Vincent Anizoba Ugongene & Ors V. Chigbo Igwebuike & Ors (2016)
LawGlobal-Hub Lead Judgment Report
EMMANUEL AKOMAYE AGIM, J.C.A.
On 26-4-1974, the respondents herein, as plaintiffs filed a claim and caused a writ of summons to issue on the same day commencing suit No AA/57/1974 in the then High Court of East Central State (now Anambra State) in the Amawbia/Awka Judicial Division against the appellants herein as defendants, claiming for-
(a) ?Declaration of title to all that piece or parcel of land lying being and situate at Awka known as and called Egbeana Obibia, within jurisdiction, annual value of which is N10.00 as will be more particularly delineated in plan to be filed.
(b) N100.00 being general damages for trespass
(c) Perpetual injunction restraining the defendants their servants and privies from further acts of trespass on the said land.?
The suit was tried on the following pleadings ? further amended statement of claim filed on 2-4-1986 and amended statement of defence filed on 27-7-1976.
The plaintiffs adduced evidence through six witnesses (PW1, PW2, PW3, PW4, PW5 and PW6). The defendants adduced evidence through seven witnesses (DW1, DW2, DW3, DW4,
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DW5, DW6 and DW7). After the adoption by the parties of their respective written final addresses the trial Court on 22-11-2006, rendered judgment holding that the plaintiffs? claim was successful and granting all the reliefs claimed by the plaintiffs as follows-
(a) ?Declaration of title to all that piece or parcel of land lying being and situate at Awka known as and called Egbeana Obibia, within jurisdiction, annual value of which is N10.00 as will be more particularly delineated in plan to be filed.
(b) N100.00 being general damages for trespass
(c) Perpetual injunction restraining the defendants their servants and privies from further acts of trespass on the said land.?
Dissatisfied with this judgment, the defendants, on 20-2-2007 commenced this appeal No CA/E/16/2008 by filing a notice of appeal containing grounds of appeal. The notice of appeal was amended with leave of this Court granted on 18-6-2003. The amended notice of appeal contains six grounds.
Both parties to this appeal have filed, exchanged and adopted their briefs of argument as follows- appellants? brief, respondent?s brief and
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appellants? reply brief.
The appellants? brief raised the following issues for determination-
1. ?Whether the trial Court refusal to grant the (defendants) appellants application to bring into the proceedings a further amended statement of defence did not amount to a denial of their constitutional right to Fair Hearing(Ground 1, original grounds).
2. ?Whether the judgment rendered in the suit was not in the clear abdication of the Courts adjudicatory functions, leading thereby to a miscarriage of justice(Grounds 3, 4, 5 and 6 Additional grounds).
3. ?Whether the lower Court?s failure to evaluate/reach determination on crucial issues canvassed at the trial did not negate completely the requirements of justice between the parties (Ground 2 original grounds).
The respondents? brief raised the following issues for determination-
1. ?Whether in the circumstances of this case, the trial Court was justified in refusing the appellants? application to amend their amended statement of defence (Ground 1).
2. Whether the trial Court can correctly be said to
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have abdicated its adjudicatory function in not visiting the locus in quo before delivering its judgment?
3. Can it be correct to say that the trial Court failed to evaluate and determine all crucial issues canvassed by the parties in this case? (Ground 2)?
The respondent filed a notice of preliminary objection on 29-7-2015 which was argued at pages 6-8 of the respondents? brief the ground for the objection are that-
1. The time for appeal against an interlocutory decision is Fourteen (14) days. The appellants did not obtain leave to appeal out of time and for that reason Ground 1 is incompetent as well as issue No. 1, distilled therefrom.
2. The decision of the trial Court complained of in Ground 1 of the Notice of Appeal on the application for amendment of the amended Statement of Defence of the appellants requires the exercise of discretion of the Court, which is based on the facts and circumstances to be married to the laws on the subject-matter, is on mixed law and facts. It is mandatory for the appellants to obtain the leave of either the trial Court or that of the Court of Appeal pursuant to Section 242(1) of the 1999
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Constitution (as amended) before they can appeal against the interlocutory decision of the trial Court on grounds of mixed facts and law.
