Alhaji Adebola Olakunle Elias V. Chief Timothy Omo-bare (1982)
LawGlobal-Hub Lead Judgment Report
UDO UDOMA, J.S.C.
In SUIT No. IK/312/71 in the High Court of Lagos State the plaintiff, herein appellant, claimed against the defendant herein respondent, as follows:
“(1) A declaration that the plaintiff is the owner in fee simple or alternatively under native law and custom of the piece or parcel of land situated lying and being at Isheri road, Ikeja district a plan of which is attached to the plaintiff’s deed of conveyance dated 5th January, 1962 and registered as No. 23 at p. 23 in volume 528 of the Lands Registry at Ibadan.
(2) An injunction restraining the defendant, his servants or agents from committing or further committing any act of trespass on the said land.
(3) Possession of the said land.”
In paragraphs 1 and 2 of the statement of claim filed and delivered, the appellant pleaded in the following terms, which must be here be set out in full in view of the controversy in this appeal:
“(1) The land in dispute is a large area of land situate, lying and being at Isheri road, Ikeja district, Lagos State a plan of which is attached to the plaintiff’s deed of conveyance dated 5th January, 1962 and registered as No. 23 at p.23 in volume 528 of the Lands Registry in the office at Ibadan.
(2) In or about 1970, defendant broke and entered into a portion of the said land and commenced building operations therein, a plan of the said land showing the area upon which the defendant is trespassing will be tendered at the hearing of this action.”
Thereafter the appellant pleaded that the land the subject of the suit originally belonged to and was vested in one Oshoja absolutely under Yoruba native law and custom; that Oshoja remained in possession of the same until his death about 80 years ago when he left him surviving four children by the names of:
(1) Aina Ose;
(2) Ogisanyi;
(3) Ilo; and
(4) Meku Bale; all of whom in consequence inherited the said property absolutely under Yoruba native law and custom; that when subsequently
(1) Aina Ose;
(2) Ogisanyi; and
(3) Ilo died intestate they left them surviving Wulemotu Aina Ose and Lamidi Aina Ose; Alimotu Oke; and Momodu Ilo respectively as grandchildren of Oshoja; and finally that Meku Bale died intestate leaving no issue after him surviving; that it was Wulemotu Aina Ose, Lammidi Aina Ose, Alimotu Oke and Momodu Ilo as grandchildren of Oshoja, the original owner of the land who, as beneficial owners, had sold and conveyed the same to him under a deed of conveyance dated 5th January, 1962 which was registered in the Lands Registry at Ibadan.The appellant further pleaded that immediately thereafter he was put in and took possession of the said land and remained, thereon undisturbed; and that it was only about 1970 that the respondent without his leave, license or consent broke and entered into a portion of the said land and erected a building thereon despite repeated warnings. In his defence, the respondent, apart from the general traverse of the averments contained in the statement of claim denied specifically the contents of paragraphs, 1, 2, 3, 4, 12 and 13 of the statement of claim and put the appellant to the strictest proof thereof as well as the averments contained in paragraphs 5, 6, 7, 8, 9, 10 and 11 of the statement of claim.
Thereafter the respondent pleaded that by a deed of conveyance dated 24th January, 1967 and registered at Ibadan two plots of land Nos. 33 and 39 within a piece of building land known as Karimu Ajayi layout were conveyed to him as purchaser for value by Karimu Ajayi Aruba, a member of Iyade-Osoja family, who himself had become an absolute owner of the said layout land by virtue of a deed of conveyance dated 20th April, 1965 executed by the principal members and representatives of Iyade-Osoja family in his favour; that soon after the purchase of the two plots in question he, like others who had brought similar building plots from the said Karium Ajayi Aruba, entered into possession thereof and thereon without any disturbance in 1967 erected a dwelling house. There were also special pleas of laches, acquiescence and standing by. After the close of pleadings, hearing commenced on 10th September, 1974 before Dabiri J. Evidence was called by both sides in support of their respective cases. On 11th September, 1974 the appellant closed his case. The respondent immediately thereupon opened his case with his own personal testimony. Then the cross-examination of the respondent having been concluded, the appellant applied for and was granted leave to put in an amended statement of claim.
In the amended statement of claim, the only alteration appeared in paragraph 5 which read.
“5(a) The said Oshoja had four children one of whom was Talabi, born of Iyade.
