Chief Rowland Tukuru & Ors. V. Chief Nathan Sabi & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

NWALI SLYVESTER NGWUTA, J.S.C.

Endorsed on the Writ of Summons issued out of the Registry of the High Court of Rivers State, Port Harcourt Judicial Division on 22nd November, 1972 are the particulars of the plaintiffs’ claims against the defendants in Suit No.PHC/168/72:

“(i) A declaration of title of land known as OPUADINO situate at Koluama Village in Brass Division.

(ii) 400 damages for trespass in that the defendants wrongfully entered upon the said plaintiff’s land which had been in the said plaintiff’s peaceful possession, by giving it to the Nigerian Agip Oil Company Limited and by tapping palm wine on the plaintiffs’ land.

(iii) A perpetual injunction restraining the defendants from committing any further trespass on the land.”

The plaintiffs on record sued for themselves and as representing the people of Koluama Town in Brass Division. The defendants on record were sued for themselves and as representing the people of Ikebiri Town.

Pleadings were filed and exchanged by the parties. On their application the defendants were granted an order for substitution. At the end of the trial the presiding Judge Blankson, J on 18/5/92 delivered a 105 page judgment in which His Lordship concluded:

“On the whole their claims are all dismissed in their entirety.”

See page 321 of the record.

The trial Court awarded N1,000 costs against the plaintiffs to the defendants.

The plaintiffs being dissatisfied with the decision of the trial court appealed to the Court of Appeal, Port Harcourt.

In its judgment delivered on 30th March 2004 the Court of Appeal dismissed the appeal in the following terms:

“Since the claim for ownership of the land has foiled and the appellants were not found to be in exclusive possession, the claim for a permanent injunction will equally fail as it is an ancillary relief based on trespass. The evaluation of evidence made by the learned trial judge and the conclusion reached therein are not perverse and I therefore uphold them. Accordingly, I do not find any merit in this appeal. I affirm the decision of the learned trial judge and dismiss the appeal with N5,000.00 costs in favour of the respondents against the appellants.” See page 428 of the record.

Appellants were dissatisfied with the judgment of the Court below but they did not appeal within time. On their application this Court granted them extension of time within which to appeal and they did appeal to this Court on seven grounds.

Consistent with the rules and practice of this Court the parties herein, by their respective Counsel, filed and exchanged briefs of argument.

In his brief, learned Counsel for the appellants formulated the following five issues from the seven grounds of appeal for the Court to resolve:

“(1) Was the Court below correct in holding that the appellants did not establish the identity, boundaries and features of the land in dispute – Grounds A and B.

(2) Was the Court below correct in holding that failure to call boundary neighbours as witnesses warranted the invocation of Section 149 (d) of the Evidence Act against the appellants. Ground C.

(3) Was the Court below correct to have, suo motu, introduced and used Exhibit B which was not before it. Ground D

(4) Was the Court below correct in its conclusion that the appellants did not show that they were on exclusive possession of the land in dispute and therefore entitled to an injunction to restrain further trespass. Ground F.

(5) Was the Court below correct to have dismissed the appellants’ claim to title over the entire land in dispute in the light of the evidence adduced by the parties. Ground G.”

In his own brief of argument, learned Counsel for the respondent identified these three issues for determination:

“7. Whether on the pleadings, evidence and circumstances of this case the lower Court was justified in its findings and conclusion that the appellants did not show clearly the area of land to which their claim relates. Grounds A and B.

2. Whether on the pleadings, evidence and circumstances of this case the lower Court was justified in its conclusion that the failure by the appellants to call witnesses from Olugbobiri Community their hounding neighbours amounts to a weakness in their case and therefore a violation of Section 149(d) of the Evidence Act. Ground C.
3. Whether on the pleadings, evidence and circumstances of this case, the lower Court was justified in its conclusion that the appellants have failed to discharge the burden of proof cast upon them by the law, that is, title to the “Opuadono” lands trespass and perpetual injunction. Grounds D and G.”

Arguing issue 1 in his brief learned Counsel for the appellants referred to and reproduced paragraphs 3 and 4 of the Amended Statement of Claim and paragraphs 3 and 4 of the Statement of Defence to buttress his contention that the respondents did not join issues in the pleadings on the identity, boundaries or features of the land in dispute.