Before I consider the merit of this appeal let me determine this preliminary objection.
Learned counsel for the respondent argued that ground 1 of this appeal, which complain against the ruling of the trial Court on 16-2-2006 refusing the appellants? application to further amend their amended statement of claim, being an interlocutory appeal, ought to have been filed within 14 days as prescribed by S. 24(2) of the Court of Appeal Act 2004, but that it was contained in the notice of appeal filed on 20-2-2007 against the final judgment, that it was therefore filed out of time and is therefore incompetent. He further submitted on this point that it is settled law that where a party in an appeal against a final judgment desires to incorporate therein grounds of appeal complaining against an interlocutory decision when the 14 days period prescribed by S. 24(2) of the Court of Appeal Act 2004 has elapsed, he must seek for and obtain an order of Court extending the time to appeal against the interlocutory
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decision, so as to render valid the said grounds complaining against the interlocutory ruling and that without the extension of such time by the Court, such ground of appeal would be incompetent. For this submission he relied on NNB PLC v. Dencap Nig Ltd (2004) All FWLR (Pt 228) 606 at 637 and Jev & Anor v. Iyortom (2014)14 NWLR (Pt 1428) 575 at 609.
Another submission of Learned Counsel is that the said ground being a complain against the exercise of discretion of the trial Court in refusing the appellants application for amendment, it is a ground of mixed facts and law, that such an appeal cannot be made without leave of Court as required by S. 242(1) of the 1999 Constitution, that no such leave was obtained to bring ground 1 of this appeal, that it is therefore incompetent. For this submission he relied on Continental Merchant Bank of Nig. Ltd v. Usan Construction Nig. Ltd (1996)8 NWLR (Pt 446) 372, Akinwale v. Bank of the North (2001) FWLR (Pt 40) 1683 at 1691 and REAN v. Anumnu (2014) All FWLR (Pt 177) 901 and GMEX Ltd v. N.A.M Ltd (1997)3 NWLR (Pt 496)643 at 655.
?Learned SAN for the respondents did not reply to the first ground of objection
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that the appeal in ground 1 was brought out of time. He replied only to the 2nd ground for the objection.
Even though the appellants did not respond to the respondents? argument in support of the first ground of the objection, I would still consider if the said argument is supported by the facts and the law. It is not open to dispute that the interlocutory ruling of the trial court refusing the application to further amend the amended statement of defence, after the plaintiffs had concluded their evidence and the DW3 had finished testifying was rendered on 15-2-2006 and that the notice of appeal complaining against the said ruling was filed on 20-2-2007, one year after 15-2-2006.
S.24(2)(a) of the Court of Appeal Act 2004 provides that an appeal to this Court against an interlocutory decision of the High Court shall be filed within 14 days from the date the decision was rendered. It is therefore not open to dispute that the appeal in ground 1 of this appeal was filed outside the period prescribed in S.24(2)(a) of the Court of Appeal Act. The appellants have not sought for an order extending the time to bring that appeal and non has been granted
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by this or any other Court.