(b) On the death of the said Oshoja, the said larger area of land was partitioned among his four children and a part was “seized” (sic) of the said Talabi.
(c) The said Talibi died intestate and was survived by four children namely:
(i) Aina Ose; (ii) Ogisanyi; (iii) Ilo; and (iv) Meku Bale; who together inherited under Yoruba native law and custom the said part “seized” ( sic) of the said Talabi out of the said larger area of land.”
It will be necessary to advert to this new paragraph 5 of the statement of claim in the course of this judgment.Thereafter the defence was continued and concluded. After counsel’s addresses the learned trial judge reserved his judgment. That was on 28th October, 1974. Then on 3rd February, 1975, the suit was re-listed and at the invitation of the learned trial judge both counsel were heard on the issue of a non-suit. It was then discovered that there is no provision for non-suiting a plaintiff in the new rules of the High Court of Lagos State. Judgment was again adjourned.Then on 26th March, 1975, the learned trial judge entered judgment for the appellant, granted him a declaration of title and an injunction; but disallowed the claim for possession. In the course of his judgment, the learned trial judge commented adversely on the absence of a provision in the rules of the High Court of Lagos State for non-suiting a plaintiff in an action, thereby drawing attention to the omission, which he regretted and considered to have created a serious lacuna. The respondent in this court thereupon appealed to the Federal Court of Appeal which set aside the judgment of the learned trial judge and dismissed the appellant’s claim. This appeal is from that judgment. Many grounds of appeal were filed among which the omnibus ground is that the judgment is against the weight of evidence.
As developed in the brief in elaboration of the grounds of appeal filed, learned counsel for the appellant submitted that there are three questions for determination by this court in the appeal which, according to him, are.
“(1) What is the effect of the failure of the plaintiff to produce at the trial a plan of the land claimed by him clearly showing the area on which he says that the defendant had trespassed
(2) Does the decision of this court in Elias v. Suleimon give a clue to the answer in question (1) above If so, are there any grounds for applying that decision to the present case
(3) Was the evidence on which the Federal Court of Appeal relied to make their findings in favour of the defendants on the issues of laches and acquiescence admissible and/or duly established”
In an attempt to find an answer to the first question, learned counsel contended that the identity of the land claimed by the appellant and for which he was granted a declaration and an injunction against the respondent was clearly set out in paragraph 1 of the statement of claim. It was the contention of learned counsel that in view of the fact that in the course of his evidence, the appellant had produced and tendered the deed of conveyance, which contained a plan of the land therein conveyed to him and which deed of conveyance was admitted and marked exhibit ‘A’, it was wrong in law for the Federal Court of Appeal to have held that the non-production of the plan of the land, the subject matter of the suit, made for the purpose of the suit, showing the area of trespass by the respondent as pleaded in paragraph 2 of the statement of claim was fatal to the case of the appellant.
Learned counsel, however, conceded that a clear identification of the area trespassed upon would have been more helpful to the court but that that could only have been so where there was a dispute or doubt as to whether or not the respondent had entered on the land of the appellant.
On the other hand learned counsel for the respondent, in reply, contended that the action being one for a declaration of title to land and an injunction, the onus was heavily on the appellant to establish his title to the land claimed by him; and that since the averments in paragraphs 2 and 12 of the statement of claim were specifically traversed, the burden on the appellant was greater and could not have been discharged without the production of an accurate survey plan of the land, prepared for the purpose of the case by a licensed surveyor on which the boundaries thereof were clearly delineated and the precise spot or area allegedly trespassed upon clearly identified as within the land of the appellant. It was the contention of learned counsel that the averments in paragraph 2 of the statement of claim amounted to an undertaking binding on the appellant, and that failure to tender such a plan was fatal to the appellant’s case. I turn now to consider these submissions in the light of the evidence before the court on record and bear in mind that such evidence was challenged before the Federal Court of Appeal. At the trial before the learned trial judge the testimony of the appellant was somewhat brief. He testified as to how he had bought the land, the subject matter of the action, and how the property was conveyed to him by the Oshoja family. In support he produced and tendered a deed of conveyance executed in his favour, which was admitted and marked Exhibit A. He made no mention of any plan of the land purchased by him or in dispute having been made by a licensed surveyor, nor of himself having at any time taken any surveyor to the land with instructions that the same be surveyed for him for any purpose whatsoever. He made no reference whatsoever to the plan attached to the deed of conveyance; nor did he say that there was any such plan and how the same came to be made and by whom, and the occasion when it was made. He gave no evidence of the boundaries of the land purchased by him or of the area in dispute. He gave no direct evidence against the respondent. Under cross examination he swore that he bought 42.75 acres of land from the Oshoja family. He admitted as true paragraph 5 of the statement of claim, before the same was amended, in which it was alleged that Oshoja was survived by four children, namely.
