Anuonye Wachukwu & Anor. V. Amadike Owunwanne & Anor (2011)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C,

This appeal is on land matter. It is against concurrent decisions of the High Court of the then East Central State of Nigeria, holden at ABA, which later metamorphosed into the High Court of the present Imo State (trial court) and the Port Harcourt Judicial Division of the Court of Appeal (the court below). The plaintiffs at the trial court, (who are the respondent herein) took out a writ of summons wherein they made the following claims against the defendants (who are now the appellants):

1. “Declaration of title to all that piece or parcel of land known as IKEOHA UMUARAPARA/OKPULOR UMUARAPARA situate at Uratta – Okpu-Umuobo in Aba Urban Division valued at N20.00 annually.
2. N500.00 being general damages for trespass committed by the Defendants on the said land on or about the 13th day of September, 1975.
3. Perpetual injunction to restrain the defendants their servants or agents from committing further acts of trespass on the land.”

Paragraph 17 of the Amended Statement of Claim repeated the above reliefs sought from the trial court. The plaintiffs sued the defendants for themselves and as representatives of Umuarapa family in Uratta Community-Okpu Umuobo in Aba Division. The defendants are members of Umuaduru family in the same Uratta community and were sued personally.

The respondents as plaintiffs at the trial court traced their traditional history of the land in dispute by way of grant from Mgboko led by Afaraukwa, the original customary owners of the vast area of land including the land in dispute. According to the respondents, Mgboko who originally founded the vast area of land including the land in dispute settled Okpokoroipi of Uratta Umuobo, the respondents kinsman, on a part of the said land. The respondents’ people of Umuarapara in Uratta Umuobo through Ikpeameze traced theirs kinsman, Okpokoroipi, to Mgboko and Okpokoroipi sub-granted the respondents the land in dispute, being a portion of the land granted to him (Okpokoroipi) by Mgboko.

The appellants/defendants case was total denial of the defendants’ claim over the land in dispute which the defendants claimed was deforested by their own ancestors who were in possession as owners until it devolved on them.

After full trial, the trial court in its judgment found for the plaintiffs and granted all the reliefs sought by them. This, on appeal, was affirmed by the court below.

On further appeal to this court, the parties filed and exchanged their respective briefs of argument. Each of the parties respective counsel adopted his brief of argument in respect of his case on the hearing date of the appeal. Learned counsel for the respondents filed a Notice of Preliminary Objection which he moved on the hearing date and urged this court to sustain the Preliminary Objection. He embedded arguments thereof in his said brief of argument. The learned SAN for the appellants fired a response to the Preliminary Objection which he adopted and relied

upon.

In his brief of argument the learned SAN for the appellants formulated the following issues for consideration by this court:

1. “Whether in affirming the decision of the trial court, the court below was not in violation of the well settled principle that in a claim for declaration of title, the onus is on the plaintiff (not the defendant) to prove his title by satisfactory, clear, cogent uncontroverted evidence. (grounds 2 & 3).
2. Whether the contradictions apparent in the respondents’ account of title by traditional history/evidence were not material, and if they were, whether the court of appeal’s affirmation of the title of the respondents based on such contradictory account was not perverse and occasioning miscarriage of justice. [grounds 3 and 4].
3. Whether a party who has not proved possession can maintain an action for trespass and whether the grant of the relief of general damages for trespass and order of perpetual injunction against the appellants and in favour of the respondents as affirmed by the court below is not perverse. [ground 41].”

Learned counsel for the respondents formulated the following 3 issues for determination:

1. “Whether the respondents proved “Grant” of the land in dispute traced from Mgboko and whether the appellants specifically appealed against the specific findings of the trial court in respect of the respondents’ traditional evidence of history.
2. Whether there were material contradictions in the evidence of the respondents’ witnesses as to make the Supreme Court interfere with the concurrent findings of the two lower courts.
3. Whether by the circumstance of this case, the identity of the land, the subject matter of this suit, was in dispute and, if yes, whether same was proved by the respondents.”

I shall now take a look at the RESPONDENTS’ PRELIMINARY OBJECTION.

The Notice of the Preliminary Objection which was brought pursuant to Order 2(r) 9(1) of the Supreme Court Rules, was filed on the 25/02/2011.

The Preliminary Objection is based on the following ground.