The incorporation of a ground of appeal complaining against an interlocutory decision in an appeal against the final judgment of a High Court does not obviate the need to comply with the constitutional and statutory provisions on the requirements for the commencement of the appeal. So the appellants ought to have applied for and obtained an order extending the time for appealing against the interlocutory decision of 15-2-2006 before bringing the complain in ground 1 of this appeal as required by S.24 (2)(a) of the Court of Act 2004. As it is, the appeal in ground one of this appeal was brought out of time. It is therefore incompetent and is accordingly hereby struck out. See Jev & Anor v. Iyortom & Ors (2014) LPELR ? 23000 (SC) in which ground one of the appeal against the final judgment of the trial Court did not arise from the said final judgment, but rather complained against an interlocutory decision. At the time the said appeal was filed, the 14 days period prescribed by S. 24(2)(a) of the Court of Appeal Act for giving of notice of appeal against an interlocutory decision had elapsed. The appellant did not
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apply for extension of time to bring the appeal. The Supreme Court held that ?Under S. 24 (2) of the Court of Appeal Act the appellants had 14 days within which to appeal the said interlocutory decision. The appellants did not appeal within the 14 days allowed but camped the appeal on the main decision with the interlocutory decision. This in itself, is not a bad practice but is always encouraged. However, the appellants did not obtain leave of Court with regards to the appeal on the interlocutory decision that was filed outside the 14 days period.? It struck out the said ground for incompetence. See also Onwe V Oke (2001) 1 SC (pt I) 22
Let me consider the question of whether the said ground 1 of this appeal is one of mixed law and facts. The ground as couched reads thusly- ?The learned trial judge erred in law when he improperly exercised his discretion by refusing the appellants? motion for amendment of pleadings
Particulars of Error
(a) The learned trial Judge did not exercise his discretion judicially and judiciously in refusing the appellants? application for amendment of pleadings and by so doing has led to
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the miscarriage of justice in the findings of the learned trial Judge.
(b) The Defendants/Appellants were denied their constitutionally entrenched right to fair trial by the refusal of their motion for amendment and the decision reached at the conclusion of the suit radically affected the appellants? rights and interests as a result of the miscarriage of justice occasioned by the decision of the learned trial Judge.?
A ground of appeal that complains that a Court improperly exercised its discretion in refusing an application for amendment of pleadings or that complains that the court did not exercise its discretion judicially and judiciously in refusing an application for amendment of pleading has been repeatedly held by the supreme Court and this Court to be a ground of mixed law and facts. In CBN & Anor v. Okojie & Ors (2002) 3SC 99 the Supreme Court per Uwaifo JSC held that ?when a challenge is made as to the improper exercise of discretion, it will necessarily involve facts and circumstances and it is usually at best, a question of mixed law and facts.? See also Williams V Mokwe (2005) 7 SC (Pt ii) 153L.M.
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Ericsson Nig Ltd V Aqua Oil Nig Ltd (2011)LPELR -8807 (CA).
The situations listed in S. 241(1) of the 1999 Constitution (as amended) in which appeals can be brought as of right and therefore without leave of Court does not include appeals against interlocutory decisions on grounds of fact or mixed law and fact. By virtue of S.241(1) and S.242(1) of the 1999 Constitution, leave of Court to bring such an appeal must first be obtained before the appeal can be competently and validly filed. Since no leave of court to bring the appeal in ground 1 of this appeal was first obtained before it was brought, it is incompetent and is accordingly struck out for this reason. See Irhabor & Anor V Ogaiamien (1999) LPELR-1535(SC)
As it is the respondents? objection against the competence of ground 1 of this appeal as contained in the initial notice of appeal filed on 20-2-2007 and the amended notice of appeal filed on 20-6-2013 is successful and is accordingly upheld.
?Having decided the preliminary objection to the competence of ground one of this appeal, I will now proceed to determine the merits of the issues raised by both parties for determination
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in this appeal. I will determine the appeal on the basis of the issues raised in the appellants brief which are exactly the same with those raised for determination in the respondents? brief.
Let me start with issue No 1 which asks ?Whether the trial Court?s refusal to grant the (defendants) appellants? application to bring into the proceedings a further amended statement of defence did not amount to a denial of their constitutional right to Fair Hearing(Ground 1, original grounds).?