(1) Aina Ose; (2) Ogisanyi; (3) Ilo; and (4) Meku Bale. Three other witnesses testified for the appellant, one of whom was Alhaji lubrila Aromire (PW2), who described himself as an employee of the appellant and the caretaker of the appellant’s landed properties. The most remarkable aspect of this case was that apart from the deed of conveyance, Exhibit A to which there was attached a plan purported to be a plan of the land, the subject matter of the deed of conveyance, there was no proper plan of the land showing the area in dispute between the parties in this action. No surveyor was called to properly identify the area of land being disputed; not even the surveyor who prepared the plan attached to the deed of conveyance, Exhibit A, was called. There was no oral testimony at all establishing the extent of the land, the subject matter of the sale and deed of conveyance and the area in dispute nor was there any iota of evidence of the boundaries of the land covered by the deed of conveyance, Exhibit A. The name of surveyor who surveyed the land for the purpose of the deed of conveyance could not even be remembered by Aromire (PW2) the caretaker of the appellant. The name of the surveyor was not given by any of the witnesses. The issue of boundaries is most crucial in a case of this nature, because, according to the testimony of Momodu (PW3), accepted by the learned trial judge and as pleaded in paragraph 5 of the amended statement of claim, the portion of land sold to the appellant and covered by the deed of conveyance, Exhibit A was only a part of larger area of land originally the property of Oshoja family, the said larger area having partitioned on the death of Oshoja among his four children. The portion sold to the appellant was said to be the portion which fell to the share of Talabi and of which Talabi was seised in accordance with “Yoruba native law and custom.” It is for these reasons that the averments contained in paragraph 2 of the amended statement of claim become most relevant and important and, indeed, vital to the case of the appellant. The necessity to produce at the trial a proper plan of the land claimed by the appellant and in dispute prepared by a licensed surveyor, and on which should have been delineated certain prominent features found thereon including the particular portion on which the house of the respondent had been erected as being within the area acquired by the appellant must have been fully appreciated when pleadings were settled. It was in consideration of that fact, it must be presumed, that the appellant promptly and properly pleaded in paragraph 2 of his statement of claim by way of notice to the respondent that he would produce at the trial a plan of the land in dispute showing the area upon which the respondent had committed acts of trespass of which the appellant was complaining.
In the normal course of events and in accordance with established practice, it is always the duty of the plaintiff who seeks the decree of declaration of title to land to produce an accurate plan of the land sought to be declared. Such a plan must have been prepared by a licensed surveyor, and since the Survey Act of 1952, countersigned by the Director of Surveys. A copy of such plan must be served on the defendant against whom the declaration is sought to enable him to know the land claimed against him. Such a plan must also show clearly the dimensions of the land, the boundaries thereof and other salient features pertaining to the said land, the subject matter of the suit. Without such a plan a defendant or respondent, as here, would be highly prejudiced to the extent of being unable to put forward a proper defence to the action in that he would be ignorant of the area the subject matter of the claim by the plaintiff. Indeed the courts have always taken the view that before a declaration of title to land is granted the land to which it relates must be ascertained with certainty (see Akinolu Baruwa v. 0gunsola and others 4 W.A.C.A. 159) cited with approval by the Federal Court of Appeal. In the judgment of the court in that case there is to be found a passage in which the court had said: “Now it is the first duty of a plaintiff who comes to court to claim a declaration of title to show the court clearly the area of land to which his claim relates”. In Ate Kwadzo v. Robert Kwashi Adjei 10 W.A.C.A. 274 it was held that before a declaration of title is given the land to which it relates must be ascertained with certainty.
The court then went on to say: “The acid test is whether a surveyor taking the record could produce a plan showing accurately the land to which title has been given. We are quite certain that no surveyor could do that in this case.This court has repeatedly pointed out that before a declaration of title should be given the area of land to which it relates must be ascertained with certainty. That has not been done here.”