Contrary to the position of the lower Court that a defendant is not bound to amend his defence when the plaintiff amends his statement of claim, learned Counsel cited the case of Moses Sagay v. Messrs New Independence Rubber Co. Ltd (1977) 5 SC page 143 for the decision that where a defendant fails to file an amended statement of defence he cannot be said to have joined issues with the plaintiff in respect of the amended statement of claim. He relied on Apena v. Aiyetoibi (1989) NWLR (Pt.95) 85 at 97 wherein he said the principle was followed by the Court of Appeal. Learned Counsel argued that the respondents did not say that the area verged green in appellants’ plan was not the area in dispute or that the features on the appellants plan were not correct nor did they dispute the boundaries as shown in Exhibit 17.

He said that the only issue raised by the respondents was the location of the land in dispute, whether in Ikebiri or Koluama and its ownership. He relied on Omoresie v. Idugienmwanye (1985) 2 NWLR (Pt.5) page 41 at 60 paras G – H where Oputa, JSC in similar circumstances stated:

“… but where the defendant wants to make the plaintiffs plan an issue he should be quite clear and specific on the points in controversy – is it the area, the boundaries or the loci in quibus of the various acts of possession, etc A mere general traverse, as was done in this case will not be enough.”

He relied on Adelaja v. Alade (1999) 6 NWLR (Pt. 608) p.544 at 559; Adesanya v. Aderinmu (2000) 9 NWLR (Pt.672) p.370 at 387 for the same principle.

Learned Counsel compared the appellants’ plan Exhibit A with the respondents’ plan Exhibit C and concluded that the area in dispute and the features thereon are identical and so the issue of proof did not arise. He relied on Osho v. Ape (1998) 8 NWLR (Pt.562) 492 at 4951 adding that the Court below was wrong on the issue of proof as the parties were in agreement on the area in dispute.

Counsel said the two Courts below agreed that PW1 not being a licensed surveyor could not be expected to answer questions on Exhibit A and wondered why the Courts lent credence to the fact that the PW1 did not admit certain facts which appear on Exhibit A. He argued that oral evidence of the contents of Exhibit A is barred by S.76 of the Evidence Act which provides that:

“All facts except the contents of documents may be proved by oral evidence.”

He referred to sections 199 and 209 of the Evidence Act and argued that the answers given by PWL under cross-examination had nothing to do with the accuracy of the information in Exhibit 1 on which the parties were in agreement. He referred to the evidence of PW1 and said it did not vary with the contents of Exhibit A. He said both Courts below misconceived the state of pleadings with reference to the evidence of PW1.

He relied on Akpan v. Otong (1995) 10 NWLR (Pt. 476) 108 at 128 for the decision that where a plan has been admitted in evidence the Court can consider it without requiring the surveyor to testify. He relied on S. 76 of the Evidence Act. He argued that contrary to Udeze v. Chidebe (1990) 1 NWLR (Pt.125) 140 at 160 Exhibit A was not found deficient in any respect.

He referred to Ezenkwo v. Ukachukwu (2004) 17 NWLR (Pt.092) 227 at 249 and contended that once plans were tendered by consent the identity of the land in dispute is no longer in issue. He relied on Jolayemi v. Alaoye (2004) All FWLR (Pt. 217) p.584; Maigagge v. Gwamna (2004) All FWLR (Pt.222) p.1617, the pleadings and evidence adduced and exhibits tendered and urged the Court to hold that the concurrent findings of the two Courts below were wrong.

In issue 2, he referred to the reasoning of the Court below at page 422 of the record on the failure of the appellants to call boundary neighbours and the invocation of S.149 (d) of the Evidence Act and argued that the presumption in S.149 (d) of the Evidence Act does not relate to failure to call a witness. He relied on Ogbodu v. State (1987) 3 SC 497; Awosike v. Sotumbo (1986) 3 NWLR (Pt.30) p.471; Akintola v. Anyiam (1961) All NLR 508 and others to show that S.149 (d) does not apply to failure to call a particular witness.

In reliance on Tewogbade v. Akande (1968) NMLR 404 he contended that S.149 (d) of the Evidence Act cannot be invoked against the appellants as there is no evidence that the appellants withheld the evidence of boundary neighbours. He referred to the evidence of PW2 who said that his town of Azuzuama had no boundary with the land in dispute and argued it was wrong for the Courts below to regard his evidence as that of a boundary neighbour.