?The appellants after couching this issue indicated that it is derived from ground 1 of the original grounds of this appeal. It is correct that this issue is derived from ground 1 of this appeal because the subject matter to be determined therein is the same with the subject matter in the said ground 1 of this appeal. But as I have held herein the said ground 1 is incompetent and invalid. Therefore no competent and valid issue can derive from it. Any issue that purports to derive from it would be as incompetent and invalid as the said ground. So issue No 1 purporting to derive from the said incompetent ground 1 and the arguments
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under that issue are incompetent and invalid and are accordingly hereby struck out. See Odeh v. FRN (2008) 3-4-SC 147, Ehuwa v. OSIEC & Ors (2006)11-12 SC 102 and Iroegbu v. Mpama & Ors (2009) LPELR ? 8501 (CA). Having held that issue No 1 and the arguments thereunder are incompetent and invalid, no useful purpose would be served considering and determining their merit.
I will now consider issue No 2 in the appellants? brief. Learned SAN for the appellants argued that the parties in the suit having joined issues on the permanent features on the land in dispute, and, in respect of which the contention of each side is averse to the other with regard to the boundary between them side by side with all other relevant features relating to proof of acts of possession, it becomes the signal to the Court to visit the locus in quo, to see things for itself with a view to a fair and proper determination of which evidence is more probable, that the trial Court did not do so and that this failure to visit the locus in quo has occasioned an irreparable miscarriage of justice, which can only be redressed by the order of this Court setting aside the
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judgment for trial denovo. For these submissions, the Learned SAN relied on the judicial authorities of Seismograph Service v. Esiso Akporuovo (1974)1 ANLR 104 at 211, Seismograph Service Nig. Ltd v.Ogbeni (1974)6 SC 119 and Othnel Shekse v. Victor Planksha & Ors (2008) 44 WRN 34 at 47.
Learned Counsel for the respondent has argued in reply that as the judgment of the trial Court as contained in the Additional Record of Appeal show, the trial Court performed its function painstakingly, outlining the evidence of each side and their witnesses, evaluated and analysed same side by side with the pleadings, and made findings of facts thereon and arrived at a decision with reasons, that the trial court, therefore, did not abandon its adjudicatory function, that both sides filed their respective survey plans of the Suitland which were admitted in evidence without objection, that the trial Court examined them and found as a fact that both speak of the same land and there was no doubt in the mind of the trial Court as to the identity of the said disputed land, that the trial Court found that even though there is an age long dispute as to the boundary between
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the land of both sides, the parties did not join issue on their common boundary, that it is entirely the discretion of the trial Court to decide, having regard to the evidence led and the circumstances of the case including whether the evidence from both sides conflict on the physical feature on the land, which conflict may easily be resolved by a visitation inspection of the locus, that it is not the case of the appellants that they invited the trial court to visit the locus in quo and it wrongly declined and that there was no conflicting evidence as to the physical facts or features on the land as well as the boundary in contention between the parties. For the above submissions Learned Counsel relied on Obi v. Mbionwu (2002) FWLR (Pt 115) 617 at 638, Alize v. Umaru (2002) FWLR (Pt 121)2009 and Ukaegbu v. Nwololo (2009)3 NWLR (Pt 1127)194 at 241
Let me now consider the merit of the arguments of both sides.
I fail to see how the fact that the Court did not visit the locus in quo in this case amounted to an abdication of its adjudicatory function. I equally fail to see how the approach of the trial Court in determining the case before it on the basis
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of the totality of the pleadings and evidence of both sides before it, upon a dispassionate review and evaluation of evidence of each side, making findings of facts and reaching decisions on the basis of reasons, on the said pleadings and evidence occasioned any miscarriage of justice against any of the parties to the case. As held by the Supreme Court in Ukaegbu v. Nwololo (supra) (cited by Learned Counsel for the respondents), Anyanwu v. Mbara (1992)6 SCNJ 90, Eboade v. Atomesin (1997)5 NWLR (pt 506) 490, it is entirely the discretion of the trial Court to decide whether there is need for it to visit of the locus in quo.