Udekwe Amata v. Udogwu Modekwe and two others 14 W.A.C.A. 580 was a claim for a declaration of title to land. A plan which had been put in by consent in a previous suit was in the court of the trial put in also without being testified to by the surveyor, who had prepared it. The defendants in the suit complained that the evidence of the boundaries was inadequate and that the boundary in dispute was undefined. It was held in part in the suit in which the claim was for a declaration of title precise boundaries were necessary particularly on the side in dispute, but that the plan exhibited in the case was inaccurate and the evidence so unsatisfactory that no judgment should be founded upon it. In the course of his submission by learned counsel for the appellant in the present appeal much reliance was placed upon the plan attached to the deed of conveyance, Exhibit A, as establishing the area claimed. I am therefore compelled to examine with a little more care the deed of conveyance, Exhibit A, itself so as to ascertain the extent to which the plan attached thereto might be said to be tied to, and identifiable with the land concerned. On a careful scrutiny, the deed of conveyance, Exhibit A, did not prove particularly helpful in this respect. It seems rather to have disclosed two vital defects. The first defect is in relation to the recital as to the root of title in regard to the line of succession traced through Oshoja, the original owner of the land conveyed to the appellant. In the deed of conveyance Exhibit A, the number of the direct children of Oshoja who succeeded to the property on his death are given as four and their names are listed as:
(1) Aina Ose;
(2) Ogisanyi;
(3) Ilo; and
(4) Meku Bale; whereas in the amended statement of claim and in the evidence of Momodu (PW3), the Oba and Ikeja, one of the principal vendors of the land sold and conveyed to the appellant on the other hand, the direct children of Oshoja who inherited his property on his death are given as
(1) Talabi;
(2) Onduboye;
(3) Akilabi; and
(4) Idowu.
Furthermore, in the evidence and in the amended statement of claim
(1) Aina Ose;
(2) Ogisanyi;
(3) Ilo; and
(4) Meku Bale are given as the names of the children not of Oshoja but of Talabi, one of the children of Oshoja. Such oral testimony as evidence denotes a clear departure from the centents of the deed of conveyance, Exhibits A, a document made ante motam litem and contradicts a written document Exhibit A, the deed of conveyance. Such contradictory evidence is clearly inadmissible. The question therefore must be which version is true or correct of the two contradictory traditional history
The second defect is to be found in the “Parcels” clause before the “Habendum” clause in the deed of conveyance, Exhibit A. In the “Parcels” clause, the land conveyed is not described at all. The deed of conveyance, Exhibit A, is silent as to the boundaries of the land; its dimensions are not given; the total acreage acquired is omitted; and it is not stated where the land begins and ends. These are vital pieces of information especially as, according to the evidence accepted by the learned trial judge, the land sold and conveyed to the appellant. originally formed part of a larger piece of land, property of Oshoja family, which on the death of Oshoja was partitioned among the four children of Oshoja, whoever they were.
In the deed of conveyance, Exhibit A, the land conveyed is merely described as “All that piece or parcel of land situate, lying and being at Isheri Road, Ikeja District in the Western Region of Nigeria together with all rights, easements and things apurtenant or reputed to be apurtenant thereto and which is more particularly described and delineated with the dimensions and abuttals on the plan drawn or attached thereto and thereon edged Red.” Such a description is extremely vague and cannot bear analysis at all. It does not in any way protect even the vendors and those claiming through them.
The first question which arises is: Does the land occupy both sides of Isheri Road and the whole length By itself it gives the impression that the land purchased and conveyed is limitless. What is more, the name of the surveyor, who surveyed the land and prepared the plan said to be drawn or attached (one is not sure which), to the deed is not given in the deed of conveyance, Exhibit A. The date of the plan is not given, nor is its number, nor is it stated whether beacons have been erected along the boundaries demarcating the land covered by the deed of conveyance, Exhibit A, from neighbouring lands. It is not even stated whether there are inscriptions on such beacons and, if so, what they are for the purpose of identification. In view of these discrepancies it is obvious that it is utterly impossible actually and truly the plan referred to in the deed of conveyance Exhibit A.
There is hardly any nexus between the deed of conveyance Exhibit A and the plan. For all one cares to know it could be any plan or the plan of any piece of land especially as no surveyor was called to prove to say with certainty and conviction that the plan merely pinned to the deed of conveyance, Exhibit A, is positively identifiable with or is it at the trial.