According to learned Counsel, the parties agreed that Olugbobiri community had a boundary with the east of the land in dispute and since the issue was settled, the evidence of PW2 and DW3 added nothing to the respondents’ case just as the evidence of PW5 did not impugn the appellants’ case. In contrast to the DW3, Counsel said that PW3 was a teacher in Koluama between 1941 and 1942 and knew Opuadino land visited same and participated in transaction thereon and he was an independent witness.

In issue 3, learned Counsel referred to page 300 lines 1 – 8 of the record for the finding of the trial court that Exhibit B which contained the previous testimony of Madam Zibidinibirighe before another Court was irrelevant. He said that even though the respondents who produced the document did not appeal by way of cross-appeal, the Court below suo motu reversed the trial court and relied on Exhibit B in its judgment.

He referred to Ebba v. Osodo (1984) 1 SCNLR 372 at 374 in his submission that the Court below decided issue not before it. He argued that the decision of the Court below which relied heavily on Exhibit B cannot stand, as it caused a miscarriage of justice. He relied on Mora v. Nwalusi (1962) 1 All NLR 681 at 687.

In issue 4 learned Counsel drew attention to page 427 lines 24 – 28 of the record where the Court below agreed with the trial Court that:

“The acts of ownership and possession as claimed by the plaintiffs is therefore unreliable, contradictory and not capable of inducing relief.”

He referred to distinct acts of ownership and possession pleaded in paragraphs 5, 7 and 9 of the statement of claim as amended to which he said the respondents responded in their paragraphs 6, 7 and 8 of the statement of defence. He relied on Adimora v. Ajufo in his argument that the respondents did not join issues with the appellants on the facts raised in the amended statement of claim. He relied on Alade v. Ekwelendu (1989) 4 NWLR (Pt. 115) p.326 at 359-361; Ogwuma v. Ibwa (1988) 1 NWLR (Pt.73) 658 at 674 – 678; A.G. Anambra State v. Onuselosu (1987) 4 NWLR (Pt.66) p.547 at 561 and submitted that in the absence of denial of the facts raised in the amended statement of claim the facts are deemed established on the pleadings and no further evidence is necessary.

With reference to the finding of the trial court at page 314 of the record learned Counsel said it was never the case of the appellant that the market was established in 1921 but 1922 and the Court below affirmed the finding on the contradiction in dates. He said there was no contradiction in the evidence of PW1 and PW2 on who established the two markets at Ikebori Creek.

The evidence of the witnesses, according to the learned Counsel was in line with the pleadings. On the finding by the trial court on the evidence of PW2, Counsel said that the witness, contrary to the finding of the trial court, never asserted that Inda and Akpele found the first market, he only said he believed that the first settlers might have established the first market and the evidence was in no way contradictory within the meaning of contradiction in Blacks Law Dictionary 6th Edition page 326 nor is it the law that once there is a contradiction on a point the evidence led must be rejected. He relied on Makinde v. Akinwale (2000) 2 NWLR (Pt.645) 435 at 450.

He referred to page 314 lines 32 – 32 of the record and said that the adverse finding of the trial court on the acts of ownership was made before the trial court proceeded to consider the other acts of ownership relied upon by the appellants. This, he argued, is clearly prejudicial and the conclusion of the trial court affirmed by the Court below was a foregone conclusion arrived at even before the appellants’ evidence was appraised.

Learned Counsel referred to page 427 lines 9 – 16 of the record and said that the PW1 and PW2 only differed on whether the old market was in use or not which is not a material contradiction in the evidence of PW1 and PW2 on the ownership of the land as found by the Court below. He referred to the evidence of DW2, DW3 and DW4 and argued that the court below was in error in holding that the appellants should have called somebody who was with the company of Mr. Bicycle when he visited in 1928.

He said that the unchallenged evidence of the appellants should have been acted upon by the Court. Learned Counsel reviewed the evidence before the trial court and concluded that on a proper appraisal of the facts and evaluation of the evidence led, the finding that the acts of ownership and possession claimed by the appellants were unreliable, contradictory and not capable of inducing belief is perverse and should be set aside. He added that the appellants’ case was clearly superior to that of the respondents on the question of acts of ownership and possession.