As Supreme Court held in Anyanwu v. Mbara & Anor (supra) ?It is a course which a Judge can take only with due caution ? with full advertence to the fact that, as he is not a party in the case, it is belief for one of the parties to apply for it. But where, from the quality and quantity of the evidence called by both sides he finds himself in a position in which, without supplementing what he has heard with what he can see, he can only accredit one version of the conflicting evidence and discredit the other mechanically,
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he should bring to the notice of the parties the need for a visit to the locus and get their consent or acquiescence to it on the above principles, it appears clear to me that in the instant case, the learned trial Judge had no power to order the visit in the first place without the consent of the parties or application by any of them. Also when he ordered it as he did and the appellant showed no interest in it but allowed it to lapse, he cannot now complain against the failure of the Judge to visit the locus.?
In Eboade v. Atomesin (supra) the apex Court held that ? The law is established that the inspection of locus in quo may not generally be necessary where the area in dispute is clear to the Court and parties as the trial Court should reach its judgment, not on the impressions from the locus in quo, but upon its impressions from the evidence before the court unless, of course, there is a special reason or a specific cause for which an inspection has become necessary or desirable.?
The appellants who did not apply for the trial Court to visit the locus in quo for any purpose, now contend in this appeal that the trial Court
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should have visited the locus in quo to resolve alleged contradictions between the pleadings and evidence of both sides on the physical features on the land and boundary between the land occupied by each party herein.
The trial Court in its judgment held concerning the identity of the Suitland, the features on the land and the boundary between them thusly- ?This cannot be true because the land in dispute lies North of the Southern boundary and the homestead of Umuamam. Both DW1 and DW7 evidence are here in conflict. The DW7 is a retired school headmaster and so when he used the word ?homestead? he knew what he was talking. The DW4, also contradicted himself in his evidence in chief and under cross-examination as to whether or not the Obibia Stream is the boundary of the plaintiffs and the defendants. He only realized his contradiction during re-examination by his counsel. The plaintiffs in this case tendered their survey plan as Exhibit ?A? while the defendants? plan was also tendered as Exhibit ?C? Both plans were received in evidence without objection. I have examined both plans and I have no hesitation in
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saying that both of them speak of the same land, as well as being located in the same area. The mere fact that the parties have given different names to the land in dispute is immaterial to its identity. See ARABE v. ASANLU (1980)5-7 SC 78. The identity of the land is clearly not in dispute between the parties. It is rather the boundary between them that has been the age long dispute. But, did the parties in their pleadings really join issue as to their common boundary.?
The trial Court further in its judgment held that- ?I am satisfied that the plaintiff?s established with certainty the identity of the land in dispute, as well as its boundaries, to which their claim relates. The name or etymology of a piece of land is not necessarily indicative of its identity. See Otanma v. Youdubagha (2006) 1 SCNJ 94. The boundary of the land in dispute was clearly established by the plaintiff?s to be the ancient Ekpe wall built by their ancestor, Aguh, to which a footpath ran parallel.?
There is no ground of this appeal complaining against the decision of the trial Court that the survey plans of the suit land tendered by each party
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refer to the same land, that the identity of the suit land was not in dispute between the parties, that the parties did not join issues on the boundary of the land between them and that the respondents established with certainty the identity of the Suitland and its boundaries. The appellants by not appealing against the above portion of the judgment have accepted it as correct, valid and binding on them. See Iyoho V Effiong(2007) 4 SC (pt III) 90 and SPDC Nig Ltd & Anor V X.M. Federal Ltd & Anor (2006) 7 SC (Pt II) 27.
Having accepted as correct and valid the decision of the trial Court that the survey plans filed by each party speak of the same land, that there is no dispute between the parties as to the identity of the Suitland, that the parties did not join issues on the boundary between them, that the respondents proved with certainty the identity of the Suitland and its boundaries, the argument of Learned SAN for the appellant that there was need for the trial Court to have visited the locus in quo because the parties joined issues on the permanent features in the suit land and the boundary between them and the evidence of each party on these
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issues contradicts that of the other party on the same matters becomes unsustainable and invalid. The argument is contrary to the unchallenged portion of the judgment reproduced therein above. It is settled law that a party in an appeal cannot competently and validly argued contrary to a finding or decision he has not appealed against.
