion arrived at by Lower Court and substitute its own findings for that of the lower Court, which I hold is perverse. The trial Judge having shut his eyes to these obvious contradictions in the Respondent’s evidence and yet found for the Respondent, I hold that the said finding and conclusion reached by the learned trial Judge cannot stand. The result is that there is merit in this appeal and it is hereby allowed. The decision of the Lower Court delivered by Hon. Justice A. A. Abukur on 20th July, 2009 is hereby set aside.

 

    1. ABBA AJI, J.C.A.: I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, A.A. Wambai, JCA.
    2. I agree with the reasoning and conclusions of my learned brother that the appeal has merit and it is also allowed by me. The judgment of the lower Court delivered on the 20th July, 2009 is hereby set aside. I abide by the consequential order(s) made in the judgment.

 

  1. ABOKI, J.C.A.: I have the privilege of reading the draft judgment of my learned brother AMINA AUDI WAMBAI, JCA, just delivered that this appeal has merit and should be allowed. I too set aside the decision of the Lower Court delivered by Hon. Justice A. A. Abukur on 20th July, 2009.

Appearances:

Hayatudeen Suleiman with him, Hyelni Mshelia For Appellant

No appearance For Respondent