“Issue 3 formulated and argued by the appellants in the appellants Amended Brief dated 5th day of October, 2010 is not derived from any of the appellants’ grounds of appeal filed in this court.”

The learned counsel for the respondent, after having made reference to the claims of the respondents which bordered on trespass and injunction and the trial court’s findings on such issues argued that issue 3 of the appellants’ brief of argument does not relate to the grounds of appeal.

There is no ground of appeal in the appellants’ Notice and Grounds of Appeal filed at the court below and this court complaining about the findings on trespass or perpetual injunction neither is there any ground of appeal complaining about damages for injunction. The appellants’ he argued further, accepted in good faith the findings that they are trespassers and never appealed against the said findings at the court below and even at this court. Ground 4 of the Notice of Appeal never raised issue of trespass, damages or injunction. Issue 3 is incompetent and it should be struck out. The case of Onyekwelu v. ELF Petroleum Nig. Ltd (2009) 5 NWLR (Pt.1133) 181 at 195 D – G. Learned counsel for the respondents urged this court to sustain the Preliminary Objection and strike out appellants’ issue No.3.

The learned SAN, for the appellants responded to the Preliminary Objection and its argument that the Preliminary Objection is incompetent as it has not complied with the requirements of Order 2 Rule 9(1) and (2) of the Supreme Court Rules and this court should refuse same. He cited and relied on Uwazurike v. A.G. Federation (2007) 8 NWLR (Pt.1035) 1 at pp. 18 – 19 H – C. In the event that this court is minded to hear the preliminary Objection, the learned SAN submitted that the Preliminary Objection is misconceived. After having quoted issue 3 and Ground 4 of the appellants’ brief and grounds of appeal, respectively, the learned SAN submitted that Ground 4 of the Notice of Appeal covers issue 3. Issue 3 in the appellant’s brief touches both on grounds 3 and 4 and has nexus in them. Ibori v. Agabi (2004) 6 NWLR (Pt.86s) 78 at 111 c – f was cited in support. The learned SAN urged this court to discountenance the respondents’ brief in its entirety for being filed out of time with no leave of court sought or granted. He cited and relied on Order 6 Rule 2[5] of the Rules of this court.

There are two sides to the Preliminary Objection. One is, in the main, dealing with the format as provided by the Rules of court, the second has to do with the substance of the Preliminary objection.

Learned counsel for the appellants submitted that the preliminary objection has not been filed in accordance with Order 2 Rules [1] and [2] of the Supreme Court’s Rules. Below is the provision of Order 2[9]:

1) “A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with ten copies thereof with the register within the same time.

2) lf the respondent fails to comply with this rule, the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as it thinks fit”

On the format of filing a Notice of Preliminary Objection as stipulated by the Rules of this court, it is something, I think which can be determined practically. In this appeal, for instance, it is clear from the records that the Notice of the preliminary objection was filed on 25/2/2011. The respondents, amended brief which contained arguments in respect of the preliminary objection was also filed on 25/2/2011. The appeal was heard by this court on 28/2/2011. Now, granted that the appellant was served with the Notice of preliminary objection on the very date it was filed, there is a time lag of one day for the respondent to comply with the three clear days notice as required by Order 2 ‘9’(1) set out above. There is nothing to explain away that lacunae. The respondents have thus, seem to have been caught up by the provision of Order 2 9(2). The learned counsel for the respondents in order to regularize the processes applied orally and was granted on the hearing date extension to file brief of argument and to deem same as duly filed and served. This was granted as the learned SAN did not oppose the oral application. This seems to cure the defect in the first leg of the preliminary objection.

On the second leg of the preliminary objection, it is true that applicants issue three (3) as couched and argued in the appellants’ brief deals with issue of possession, trespass and general damages. The issue is related to ground 4 of the grounds of appeal. Ground 4 for the avoidance of doubt, reads as follows:

“The Learned Justices of the Court of Appeal failed to evaluate the appellants’ appeal properly and was perverse in affirming all the findings of facts of the learned trial judge.