The issue of whether the trial Court should or ought to have visited the locus in quo was never raised at the trial by either parties to the case. The appellants did not raise it even in his written final address. It was never an issue at the trial Court and was not pronounced upon by the trial Court in its judgment. It is being raised in ground 5 of this appeal for the first time. It is a fresh issue in this case. The leave of this court to raise it as a fresh issue in this appeal was not sought for and obtained by the appellant before raising it in ground 5 of this appeal. It is settled law that a fresh issue or point cannot be competently raised and argued on appeal without the prior leave of Court to do so first had and obtained. See Gabriel V State (1989) All NLR (pt 122) 457 (SC) and Oseni V Bajulu & Ors (2009)
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LPELR- 2796(SC)
Since the appellants did not first obtain the leave of this Court to raise the fresh issue of the need for the trial Court to have visited the locus in quo, ground 5 of this appeal which raised it and the argument of that issue under issue No 2 in the appellants? brief is incompetent and invalid. Accordingly ground 5 of this appeal and the argument of the issue of the need for the trial court to have visited the locus in quo as are hereby struck out.
In the light of the foregoing, issue No 2 in the appellants? brief is resolved in favour of the respondents.
Let me now consider issue No 3 in the appellants? brief Learned SAN for the appellants argued that the judgment of the trial Court did not consider the crucial issues of facts raised by the parties and that it tersely held that ?the evidence of the plaintiffs are more probable then those of the defendants. I prefer the plaintiffs? evidence to those of the defendants the plaintiffs ought to succeed and I find for them. They proved better title to the land in dispute than the defendants are entitled to their claims.? Learned SAN then argued
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that it was based on those pronouncements that the trial Court granted the respondents the reliefs they claimed for, that the mere pious declaration of the acceptance of one of the parties case over that of the opponent devoid of the requisite factual evaluation and rationalization in support of the determination arrived at cannot sustain the verdict reached by the trial court and that the decision of the trial Court is grossly unfair and occasioned a miscarriage or denial of justice. For these submissions, he relied on the judicial authorities of Adewumi v. Aduroja (1975)5 UICR (Pt 111) 261 at 263, Ajemikoko & Ors v. The State (Unreprted CAW/89/70), Orji & Ors v. Iloputaife (2011)45 WRN 134 at 153 and Adigun v. Oyo State (1987)1 NWLR (Pt 53) 678 (SC).
Learned Counsel for the respondents argued in reply that the assertion that the judgment of the Court is as contained at page 179 of the record of his appeal is not correct, that it was on the basis of this contention of the appellants who compiled the records, that the respondents applied for and obtained the certified true copy of the detailed judgment of the trial Court, that the respondents
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applied for the leave of this Court to file the certified true copy of the detailed judgment as additional record of this appeal, that with leave of this Court it was transmitted to this Court on 10-10-2014 as additional record of this appeal and was served on the appellants who filed their brief with knowledge of the said detailed judgment of the trial court, that this court is invited to look into the detailed judgment of the trial court and decide whether the Court considered and determined all the issues that were properly joined by the parties and raised before it for determination and that the appellants did not pinpoint the issues that were not resolved and pronounced upon, that the trial Court considered and evaluated the evidence of traditional history of the land in dispute, evidence of ownership and possession of the land, the evidence of identity and boundary of the land, that the trial Court believed the respondents? evidence of traditional history of the Suitland which was not challenged by the appellant.
The record of this appeal contains the terse version of the judgment of the trial Court which consist of the pronouncement of the
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verdict and the orders granting the reliefs claimed for by the respondents at page 179 of the record of appeal and the detailed judgment of the trial Court in the additional record of this appeal. The appellants did not challenge the record of appeal as incorrect. They did not contend that the trial Court did not deliver the detailed judgment in the additional record of appeal. They did not apply to amend the record of appeal to exclude the detailed judgment from being part of the record of appeal.