Curiously enough in the absence of the surveyor who had prepared the plan no other witness who testified at tbe trial gave evidence either identifying the plan with the land in dispute or that he was present and had travelled round the land the subject matter of the sale to the appellant pointing out to the surveyor who had prepared the plan all the features on and the boundaries of the land. Indeed when Aromire (PW2), who described himself as the caretaker of the landed properties of the appellant, was cross-examined as to the boundaries of the land in dispute these were his answers: “It is a big parcel of land. If you follow me to the site I shall show you the boundary.
There are the survey pillars by which I recognize the land. I do not remember which surveyor surveyed the land.” If there was ever a land case completely starved of evidence this is certainly one. This case clearly cries to high heavens in vain to be fed with relevant and admissible evidence. The appellant woefully failed to realise that judges do not act like the oracle of Ife, which is often engaged in crystal gazing and thereafter would proclaim a new Oba in succession to a deceased Oba. Judges cannot perform miracles in the handling of civil claims, and least of all manufacture evidence for the purpose of assisting a plaintiff to win his case.
Civil cases, as is well known, are decided on a preponderance of evidence. This is even more so in a case where a plaintiff seeks to be awarded the discretionary relief of a declaration of title to land.The burden in such a case which rests squarely on the plaintiff is a heavy one; for it has as far back as 1935 been laid down as a matter of law that a plaintiff seeking a declaration of title to land must establish to the satisfaction of the court by the evidence brought by him that he is entitled to such a declaration. The plaintiff must rely on the strength of his own case and not on the weakness of the case of the defendant whose duty is merely to defend. If the onus of proof is not discharged the weakness of the defendants case will not help him and the proper judgment is for the defendant. (See I.M. Kodilinye v. Mbanefo Odu 2 W.A.C.A. 366 at p.337). It is therefore strange that despite the several deficiencies in the evidence of the plaintiff in this case, the learned trial judge accepted and acted on such evidence, flimsy and scrappy as such evidence is, including even the evidence that Aina Ose; Ogisanyi; and Meku Bale were the direct children of Talabi said to have been one of the four direct sons of Oshoja contrary to the contents of the deed of conveyance, Exhibit A. The learned trial judge also held contrary to the express contents of the deed of conveyance, Exhibit A, that the vendors of the land in dispute who sold and conveyed the same to the appellant were the grand children of Talabi instead of as expressed in the deed of conveyance, Exhibit A, the grand children of Oshoja. Most astonishingly too, the learned trial judge failed to consider the fact that apart from the plan merely pinned to the deed of conveyance, Exhibit A, the appellant had failed to produce and tender in evidence in the course of the trial a plan of the land in dispute prepared by a licensed surveyor for the purpose, and that there was no direct evidence before him linking such plan to the deed of conveyance, Exhibit A. What is even more incomprehensible in this case is that the learned trial judge should have failed to direct his mind to the fact that the only plan exhibited in the case before him was the plan attached or pinned to the deed of conveyance; that there was no evidence that a copy of that plan and the deed of conveyance had been served on the respondent; that there was no evidence that the court itself had at any time directed that the respondent should be served even with a copy of the plan alone, if not with the conveyance; and yet the learned trial judge took the apparently erroneous view that the position of the respondent was on all fours with the position of the defendants in Alhaji A. W. Elias v. Alhaji B. A. Suleimon and Two Others [1973] 1 All N.L.R. 282, pt. II. Nothing could be further from the truth. In so thinking the learned trial judge misdirected himself and was forced by his own reasoning to lean heavily in favour of the appellant. It is however not clear in the circumstance of this case in hand how the learned trial judge had expected the respondent to have performed the miracle of relating his two only building plots of land Nos.33 and 39 upon which he had erected his dwelling house to the plaintiffs so called plan a copy of which, on the evidence, had not been served on him. In this regard I respectfully agree with the Federal Court of Appeal and I am satisfied that the facts and circumstances of Elias v. Suleimon (supra) are clearly distinguishable from the facts and circumstances of the case in hand. In the former case the plaintiff therein apart from the plan attached to the deed of conveyance, had produced and tendered, and it was admitted in evidence and accepted a survey plan of the land then in dispute prepared by a licensed surveyor for the purpose of the case, copies of which had been served on all the defendants in the case. The defendants in the case were able to refer to such a plan even in their pleadings. In fact there were altogether at least three separate plans put in and marked exhibits J, 12 and 9 respectively. Hence the learned trial judge in that case took the view that there ought to have been a composite plan prepared by the plaintiff therein. In other words, the learned trial judge was of the view that the three plans marked exhibits 1,12 and 9 were irreconcilable and ought to have been married together to enable him to see for himself how each fitted into the main plan produced by the plaintiff in the case.