PARTICULARS

a) It was contended before the Court of Appeal that Paragraph 6 of the Amended Statement of Claim was not proved by credible evidence.

b) The learned trial (sic) justices of the Court of Appeal simply held:

‘The learned trial judge considered the traditional evidence led by the parties and preferred the version of the respondents.’

c) The appellants contended before the Court of Appeal that the learned trial judge in comparing the two Plans exhibits 1 and 2 found them identical but the location difference (sic) and called upon the court of appeal to resolve the issue of the different locations of the land but that was not dealt with at all.

d) It was contended in the Court of Appeal that the learned trial judge did not give any reason for preferring the traditional evidence of the respondents to that of the appellants and yet the court simply affirmed the decision of the trial court.”

Thus, ground 4 as set out above is primarily on failure of the court below “to evaluate the appellants’ appeal properly” Granted that what this ground and its particulars are alleging is correct, non-evaluation of evidence (I believe, and not evaluate the whole appeal) that of course, is the primary role of the trial court and not that of the court below. Except where there is a call on an appeal court to re-evaluate evidence led before a trial court, the appeal court does not enter into that arena. See: Bashaya & Ors v. The State (1998) 4 SCNJ 202; Civil Design Const. Nig. Ltd. v. Scoa Nig. Ltd. (2007) 2 SCNJ 252. Again, taking a look at ground 4 and its particulars, there is nothing in relation to possession, trespass and general damages as posited by the respondents. Thus, appellants’ issue 3 and ground 4 of the Grounds of Appeal are not in agreement. Further, I fail to see any other ground [s] of appeal from all the grounds of appeal contained in the Notice of Appeal that deals with the issue of possession, trespass and general damages. The trite position of the law is that an issue for determination must arise from a ground of appeal otherwise it will be incompetent and liable to be struck out. See: Nwana v. FCDA (2007) 4 SCNJ 433 Ibator & Ors Barakuro & Ors (2007) 4 SCNJ 27.

This is the calamity that befalls appellants’ issue 3. Issue 3 of the appellants’ issues is incompetent and it is hereby struck out and all arguments in respect thereof are hereby discountenanced.

I will now deal with the appellants’ remaining issues seriatim.

ISSUE 1 is on the requirement of the law that in a claim for declaration of title the onus is on the plaintiff (not the defendant) to prove his title by satisfactory, clear, cogent and uncontroverted evidence. This issue has been related to grounds 2 and 3 of the Grounds of Appeal. In support of his submission the learned senior counsel for the appellants cited the case of Osuji v. Ekeocha (2009) 16 NWLR (Pt.1166) 81 at p.134 B – D; Obawole v. Coker (1994) 5 NWLR (Pt.345) 416 at 439 – H; Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410 at p.423 – A. It is argued by the learned SAN that the trial court decided the case in favour of the respondents solely on the basis of comparison of evidence of the parties and not on the basis of the respondents having discharged the burden placed by law on them upon a satisfactory, clear, cogent and uncontroverted evidence. He submitted further that the Court of Appeal was in error to have acceded to this misnomer. He stated that the corresponding duty of the Court of Appeal is to find out whether there is evidence on record on which the trial court based its finding. He cited the case of Woluchem v. Gudi (1981) 5 SC 291. The learned SAN argued further that the respondents, instead of proving grant by Okpokoroipi in line with their pleadings, gave evidence suggesting that they acquired the land in dispute by deforestation. This tallies with the evidence of Pw1. This, he further argued, gives clear inference that the respondents acquisition of land was no longer by grant from Okpokoroipi as pleaded in paragraph 6 of the Amended Statement of Claim but by deforestation by Ikpeamaeze who was the respondents’ family (head). Learned SAN maintained that there arises a conflict which is fatal as the title of the respondent cannot be by grant and deforestation at the same time and the plaintiff’s case ought to be dismissed. The case of Mogaji v. Cadburv Nig. Ltd. (1985) 2 NWLR (Pt.7) 393 at 3961 was cited in support, among others.

Learned counsel for the respondents in his submissions stated that the respondents led credible evidence in proof of the grant of the said land in dispute traced from Mgboko to the respondents’ Ikeamaeze. Learned counsel cited the evidence of Pws 1 – 3 to show that grant of the said land was fully established. Reference was also made by learned counsel to the case made out by the appellants in proof of their ownership of the land in dispute vis-a-vis the admission of DW1 in the course of trial to show that the findings of facts made by both the trial and the appeal courts were not perverse but borne out of the pleadings and evidence led at the trial court and that the said findings were not appealed against’ He made reference to paragraph 10(b) of the Amended Statement of Defence, the evidence of DW1 and DW2.