Issue 5 relates to the part of appellants’ brief on a point not raised and canvassed in the Court below for which the appellants were granted leave to argue. The issue is whether the lower Court was not in error in dismissing the claim for title to the entire land when the respondents in their pleading and evidence conceded that that part of the land in dispute belonged to the appellants. Counsel referred to Exhibit A in which the appellants verged the area in dispute Green and Exhibit C in which the respondents verged an identical area Pink but referred to the area which they verged Yellow as the land of Olugbobiri claimed by the appellants.

He said that the area verged Yellow in Exhibit C is within the area verged Green in Exhibit A. Learned Counsel referred to PW2, a native of Olugbobiri and argued that part of the land verged Yellow was not Olugbobiri’s land as claimed by the respondents. He specifically referred to page 182 lines 16 – 18 of the record for the evidence that Olugbobiri had no boundary with the land in dispute. He conceded that a plaintiff ought to succeed on the strength of his own case but said that a plaintiff can benefit from evidence given by the defence which is favourable to his own case.

He relied on Akinola v. Oluwo (1962) All NLR p.224; Madubu-Onwu v. Nnewe (1999) 1 NWLR (Pt.628) p.673. With reliance on Adebiyi v. Williams (1989) 1 NWLR (Pt.99) p.614 Counsel argued that appellants’ claim to the entire area in dispute will not prevent the Court from giving judgment for the appellants in respect of any portion they are entitled to on the evidence. He referred to the evidence of DW1 at page 131 lines 5 – 8 of the record to the effect that: “… the southern part of the land in dispute was given to the ancestors of the plaintiffs by our own ancestors”, a piece of evidence which he said is adverse to the case of the respondents that they own the entire land in dispute.

Relying on Ocean State Ltd v. Morman Pinder (1969) 2 AC at 24 – 25 and Arase v. Arase (1981) 5 SC p.33 at 35 Counsel argued that appellants are entitled to the judgment in respect of the area verged Yellow in Exhibit C over which the respondents made no similar claim of ownership. Learned Counsel urged us to allow the appeal and set aside the judgments of the two Courts below.

In dealing with issue 1 in his brief learned Counsel for the respondents faulted the appellants’ argument that the identity of the land in dispute was not in issue and so needed no proof. He referred to the pleadings and submitted that the parties joined issues on the identity of the land in dispute. He said that whereas the appellants claimed the land in dispute is in Koluama and tendered Plan No. OK 324 of 9th June 1975 admitted as Exhibit A, the respondents tendered Plan No.UR/392/74 LD (Exhibit C) and described the boundaries of the land in dispute and identified their boundary neighbours.

He referred to the evidence adduced by the parties at the trial and argued that the fact that appellants’ Plan Exhibit A was admitted without objection does not entitle it to probative value it did not otherwise possess, especially when the Plan is bereft of features which can identify the boundaries of the land in dispute. He referred to Udeze v. Chidebe (1990) 1 NWLR (Pt.125) p.141 at 160. He argued that oral evidence must be adduced to prove the features on a Survey Plan. He referred to Odofin v. Ayoola (1984) 11 SC page 72 at 118.

Learned Counsel relied on the case of Omoregie v. Idungiewanye (1985) 2 NWLR (Pt.5) p.41 where this Court laid down five acceptable means of proof of title to land. He urged the Court to uphold the findings and conclusion of the lower Court and reject the appellants’ contention.

In issue 2 he referred to pages 301 – 303, 307 and 318 of the record and pointed out that the trial court preferred the evidence of the respondents to the evidence of the appellants on the boundaries of the land in dispute upon which the parties joined issues. On the failure by the appellants to call witnesses from Olugbobiri community, their alleged boundary neighbours, he invoked S.149 (d) of the Evidence Act. He referred to the evidence of PW1 and argued that in view of the conflicts therein the Court could not rely on it to determine the boundary of the land in dispute. He urged the Court to resolve the issue in favour of the respondents.

In issue 3 on the conclusion of the trial court that the appellants failed to discharge the burden of proof cast upon them by law, learned counsel submitted that the appellants gave conflicting and unclear evidence of ownership of the land surrounding the land in dispute. He referred to the case of Onwuka v. Ediala (1989) 1 NWLR (Pt.96) p.182 at 186 and contended that the accepted methods of proving customary ownership of land as in this case is traditional history of ownership made up of:

(a) evidence conclusive of acts of occupation and use of the land without challenges or disturbance from any claimant, or

(b) proof of exclusive possession.