In the present case on appeal, as already stated, there was no survey plan which was made for the purpose of the case put in by either the appellant or the respondent; and also unlike Elias v. Suleimon (supra) no surveyor was ever called to testify and to prove any plant at all. Therefore no question of a composite plan arises.
Further in Elias v. Suleimon (supra) with the help of licensed surveyors, there were three of them called to testify before the court, the identity of the land in dispute was not in doubt. It was clearly established. On that point the learned trial judge who tried the case had this to say as quoted in the judgments of this court at p. 292. “As I had not a complete plan before me, and as the surveyors who testified before me were only able to say that the several portions, alleged to belong to the defendants fall within and are only a part of the land of the plaintiff, I was not able to see the whole picture at a glance, and be in a position to say if at all there had been trespass by the defendants. None of the plans before me – Exhibit 1, 12 and 9 is of any help in this instance as each dealt with a portion claimed by each party without any indication as to the correct position of the other portions claimed by the others.” In Elias v. Suleimon (supra) all the defendants therein admitted that they were on the land of the plaintiffs; and that their portions of land fell within the area covered by the land of the plaintiff; and all the defendants were known to and directly challenged by the plaintiff on the land. In the case in hand, on the other hand, the land sold and conveyed to the appellant used to form part of a larger area of land which belonged to Oshoja, the founder of the family and of the land. The Oshoja land was on the death of Oshoja partitioned among his four children. In order to establish that they are old and conveyed to the plaintiff did not encroach upon or overlap the boundaries of the lands of the remaining members of Oshoja family, who had participated in the partition, it was the duty of the appellant to produce a survey plan made for the purpose of the suit on which would have been delineated the salient features of the land, including the boundaries thereof and also to have had the said plan proven by a licensed surveyor at the trial. That the plaintiff had failed to do. The learned trial judge was therefore in error to have accepted in the circumstance, the submission of learned counsel for the appellant that “the onus is on the defendant to relate his plan to that of the plaintiff’ on the authority of Elias v. Suleimon (supra). That being so, it must follow that the appellant was bound by the averment contained in paragraph 2 of his statement of claim. It was his duty not only to have produced such a plan but also to have served the respondent with a copy thereof so as to enable the respondent to know the area of land claimed by him and, accordingly, be able to prepare his defence and, indeed, be able to ascertain whether the area built upon by him is within the appellant’s land. Such a plan would have been of immense assistance also to the court. In my view, the effect of the failure on the part of the appellant to produce the plan of the land in dispute as distinct from the land purchased by him is fatal to his claim. The first question has accordingly thus been answered. The answer to the second question is in the negative since the facts and circumstances of both cases are distinguishable and dissimilar. The third question does not therefore arise for consideration at all in view of the conclusion I have reached on the main issues raised and argued in the appeal as postulated in the first and second questions which have been disposed of.
On the whole of the evidence, I also respectfully agree with the Federal Court of Appeal that the learned trial judge was wrong in law to have entered judgment for the appellant and to have granted him the declaration of title and the injunction sought. An injunction can only be binding when the boundaries of the land are ascertained and well known and properly described.
The question of the absence of evidence both orally and by way of a plan prepared by a licensed surveyor showing the extent of the land in dispute and upon which are clearly delineated and proven by evidence the boundaries of the land in dispute as separating the same from the remaining land of Oshoja of which it originally formed part seems to me to be the fundamental obstacle to the appellant succeeding in his claim to a declaration of title in the action.
There was not before the court of trial any evidence either by a licensed surveyor or by any other witness identifying the land in dispute in terms of the so called plan pinned to the deed of conveyance, Exhibit A. In all the circumstances, I am satisfied and I hold that there was insufficient evidence to have justified the learned trial judge in granting to the appellant the declaration and injunction claimed by him.
The Federal Court of Appeal was therefore right in reaching the decision that the appeal before it be allowed, and the claims of the appellant be dismissed. I hold that there is no substance whatsoever in this appeal, which is accordingly dismissed with costs assessed and fixed at N300.00 to the respondent.
SC.41/1981