Now, the age-long established principle of law in relation to burden of proof on a plaintiff seeking a declaration of title to land is for him to establish his case on preponderance of evidence by setting up a prima facie case whereupon the trial court examines the evidence put forward by both parties and weigh same on the imaginary scale with a view to making a finding as to which side preponderates. See: Awara & Ors v. Alalibo & Ors (2002) 12 SCNJ 62; Nsirim v. Omuma Const. Co. Ltd. (1994) 1 NWLR (Pt.318) 1.

In his findings of fact, the learned trial judge stated as follows:

“l have considered the two competing traditional histories or evidence of title or ownership of the land in dispute by both parties in this case, and I am much impressed with the traditional evidence of the plaintiffs and their witnesses. They impress me as truthful witnesses and I prefer their evidence to that of the DW1 and his witness.”

The court below affirmed the above finding of the trial court. It stated, inter alia:

“It is well settled that a court of Appeal which did not hear or observe the demeanour of witness in the witness box should be reluctant to interfere with the findings of a trial court which had the advantage of seeing and hearing the witnesses and observing their demeanour in the witness box, unless such findings were perverse, unreasonable or not supported by the evidence.”

This makes such finding to be concurrent. It is also trite that this court, or any appellate court for that matter, will not ordinarily interfere with a finding of fact which is concurrent from the two lower courts except where there is some miscarriage of justice or where such a decision is perverse or it is in violation of some principles of law or procedure. See: Overseas Construction Ltd. v. Creek Enterprises Nig. Ltd. (1985) 3 NWLR (Pt. 13) 407. After having taken a look at the parties pleadings and evidence, I find no perversity on the findings of the trial and appellate courts. What both courts did, in my view is quite in order. I resolve issue No. 1 against the appellants.

On issue No. 2, the learned Senior counsel for the appellants submitted that the observable contradictions in the respondents’ account of traditional history/evidence which were acknowledged by both the trial and the appeal courts were material as to undermine the veracity and/or reliability of that account, and that the Court of Appeal’s affirmation of the respondents, case was perverse resulting to injustice to the appellants’ several particulars of the contradictions such as on deforestation, grant, boundaries were highlighted by the learned SAN in his brief of argument. He argued that the contradictions are material and that the court cannot pick and choose which of the versions of land acquisition it should believe. The court below should have dismissed the respondents’ case on account of the contradictions. He cited the case of Adu v. Gbadamasi (2009) 6 NWLR (Pt.1136) 110 at 125 A – C; Dogo v. State (2001) 3 NWLR (Pt. 699) 192 at pp. 211 – 212 G – B. The findings of the trial court, learned SAN, submitted were wrong, perverse and not supported by evidence. He urged this court to decide this issue in favour of the appellants.

The learned counsel for the respondents referred to the judgment of the trial court and stated the position taken by that court on the contradictions in the plaintiffs’ evidence on the traditional history to the land in dispute that the contradictions in the evidence of the plaintiffs’ witnesses were not material and that same did not disturb its findings. Learned counsel made reference to the instances cited by the learned SAN for the appellants as material contradictions. He also referred to the evidence of PWS 1 – 3 and submitted that there were no material contradictions in the respondent’s witnesses as to make this court interfere with the concurrent findings of the two lower courts. He urged us to resolve this issue in favour of the respondents.

Now, when a party claims that there is contradiction in the evidence adduced by that party or specific witness should not be believed or relied upon and consequently, no finding of fact can be founded on his evidence. See: Onwuka v. Ediala (1989) 1 NSCC 65 at P.86 This court, in the case of Ogidi v. State (2003) 9 NWLR (Pt.824) 1 at pp. 23 – 24 H – A, defined the word contradiction in relation to evidence placed before a court as follows:

“The word ‘Contradiction’ is a simple English word. It derives from two Latin words: ‘Contra’ and ‘Deco-ere-dixi-dictum,’ meaning, ‘to say the opposite’, hence, ‘contradictum’ A piece of evidence contradicts another when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy. And two pieces of evidence contradict one another when they ate by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short or, contains a little more than what another piece of evidence says or contains; some minor differences in detail.”