He argued that since the respondents did not counter-claim, they had nothing to prove and were only to defend the appellants’ claim. He contended that before a declaration of title can be granted there must be credible evidence describing and identifying the land in dispute. Learned Counsel contended that the appellants did not prove title to the land in dispute nor did they prove possession or any interest they can enforce at law in relation to the disputed land.

Counsel argued that the concurrent findings of the two Courts below were not perverse and ought not to be disturbed. He urged the Court to dismiss the appeal.

Appellants presented five issues and the respondents presented three issues for determination.

I have considered the substance of the issues on each side and I have come to the conclusion that the respondents’ three issues are subsumed in the appellants’ five issues. I will determine the appeal on the appellants’ issues.

Issue 1 is on the identity of the land in dispute. Appellants query the decision of the trial court, affirmed by the lower court, that they failed to establish the identity of the land in dispute. Appellants’ case is that the respondents’ failure to amend their statement of defence in reaction to their amended statement of claim meant that the respondents did not join issues on the facts pleaded in the amended statement of claim.

While the position of the appellants may be well taken, depending on what was pleaded in the amended statement of claim vis-a-vis the statement of defence, it must be borne in mind that the claim is for declaration of title to land as the principal relief. It is not granted on the admission or implied admission of the defendant.

It is an equitable relief granted or denied subject to the discretion of the Court. It is granted only in the circumstances in which the Court is of the opinion that the party seeking it is fully entitled to an exercise of the Court’s discretion in his favour. See Egbunike v. Muolokwu (1962) 1 All NLR 45; Odofin v. Ayoola v. Edozien (1998) 13 NWLR (pt.580) 133 at 147-148; Ikebife Ibenekweka v. Peter Egbuna (1964) 1 NLR 219.

The trial Court made exhaustive review of the pleadings and evidence on the identity of the land in dispute and made the following findings of fact in relation thereto:

“Based therefore on the plaintiffs’ pleadings and evidence as adduced by their witnesses, it is quite clear that the plaintiffs did not show clearly the area of land to which their claim relates. Furthermore, having pleaded that Olugbobiri people are their boundary neighbour, they ought to have called a witness or witnesses from Olugbobiri to come and testify on their behalf, but this they failed to do. That failure amounts to a weakness in their case and the invocation of section 149 (d) of the Evidence Act against them. On the other hand, DW1 gave evidence about the boundaries of both Opuadino and Ikebiri land. The defendants’ evidence as testified to by DW1 closely followed their pleadings and Exhibit C their Plan.”

(See page 302 of the record lines 16 – 29).

Above are findings of facts made by the trial court and endorsed by the Court below, resulting in a concurrent finding of facts by the two Courts below. I read the record and I am of the view that the findings are based on evidence before the trial Court. This Court has no reason to disturb the findings. See Njoku & Ors. v. Eme & ors (1973) 5 SC 293 at 306; Kale v. Coker (1982) SC 252 at 271.

Without a showing by the appellants that the findings are perverse or that there is substantial error either in substantive or procedural law which if not corrected will lead to miscarriage of justice, this Court cannot intervene. See Lokoyi & Anor. v. Olojo (1983) 8 SC 61 at 68; Bankole v. Pelu (1991) 8 NWLR (Pt. 154) 711; Dibiamaka v. Osakwu (1989) 3 NWLR (Pt.107) 101.

It is an established principle in a claim for declaration of title, that though the plaintiff may rely on evidence of the defendant which supports his case, he, the plaintiff must succeed on the strength of his own case and will not rely on the weakness of the defence. See Kodilinye v. Odu 2 WACA 336 at 337 – 338; Abey v. Alex (1991) 73 LRCN 3471 at 3493.

I agree with the two Courts below that on the pleadings and evidence, the appellants failed to establish the identity of the land to which their claim relates with certainty and precision. See Barinwa v. Ogunshola (1938) 4 WACA 159. I resolve issue l against the appellants and in favour of the respondents.

Issue 2 is on the failure of the appellants to call boundary neighbours and the invocation of Section 149 (d) of the Evidence Act. I agree with learned Counsel for the appellants that Section 149 (d) of the Evidence Act relates to failure to produce evidence and not failure to call a witness. However, this is a play on words. What the appellants failed to produce is evidence of boundary neighbours and that evidence can only come from their boundary neighbours.