It is trite law that a record of appeal is presumed correct, accurate and authentic until the contrary is shown by affidavit. The burden of disproving the correctness and authenticity of a record of appeal is on the party who asserts that it is not correct or authentic. It is trite that a party who wishes to challenge the correctness or authenticity of the record of the proceedings of a Court must swear to an affidavit setting out the facts or part of the proceedings omitted or wrongly included or wrongly stated in the record. Such affidavit must be served on the trial judge and on the Registrar of the trial Court who may deny the facts in the affidavit by
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filing a counter affidavit. See Manya v. State (2012)LPELR-15185 (CA), Peremilize Nig Ltd & Anor v. Globe Motors Holdings Limited (2007) LPELR 4840 (CA), Ukwuyok & Ors v. Ogbulu & Ors (2009) LPELR ? 4526 (CA) and Akwa & Ors v. COP (2002) LPELR ? 7153 (CA).
In the absence of a formal challenge of the correctness or authenticity of the record of proceedings, the appellate court and the parties to the appeal are bound by the contents of the records of proceedings as compiled and certified by the Registrar of the court that conducted the proceeding as true copies of the record of that proceeding, and transmitted to the appellate Court. The Supreme Court in Sommer & Ors v. FHA (1992)1 SCNJ 73 held that the court is bound by the record of proceedings before it and it cannot depart therefrom; certainly not on the basis of speculation. See also Agbeolu v. Brisibe (2004)LPELR ? 7377 (CA). By not challenging the correctness or authenticity of the record of this appeal or any part of it as stated above, the parties herein have accepted as correct, accurate and authentic.
?All arguments in an appeal must be based on the
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contents of the record of appeal. Therefore allegations of events not supported by the record of proceedings are incompetent and not valid for consideration. See Akpan v. The State (1987) 55 SCNJ 112.
The argument of Learned SAN for the appellants that the trial judge gave the judgment on the eve of his retirement as a judicial officer is incompetent and not valid for consideration as it is not supported by the record of appeal or any affidavit evidence.
The submission of Learned SAN for the appellants that the trial court failed to consider the crucial issues of facts raised by the parties and that the Court accepted the case of ne party over that of the other without factual evaluation and rationalization is not valid as the detailed judgment in the additional record shows that the trial court considered all the issues joined by the parties, reviewed and evaluated the pleading and evidence of both parties on these issues, made findings of facts with reasons therefore.
The above arguments of Learned SAN result from his reliance on the trial Court?s pronouncement of the verdict and orders at page 179 of the record of the record of this
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appeal as being the judgment of the trial court without regard to the detailed judgment in the additional record of appeal. So the said arguments of Learned SAN were based on the false assumption that the judgment of the trial Court consisted of only the said pronouncement of its verdict and orders. So the arguments were bound to be wrong.
Learned SAN for the appellants did not point out the issues and evidence that were not considered by the trial Court.
The trial Court considered the respondents? evidence of traditional history of title to the land. It found that the appellants who did not challenge the respondents? said evidence, did not lead evidence of their traditional history of the land , relied on acts of possession. It accepted the respondents? uncontroverted evidence of traditional history of title to the land as establishing their title to the land. The trial court also reviewed and evaluated the evidence of both sides on the identity and boundary of the Suitland and held that the identity of the Suitland was not in dispute and that the parties did not join issues on the common boundary between them. It reviewed and
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evaluated the pleadings and evidence of both sides and gave reasons for finding the case of the respondents more probable than that of the appellants.
In the light of the foregoing I resolve issue No 3 in favour of the respondents.
On the whole, this appeal fails as it lacks merit. Accordingly, it is hereby dismissed. The judgment of the High Court of Anambra State at Awka delivered on 22nd November 2006 in suit No AA/57/1974 by J.C.O Emekwue J is hereby upheld and affirmed.
The appellants shall pay costs of N100,000.00 to the respondents.
Other Citations: (2016)LCN/8803(CA)