The nature of the contradictions in the plaintiffs’ witnesses’ testimonies, as viewed by the learned counsel for the respondent with which I agree are two fold:

a) Contradiction as to who, between Ikpeamaze and Okpokoroipi, actually gave the land in dispute to the respondents and;

b) Contradiction as to the exact nature of the respondents’ title, i.e. whether it was indeed by grant or by deforestation.

I think the only simple way for me to resolve such contradictions, is to refer to the parties pleadings and the evidence placed before the trial court, the respondents, who were the plaintiffs, in their Amended Statement of Claim pleaded as follows:

“5. In the olden days the people of Uratta Umuobo migrated from Uratta Okpuala Ngwa in Northern Ngwa to Mgboko and were settled on a vast area of land.

6. Later, the plaintiffs’ people of Umuarapara traced their kingsman (sic) at Mgboko and one OKPOKOROIPI of Uratta Umuobo gave the land in dispute being a portion of land granted to him by Mgboko people of Ikpeamaeze of plaintiffs’ family demarcating the same with such life trees as ARI, UKPO UHIARA, UVAH etc.
7. Ikpeameze and his people established their dwellings on part of the land placed their family gods of IHUALA and IHUKAMANU therein and farmed on the remaining portion.
8. The following members of Umuarapara family held the (sic) in dispute in succession without any interruption from the defendants or any other that is to say: Ikpeamaeze, Ogbuji, Izuwa, Ugorji Onyenwa, Onwunli Izuwa, Nwanosike Ugorji and Wamara Onwunli the 1st plaintiff.” (Underlining supplied by me).

Now PW1, (who was the head of respondents family and a descendant of Ikpeameaze) in his evidence in chief testified to the following fact.

“The land in dispute were first granted to Okpokoroipi of Uratta, Umuobo by Mgboko people after the grant, Ikpeamaeze and his kingsman (sic) joined Okpokoroipi in turn re-allocated a part of the land in dispute to Ikpeamaeze and his kingsman (sic)” (underlining mine).

While being cross-examined, PW1 maintained his position and stated as follows:

“I said in evidence in chief that Uratta people were settled by Mgboko on the land in dispute. Mgboko settled Uratta and Uratta in turn granted to us a part of the land in dispute. The land in dispute was originally owned by Mgboko.” (underlining mine).

PW2 testified as follows:

“I know the land in dispute. My forebear(er), was known as Afaraukwu. He owned the lands. It was Afaraukwu himself who deforested all the lands he owned. The land in dispute is a part of the lands owned by and deforested by Afaraukwu. During the life time of Afaraukwu some people from Uratta approached him for a grant of some of the lands he owned, and the land in dispute was granted to them amongst others. One of the delegates from Uratta people, Okpokoroipi in turn granted part of it to Umurapara. The plaintiffs are some of the descendants of Umuarapara.” (underlining mine)

PW3, in his evidence in chief stated, inter alia, as follows:

“The name of my family is Uratta in Uratta village. I am the eldest man in Uratta village. I know the parties in this suit. I know the land in dispute. It is called Okpulor Umuarapara land. It is called Okpulor Umuarapara land. It is situate at Uratta village. I know the owners of the land in dispute. The land in dispute is owned by Umuarapara family. I know how they came to own the land in dispute. In the olden days when Uratta people migrated from Isiala Ngwa to Mgboko, Mgboko people granted them land for settlement and when they settled, Umuarapara family later migrated to Uratta and my people of Uratta granted Umuarapara people a piece of land from the land already granted to us (Uratta people by Mboko people where they (Umuarapara family) settled. The name of the head of Uratta people who granted Umuarapara people the land where they settled is called Okpokoroipi. The head of Umuarapara family who on behalf of Umuarapara family received the granted land is called Ikpeamaeze.” (underlining mine).

The learned trial judge made a finding to that effect as follows.

“I find as a fact that the plaintiff’s ancestor, Ikpeameaze was granted the land in dispute by Okpokoroipi, who was earlier in time granted the same land by Mgboko, who had the radical title to the land in dispute.” (p. 161 of the record). (underlining mine)

Learned counsel for the respondents submitted that in view of the absence of an appeal by the appellants challenging the specific findings of the trial court, the effect of the procedural anomaly is that the appellate court will presume such findings to be correct and cannot interfere. It is beyond dispute therefore, and without any contradiction that it was Okpokoroipi who granted Ikpeameaze the land in dispute’

The Court of Appeal did not interfere with that finding. And it is the general practice of this court not to disturb the concurrent findings of the trial court and the Court of Appeal unless there appears to be some miscarriage of justice or violation of some principles of law or procedure. See: Overseas Construction Ltd. v. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (Pt.13) 407.