Since it is only the boundary neighbours that could have given the evidence of boundary with the appellants; the failure to call the boundary neighbours amounts to failure to call evidence of boundary neighbours. No other person can give the said evidence but the boundary neighbours and in the circumstances the difference between failure to call boundary neighbours and failure to produce evidence of boundary neighbours is of no moment.

In my view Section 149 (d) of the Evidence Act was properly invoked against the appellants. I resolve the issue against the appellants and in favour of the respondents.

In issue 3, the learned trial judge made a definite finding of fact on Exhibit B. The learned trial judge held, inter alia:

“In this case the contents of Exhibit B do not have any probative value…”

The lower court disagreed and held that:

“The learned trial Judge held that the contents of Exhibit B had no probative value. I do not agree with him…”

See page 423 of the record.

There was no appeal against the finding of the trial Court on Exhibit B and so Exhibit B was not an issue before the lower Court. Generally, an appellate court will rely on issues for determination though the appeal Court will not always be bound to do so. See Kotoye v. Saraki (1994) 7 NWLR (Pt.357) 414 at 456.

In so far as no new issues are introduced, the appellate Court can in appropriate circumstances identify the appropriate issues in the appeal. See Ifabiyi v. Adeniyi (2000) 78 LRCN 1402 at 1418; Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523.

It does appear that the Court below went beyond the call of duty to set aside a finding of fact of the trial court against which the appellant did not complain. Though I resolve the issue in favour of the appellant it is a pyrrhic victory as Exhibit B was not the basis of the judgment of the Court of Appeal and therefore did not cause a miscarriage of justice. The judgment of the court below could not have been different without Exhibit B.

On issue 4 on exclusive possession, a part for the evidence of ownership and possession which the trial court found unreliable, contradictory and not capable of inducing belief there is the issue of identity of the land in dispute. The trial court and also the Court of Appeal held that the identity of the land in dispute was not established.

I agree with the two courts below and resolve the issue against the appellant. On the pleadings and evidence adduced, appellants are not entitled to a declaration of title to the whole of the land in dispute or part thereof.

Trespass to land is an unjustified interference or intrusion with exclusive possession of land. See Ogumbiji v. Adewunmi (1998) 5 NWLR (Pt.93) 315; Onagoruwa v. Adeniyi (1993) 5 NWLR (pt. 293) 350. If the defendant placed a part of his foot on the plaintiffs land unlawfully, it is in law as much a trespass as if he had walked half a mile on it. See Ellis v. Loftus Iron Co. (1724) LR 10 Cp. 10 at 12 per Coleridge C.J.

However, in order to succeed in a claim for trespass and injunction the identity of the land and its boundaries must be established. In order to succeed in an action for trespass the plaintiff must be in exclusive occupation of the land. See Amakor v. Obiefuna (1974) 1 All NLR (Pt.1) 49. The land and its boundaries must be clearly established. Appellants failed so to do. The issue is resolved against the appellants.

In issue 5 on the trial Court’s dismissal of the entire claim, the law is that the plaintiff cannot be granted a declaration of title if he fails to prove the identity of the land with certainty and precision. See Okwuka v. Ediale (1989) 1 NWLR (pt.96) 182; Babatola v. Aladejana (2001) 88 LRCN 2293 at 2302 at 2303. The same principle applies to the entire land in dispute or part thereof. The plaintiff has to succeed on the strength of his case and not on the weakness of the defence’s case.

The trial Court found that the appellant failed to prove his case and did not deserve the exercise of the court’s discretion in his favour. I have no reason to disturb the finding of the trial court as affirmed by the lower Court in respect of the entire area of land in dispute. The issue is resolved against the appellant.

In conclusion, issues 1, 2, 4 and 5 are resolved against the appellants in favour of the respondents. Issue 3 is resolved in favour of the appellants against the respondents. However, with or without Exhibit B the judgment of the trial Court affirmed by the Court below would have been the same. The reliance on Exhibit B by the Court below did not cause a miscarriage of justice.

In the circumstances I hold that the appeal be, and is hereby dismissed as devoid of merit. Appellants are to pay costs assessed and fixed at N100,000.00 to the respondents.

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PC.188/2004