The above x-ray of the pleadings and evidence, as well as the findings of the two lower courts, is capable of resolving the alleged contradiction on whether title to the land in dispute is had by grant or deforestation. It is clear that grant and not deforestation was preferred by the two lower courts. The trial court stated, inter alia:

“I have considered the two competing traditional histories or evidence of title or ownership of the land in dispute by both parties in this case, and I am much impressed with the traditional evidence of the plaintiffs and their witnesses. They impress me as truthful witnesses and I prefer their evidence to that of the DW1 and his witness. The contradictions in their evidence do not materially disturb my findings.” (underlining for emphasis).

Furthermore, from the pleadings and the evidence of the plaintiffs there is no averment or supporting evidence to the fact of acquisition of title in the land in dispute by deforestation by Ikpeameaze as he was described to be the original founder of the said land. The contradiction on grant and deforestation is said to relate to the evidence of PWs 1 and 2.

Learned senior counsel for the appellant gave a summation of the contradictions on grant, deforestation and boundaries. He stated for instance:

a) On deforestation:

“while PW1 at page 77 lines 4-5 said “ikpeameaze was the first person to deforest the land in dispute, the PW2 at page 87 lines 30-31 said “It was Afaraukwu himself who deforested all the land he occupied” and further at page 88 lines 1 and 2 said “the land in dispute is a part of the lands owned by the deforested by Afaraukwu”.

b) On grant, he cited the following:

“PW1 at page 74 lines 1-5 said “the land in dispute were first granted to Okpokoroipi of Uratta Umuobo.. . and Okpokoroipi in turn reallocated a part of the land in dispute to Ikepamaeze and his kingsmen.” He contradicted himself at page 77 lines 8 – 10 when he said “Mgboko settled Uratta and Uratta in turn granted to us the respondents a part of the land in dispute.”

c) On boundaries, he stated:

“While PW1 at page 73 lines 20 – 25 said that their boundary neighbor are Umuonuma Okpu people on the North, Uratta people on the west and Uratta and Umuigwe people on the East, PW2 at page 90 line 7 said the boundary neighbours are Umuigwe people, Umuobo and Umuadile and ye PW3 at page 91 lines 26 – 27 said my people of Uratta have boundaries with Umuarapara family on three sides of the land in dispute.”

On all these contradictions, the learned trial judge found that:

“The contradictions in their evidence do not materially disturb my findings.” (p. 161 of the record).

The court below, affirmed the trial court’s finding in the following words:

“I find no substance in the contradictions referred to in the identity of the land in dispute because the learned trial judge rightly in my view, found that the land in dispute is well known to both parties even though they call it different names. I fail to see any material contradictions in the respondents’ evidence which is fatal to their case.” (underlining for emphasis)

Now, it is pertinent to reiterate the general principles of the law on matters of contradiction in evidence of parties before a court. That, it is not all contradictions that result in the rejection of the evidence of a witness. It is only those that are material and result in a miscarriage of justice that would warrant such a rejection of evidence. See: Egesimba v. Onuzuruike (2002) 9 SCNJ 46; Nsirim v. Nsirim (2002) 2 SCNJ 46; Ezamba v. Ibeneme & Anor (2004) 7 SCNJ 136; Nwokoro & ors Onuma & Ors (1999) 9 SCNJ 63.

I took the pains of going through the gamut of the evidence laid before the trial court, the decision of the trial court and that of the court below. I am in agreement as did the court below, with the trial court that there is no material contradiction in the plaintiffs’ evidence which would warrant the reversal of it’s decision on the basis of miscarriage of justice howsoever as the seeming contradictions highlighted by the learned SAN for the appellant could not be said to result in a miscarriage of justice in the circumstances of this case. Accordingly, I resolve issue two in favour of the respondents.

ln the final analysis, this appeal lacks merit and it is hereby dismissed by me with costs of N50,000.00 to the respondents from the appellants.

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SC.87/2001